EXHIBIT 10.53
PURCHASE AND SALE AGREEMENT
among
HAMPDEN NURSING HOMES, INC.,
Seller
and
G&L HAMPDEN, LLC
HAMPDEN HOLDING GROUP, INC.
Purchasers
Dated as of October 1, 1997
TABLE OF CONTENTS
Page
1. Purchase and Sale.................................................. 1
2. Purchase Price..................................................... 3
3. Permitted Exceptions and Quality of Title.......................... 3
4. Closing Dates; Expenses............................................ 3
5. Apportionments..................................................... 4
6. Title Insurance.................................................... 4
7. Survey............................................................. 5
8. Due Diligence and Closing Documents................................ 5
9. Representations and Warranties..................................... 8
10. Covenants.......................................................... 12
11. Broker............................................................. 13
12. Condemnation and Destruction....................................... 13
13. Default and Remedies............................................... 14
14. Indemnification.................................................... 14
15. No Personal Liability.............................................. 14
16. Notices............................................................ 15
17. Entire Agreement................................................... 16
18. Amendments......................................................... 16
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19. Waiver............................................................. 16
20. Assignment......................................................... 16
21. Attorneys' Fees.................................................... 16
22. Paragraph Headings................................................. 17
23. Governing Law...................................................... 17
24. Counterparts....................................................... 17
Exhibits
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A. Description of the Land
B. Permitted Exceptions
C. Form of Deed
D. ▇▇▇▇ of Sale and General Assignment
E. Form of Lease
F. Amendment to Management Agreement
PURCHASE AND SALE AGREEMENT (this "Agreement"), made as of October 1, 1997,
between HAMPDEN NURSING HOMES, INC., a Massachusetts corporation ("Seller"),
having an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, G&L
HAMPDEN, LLC, a Delaware limited liability company ("G&L"), having an office at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and HAMPDEN HOLDING
GROUP, INC., a Massachusetts corporation ("HHG"; G&L and HHG are collectively
called "Purchasers").
PRELIMINARY STATEMENT
Seller owns three parcels of land in Hampden County, Massachusetts, as
follows: (i) ▇▇▇▇ ▇▇▇▇ Nursing Home, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, improved with a
100 bed nursing home, (ii) Riverdale Gardens Rehabilitation and Nursing Center,
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, improved with a 168 bed nursing home, and
(iii) Chestnut Hill Rehabilitation and Nursing Center, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, improved with a 123 bed nursing home (collectively, the
"Properties"). Seller will sell and Purchasers will acquire Seller's interest
in the Properties on the terms and subject to the conditions set forth herein.
1. Purchase and Sale; Lease. In consideration of the mutual covenants
and agreements hereinafter set forth, and subject to the satisfaction of all
conditions specified in this Agreement, Seller agrees to sell and convey to G&L
on the First Closing Date hereinafter described, and G&L agrees to purchase from
Seller, all of Seller's right, title and interest in and to:
A. The parcels of land described in Exhibit A annexed hereto and
made a part hereof (the "Land"), together with (i) all easements, rights of way,
privileges, appurtenances and other rights pertaining thereto; (ii) all
buildings, improvements and fixtures now or hereafter located thereon
(collectively, the "Improvements"); (iii) all right, title and interest, if any,
of Seller in and to any land lying in the bed of any street, road or avenue
opened or proposed, public or private, in front of or adjoining the Land, to the
centerline thereof, and all right, title and interest of Seller in and to any
award made or to be made in lieu thereof and in and to any unpaid award for
damage to the Land or the Improvements by reason of change of grade of any
street (the Land, the Improvements and the other rights, improvements and
property heretofore mentioned appurtenant thereto being hereinafter referred to
as the "Real Property").
B. All personal property located on the Real Property, including
without limitation, beds, chairs, tables, storage closets, medical supplies and
equipment, inventories of household goods such as paper towels and cleaning
agents, towels and linens, draperies, rugs and other floor coverings,
refrigerators, cooking utensils, stoves, plates, glass, silverware, computers
and communication equipment (collectively, the "Personal Property"). Personal
Property does not include inventory (such as food, supplies, medicines, and
disposable equipment), any interest in the $385,000 reserve for potential
Medicare/Medicaid charge-backs, deposits and advance payments relating to
services to be provided to residents of the Improvements, trademarks,
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tradenames, books and records relating to Seller's business conduct at the Real
Property (including but not limited to, ledgers, computer programs, licenses
relating to the conduct of such business, data bases and printouts, records and
lists of sources of supply), patient contracts and related records, medical
books and records required for the operation of a nursing home, accounts
receivable or retroactive payments due with respect to periods prior to the
Closing, and amounts on deposit in any and all accounts maintained by or on
behalf of Seller in connection with the operation of the Seller's business
conducted at the Real Property.
C. All assignable permits, licenses, approvals, guaranties,
warranties, lease agreements, utility contracts or other rights relating to the
ownership, use or operation of the Real Property (but not relating to the
conduct of any particularly business therein) and all cash reserve accounts,
including without limitation reserves for principal and interest on debt,
maintenance and tax reserves, and operating reserves (the "Intangibles").
The Real Property, the Personal Property and the Intangibles are
hereinafter collectively referred to as the "Property".
G&L will lease the Real Property and Personal Property to Seller and Seller
will lease the Real Property and Personal Property from G&L under the terms of a
lease (the "Lease") substantially in the form of Exhibit E hereto.
In consideration of the mutual covenants and agreements hereinafter set
forth, and subject to the satisfaction of all conditions specified in this
Agreement, Seller agrees to sell and convey to HHG at a future date as herein
provided ("Second Closing"), and HHG agrees to purchase from Seller, all of
Seller's right, title and interest in and to all inventory (such as food,
supplies, medicines, and disposable equipment), deposits and advance payments
relating to services to be provided to residents of the Improvements,
trademarks, tradenames, books and records relating to the Seller's business
conducted at the Real Property (including but not limited to, ledgers, computer
programs, licenses relating to the conduct of such business, data bases and
printouts, records and lists of sources of supply), patient contracts and
related records and accounts, medical books and records required for the
operation of a nursing home, accounts receivable or retroactive payments due
with respect to periods prior to the Closing, all rights of Seller under the
Amended and Restated Loan and Security Agreement between Seller and HCFP
Funding, Inc., subject to the rights of HCPF Funding, Inc., the $385,000 reserve
for potential Medicare/Medicaid charge-backs, and all amounts on deposit in any
and all accounts maintained by or on behalf of Seller in connection with the
operation of the Seller's business conducted at the Real Property (collectively,
the "Business Assets"). The Business Assets shall not include any of the
Personal Property.
Liabilities of Seller shall be allocated as follows, effective as of the
First Closing Date: (a) liabilities created by or actually known (without
independent investigation) to officers, directors
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and consultants of Seller (including without limitation ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇) and not relating to the operation of the Real
Properties as nursing homes shall all remain with Seller; (b) liabilities
arising out of the conduct of a business at the Real Property incurred prior to
the First Closing Date are to be assumed by HHG pursuant to a separate
assumption of liabilities which shall provide HHG with the benefits of certain
insurance of Seller; and (c) liabilities arising out of the conduct of a
business at the Real Property incurred after the First Closing Date (other than
liabilities arising out of executory contracts relating to the provision of
services after the Closing, all of which shall be assumed by HHG) shall be
indemnified against, as between G&L and Seller, by G&L, and ultimately assumed
by HHG; HHG's payment and performance of its assumed obligation of Seller will
be unconditionally guaranteed by Iatros Health Network, Inc. pursuant to a
separate guarantee agreement.
2. Purchase Price. The purchase price for the Properties (the "Purchase
Price") is $20,042,000 payable at the Closing hereinafter referred to. It is the
intention of the parties that the foregoing Purchase Price (consisting of G&L's
cash, bond reserves and credits will result in Seller having $250,000 in cash
remaining after redemption of bonds as contemplated in paragraph 6.C. In
addition, G&L shall pay to or upon the written direction of Seller, the sum of
$10,000 per month for three months, payable October 31, 1997, November 28, 1997
and December 31, 1997.
3. Permitted Exceptions and Quality of Title.
A. The Real Property shall be sold, and title thereto is to be
conveyed, subject only to those matters listed on Exhibit B (collectively, the
"Permitted Exceptions").
B. Title to the Real Property shall be insurable, subject to
Permitted Exceptions, by Chicago Title Insurance Company (the "Title Company")
at its regular rates, all as more fully described in Paragraph 6 hereof.
C. The Personal Property shall be transferred to G&L.
D. Title to the Intangibles shall be transferred to G&L.
4. Closing Dates; Expenses.
A. The closing for the purchase and sale of the Property (the "First
Closing ") shall take place at 9:00 A.M. at the offices of Day, ▇▇▇▇▇ & ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ or at such other location as may be
mutually agreed in writing, on October 23, 1997 or on such other date as may be
mutually agreed upon in writing by Seller and Purchaser (the "Closing Date"),
but in no event later than October 31, 1997.
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B. The Purchase Price shall be paid on the First Closing Date by
wire transfer of immediately available federal funds through an escrow with the
Title Company.
C. TIME SHALL BE OF THE ESSENCE AS TO EACH PARTY'S OBLIGATIONS
HEREUNDER.
D. Certain costs and expenses of the transactions contemplated
hereby shall be borne as follows whether or not the transactions contemplated by
this Agreement are completed:
(i) Seller shall bear the costs of its legal counsel.
(ii) G&L shall bear the costs of (a) the Engineering Report, the
Appraisal, the Phase I Report, the Survey, the Title Policy and its other due
diligence expenses, (b) recording fees, (c) its legal counsel, and (d) all other
customary closing expenses, including the Title Company's escrow fees.
All such expenses will be paid at or prior to the First Closing.
The closing for the purchase and sale of the Business Assets (the "Second
Closing") shall take place, if at all, at 9:00 A.M. at the offices of
Posternack, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ or
at such other location as may be mutually agreed in writing, on date as may be
mutually agreed upon in writing by Seller and Purchaser (the "Second Closing
Date"), but in no event later than January 31, 1998. The purchase price for the
Business Assets shall be $100, payable in cash at the Second Closing. If HHG
has not obtained all necessary regulatory approvals to operate the Real
Properties as nursing homes by January 31, 1998, HHG shall not be obligated
hereunder but the time for closing shall be extended to April 30, 1998 and the
purchaser of the Business Assets will be another entity which shall have become
the lessee of the Real Properties. If the Second Closing has not occurred by
April 30, 1998, G&L shall have a continuing option to purchase the Business
Assets for $100, which option shall be freely assignable by G&L.
5. Apportionments.
There shall be no apportionment of taxes, insurance or utilities.
6. Title Insurance.
A. G&L shall obtain a current title insurance commitment for the
Real Property (the "Title Commitment") together with legible copies of each
document shown therein as an exception. The Title Commitment shall contemplate
the issuance, at the Closing, of an owner's
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and mortgagee's title insurance policies, ALTA current Form, for the Real
Property in the amount of the Purchase Price (the "Title Policy"). During the
Due Diligence Period (as defined in clause (iii) of Paragraph 8A), G&L shall
determine whether the Title Commitment is acceptable. If, at or before the end
of the Due Diligence Period, G&L does not object in writing to Seller to the
Title Commitment, it will be deemed acceptable to G&L. If the Title Commitment
is acceptable or deemed acceptable to G&L, then the exclusions and exceptions
set forth therein, except for any that Seller is obligated to remove pursuant to
Paragraph 6C, shall be considered Permitted Exceptions for purposes of this
Agreement. If the Title Commitment is objected to in writing and such objection
is not removed at or prior to the expiration of the Due Diligence Period, G&L
may terminate this Agreement by notice to Seller prior to the end of the Due
Diligence Period, in which case no party shall have any further claim hereunder.
B. If the Title Commitment or any title report discloses
bankruptcies, tax liens or other adverse matters affecting persons having names
the same as or similar to that of Seller, Seller, on request, shall deliver to
G&L affidavits showing that such matters do not or will not affect Seller.
Seller also shall deliver customary affidavits, undertakings and documentary
evidence required by the Title Company to eliminate the standard printed
exceptions for parties in possession and mechanic's liens and, without material
expense or liability to Seller, the exclusion from coverage for creditors'
rights issues.
C. G&L agrees to cause GLN Capital Company and The Bank of New York,
as trustee, to deliver into escrow with the Title Company releases of mortgages
held by such entity with instructions to record the releases upon payment of
$22,421,081.26 in respect of the obligations secured by such mortgages.
7. Survey.
To the extent in Seller's possession, Seller shall cause to be furnished to
G&L and the Title Company as promptly as possible maps or plats of surveys (the
"Survey") for the Real Property.
8. Due Diligence and Closing Documents.
A. (i) G&L and its experts have had the right to visit the Real
Property from time to time and to inspect Seller's books and records relating to
the ownership and operation of the Real Property, all licenses, permits,
records, reports and the like relating to the operation of the Real Property.
G&L agrees to indemnify and hold Seller harmless from all loss, cost and damage
arising out of the actions of G&L and its experts during such visits, which
indemnity shall survive the Closing or the termination of this Agreement for a
period of one year. Seller acknowledges that at the date of deliver of this
Agreement, G&L has no liability under this paragraph.
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(ii) Without limiting the generality of G&L's rights to inspect and
evaluate the Real Property and Seller's books and records relating thereto, G&L
shall be entitled to obtain the following, the costs of which will be borne as
set forth in Paragraph 4D:
(a) A fee simple and leased fee appraisal of the Real Property (the
"Appraisal");
(b) A Phase I environmental site assessment report (the "Phase I
Report"); and
(c) A structural engineering report (the "Engineering Report")
covering the structural integrity of the Improvements, the condition of
installed systems, compliance with applicable codes, laws, ordinances,
rules and regulations, and such other matters as G&L may reasonably
specify.
(iii) G&L shall have a due diligence period (the "Due Diligence
Period") within which to satisfy itself with respect to the Appraisal, the Phase
I Report, the Engineering Report, the Survey, the Title Commitment, and may
terminate this Agreement by written notice to Seller at any time during such Due
Diligence Period on account of matters disclosed in those documents. It is
anticipated that Seller shall have delivered to G&L all documents and
information contemplated by this Agreement (except conveyancing documents and
the Title Policy) at the time of executing this Agreement. The Due Diligence
Period shall expire on the Closing Date. If G&L shall not have objected in
writing to any of such documents, information or matters concerning the Property
at or before the end of the Due Diligence Period, they shall be deemed approved
by G&L.
B. At or before the First Closing, Seller, at its sole cost and
expense, shall deliver to G&L the following with respect to the Property:
(i) (a) good and sufficient quitclaim deeds in the form attached
hereto as Exhibit C (the "Deed"), so as to convey to G&L insurable fee simple
absolute title to the Real Property, free and clear of all liens and
encumbrances other than Permitted Exceptions, which Deed shall be in recordable
form, duly executed and acknowledged; (b) a ▇▇▇▇ of sale and general assignment
substantially in the form of Exhibit D annexed hereto (the "▇▇▇▇ of Sale"), so
as to transfer to G&L title to the Personal Property and Intangibles, (c) three
counterparts of the Lease executed by Seller, (d) three counterparts of the
Amendment to Management Agreement executed by Seller, and (e) such documents in
form and substance reasonably satisfactory to G&L's counsel as shall be
necessary to transfer the Property;
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(ii) to the extent in the possession of Seller, all final inspection
reports issued by the appropriate governmental authorities, including permanent
certificates of occupancy, and copies of all building permits, for the
Improvements;
(iii) to the extent not theretofore delivered and in the possession
of Seller, all (a) original licenses and permits pertaining to the Property and
which may be required for the use or occupancy thereof (exclusive of licenses
and permits required for the conduct of a particular business on the Real
Property), and (b) for the period from January 1, 1994 to date, copies of
records and other documents pertaining to the operation and maintenance of
equipment or building components of the Property.
(iv) to the extent in the possession of Seller, all assignable
guaranties and warranties which Seller has received in connection with any work
or services performed, or to be performed, with respect to equipment or building
components installed in the Property;
(v) copies of all existing soils and hydrology reports,
environmental assessments, engineering or other inspection reports (other than
appraisals) relating to the Real Property and in Seller's possession;
(vi) an executed Affidavit of Non-Foreign Status, in form reasonably
acceptable to G&L, certifying that Seller is not a foreign person pursuant to
Section 1445 of the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder;
(vii) copies of all plans, specifications, engineering drawings and
the like for the Improvements in the possession of Seller;
(viii) an assignment and assumption of liabilities consistent with
paragraph 1 hereof, together with a release of G&L of all claims and liabilities
other than as expressly assumed by G&L in such assignment and assumption
agreement; and
(ix) such other documents as may be reasonably required to comply
with Seller's obligations under this Agreement.
C. At the First Closing, G&L and HHG shall deliver or cause to be
delivered to Seller the following, each document hereafter mentioned to be in
form and substance reasonably satisfactory to Seller's attorneys:
(i) the Purchase Price;
(ii) three counterparts of the Lease executed by G&L;
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(iii) an assignment and assumption of liabilities consistent with
paragraph 1 hereof, together with a release of Seller of all claims and
liabilities other than as expressly assumed by Seller in such assignment and
assumption agreement; together with Iatros' guaranty of HHG's assumption
obligations.
(iv) three counterparts of the Amendment to Management Agreement
executed by the manager thereunder; and
(v) such other documents as may be reasonably required to comply
with G&L's obligations under this Agreement.
D. At the Second Closing, HHG or G&L's designee, shall deliver to
Seller $100 in cash; and Seller shall deliver to HHG, or G&L's designee, shall
deliver to Seller bills of sale, assignments, and such other documents as may be
reasonably required to comply with Seller's obligations hereunder, all in form
and substance reasonably satisfactory to HHG, or G&L's designee.
9. Representations and Warranties.
A. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇, in the capacities as officers
of Seller (collectively, "Principals"), represent and warrant to Purchasers
that:
(i) To the actual knowledge of the Principals without
investigation, the Principals have not received any written notice of any
violation of any ordinance, regulation, law, statute, building code, zoning
ordinance or environmental laws pertaining to the Property or any portion
thereof or of any pending zoning change or special assessment pertaining to the
Property;
(ii) To the actual knowledge of the Principals without
investigation, the Principals have not received any written notice from any
insurance company of any defects or inadequacies in the Property or any part
thereof which would adversely affect the insurability of the Property or the
premiums for the insurance therefor;
(iii) To the actual knowledge of the Principals without
investigation, the Principals have not received any written notice that the
Property is listed or proposed for listing or threatened to be listed on the
National Priorities List by the Environmental Protection Agency or on any such
similar list in the Commonwealth of Massachusetts relating to abandoned or
uncontrolled hazardous waste sites, and there have been no discussions directly
between the Principals or to the Principal's actual knowledge without
investigation, Seller or its agents, and state or federal officials concerning
the possibility of such listings;
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(iv) To the actual knowledge of the Principals without
investigation, the Principals have not received any written notice that there
has been any unlawful contamination (including any disposal, discharge, deposit,
injection, dumping, leaking, spilling, placing or escape) of any hazardous
substance, pollutant or contaminant (as those items are defined under 42 U.S.C.
Section 9601) on, in, under or from the Property;
(v) To the actual knowledge of the Principals without
investigation, there is currently no action, suit or proceeding pending, nor
have the Principals received written notice of any threatened action, suit or
proceeding, which would result in a condemnation of the Property or any portion
thereof or which would affect the access to the Property or the utilities
presently serving the Property; and
(vi) To the actual knowledge of the Principals without
investigation, the Principals have not received any written notice of any
pending changes in zoning of the Property or any zoning actions affecting access
to the Property from dedicated roadways or of any citation for violation of any
building, fire, health, zoning or other governmental requirement which has not
been corrected by Seller.
B. Seller represents and warrants to Purchasers that:
(i) Seller is not a "foreign person" as defined in Section 1445 of
the Internal Revenue Code of 1986, as amended, and the regulations promulgated
thereunder;
(ii) Seller has not executed any lease with respect to any part of
the Property and/or any part of the Business Assets;
(iii) Seller has not granted any option or other right to purchase
any part of the Property and/or any part of the Business Assets to any person
which has not been terminated;
(iv) Seller (a) is a corporation duly organized and validly existing
under the laws of Massachusetts, and (b) has full power, authority and legal
right to execute and deliver this Agreement and to perform and observe the terms
and conditions of this Agreement;
(v) The execution of this Agreement by Seller and Seller's
observance and performance of all of its covenants and obligations hereunder do
not, to the knowledge of Seller, contravene any judgement, order or provision of
any law or any agreement binding upon Seller;
(vi) Each person signing this Agreement on behalf of Seller is duly
and validly authorized to do so;
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(vii) Title to Assets. Seller has, and will transfer to HHG on the
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Second Closing Date, good, clear, merchantable title to all of the Seller's
Business Assets;
(viii) Regulatory Filings. Attached hereto as Schedule 9(B)(viii) are
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copies of all of the reports and forms filed with the Massachusetts Division of
Health Care Finance and Policy (formerly the Rate Setting Commission) by the
Seller's Business or its predecessor(s) since December 31, 1993 and of all of
the inspection reports made by the Agency or any other federal, state or local
agency regarding the Seller's Business, Seller's Business Assets and the nursing
homes located on the Real Property since December 31, 1994, on Seller's behalf
by OHI Corporation d/b/a Oasis Healthcare ("Oasis"). All rate setting
commission forms and filings, all inspection reports, Personal Trust Accounts
(also called Patient's Personal Needs Accounts) and other similar reports
attached hereto and/or provided to HHG are true, accurate and complete, with the
exception of those prepared on Seller's behalf by Oasis as to which Seller makes
no representation or warranty;
(ix) No Conflict. The execution and delivery of this Agreement and
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the performance of the transactions contemplated hereby does not, and will not,
constitute a violation of, and is not, and will not be, a default under or
conflict with the terms of (i) the charter documents or by-laws of Seller, or
(ii) any contract, lease, indenture, agreement, order, judgment or decree to
which Seller is a party or by which it is bound or to which any of the Seller's
Business Assets being transferred hereunder are subject, and does not, and will
not, violate or constitute a default under any statute, rule, regulation, order,
or ordinance of any governmental, judicial or arbitral body; and
(x) Disclosure. No representations or warranties by Seller in this
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Agreement, nor any written statement or certificate furnished or to be furnished
by Seller pursuant to this Agreement, or in connection with the transactions
contemplated hereby, contains or shall contain any untrue statement of material
fact or omits or fails to state a statement of material fact, which omission or
failure makes such statement or certificate misleading or untrue.
C. Except as otherwise provided above, all of the representations
and warranties of Seller set forth herein and elsewhere in this Agreement shall
be true upon the execution of this Agreement, shall be deemed to be repeated at
and as of each Closing Date and shall expire 90 days after each Closing Date
insofar as they pertain to Property and/or Business Assets sold, transferred,
and conveyed at such Closing. Notwithstanding the foregoing, if any Purchaser
has actual knowledge of the inaccuracy of any of Seller's representations and
warranties and such Purchaser nonetheless proceeds with any Closing hereunder,
then Seller shall not be liable for such inaccuracies after the Closing.
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D. Without limiting any of the rights of G&L elsewhere provided
for in this Agreement, it is agreed that the obligation of G&L to close title
under this Agreement is conditioned upon the accuracy in all material respects
at that time of all of Seller's warranties and representations and the due
compliance in all material respects by Seller with all of its obligations under
this Agreement. If, on or before the Closing Date, any of Seller's
representations or warranties are untrue in any material respect or Seller has
not complied in any material respect with any of its obligations under this
Agreement, then Purchaser shall notify Seller of such fact and Seller may
postpone the Closing (not beyond October 31, 1997) to provide time, if Seller
chooses, to cure the defect. If the defect is incurable or not cured by October
31, 1997, G&L may elect to terminate this Agreement by notice given to Seller,
and thereafter neither party shall have any liability to the other party
hereunder.
E. G&L represents and warrants to Seller that:
(i) G&L (a) is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware, (b) has
full power to engage in the transactions contemplated hereby, and (c) has full
power, authority and legal right to execute and deliver this Agreement and to
perform and observe the terms and conditions of this Agreement and other
documents delivered by it to Seller at the Closing and to consummate the
transaction contemplated hereby; and
(ii) Each person signing this Agreement on behalf of G&L is duly and
validly authorized to do so.
F. All of the representations and warranties of G&L set forth
herein shall be true upon the execution of this Agreement and shall be deemed to
be repeated at and as of the Closing Date and shall expire 90 days after the
Closing Date.
G. Without limiting any of the rights of Seller elsewhere provided
for in this Agreement, it is agreed that the obligation of Seller to close title
under this Agreement is conditioned upon the accuracy in all material respects
at the time of all of G&L's warranties and representations and the due
compliance by Purchaser with all of its obligations under this Agreement.
H. HHG's Warranties and Representations. HHG represents and
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warrants and agrees with Seller as follows:
(a) Organization and Existence. HHG has all requisite power to
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conduct its business and perform the transactions contemplated hereby,
and is, and
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on the Closing Date will be, a corporation duly organized, validly
existing and in good standing under the laws of the Commonwealth of
Massachusetts.
(b) Authorization. This Agreement and the transactions
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contemplated hereby by HHG have been or will be duly and validly
authorized and approved by all persons whose authority and approval
are required.
(c) No Conflict. The execution and delivery of this Agreement
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and the performance of the transactions contemplated hereby do not,
and will not, constitute a violation of, and are not, and will not be,
a default under or conflict with the terms of any applicable
organizational documents of HHG, or any contract, lease, indenture,
agreement, order, judgment or decree to which HHG is a party or by
which they are bound and do not, and will not, to the best of HHG's
knowledge, violate or constitute a default under any statute, rule,
regulation, order or ordinance of any governmental, judicial or
arbitral body.
(d) Disclosure. No representations or warranties by HHG in this
----------
Agreement, nor any written statement or certificate furnished, or to
be furnished by HHG pursuant to this Agreement, or in connection with
the transactions contemplated hereby, contains or shall contain any
untrue statement of material fact or omits or fails to state a
statement of material fact, which omission or failure makes such
statement or certificate misleading or untrue.
I. Property and the Business Assets shall be conveyed and accepted
"AS IS." "AS IS" means, without limitation: AS IS physical condition (both as
to property defects seen and unseen and conditions natural or artificial), AS IS
with respect to all documents, agreements, restrictions, leases and covenants to
which the Property is subject which have been disclosed by Seller to G&L or
disclosed on the Title Commitments and AS IS with respect to all laws,
ordinances, rules and regulations to which the Property is subject under any
applicable government or regulatory jurisdiction. Notwithstanding anything
herein to the contrary, nothing in this Agreement shall diminish G&L's right to
rely upon Seller's representations and warranties contained in this Agreement,
nor Purchaser's remedies for a breach thereof.
10. Covenants. Seller covenants that:
(i) Between the date hereof and the Closing Date, Seller will not
modify, cancel, extend or otherwise change in any manner any of the terms,
covenants or conditions of any agreements affecting the Property or enter into
any leases of space in the Real Property or any other agreements binding upon
G&L and affecting the Property, without the prior written consent of G&L, which
consent shall not be unreasonably withheld or delayed;
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(ii) Between the date hereof and the Closing Date, Seller will not
enter into any service contract or any other agreement in respect of the
Property other than routine utility agreements, without the prior written
consent of G&L, which consent shall not be unreasonably withheld or delayed,
unless such contract or agreement does not bind Purchaser or run with the Land;
(iii) Between the date hereof and the Closing Date, Seller will not
cancel or reduce the amount or type of coverage of the insurance policies on the
Real Property (unless replaced by an insurance policy provided by an insurance
company reasonably satisfactory to G&L); and
(iv) After the Closing Date, Seller shall cooperate with G&L in
supplying information and documents as required by Nomura Asset Capital
Corporation in connection with a loan secured in part by the Property.
11. Broker. Purchaser and Seller represent and warrant to each other that
they have had no dealings with respect to this transaction with any broker, firm
or salesman, or any other person or corporation.
12. Condemnation and Destruction.
A. In the event any portion of the Improvements should be damaged
or destroyed by fire or other insured casualty estimated to cost less than
$100,000 to repair, the Closing will proceed as scheduled without adjustment to
Purchase Price, and Seller shall make timely claims under all applicable
insurance policies, assign such claims to Purchaser and cooperate with
reasonable requests in obtaining payment of such claims. In the event all or any
portion of the Improvements should be damaged or destroyed by fire or other
casualty estimated in the case of insured risks to cost $100,000 or more to
repair or in the case of uninsured risk estimated to cost $5,000 or more to
repair, in either case prior to the Closing Date, G&L may, at G&L's sole option,
elect to either:
(i) terminate this Agreement as to the affected parcel; or
(ii) close under this Agreement without reduction in the Purchase
Price and require Seller to assign to G&L at Closing all insurance proceeds
payable for such damage and pay to G&L the amount of any deductible under the
insurance policy.
B. In the event that any portion of the Real Property should be
condemned prior to the Closing, G&L may, at G&L's sole option, elect either to:
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(i) terminate this Agreement as to the affected parcel; or
(ii) close under this Agreement without reduction in the Purchase
Price and require Seller to assign to G&L at Closing all condemnation proceeds
payable as a result of such condemnation or sale in lieu thereof.
13. Default and Remedies.
A. Seller and Purchasers hereby agree that in the event of a
default under this Agreement by Seller, payment of damages will be inadequate to
compensate Purchasers for their losses. Seller and Purchasers further agree that
in the event of a default by Seller, specific performance of the terms of this
Agreement or termination (at the sole election of G&L) of this Agreement shall
be the only remedies available to Purchasers.
B. Seller and Purchasers hereby agree that in the event of a
default under this Agreement by either Purchaser, payment of damages will be
inadequate to compensate Seller for its losses. Seller and Purchasers further
agree that in the event of a default by either Purchaser, specific performance
of the terms of this Agreement as to the defaulting Purchaser or termination of
this Agreement shall be the only remedies available to Seller.
14. Indemnification.
A. Seller hereby agrees to defend, indemnify and hold Purchasers
harmless from and against all losses, damages, costs and expenses, including,
without limitation, reasonable legal fees and disbursements, incurred by either
Purchaser subsequent to the date of this Agreement and within 90 days after the
First Closing by reason of any claims made against either Purchaser or others
relating to the liabilities allocated to Seller under paragraph 1 hereof, but
excluding from this indemnity any losses, damages and expenses due to the
indemnitee's acts or wrongful failure to act. In no event shall Seller be liable
for indirect, consequential or punitive damages or for lost profits.
B. G&L hereby agrees to defend, indemnify and hold Seller harmless
from and against all losses, damages, costs and expenses, including, without
limitation, reasonable legal fees and disbursements, incurred by Seller
subsequent to the date of this Agreement and within 90 days after the Closing by
reason of any claims made against Seller or others relating to the Property and
arising from acts, occurrences or matters that took place or were claimed to
have taken place after the First Closing hereunder but excluding from this
indemnity any losses, damages and expenses due to Seller's acts or wrongful
failure to act. In no event shall G&L be liable for indirect, consequential or
punitive damages or for lost profits.
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15. No Personal Liability.
The parties agree that neither the partners, directors, officers,
trustees, beneficiaries, employees nor agents of either party have any personal
obligation hereunder, and that neither party shall seek to assert any claim or
enforce any rights hereunder against such partners, directors, officers,
trustees, beneficiaries, employees, or agents of the other party.
16. Notices.
All notices, demands, requests, approvals or consents made pursuant
to, under or by virtue of this Agreement must be in writing and mailed to the
party to which the notice, demand, request, approval or consent is being sent by
certified or registered mail, return receipt requested, or by overnight courier
delivery, addressed as follows, or at such other address as such party may
designate by notice to the other party;
To Seller: Hampden Nursing Homes, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
With a copy to: ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq.
To G&L: G&L Hampden, LLC
c/o G&L Realty Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Senior Vice President
With a copy to: Day, ▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
To HHG: Hampden Health Group, Inc.
c/o Iatros Health Network, Inc.
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▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to: Posternack, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Any notice, demand, request, approval or consent given in accordance
with the provisions of this Paragraph 16 shall be effective on the date of
receipt or delivery or when proper delivery is refused by the addressee.
17. Entire Agreement.
This Agreement contains all of the terms agreed upon between the
parties with respect to the subject matter hereof.
18. Amendments.
This Agreement may not be changed, modified or terminated, except by
an instrument executed by the parties hereto who are or will be affected by the
terms of such instrument.
19. Waiver.
No waiver by either party of any failure or refusal by the other party
to comply with its obligations shall be deemed a waiver of any other or
subsequent failure or refusal to so comply.
20. Assignment.
This Agreement shall benefit and bind Seller and G&L and their respective
successors and assigns. G&L shall have the right, without releasing G&L from
any of its obligations under this Agreement, by giving notice to Seller, at
least 1 day before the Closing Date, to assign this Agreement or to have Seller
convey, assign and transfer the Property in accordance with this Agreement, to
any person who is owned, directly or indirectly, in excess of 50% by Purchaser,
and is controlled, directly or indirectly, by Purchaser, provided that such
assignment will not relieve Purchaser of any of its liabilities or obligations
hereunder. G&L shall also have the right to cause the assignment of HHG's rights
hereunder to another person after January 31, 1998 in accordance with paragraph
4 hereof.
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21. Attorneys' Fees.
If any party commences an action against any other to enforce any of the
terms of this Agreement or because of the breach by any party of any of the
terms hereof, the losing or defaulting party shall pay to the prevailing party
its reasonable attorneys' fees, costs and expenses actually incurred in
connection with the prosecution or defense of such action.
22. Paragraph Headings.
The headings of the various paragraphs of this Agreement have been inserted
only for the purposes of convenience, and are not part of this Agreement and
shall not be deemed in any manner to modify, explain, expand or restrict any of
the provisions of this Agreement.
23. Governing Law.
This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts.
24. Counterparts.
This Agreement may be executed in one or more counterparts and each party
may execute a separate counterpart, each of which shall be an original, and all
of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written and shall take effect as an
instrument under seal.
SELLER:
HAMPDEN NURSING HOMES, INC.
By:_______________________________
Name:
Title:
PURCHASERS:
G&L HAMPDEN, LLC
By: G&L Hampden, Inc., Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
HAMPDEN HOLDING GROUP, INC.
By:_________________________________
President
The Principals have executed this Agreement to confirm the representations and
warranties made by them in paragraph 9 in their capacities as officers of the
Seller:
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
________________________ ____________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇