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EXHIBIT 2.11
PURCHASE AND SALE CONTRACT
1. PARTIES.
This Purchase and Sale Contract ("Contract") is made between THE HAVEN
HOSPITAL, INC., a Delaware corporation ("Seller"), and CRESCENT REAL ESTATE
EQUITIES LIMITED PARTNERSHIP, a Delaware limited partnership ("Purchaser").
2. PROPERTY.
On the terms and conditions stated in this Contract, Seller hereby
agrees to sell to Purchaser, and Purchaser hereby agrees to purchase from
Seller, all of the following described property:
2.1 TEXAS PROPERTY. Seller's fee simple title in and to all of that
certain tract of land (the "Land") situated in Dallas County, Texas, and
described more particularly in EXHIBIT A attached hereto and incorporated herein
by reference, and all buildings and improvements located thereon, (collectively,
the "Improvements"), together with all rights and appurtenances pertaining to
such land, including, without limitation, all of Seller's right, title and
interest in and to (i) all minerals, oil, gas, and other hydrocarbon substances
thereon, (ii) all adjacent strips, streets, roads, alleys and rights-of-way,
public or private, open or proposed, (iii) all easements, privileges, and
hereditaments, whether or not of record, and (iv) all access, air, water,
riparian, development, utility, and solar rights (the Land, the Improvements and
all such other rights and appurtenances are collectively referred to herein as
the "Property").
2.2 PERSONAL PROPERTY. All of Seller's right, title and interest in and
to
(1) mechanical systems, fixtures and equipment comprising a
part of or attached to or located upon the Improvements,
(2) maintenance equipment and tools owned by Seller and used
in connection with the Improvements,
(3) site plans, surveys, plans and specifications, marketing
materials and floor plans in Seller's possession which relate to the Land or
Improvements,
(4) pylons and other signs,
(5) silverware, glassware, and other utensils and dishes,
(6) beds, tables, televisions, clocks, drapes and other
furniture and furnishings,
(7) art work, paintings, posters and other graphics,
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(8) keys, stoves, refrigerators, ice makers, telephones,
switchboards, fixtures, telex and fax machines, computers, and other machinery
or appliances, and
(9) other tangible personal property of every kind and
character owned by Seller and located in or on or used in connection with the
Land or Improvements or the operations thereon (it being agreed that Personal
Property shall exclude: (i) supplies (office, medical, food or otherwise), (ii)
inventory (office, medical, food, drug or otherwise), (iii) other items of
tangible personal property typically consumed or sold by Seller at the Property
in the ordinary course of business, plus such additions thereto and less such
deletions therefrom arising in the ordinary course of business between the date
hereof and the Closing Date and (iv) any personal property subject to an Assumed
Contract (as defined in the Charter Purchase Agreement) under the Charter
Purchase Agreement) (collectively, the "Personal Property").
2.3 PERMITS. To the extent legally transferrable, all of Seller's
right, title and interest in and to all permits, licenses, certificates of
occupancy, and governmental approvals which relate to the Land, Improvements or
Personal Property (collectively, the "Permits").
2.4 PENDING AWARDS. Any pending or future award made with respect to
the condemnation of the Land or Improvements, any award or payment for damage to
the Land or Improvements or claim or cause of action for damage, injury or loss
with respect to the ownership, maintenance and operation of the Land or
Improvements.
3. PURCHASE PRICE.
3.1 The purchase price for the Property (the "Purchase Price") will be
the sum of $6,350,000; provided, however that the Purchase Price may be
increased (and never decreased) to any amount up to $7,500,000 upon written
notice from Purchaser, in its sole discretion, at or prior to Closing (as
hereinafter defined). The Purchase Price will be payable, at Seller's direction,
to Seller in cash, by wire transfer in immediately available funds at the
Closing.
4. CONSIDERATION.
4.1 INDEPENDENT CONTRACT CONSIDERATION. Within three (3) business days
after the execution of this Contract by all parties hereto, Purchaser will
deliver to Seller the amount of One Hundred and No/100 Dollars ($ 100.00) (the
"Independent Contract Consideration") which amount has been bargained for and
agreed to as consideration for Seller's execution and delivery of this Contract.
The Independent Contract Consideration is in addition to and independent of all
other consideration provided in this Contract, and is nonrefundable in all
events.
5. TITLE AND SURVEY.
5.1 TITLE COMMITMENT AND DOCUMENTS. Purchaser shall, within five (5)
Business Days after the Effective Date, order the following documents, at
Purchaser's sole cost and expense:
(i) a current Commitment for Title Insurance for the Property
(the "Title Commitment") issued by a reputable title company designated by
Purchaser (the "Title Company"), setting forth the state of title to the
Property, including a list of all liens, mortgages,
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security interests, encumbrances, pledges, assignments, claims, charges, leases
(surface, space, mineral, or otherwise), conditions, restrictions, options,
conditional sale contracts, rights of first refusal, restrictive covenants,
exceptions, easements (temporary or permanent), rights-of-way, encroachments,
overlaps, or other outstanding claims, interests, estates, or equities of any
nature which affect title to the Property (together with, true, correct, and
legible copies of all instruments that create or evidence title exceptions,
including those described in Schedule B and Schedule C of the Title Commitment)
that would appear in an owner's title policy, if one were issued, (ii) a
currently dated as-built, on-the-ground, ALTA survey (the "Survey") prepared by
a surveyor licensed in Texas and dated no earlier than the Effective Date and
(iii) a search of the Uniform Commercial Code Records of Dallas County, Texas in
the name of the Seller (the "UCC Search"). Purchaser shall endeavor to cause the
Title Commitment, Survey and UCC Search to be delivered to Seller within twenty
(20) Business Days after the Effective Date.
The Title Commitment will contain the express commitment of the Title Company to
issue a Title Policy (as hereinafter defined) to Purchaser in the amount of the
Purchase Price for the Property, insuring the title to the Property as is
specified in the Title Commitment, with the standard printed exceptions.
5.2 REVIEW OF TITLE COMMITMENT AND SURVEY. Purchaser shall have ten
(10) Business Days after the receipt of the last of the Title Commitment
(together with true, correct and legible copies of all instruments that create
or evidence title exceptions), Survey and UCC Search (together with true,
correct and legible copies of all financing statements and related documents
comprising such search) in which to furnish Seller with a written statement of
any title or survey objections affecting title to the Property, other than the
Permitted Exceptions (as hereinafter defined). Should Purchaser fail to notify
Seller of any such title objections within the aforesaid time period, Purchaser
shall be deemed to have waived objections to the matters affecting title to the
Property revealed by the Title Commitment, Survey and UCC Search. Seller shall
have ten (10) Business Days after receipt of any such written objections
(hereinafter referred to as the "Title Cure Period") in which Seller shall in
good faith endeavor to satisfy or correct (but shall not be obligated to cure)
all such valid title objections. In the event Seller fails to satisfy or correct
all valid title objections within the Title Cure Period, Purchaser shall, by
written notice to Seller given within ten (10) Business Days after the
expiration of the Title Cure Period, elect one of the following: (a) to waive
such title objections and to close the transaction, without reduction of the
Purchase Price, on or before the Closing Date, as defined herein, or (b) to
terminate this Contract, in which event, neither Seller nor Purchaser shall have
any rights, duties or obligations under this Contract, except for any rights or
obligations hereunder which, by their terms, survive any termination,
cancellation, rescission, expiration or consummation of this Contract, and the
lien or right, if any, of Purchaser against or to the Property shall wholly
cease. Seller shall not be required and is not obligated hereby to bring, any
action or proceeding, or otherwise to incur any expense to render the title to
the Property free of any matters objected to by Purchaser; provided, however,
that Seller shall, subject to the satisfaction of all conditions precedent to
Seller's obligation to consummate the transactions contemplated herein, be
obligated to cure any monetary liens against the Property created by Seller and,
if Seller does not effect such cure as of the Closing, Purchaser may deduct from
the Purchase Price the amount necessary to effect such cure. The acceptance of
the Deed (as defined herein) by Purchaser shall be deemed to be full performance
of and discharge of every agreement and obligation on the part of Seller to be
performed pursuant to the provisions of this Contract, except for any rights or
obligations
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hereunder which, by their terms, survive any termination, cancellation,
rescission, expiration or consummation of this Contract. Mortgages and financing
statements filed in connection thereto encumbering the Property, which are to be
released by Seller at the Closing shall not constitute valid title objections so
long as any such mortgages are not exceptions to title on Closing Date.
Purchaser shall also have the right, by giving written notice to Seller within
five (5) Business Days after Purchaser's receipt of notice thereof, to object to
any matter affecting title to the Property which is not shown in the Title
Commitment, Survey or UCC Search and which arises after the relevant date of
such document and prior to Closing, other than Permitted Exceptions. Thereafter,
with respect to such objections, Seller shall have the same cure rights and
Purchaser shall have the same termination rights as are provided above in this
Section 5.2 with respect to Purchaser's initial title objections.
5.3 PERMITTED EXCEPTIONS. For purposes of this Contract the term
"Permitted Exceptions" shall, mean:
(a) Liens for ad valorem taxes not yet due and payable;
(b) Matters of record pertaining to the Property; provided the
same are not material and do not materially detract from the value of the
Property or materially interfere with the present use of the Property;
(c) All matters that would be shown by an accurate survey or
inspection of the Property, including but not limited to easements,
encroachments, overlaps, riparian rights, and boundary disputes, if any;
provided the same are not material and do not materially detract from the value
of the Property or materially interfere with the present use of the Property;
(d) All building, zoning, and other state, county or federal
laws, codes, and regulations, affecting any portion of the Property; provided
the same are not violated; and
(e) Any other title exceptions discovered and waived by
Purchaser as hereinafter provided.
6. DUE DILIGENCE.
6.1 ITEMS TO BE DELIVERED BY SELLER. Except to the extent previously
delivered to Purchaser, within fifteen (15) days following the Effective Date,
Seller will deliver to Purchaser for Purchaser's review the following items
(collectively, the "Property Information"):
6.1.1 PERMITS. Copies of all Permits in Seller's possession or
control.
6.1.2 DEVELOPMENT CONDITIONS. A copy of all proffers, if any,
land use restrictions, or other conditions in Seller's possession or control
limiting development of the Property.
6.1.3 PLANS AND SPECIFICATIONS. Copies of any surveys, site
plans, subdivision plans, and as-built plans and specifications for the Property
in Seller's possession or control.
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6.1.4 WARRANTIES. Copies of all unexpired warranties and
guaranties in Seller's possession or control covering the Personal Property, the
roof, elevators, heating and air conditioning systems and any other component of
the Improvements and a list and description of any material third party bonds,
warranties and guaranties which will be in effect after Closing with respect to
the Property.
6.1.5 TAX STATEMENTS. To the extent not included in the Title
Commitment, evidence of the real estate taxes for the Property for the current
year.
6.1.6 TESTS AND INSPECTIONS. To the extent in Seller's
possession, copies of soils and other engineering inspections (including copies
of any current elevator inspections), tests, surveys, studies and reports
pertaining to the Land or Improvements or any portion thereof, and all
inspection reports or audits and information regarding the existence of
"Hazardous Substances" (as hereinafter defined) or underground storage tanks on
the Property or use or storage of Hazardous Substances on the Property, and all
reports and audits with respect to compliance of the Property with the Americans
with Disabilities Act (the "ADA") and any plan in existence for compliance with
the ADA and similar state or local laws with respect to disabled persons.
6.2 INSPECTION PERIOD. During the period commencing on the Effective
Date and through the Closing Date (the "Inspection Period"), Purchaser will have
the option and right to conduct, upon reasonable notice and at reasonable times,
such investigations, inspections, audits, analyses, surveys, tests,
examinations, studies, and appraisals of the Property, as Purchaser deems
necessary or desirable, at Purchaser's sole cost and expense.
6.3 ACCESS. To facilitate the due diligence contemplated in ARTICLE 6
during the Inspection Period, Seller will provide Purchaser and Purchaser's
agents and representatives reasonable access to the Property. Upon at least five
(5) days prior notice to Seller and after receiving the approval of Seller, not
to be unreasonably withheld, Purchaser will conduct any such physical
inspections, tests, examinations, studies, and appraisals only on Business Days
and will use reasonable efforts to minimize interference with Seller's
operations at the Property.
6.4 INDEMNITY. Purchaser agrees to indemnify and hold Seller harmless
from and against any liens, claims, or damages including, without limitation,
any and all demands, actions or causes of action, assessments, losses, costs,
liabilities, interest and penalties, and reasonable attorneys' fees suffered or
incurred by Seller to the extent such matters result from Purchaser's or
Purchaser's agents or representatives, access to the Property and/or conduct of
the activities contemplated hereunder. Purchaser will, to the extent
practicable, repair or cause to be repaired any damages caused by Purchaser or
Purchaser's agents or representatives in the conduct of the activities
contemplated hereunder. Notwithstanding anything set forth herein to the
contrary, the indemnification and restoration obligations of Purchaser in this
SECTION 6.4 will survive the termination of this Contract for any reason.
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7. WARRANTIES, REPRESENTATIONS AND COVENANTS.
7.1 EXPRESS WARRANTIES. Seller makes the following warranties and
representations to Purchaser as of the date hereof:
7.1.1 TITLE TO REAL PROPERTY. Seller has good and indefeasible
fee simple title to the Property. Neither Seller nor any of its affiliates owns
any parcel of land which is contiguous with the Property. The Property is not
subject to any outstanding agreements of sale or any options, liens or other
rights of third parties to acquire any interest therein, except as described in
this Contract and except for such rights of General Electric Capital Corporation
under the existing financing and security agreements with Seller and its
affiliates, that Seller intends to extinguish as to the Property at or prior to
Closing.
7.1.2 TITLE TO PERSONAL PROPERTY. None of the Personal
Property is held by Seller under a lease or installment sale contract, and the
Seller owns title to the Personal Property, free and clear of any liens or
claims, except for liens held by General Electric Capital Corporation, which
shall be removed by Closing. That certain Purchase Agreement among Purchaser,
Seller, Mesa Psychiatric Hospital, Inc., Carolina Treatment Center, Inc., Houma
Psychiatric Hospital, Inc., Transitional Care Ventures (Arizona), Inc.,
Transitional Care Ventures (North Texas), Inc., Transitional Care Ventures
(Texas), Inc. and Ramsay Health Care, Inc., dated June 24, 1998 is herein
referred to as the "Charter Purchase Agreement."
7.1.3 PARTIES IN POSSESSION. There are no tenants or other
parties in possession of the Property, except Seller, as lessor under the Lease
between The Haven Hospital, Inc. and Transitional Care Ventures (North Texas),
Inc., which shall be terminated as of the Closing.
7.1.4 LITIGATION. Except as set forth in Schedule 7.1.4, there
is no action, suit or proceeding presently pending in any court or before any
federal, state, county or municipal department, commission, board, bureau or
agency or other governmental instrumentality or before any arbitration tribunal
or panel, affecting (i) the Property, or any portions thereof, (ii) Seller's
title, use, operation or ownership of the Property, or (iii) Seller's ability to
perform its obligations under this Contract, nor, to the best knowledge of
Seller, is any such action, suit or proceeding threatened.
7.1.5 BANKRUPTCY. Seller is not aware of any attachments,
executions, assignments for the benefit of creditors, voluntary or involuntary
bankruptcy proceedings or proceedings under any debtor relief laws, contemplated
by or pending or threatened against Seller, or the Property.
7.1.6 CONDEMNATION. No condemnation, eminent domain or similar
proceedings have been instituted or to the best of Seller's knowledge,
threatened against the Property.
7.1.7 MATERIAL CHANGE. Seller has not received written notice
of any pending or contemplated material change in any regulation, code,
ordinance or law, or private restriction applicable to the Property.
7.1.8 COMPLIANCE WITH LAWS. The Improvements and Personal
Property and the current use thereof comply in all material respects with all
laws, regulations, ordinances (including, without limitation, zoning
ordinances), rules, orders and other requirements of all governmental
authorities having jurisdiction over the Property or affecting all or any part
thereof or bearing on its construction or operation, and with all private
covenants or restrictions.
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7.1.9 LICENSES AND PERMITS. Seller has acquired all material
Permits, easements, and rights-of-way, including, without limitation, all
building and occupancy permits, from all governmental authorities having
jurisdiction over the Property or from private parties for the normal use,
maintenance, occupancy, and operation of the Property as presently being
conducted by Seller, and to ensure unimpeded access, ingress and egress to and
from the Property as required to permit normal usage of the Improvements, as
presently being used by Seller and all such Permits, easements and rights-of-way
are in full force and effect.
7.1.10 HAZARDOUS SUBSTANCES. Except as (i) disclosed on
Schedule 7.1.10 hereto or in any of the environmental reports furnished to
Purchaser or otherwise obtained by Purchaser, or as otherwise disclosed by
Seller to Purchaser in writing, or (ii) would not have a material and adverse
effect on the Property or the business of Seller operated thereon, (a) Seller's
operation and management of the Property and, to the best of Seller's knowledge,
the Property is not in violation of any Environmental Law (as hereinafter
defined) or subject to any pending or, to the best of Seller's knowledge,
threatened litigation or inquiry by any governmental authority or to any
remedial action or obligations under any Environmental Law; (b) no underground
storage tanks have been located on the Property by Seller during their period of
ownership and Seller is not otherwise aware of any underground storage tanks
having been located at the Property; (c) Seller has not used the Property and,
to the best of Seller's knowledge, no other party has used the Property, for the
storage, treatment or disposal of hazardous waste, hazardous material, chemical
waste, or other toxic substance except in accordance with Environmental Law, and
(d) no hazardous substances or toxic wastes have been disposed of or located
upon the Property by Seller, and, to the best of Seller's knowledge, by any
other party, in violation of applicable Environmental Law (including, without
limitation, asbestos and PCBs. As used herein, the term "Environmental Law"
means any law, statute, ordinance, rule, regulation, order or determination of
any governmental authority or agency affecting the Property and pertaining to
health or the environment including, but not limited to, the Comprehensive
Environmental Response, Compensation and Liability Act of 1982 and the Resource
Conservation and Recovery Act of 1986. Prior to Closing, Seller agrees to
promptly notify Purchaser of any fact of which Seller acquires actual knowledge
which would cause this representation to become false and of any written notice
that Seller receives regarding the matters set forth in this SECTION 7.1.10.
7.1.11 ASSESSMENTS. To the best knowledge of the Seller, there
are no unpaid assessments for public improvements against the Property, and
Seller has no knowledge of any proposed assessments against the Property. To the
best knowledge of the Seller, the Property is not subject to assessments for any
street paving or curbing heretofore laid. All sewer, water, gas, electric,
telephone and drainage lines and facilities required by law and for the normal
operation of the Property are fully installed, currently function and service
the Property adequately for its current use, and there are no unpaid assessments
or charges for the installation of such utilities or for making connection
thereto that have not been fully paid.
7.1.12 ORGANIZATION AND ENFORCEABILITY. Seller is duly
organized, validly existing and in good standing under the laws of the state of
Delaware and is qualified to transact business in the state of Texas. This
Contract and all instruments, documents and agreements to be executed by Seller
in connection herewith are, or when delivered shall be, duly and validly
executed and delivered by Seller to Purchaser and are, or when delivered shall
be, legal, valid
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and binding obligations of Seller, enforceable against Seller in accordance with
their respective terms, except as such enforcement may be limited by bankruptcy,
conservatorship, receivership, insolvency, moratorium or similar laws affecting
creditors' rights generally or by general principles of equity.
7.1.13 CORPORATE CAPACITY. Seller has the corporate capacity
and complete corporate authority to enter into and perform this Contract, and
except as set forth in Schedule 7.1.13 hereto, no consent, approval or other
action by any other party or entity will be needed thereafter to authorize
Seller's execution and performance of this Contract. None of the execution and
delivery of this Contract by Seller, the consummation by Seller of the
transactions contemplated hereby or compliance by Seller with any of the
provisions hereof will (i) conflict with or result in any breach of any
provisions of the formation documents of Seller, (ii) result in a violation or
breach of, or constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right to termination, cancellation or acceleration)
under any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, lease, license, contract, agreement or other instrument or obligation
to which Seller is a party or by which Seller or the Property may be bound, or
(iii) violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Seller or the Property; except in the case of clauses (ii) or
(iii) above, for violations, breach or defaults (A) that would not in the
aggregate have a material adverse effect on the business or financial condition
of Seller and on the effectiveness of the transactions contemplated hereby or
(B) for which waivers or consents have been or will be obtained prior to the
Closing Date.
7.1.14 FOREIGN PERSON. The Seller is not a "foreign person,"
"foreign trust" or "foreign corporation" within the meaning of the United States
Foreign Investment and Real Property Tax Act of 1980 and the Internal Revenue
Code of 1986, as subsequently amended.
7.1.15 NO DEFECTS. The Improvements, including, without
limitation, the heating, air conditioning, ventilating, plumbing, life safety
and electrical systems, are in good operating condition and repair in accordance
with normal and customary industry practices (ordinary wear and tear excepted)
and are in material compliance with all applicable governmental laws,
ordinances, regulations and requirements. To the best knowledge of the Seller,
there are no material structural or engineering defects affecting or relating to
all or any part of the Improvements.
7.1.16 AGREEMENTS AFFECTING PROPERTY. There are no contracts
or other material obligations other than those matters set forth in the Title
Commitment, Survey and UCC Search, outstanding (i) for the sale, exchange or
transfer of the Property or any portion thereof, or (ii) creating or imposing
any burdens, obligations or restrictions on the Property or any portion thereof,
which will bind the Purchaser after Closing.
7.1.17 ACCURACY OF DOCUMENTS. All documents and records
delivered pursuant to Section 6 herein will be true, correct and complete copies
of the documents and records required to be delivered.
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7.1.18 FLOOD PLAIN. To the best of Seller's knowledge, no
portion of the Property is located inside the 100 year flood plain for Dallas
County, Texas, as such plain is determined by the Federal Emergency Management
Agency.
7.1.19 INSURANCE. Seller currently maintains customary
insurance with respect to the Property under policies of insurance which are in
full force and effect. During the three-year period ending on the date hereof,
no such policies have been cancelled by an insurer and no application of Seller
for insurance has been rejected by an insurer. Seller has not received any
written notice that any insurance policy now in effect would not be renewed or
that any defects or inadequacies exist in the Property, or any part thereof,
which could materially and adversely affect the insurability thereof or the cost
of such insurance.
7.2 PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser represents to
Seller that, as of the date hereof:
7.2.1 ORGANIZATION AND ENFORCEABILITY. Purchaser is duly
organized, validly existing and in good standing under the laws of the state of
its organization. This Contract and all instruments, documents and agreements to
be executed by Purchaser in connection herewith are, or when delivered shall be,
duly and validly executed and delivered by Purchaser to Seller and are, or when
delivered shall be, legal, valid and binding obligations of Purchaser,
enforceable against Purchaser in accordance with their respective terms, except
as such enforcement may be limited by bankruptcy, conservatorship, receivership,
insolvency, moratorium or similar laws affecting creditors' rights generally or
by general principles of equity.
7.2.2 CORPORATE CAPACITY. Purchaser has the capacity and
complete authority to enter into and perform this Contract, and except as set
forth in Schedule 7.2.2 hereto, no consent, approval or other action by any
other party or entity will be needed thereafter to authorize Purchaser's
execution and performance of this Contract.
7.2.3 LITIGATION. There is no action, suit, proceeding or
claim presently pending in any court or before any federal, state, county or
municipal department, commission, board, bureau or agency or other governmental
instrumentality or before any arbitration tribunal or panel, affecting
Purchaser's ability to perform its obligations under this Contract, nor, to the
best knowledge of Purchaser, is any such action, suit, proceeding or claim
threatened.
7.3 BEST KNOWLEDGE. For purposes of this Contract, the phrase "to the
best of Seller's knowledge" means that Seller has conducted a reasonable review
of Seller's files and interviewed Seller's current employees in positions of
responsibility on the subject and, except as otherwise disclosed herein, such
review and interviews resulted in no information that would create actual
knowledge of the inaccuracy or falsehood of any such representation or warranty.
7.4 SELLER'S COVENANTS. Seller agrees that during the period from the
date hereof through the Closing Date Seller will perform the following
covenants:
7.4.1 OPERATION. Seller will (i) operate the Property as
presently being conducted (ii) continue to offer services and amenities in
accordance with past practices, and
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(iii) maintain the Improvements and Personal Property in as good a condition and
state of repair as that existing on the date of this Contract (ordinary wear and
tear excepted).
7.4.2 NEW CONTRACTS. Seller will not, without the prior
written consent of Purchaser, (i) enter into any service contract that will not
be fully performable by Seller on or before the Closing Date, (ii) amend, modify
or supplement any existing service contract or Permit in any material respect,
except in the ordinary course of business, or (iii) enter into any new lease for
the Property; provided, however, that Seller shall not enter into any new
service contract providing for payments in excess of $10,000 per year without
the prior written consent of Purchaser and provided, further, however, no
consent of the Purchaser shall be required for any contract providing for annual
payments of $25,000 per year or less that can be terminated upon no more than
thirty (30) days' notice (however, the Seller shall give the Purchaser notice of
any such contract with payments in excess of $10,000 per year). Any consent
requested by Seller pursuant to this SECTION 7.4.2 will be deemed rejected if
Purchaser does not respond by written notice to Seller within ten (10) days
after Purchaser's receipt of Seller's written request.
7.4.3 LITIGATION. Seller will advise Purchaser promptly after
becoming aware of any litigation or any arbitration proceeding or any
administrative hearing (including condemnation) before any governmental agency
which materially and adversely concerns or affects the Property in any manner
and which is instituted after the Effective Date, provided that such
notification will not relieve Seller of any obligations hereunder.
7.4.4 CONSTRUCTION. Seller will not, without the prior written
consent of the Purchaser, permit any material modifications or additions to the
Improvements.
7.4.5 SALE OF PERSONAL PROPERTY. Seller will not transfer or
dispose of, or permit to be sold, transferred or otherwise disposed of, any item
or group of items constituting Personal Property, except for the use and
consumption of inventory, office and other supplies and spare parts, and the
replacement of worn out, obsolete and defective tools, equipment and appliances,
in the ordinary course of business.
7.4.6 INSURANCE. Seller will maintain Seller's existing or
comparable replacement insurance coverage with respect to the Property.
7.4.7 FURTHER ENCUMBRANCES. Seller will not voluntarily
encumber the Property in any manner.
7.4.8 COOPERATION. Seller will, at no cost to Seller,
reasonably assist and cooperate with Purchaser prior to Closing (i) in obtaining
all necessary permits and licenses to continue operating the Property in the
present manner and (ii) with any evaluation, inspection, audit or study of the
Property prepared by, for or at the request of Purchaser.
7.4.9 CONSENTS. Seller will use its best efforts to obtain
from any federal, state or local authorities or any private persons or entities,
any consents, approvals, authorizations and permissions which are reasonably
considered necessary or appropriate for consummation of this transaction by
Seller or to prevent the termination of any Permit.
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7.5 INTENTIONALLY OMITTED.
7.6 PURCHASER'S CONDITIONS PRECEDENT. Purchaser's obligation to
consummate this transaction is expressly conditional upon the conditions
precedent set forth in SUBSECTIONS 7.6.1 through 7.6.6 of this Contract.
7.6.1 ACCURACY OF REPRESENTATIONS. Each of the representations
and warranties made by Seller in this Contract will be true and correct in all
material respects on the Closing Date as if made on and as of such date except
to the extent that the breach thereof has not resulted in a material adverse
effect on the business, operations, properties, financial condition, results of
operations, Property, Personal Property, Properties (as defined in the Charter
Real Estate Purchase Contract), Personal Property (as defined in the Charter
Real Estate Purchase Contract), or Assets (as defined in the Charter Purchase
Agreement) of Seller, the Sellers (as defined in the Charter Real Estate
Purchase Contract) and the Sellers (as defined in the Charter Purchase
Agreement), taken as a whole. For purposes hereof, "Charter Real Estate Purchase
Contract" means that certain Purchase and Sale Contract dated June 25, 1998
between Mesa Psychiatric Hospital, Inc. and Carolina Treatment Center, Inc., as
sellers, and Charter Behavioral Health Systems, LLC, as purchaser.
7.6.2 PERFORMANCE OF COVENANTS. Seller will not have failed to
perform or comply in any material respect with any of Seller's material
agreements, covenants or obligations in the manner and within the periods
provided herein.
7.6.3 TITLE. The Title Company will have irrevocably committed
to issue to Purchaser an owner's title insurance policy (ALTA Form B, 10/17/70
revision with `84 amendments) for the Property (the "Title Policy"), in the
amount of the Purchase Price and insuring that Purchaser has good and
indefeasible fee simple title to the Property, subject only to the Permitted
Exceptions.
7.6.4 NO INJUNCTION. On the Closing Date, there will be no
third party injunction, writ, preliminary restraining order or any order of any
nature issued or threatened by a court of competent jurisdiction directing that
the transactions contemplated by this Contract not be consummated, as herein
provided.
7.6.5 CONSENTS. The applicable waiting period, if any, under
the Xxxx-Xxxxx-Xxxxxx Act shall have expired or been terminated, each of the
consents on Schedule 7.1.13 shall have been duly obtained and delivered to
Purchaser and Seller and each of the consents on Schedule 7.2.2 shall have been
duly obtained and delivered to the Purchaser and Seller.
7.6.6 CLOSING. The Closing (as that term is defined in the
Charter Purchase Agreement) of the transactions contemplated in the Charter
Purchase Agreement has occurred or shall occur simultaneously with the Closing
of the transactions contemplated herein and the Closing (as that term is defined
in Charter Real Estate Purchase Contract) of the transactions contemplated in
the Charter Real Estate Purchase Contract has occurred or shall occur
simultaneously with the closing of the transactions contemplated herein.
7.7 SELLER'S CONDITIONS PRECEDENT. Seller's obligation to consummate
this transaction is expressly conditional upon the conditions precedent set
forth in SUBSECTIONS 7.7.1 through 7.7.5 of this Contract.
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7.7.1 ACCURACY OF REPRESENTATIONS. Each of the representations
and warranties made by Purchaser in this Contract will be true and correct in
all material respects on the Closing Date as if made on and as of such date.
7.7.2 PERFORMANCE OF COVENANTS. Purchaser will not have failed
to perform or comply in any material respect with any of Purchaser's material
agreements, covenants or obligations in the manner and within the periods
provided herein.
7.7.3 NO INJUNCTION. On the Closing Date, there will be no
third party injunction, writ, preliminary restraining order or any order of any
nature issued or threatened by a court of competent jurisdiction directing that
the transactions contemplated by this Contract not be consummated, as herein
provided.
7.7.4 CONSENTS. The applicable waiting period, if any, under
the Xxxx-Xxxxx-Xxxxxx Act shall have expired or been terminated and each of the
consents on Schedule 7.1.13 shall have been duly obtained and delivered to the
Purchaser and Seller.
7.7.5 CLOSING. The Closing (as that term is defined in the
Charter Purchase Agreement) of the transactions contemplated in the Charter
Purchase Agreement has occurred or shall occur simultaneously with the Closing
of the transactions contemplated herein and the Closing (as that term is defined
in Charter Real Estate Purchase Contract) of the transactions contemplated in
the Charter Real Estate Purchase Contract has occurred or shall occur
simultaneously with the closing of the transactions contemplated herein.
8. INDEMNITY.
8.1 PURCHASER'S INDEMNITY. From and after Closing, Purchaser hereby
agrees to indemnify Seller against, and to hold Seller harmless from, all
claims, demands, causes of action, losses, damages, liabilities, costs and
expenses (including, without limitation, reasonable attorneys' fees and
disbursements) (collectively, "Losses") asserted against or incurred by Seller
to the extent in connection with or arising out of (i) Purchaser's failure to
perform any of Purchaser's covenants contained herein (other than the
indemnification obligations set forth in Section 8.3.2) except if such failure
results from the termination of this Contract by Purchaser or Seller pursuant to
a right to terminate expressly set forth in this Contract or Seller's failure to
perform Seller's obligations under this Contract or (ii) a breach of any
representation, warranty or covenant of Purchaser contained in this Contract.
8.2 SELLER'S INDEMNITY. From and after Closing, Seller hereby agrees to
indemnify Purchaser against, and to hold Purchaser harmless from all claims,
demands, causes of action, losses, damages, liabilities, costs and expenses
(including, without limitation, reasonable attorneys' fees and disbursements)
asserted against or incurred by Purchaser to the extent in connection with or
arising out of (i) Seller's failure to perform any of Seller's covenants
contained herein (other than the indemnification obligations set forth in
Section 8.3.1) except if such failure results from the termination of this
Contract by Purchaser or Seller pursuant to a right to terminate expressly set
forth in this Contract or Purchaser's failure to perform Purchaser's obligations
under this Contract or (ii) a breach of any representation, warranty or covenant
of Seller contained in this Contract.
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8.3 ENVIRONMENTAL INDEMNITIES.
8.3.1 SELLER'S ENVIRONMENTAL INDEMNITY. From and after the
Closing, the Seller shall indemnify and hold the Purchaser harmless against,
except with respect to matters set forth in Schedule 7.1.10-1, any and all
Losses to the extent arising out of, based on or resulting from (i) claims by
any federal, state, local government or other third party relating to the
presence of any Materials of Environmental Concern on, in or under any part of
the Property at any time prior to the Closing Date, (ii) claims by any federal,
state, local government or other third party relating to the release into the
environment (either before or after the Closing Date) of any Materials of
Environmental Concern that were generated, stored, handled or disposed of on,
in, under or from the Property prior to the Closing Date, (iii) the alleged
violation asserted by any federal, state, local government or other third party
of the Environmental Laws or the Medical Waste Laws occurring with respect to
the condition or operation of the Property prior to the Closing Date or (iv) the
violation of the Environmental Laws or the Medical Waste Laws occurring with
respect to the condition or operation of the Property prior to the Closing Date.
8.3.2 PURCHASER'S ENVIRONMENTAL INDEMNITY. From and after the
Closing, Purchaser shall indemnify and hold the Seller harmless against, except
with respect to matters set forth in Schedule 7.1.10-1, any and all Losses to
the extent arising out of, based on or resulting from (i) claims by any federal,
state, local government or other third party relating to the presence of any
Materials of Environmental Concern on, in or under any part of any Property
placed on the Property by Purchaser, its subsidiaries or their respective agents
at any time after the Closing Date, (ii) claims by any federal, state, local
government or other third party relating to the release into the environment
after the Closing Date of any Materials of Environmental Concern that were
generated, stored, handled or disposed of on, in, under or from the Property by
the Purchaser, its subsidiaries or their respective agents after the Closing
Date, (iii) the alleged violation asserted by any federal, state, local
government or other third party of the Environmental Laws or the Medical Waste
Laws occurring with respect to the condition or operation of the Property by the
Purchaser, its subsidiaries or their respective agents after the Closing Date or
(iv) the violation of the Environmental Laws or the Medical Waste Laws occurring
with respect to the condition or operation of the Property by the Purchaser, its
subsidiaries or their respective agents after the Closing Date.
8.3.3 SELLER'S ADDITIONAL ENVIRONMENTAL INDEMNITY. From and
after the Closing, Seller shall indemnify and hold Purchaser harmless against,
with respect to matters set forth in Schedule 7.1.10-1, any and all Losses to
the extent arising out of, based on or resulting from (i) claims by any federal,
state, local government or other third party relating to the presence of any
Materials of Environmental Concern on, in or under any part of the Property at
any time prior to the Closing Date, (ii) claims by any federal, state, local
government or other third party relating to the release into the environment
(either before or after the Closing Date) of any Materials of Environmental
Concern that were generated, stored, handled or disposed of on, in, under or
from the Property prior to the Closing Date, (iii) the alleged violation
asserted by any federal, state, local government or other third party of the
Environmental Laws or the Medical Waste Laws occurring with respect to the
condition or operation of the Property prior to the Closing Date or (iv) the
violation of the Environmental Laws or the Medical Waste Laws occurring with
respect to the condition or operation of the Property prior to the Closing Date.
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8.3.4 CERTAIN DEFINITIONS. For purposes hereof, (i) "Materials of
Environmental Concern" means any toxic or hazardous waste, pollutants or
substances, including, without limitation, asbestos, urea formaldehyde,
radioactive substances, materials or wastes, PCBs, petroleum products and
byproducts defined or listed as "hazardous substances", "hazardous waste",
"toxic substances", "toxic pollutants", "medical waste", "air pollutants",
"hazardous air pollutants" or similarly identified substances or mixtures, in or
pursuant to the Environmental Laws or the Medical Waste Laws, (ii) "Medical
Waste Laws" means the following, including regulations promulgated and orders
issued thereunder, to the extent such laws regulate Medical Waste, all as may be
amended or modified until the date of Closing: Medical Waste Tracking Act of
1988, 42 U.S.C. section 6992, ET SEQ. ("MWTA"), 42 CFR Part 72 and 49 CFR Part
173, 386; Resource Conservation and Recovery Act of 1976, 42 U.S.C. section 6901
ET SEQ.; Air Pollution Prevention and Control Act, 42 U.S.C. section 7401 ET
SEQ.; Water Pollution Control Act, 33 U.S.C. section 1251 ET SEQ.; Marine
Protection, Research and Sanctuaries Act of 1972, 33 U.S.C. section 1401 ET
SEQ.; Nuclear Regulatory Commission regulations contained in 10 CFR Parts 20 and
61; Occupational Safety and Health Act, 29 U.S.C. section 651 ET SEQ.; Public
Health Service regulations contained in 42 CFR Part 72; Food and Drug
Administration regulations contained in 21 CFR Parts 58 and 211; U.S. Department
of Transportation regulations contained in 49 CFR Parts 171-179; The Act to
Prevent Pollution from Ships, 33 U.S.C. section 1901 ET SEQ.; U.S. Department of
Agriculture regulations contained in 9 CFR Parts 50-56; U.S. Postal Service
regulations contained in 39 CFR Part 111; local environmental and safety laws,
rules, regulations and other legally binding requirements and any other federal,
state, regional, county, municipal or other local laws, regulations and
ordinances insofar as they purport to regulate Medical Waste or impose
requirements relating to Medical Waste, and (iii) "Medical Waste" means any
substance, pollutant, materials or contaminant listed or regulated under the
Medical Waste Laws.
8.4 LIMITATION ON INDEMNIFICATION OBLIGATIONS. Notwithstanding anything
contained in this Section 8 to the contrary, no party shall assert a claim for
indemnification against the other pursuant to this Section 8 unless and until
the amount of all Losses determined to have been incurred or suffered at the
time by the Seller hereunder, the Sellers (as defined in the Charter Real Estate
Purchase Contract) and the Sellers (as defined in the Charter Purchase
Agreement) and the Shareholder (as defined in the Charter Purchase Agreement),
on the one hand, and the Purchaser, the Purchaser (as defined in the Charter
Real Estate Purchase Contract) and the Purchaser (as defined in the Charter
Purchase Agreement), on the other hand, pursuant to the indemnification
provisions under this Contract, the Charter Real Estate Purchase Contract and/or
under the Charter Purchase Agreement (other than those for which first dollar
claims which are not subject to deductible amounts can be made pursuant to the
Charter Purchase Agreement or the Charter Real Estate Purchase Contract)
exceeds, in the aggregate, $250,000 (the "Threshold Amount"), at which time such
party may make a claim only to the extent that the aggregate amount of such
claims exceeds the Threshold Amount; provided, however, the foregoing limitation
shall not apply to a claim for indemnification pursuant to (w) Section 8.1(ii)
or Section 8.2(ii) with respect to those matters set forth in Section 7.1.2,
7.1.4, 7.1.12, 7.1.13, 7.2.1 and 7.2.2 hereof, (x) Section 8.1(i), (y) Section
8.2(i) or (z) Section 8.3.3. The parties hereto further acknowledge and agree
that the total indemnification obligations of the Seller, the Sellers (as
defined in the Charter Real Estate Purchase Contract) and of the Sellers (as
defined in the Charter Purchase Agreement) and the Shareholder (as defined in
the Charter Purchase Agreement), on the one hand, and of the Purchaser, the
Purchaser (as defined in the Charter Purchase Agreement) and the Purchaser (as
defined in the Charter Real Estate Purchase Contract), on the other hand, under
this Contract, the Charter Real Estate Purchase Contract and under the Charter
Purchase Agreement shall not exceed, in the aggregate, the aggregate of the
Purchase Price payable hereunder, plus the Purchase Price (as defined in the
Charter Real Estate Purchase
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Contract) payable under the Charter Real Estate Purchase Contract, plus the
Purchase Price (as defined in the Charter Purchase Agreement) payable under the
Charter Purchase Agreement; provided, however, the foregoing limitation shall
not apply to a claim for indemnification pursuant to (w) Section 8.1(ii) or
Section 8.2(ii) with respect to those matters set forth in Sections 7.1.2,
7.1.4, 7.1.10, 7.1.12, 7.1.13, 7.2.1 and 7.2.2 hereof, (w) Section 8.1(i), (x)
Section 8.2(i), (y) Section 8.3.1 or Section 8.3.2 or (z) Section 8.3.3.
8.5 SURVIVAL, REPRESENTATIONS AND WARRANTIES. All representations,
warranties and covenants contained in this Contract shall be deemed continuing
and shall survive the Closing Date as follows (i) the representations and
warranties set forth in Sections 7.1.12, 7.1.13, 7.2.1 and 7.2.2 shall continue
in full force and effect indefinitely, (ii) the representations and warranties
set forth in Section 7.1.10 shall continue in full force and effect for a time
period equal to the applicable statute of limitations with respect to claims
pertaining thereto, (iii) all other representations and warranties shall
continue in full force and effect until the second (2nd) anniversary of the
Closing Date, and (iv) except with respect to any covenants that terminate or
expire upon a date specified herein, all covenants shall continue in full force
and effect indefinitely (except for covenants under Section 7.4 which shall not
survive the Closing).
8.6 EXCLUSIVE REMEDY. After the Closing, the sole and exclusive remedy
of any party for any misrepresentation or any breach of a warranty or covenant
under or pursuant to this Contract or otherwise relating to the subject matter
of this Contract shall be a claim for indemnification under and pursuant to this
Section 8; provided, however, that nothing set forth in this Section shall
prohibit or restrict a party from seeking equitable relief, including, without
limitation, specific performance or injunctive relief.
9. CLOSING.
9.1 CLOSING DATE. The consummation of this transaction (the "Closing")
will take place at such location upon which Seller and Purchaser mutually agree,
at 2:00 p.m. on the date that is the later of July 31, 1998 or within five
Business Days after the satisfaction or waiver of all Purchaser's and Seller's
conditions precedent set forth herein (the "Closing Date"), unless Seller and
Purchaser mutually agree to an earlier or later date.
9.2 SELLER'S OBLIGATIONS AT THE CLOSING. At the Closing, Seller will
do, or cause to be done, the following:
9.2.1 DOCUMENTS. Seller will execute, acknowledge (if
necessary), and deliver the following documents:
9.2.1.1 A Special Warranty Deed for the Property, in
substantially the form and substance of Exhibit B (the "Deed");
9.2.1.2 A Xxxx of Sale for the Personal Property, in
substantially the form and substance of Exhibit C;
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9.2.1.3 A Certificate of Non-Foreign Status for the
Seller in substantially the form and substance of Exhibit D;
9.2.1.4 An updated certificate executed by Seller
remaking and reaffirming all representations and warranties made by Seller to
Purchaser in accordance with the provisions of ARTICLE 7.
9.2.2 ORIGINAL DOCUMENTS. Seller will deliver to Purchaser
originals within Seller's possession of all items enumerated in SECTION 6.1 of
this Contract.
9.2.3 POSSESSION. Seller will deliver possession of the
Property.
9.2.4 KEYS. Seller will deliver all keys and master keys to
all locks located on the Property, properly tagged for identification, as well
as combinations, card keys and cards for the security systems, if any.
9.2.5 COSTS. Seller will pay all costs allocated to Seller
pursuant to SECTION 9.4 of this Contract.
9.2.6 ADDITIONAL DOCUMENTS. Seller will execute and deliver or
obtain for delivery to the Title Company any other instruments reasonably
necessary to consummate this Contract, including, by way of example, closing
statements, releases, evidence of the authority of the party executing
instruments on Seller's behalf and delivery of instruments reasonably required
by the Title Company under the Title Commitment including an owner's affidavit
required by the Title Company for removal of standard exceptions, but excluding
any indemnification documents.
9.3 PURCHASER'S OBLIGATIONS AT THE CLOSING. At the Closing, Purchaser
will do, or cause to be done, the following:
9.3.1 PAYMENT OF CONSIDERATION. Purchaser will pay to Seller
the Purchase Price, as adjusted in accordance with the provisions of this
Contract.
9.3.2 ADDITIONAL DOCUMENTS. Purchaser will execute and deliver
or obtain for delivery to the Title Company any instruments reasonably necessary
to consummate this Contract, including by way of example, closing statements and
evidence of the authority of the party executing instruments on behalf of
Purchaser.
9.3.3 COSTS. Purchaser will pay all costs allocated to
Purchaser pursuant to SECTION 9.4 of this Contract.
9.4 COSTS AND ADJUSTMENTS AT CLOSING.
9.4.1 EXPENSES. Purchaser will pay for the title examination
fees and the premiums for the Title Policy (including the cost of any special
deletions from standard printed exceptions on the Title Policy and all
endorsements to the Title Policy required by Purchaser), the cost of the UCC
Search, the cost of preparing the Survey, one-half of all real property transfer
taxes, one-half of the recording fees, and one-half of the escrow fees charged
by the Title
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Company. Seller will be responsible for one-half of the transfer taxes one-half
of the recording fees and one-half of the escrow fees charged by the Title
Company. Seller and Purchaser will be responsible for the fees and expenses of
their respective attorneys.
9.4.2 REAL ESTATE TAXES. Real estate taxes on the Property for
the calendar year of the Closing will be prorated between Seller and Purchaser
as of the Closing Date. If the amount of such taxes are not known at Closing,
the proration of such real estate taxes will be based on the amount of such
taxes for the previous real estate tax fiscal period. As soon as the actual
amount of real estate taxes on the Property for the calendar year of Closing are
known, Seller and Purchaser will readjust the amount of such taxes to be paid by
each party with the result that Seller will pay for those taxes applicable to
the Property up to and including the Closing Date and Purchaser will pay for
those taxes and assessments applicable to the Property after the Closing Date.
The provisions of this SECTION 9.4.2 will survive the Closing.
9.4.3 ADJUSTMENT. To the extent that errors are discovered in,
or additional information becomes available with respect to the prorations and
allocations made at Closing, Seller and Purchaser agree to make such
post-Closing adjustments as may be necessary to correct any inaccuracy; however,
all prorations (except for ad valorem taxes) will be final within ninety (90)
days after Closing. Seller agrees to deliver to Purchaser all invoices and
payments related to the Property received by Seller after Closing.
10. TERMINATION.
10.1 METHOD OF TERMINATION. This Contract constitutes the binding and
irrevocable agreement of the parties to consummate the transactions contemplated
hereby, subject to and in accordance with the terms hereof, the consideration
for which is (i) the covenants, representations and warranties set forth in this
Contract and (ii) expenditures and obligations incurred and to be incurred by
each of the parties hereto, in respect of this Contract, and this Contract may
be terminated or abandoned only as follows:
10.1.1 By the mutual consent of the Purchaser and the Seller.
10.1.2 By the Purchaser pursuant to the terms of Section 5.2
or Section 11 and by the Seller pursuant to Section 11.
10.1.3 By the Purchaser after September 15, 1998, if any of
the conditions set forth in Section 7.6, to which the obligations of the
Purchaser are subject, have not been fulfilled in all material respects or
waived in writing, unless such fulfillment has been frustrated or made
impossible by any act or failure to act of the Purchaser.
10.1.4 By the Seller after September 15, 1998, if any of the
conditions set forth in Section 7.7, to which the obligations of the Seller are
subject, have not been fulfilled in all material respects or waived in writing,
unless such fulfillment has been frustrated or made impossible by any act or
failure to act of the Seller.
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10.2 RIGHTS UPON TERMINATION.
10.2.1 In the event of a termination of this Contract pursuant
to Section 10.1.1 or Section 10.1.2, or Section 10.1.3 (other than by reason of
a willful and knowing breach) or Section 10.1.4 (other than by reason of a
willful and knowing breach), each party shall pay the costs and expenses
incurred by it in connection with this Contract, and no party (or any of its
officers, directors, employees, agents, representatives or stockholders) shall
be liable to any other party for any costs, expenses, damages or loss of
anticipated profits, except for any rights or obligations hereunder which, by
their terms, survive any termination of this Contract.
10.2.2 In the event of a termination of this Contract pursuant
to Section 10.1.3 and if the Seller shall be in breach of any material provision
of this Contract as a result of a willful and knowing breach, then the Purchaser
shall have all rights and remedies available at law or in equity.
10.2.3 In the event of a termination of this Contract pursuant
to Section 10.1.4 and if the Purchaser shall be in breach of any material
provision of this Contract as a result of a willful and knowing breach, then the
Seller shall have all rights and remedies available at law or in equity.
10.3 EXCLUSIVE REMEDY UPON TERMINATION. The sole and exclusive remedy
of any party following a termination of this Contract or if the Closing does not
otherwise occur, for any misrepresentation or breach of any warranties or
covenants under or pursuant to this Contract or otherwise relating to the
subject matter hereof shall be to terminate this Contract pursuant to Section
10.1 (to the extent not theretofore terminated) and to pursue the remedies
provided for in Section 10.2 hereof.
11. RISK OF LOSS, DESTRUCTION, AND CONDEMNATION.
11.1 RISK OF LOSS. Risk of loss for damage to the Property, or any part
thereof, by fire or other casualty from the Effective Date through the Closing
Date will be on Seller. Upon Closing, full risk of loss with respect to the
Property will pass to Purchaser.
11.2 CASUALTY AND CONDEMNATION.
In the event of any material physical loss, damage or
impairment, confiscation or condemnation of any material portion of the Property
prior to the Closing, the Seller shall use its best efforts to repair, replace
or restore the Property to its prior condition as soon as reasonably practicable
after such loss, damage, impairment, condemnation or confiscation, and the
proceeds of any claim for loss payable under any insurance policy, judgment or
award with respect thereto shall be applied to such repairs, subject to
applicable agreements governing the indebtedness of Seller. If any material
damage or destruction of the Property or any other event occurs which prevents
the operation of the Property in the normal and usual manner and the Seller
cannot restore or replace the Property so that such conditions are cured in all
material respects and normal operations are resumed before the Closing Date, the
Closing Date shall be postponed for a period of up to sixty (60) days, to permit
the repair or replacement of the damaged Property. In the event of any material
damage or destruction of the Property as described herein, if the Property has
not been restored or replaced and the Property's normal operations resumed
within
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the sixty (60) day period contemplated hereby, the Purchaser or the Seller may
terminate this Contract forthwith without any further obligation hereunder by
written notice to the other.
12. REAL ESTATE COMMISSIONS AND FEES.
Seller represents and warrants to Purchaser that Seller has not
contacted or entered into any agreement with any real estate broker, agent,
finder, or any party in connection with this transaction and that Seller has not
taken any action which would result in any real estate broker's or finder's fees
or commissions being due and payable to any party with respect to the
transaction contemplated hereby. Purchaser hereby represents and warrants to
Seller that Purchaser has not contracted or entered into any agreement with any
real estate broker, agent, finder, or any party in connection with this
transaction and that Purchaser has not taken any action which would result in
any real estate broker's or finder's fees or commissions being due or payable to
any party with respect to the transaction contemplated hereby. Each party hereby
indemnifies and agrees to hold the other party harmless from any loss,
liability, damage, cost, or expense (including, without limitation, reasonable
attorneys' fees) paid or incurred by the other party by reason of a breach of
the representation and warranty made by such party under this SECTION 12.
Notwithstanding anything to the contrary contained herein, the indemnities set
forth in this Section 12 will survive the Closing.
13. NOTICES.
13.1 WRITTEN NOTICE. All notices, demands and requests which may be
given or which are required to be given by either party to the other party under
this Contract must be in writing.
13.2 METHOD OF TRANSMITTAL. All notices, demands and requests required
to be in writing must be sent by United States certified or registered mail,
postage fully prepaid, return receipt requested, or by Federal Express or a
similar nationally recognized overnight courier service, or by facsimile with a
confirmation copy delivered by a nationally recognized overnight courier
service. Notice will be considered effective on the earlier to occur of actual
receipt or twenty-four (24) hours after depositing same with the overnight
courier service.
13.3 ADDRESSES. The addresses for proper notice under this Contract are
as follows:
Purchaser:
Crescent Real Estate
Equities Limited Partnership
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attn: Xx. Xxxxx Xxxxxx and
Xxxxx X. Xxxx, Esq., General Counsel
Facsimile: (000) 000-0000
WITH A COPY TO:
Xxxxxxxx X. Xxxxx, Esq.
Shaw, Pittman, Xxxxx & Xxxxxxxxxx
0000 X. Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
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Seller:
Columbus Center
Xxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
Attention: President
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Cost, Esq.
Facsimile No.: (000) 000-0000
Either party may from time to time by written notice designate a different
address to the other party.
14. ASSIGNMENT.
No party will have the right to assign this Contract, without the prior
written consent of the other parties hereto.
15. INTERPRETATIVE.
15.1 ENTIRE AGREEMENT. This Contract embodies the entire agreement
between the parties and cannot be varied except by the written agreement of the
parties.
15.2 NO OTHER REPRESENTATIONS AND WARRANTIES. It is agreed that, except
for the representations and warranties specifically set forth herein, Purchaser
is not relying on any representation or warranty of Seller (expressed or
implied), its representatives, agents or employees, whatsoever pertaining to the
Property, the condition thereof, the value thereof, the physical, environmental
or other conditions of the Property, or any other matter with respect to the
Property, and Seller specifically disclaims making any such representation or
warranty.
15.3 GENDER AND NUMBER. Words of any gender used in this Contract will
be construed to include any other gender and words in the singular number will
be construed to include the plural, and vice versa, unless the context requires
otherwise.
15.4 CAPTIONS. The captions used in connection with the Articles,
Sections and Subsections of this Contract are for convenience only and will not
be deemed to expand or limit the meaning of the language of this Contract.
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15.5 SUCCESSORS AND ASSIGNS. This Contract will be binding upon and
inure to the benefit of the parties hereto and their respective legal
representatives, successors and assigns.
15.6 MULTIPLE COUNTERPARTS. This Contract may be executed in several
counterparts, each of which will be deemed an original, and all of which will
constitute but one and the same instrument. This Contract may be executed via
facsimile, and such Contract executed via facsimile shall have the same force
and effect as an original document and shall be legally binding upon the
parties.
15.7 CONTROLLING LAW. This Contract will be construed under, governed
by and enforced in accordance with the laws of the State of Georgia.
15.8 EXHIBITS. All exhibits, attachments, annexed instruments and
addenda referred to herein will be considered a part hereof for all purposes
with the same force and effect as if copied verbatim herein.
15.9 NO RULE OF CONSTRUCTION. Seller and Purchaser have been
represented by counsel in the negotiations and preparation of this Contract;
therefore, this Contract will be deemed to be drafted by both Seller and
Purchaser, and no rule of construction will be invoked respecting the authorship
of this Contract.
15.10 SEVERABILITY. All agreements and covenants contained in this
Contract are severable. In the event any agreement or covenant is held to be
invalid by any court, this Contract will be interpreted as if such invalid
agreement or covenant were not contained herein.
15.11 CONSTRUCTION OF CERTAIN WORDS. "Any" will be construed as "any
and all." "Including" will be construed as "including but not limited to."
15.12 TIME OF ESSENCE. Time is important to both Seller and Purchaser
in the performance of this Contract, and both parties have agreed that strict
compliance is required as to any date set out in this Contract.
15.13 BUSINESS DAYS. "Business Day" means any day on which business is
generally transacted by banks in Atlanta, Georgia. If the final date of any
period which is set out in any paragraph of this Contract falls upon a day which
is not a Business Day, then, and in such event, the time of such period will be
extended to the next Business Day.
15.14 LEGAL FEES. In the event any party to this Contract commences
legal action of any kind to enforce the terms and conditions of this Contract,
the prevailing party in such litigation will be entitled to collect from the
other party or parties all costs, expenses and attorneys' fees incurred in
connection with such action.
15.15 CONTACT WITH CERTAIN PERSONS. Notwithstanding anything to the
contrary contained in this Contract, the Purchaser agrees that it shall not,
without the prior written consent of the Vice Chairman of the Board, the
President or the Chief Financial Officer of the Seller, contact any customer,
provider or supplier (whether of goods or services) or any other person or
entity with whom the Seller has commercial dealings, other than employees, to
discuss the transactions contemplated by this Contract or the business,
operations or affairs of the Seller, the
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Property or otherwise. Any contact with employees shall be coordinated with the
Chief Executive Officer for the Property.
16. CONFIDENTIALITY.
Purchaser and Seller agrees not to record this Contract and to hold all
information related to this transaction in strict confidence, and will not
disclose same to any person other than directors, officers, employees and agents
of their companies, as well as to consultants, banks or other third parties
working with Seller or Purchaser in connection with the transaction ("Related
Parties") who need to know such information for the purpose of consummating this
transaction. This prohibition will not be applicable to disclosure of
information required by applicable law, rule or regulation and will not survive
the Closing.
17. PRESS RELEASES.
Except as provided in this Section 17, prior to Closing, any release to
the public of information with respect to the matters set forth in this Contract
will be made only in the form approved by Purchaser and Seller and their
respective counsel, except to the extent otherwise required by law. Purchaser
and Seller are affiliated with publicly-held corporations, the securities of
which are traded on national securities exchanges. The parties acknowledge that
the parties and their respective affiliates may be compelled by considerations
of legal obligation, fiduciary and public responsibility, commercial pragmatism
and established corporate policy, to issue a public press release announcing
that they have entered into this Contract and stating the material terms hereof.
Subject to reasonable advance notice to and consultation with the
non-disseminating party, the parties hereby consent to the dissemination of any
such press release and to all such additional statements and disclosures any
party may reasonably make in responding to inquiries arising as a result of any
such press release. In any event, copies of any such press release by either
party shall be sent to the other party immediately upon its release. Neither
party shall make mention of the other party's name in any such press release,
without the prior written consent of such party, which consent may be granted or
withheld in its sole and absolute discretion, except to the extent required by
law.
18. IRS REPORTING REQUIREMENTS.
For the purpose of complying with any information reporting
requirements or other rules and regulations of the Internal Revenue Service
("IRS") that are or may become applicable as a result of or in connection with
the transaction contemplated by this Contract, including, but not limited to,
any requirements set forth in proposed Income Tax Regulation Section 1.6045-4
and any final or successor version thereof (collectively the "IRS Reporting
Requirements"), Seller and Purchaser hereby designate and appoint the Title
Company to act as the "Reporting Person" (as that term is defined in the IRS
Reporting Requirements) to be responsible for complying with any IRS Reporting
Requirements. The Title Company hereby acknowledges and accepts such designation
and appointment and agrees to fully comply with any IRS Reporting Requirements
that are or may become applicable as a result of or in connection with the
transaction contemplated by this Contract. Without limiting the responsibility
and obligations of the Title Company as the Reporting Person, Seller and
Purchaser hereby agree to comply with any provisions of the IRS Reporting
Requirements that are not identified therein as the responsibility
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of the Reporting Person, including, but not limited to, the requirement that
Seller and Purchaser each retain an original counterpart of this Contract for at
least four (4) years following the calendar year of the Closing.
19. EFFECTIVE DATE.
This Contract will be deemed executed as of the date of the last
signature to this Contract (the "Effective Date").
* * *
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SELLER:
THE HAVEN HOSPITAL, INC., a Delaware Corporation
Date June __, 1998 By:_______________________________
Name:_____________________________
Title:____________________________
PURCHASER:
CRESCENT REAL ESTATE EQUITIES LIMITED PARTNERSHIP,
a Delaware limited partnership
Date June __, 1998 By:_______________________________
Name:_____________________________
Title:____________________________
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Charter Behavioral Health Systems, LLC ("Charter") is signing this Contract
solely for the purpose of the following:
1. Notwithstanding anything contained herein to the contrary, Charter
hereby agrees to pay (i) the title examination fees, (ii) premiums for the Title
Policy, (iii) the cost of the UCC Search, (iv) the cost of preparing the Survey
and (v) the closing costs incurred by Purchaser including, but not limited to
Purchaser's portion of all real property transfer taxes, recording fees and
escrow fees charged by the Title Company. However, in no event shall Charter be
responsible for any attorneys' fees and expenses incurred by Purchaser.
CHARTER BEHAVIORAL HEALTH SYSTEMS, LLC, a Delaware
limited liability company
Date June __, 1998 By:_______________________________
Name:_____________________________
Title:____________________________
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LIST OF EXHIBITS:
-----------------
Exhibit A - Legal Description of the Property
Exhibit B - Form of Special Warranty Deed
Exhibit C - Form of Xxxx of Sale
Exhibit D - Certificate of Non-foreign Status
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
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EXHIBIT B
FORM OF SPECIAL WARRANTY DEED
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This Instrument Prepared by: Mail Tax Notice to:
Xxxx X. Xxxxxx, Esq.
Xxxxxx & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
SPECIAL WARRANTY DEED
STATE OF _______ )
)
COUNTY OF _______ )
KNOW ALL MEN BY THESE PRESENTS,
That in consideration of TEN DOLLARS ($10.00) and other good and valuable
consideration, to the undersigned Grantor, The Haven Hospital, Inc., a Delaware
corporation, (herein referred to as GRANTOR) in hand paid by the GRANTEE herein,
the receipt of which is hereby acknowledged, the said GRANTOR does by these
presents hereby grant, bargain, sell and convey unto Crescent Real Estate
Equities Limited Partnership, a Delaware Limited Partnership, whose address is
000 Xxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxxx, Xxxxx 00000 (herein referred to as
GRANTEE), the following described real estate, situated and being in the County
of Dallas, State of Texas, to wit:
SEE EXHIBIT "A" ATTACHED HERETO AND INCORPORATED HEREIN.
TO HAVE AND TO HOLD, To the said GRANTEE, its successors and assigns
forever.
And said GRANTOR does for itself, its successors and assigns, covenant
with said GRANTEE, its successors and assigns, that GRANTOR has done nothing to
impair such title as GRANTOR received, and GRANTOR will warrant and defend the
title against the lawful claims of all persons claiming by, under or through
GRANTOR, except for the exceptions hereinafter stated.
Subject to the following matters:
1. All covenants, agreements, conditions, easements, restrictions
and rights affecting the real estate, all to the extent they
are of record and are valid and enforceable and still
applicable to the real estate.
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IN WITNESS WHEREOF, the said GRANTOR, its ______________ who is
authorized to execute this conveyance, hereto set its signature and seal this
_____ day of September, 1998
GRANTOR:
Signed, Sealed and
delivered in the presence of The Haven Hospital, Inc., a Delaware corporation
Witness: By:
---------------------------------
Name: Xxxx X. Xxxxxx
Title: President
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EXHIBIT C
FORM OF XXXX OF SALE
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XXXX OF SALE
Concurrently with the execution and delivery hereof,
________________, a _____________ corporation ("ASSIGNOR"), is conveying to
______________________, a ___________ corporation "ASSIGNEE"), (i) all that real
property more particularly described on EXHIBIT A attached hereto and made a
part hereof for all purposes, and (ii) all improvements now or hereafter
situated thereon (collectively, the "PROPERTY").
It is the desire of Assignor to hereby assign, transfer, set
over and deliver to Assignee all of Assignor's title and interest in and to all
furniture, fixtures and equipment owned by Assignor and located at or used in
connection with the operation of the Property, site plans, surveys, plans and
specifications, and floor plans which relate to the Property, all transferable
guaranties and warranties (express or implied), bonds and development rights
related to the property or any of the foregoing items of personal property, and,
subject to applicable law and regulations, all of transferable licenses,
permits, authorizations, approvals, certificates of occupancy and other consents
and regulatory approvals necessary for the current ownership, occupancy, and
leasing of the Property, together with any and all other incidental rights and
appurtenances relating thereto, except those not owned by Assignor, all as more
fully described below (such properties being collectively called the "Assigned
Property").
NOW, THEREFORE, in consideration of the receipt of ten Dollars
($10.00) and other good and valuable consideration in hand paid by Assignee to
Assignor, the receipt and sufficiency of which are hereby acknowledged and
confessed by Assignor, Assignor does hereby ASSIGN, TRANSFER, SET OVER and
DELIVER to Assignee, its successors and assigns, all of Assignor's rights, title
and interest in and to all of the Assigned Property (whether statutory, express
or implied), including, without limitation, the following:
1. All furniture, fixtures and equipment owned by Assignor and
located at or used in connection with the operation of the property, site plans,
surveys, plans and specifications, and floor plans which relate to the Property,
all transferable guaranties and warranties (express or implied), bonds and
development rights related to the Property or any of the foregoing items of
personal property, and, subject to applicable law and regulations, all
transferable licenses, permits, authorizations, approvals, certificates of
occupancy and other consents and regulatory approvals necessary for the current
ownership, occupancy, and leasing of the Property;
2. All master keys and keys to common areas; and
3. Any and all other rights, privileges and appurtenances
owned by Assignor and related to or used in connection with any of the
foregoing.
TO HAVE AND HOLD the Assigned Property unto Assignee and
Assignee's successors, legal representatives and assigns, forever.
This Xxxx of Sale and the provisions herein contained will be
binding upon the inure to the benefit of the Assignee and the Assignor and their
respective successors and assigns.
IN WITNESS WHEREOF, Assignor has caused this Xxxx of Sale to
be executed as of the ____ day of ______, 1998.
ASSIGNOR:
---------------------------------------
By:
------------------------------------
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EXHIBIT D
CERTIFICATE OF NON-FOREIGN STATUS
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CERTIFICATE OF NON FOREIGN STATUS
The undersigned __________________, a ____________ corporation, ("Transferor")
hereby certifies to ("Transferee") for purposes of Section 1445 of the Internal
Revenue Code of 1986, as amended, in connection with the sale, transfer and
conveyance of the Property described in SCHEDULE A attached hereto and
incorporated herein by reference ("Property"), that
1) that Transferor is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms are defined in the
Internal Revenue Code and Income Tax Regulations);
2) that the Transferor's United States identification number
is _______________;
3) that Transferor's principal office address is ____________,
_______________; and
4) that Transferor is aware that "Transferee" is relying upon
this Certificate in not withholding ten percent (10%) of the amount realized on
the disposition of the Property by Transferor to Transferee as required of
Transferee by Section 1445 of the Internal Revenue Code of 1986, as amended.
Transferor understands that this Certificate may be disclosed
to the Internal Revenue Service by Transferee and that any false statement
contained herein could be punished by fine, imprisonment or both.
TRANSFEROR:
[ ]
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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LIST OF SCHEDULES:
Schedule 7.1.4 Litigation
Schedule 7.1.10 Hazardous Substances
Schedule 7.1.10-1 Certain Environmental Disclosures
Schedule 7.1.13 Seller's Consents
Schedule 7.2.2 Purchaser's Consents
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SCHEDULE 7.1.4
LITIGATION
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THE HAVEN:
A: Pending or Threatened Professional Malpractice Claims
1. Xxxxx X., individually and as Next Friend for Xxxxxx S. v.
Xxxxx Xxxxx, Xx., XxXx Xxxxxxxxx, Xxxxxx Xxxxxx, Xxxxxx
Xxxxxx, M.D., Inc., and The Haven Hospital, Inc. In the
District Court of the 000xx Xxxxxxxx Xxxxxxxx xx Xxxxxx
Xxxxxx, Xxxxxx, Xxxxx, Case No. 95-158
2. Xxxxxxx Xxx X., as Next Friend of Xxxx X., a Minor v. The
Haven Hospital, Inc., Ramsay Health Care, Inc., Individually
and d/b/a The Haven Hospital, Inc., Xxxxxxx X. Xxxxxx, M.D.
and Xxxxx Xxxxx, M.D. In the District Court of Dallas County,
Texas, Case No. 97-7657
3. Threat of Claim, Patient Xxxxxx Stelphenson
B. EEOC or Other Employment-Related Claims
1. Xxxxxxxx X. Xxxxxx v. The Haven: EEOC Charge No. 310971493
C. Workers' Compensation Claims
1. Xxxx X. Xxxxxxxx
2. Xxxxx X. Brain
3. Xxxx Xxxxx
4. Xxxxx Xxxxxx
5. Xxxx Xxxxxx
6. Elbetrice Xxxxxxx
7. Xxxxx X. Xxxxxx
8. Xxxxxxx Xxxxxx
9. Xxxxxxx X. Xxxxxx
10. Xxxx X. Xxxxxx
11. Xxxxxxx Xxxxxxx
12. Xxxxxx Xxxxxxxx
13. Xxxxx X. Xxxxxxx
14. Xxx Xxxxx
15. Xxxx Xxxxxx
16. Xxxx X. Xxxxx
17. Xxxxxx X. Xxxxxx
18. Xxxxxx X. Xxxxxx
19. Xxxx X. Xxxxxx
20. Xxxx Xxxxxxxx
21. Xxxx X. Xxxxxxx
22. Xxxxxx X. Xxxxxx
23. Xxxx Xxxxxxxxxx
24. Delta X. Xxxxx
25. Xxxxxx Xxxxxxx
26. Xxxx X. Xxxxxxxx
27. Xxxx X. Xxxxxxxx
28. Xxxxx Xxxxx
29. Xxxxx Xxxxxxx
30. Xxxxxxx Xxxxxx
31. Xxxxxx X. Xxxxxx
32. Xxxxxx Xxxxxxx
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SCHEDULE 7.1.10
HAZARDOUS SUBSTANCES
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I. Matters set forth in the Phase I environmental audit reports by Xxxxxx
Xxxxx & Associates, Inc. dates March 1993:
a. The Haven
II. Matters set forth in any Phase I, Phase II or other environmental audit
reports prepared by or for the benefit of Purchaser or its affiliates,
or any assignee thereof.
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SCHEDULE 7.1.10-1
CERTAIN ENVIRONMENTAL DISCLOSURES
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SCHEDULE 7.1.13
SELLER'S CONSENTS
1. The Credit Agreement, dated as of September 30, 1997, as
amended and supplemented from time to time (the "Credit
Agreement"), by and among Ramsay Health Care, Inc., the Credit
Parties (as defined in the Credit Agreement), the Lenders from
time to time party thereto, General Electric Capital
Corporation, as Administrative Agent and GECC Capital Markets
Group, Inc., as Syndication Agent
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SCHEDULE 7.2.2
PURCHASER'S CONSENTS
None
