FIRST AMENDMENT TO
REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO REAL ESTATE PURCHASE AND SALE AGREEMENT (this
"Amendment") is made as of the 28th day of February, 1997, by and between
MAGELLAN HEALTH SERVICES, INC., a Delaware corporation ("Magellan" or the
"Seller"), and CRESCENT REAL ESTATE EQUITIES LIMITED PARTNERSHIP, a Delaware
limited partnership (the "Purchaser").
R E C I T A L S:
A. The parties entered into that certain Real Estate Purchase and Sale
Agreement dated as of January 29, 1997 (the "Agreement") and that
certain Contribution Agreement dated as of January 29, 1997 (the
"Contribution Agreement"). Capitalized terms used but not defined
herein have the meanings ascribed to them in the Agreement.
B. The parties desire to enter into this Amendment to evidence their
agreement to certain changes to the Agreement, as hereinafter set
forth, and to declare the Contribution Agreement null and void ab
initio and of no force and effect.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, the parties hereby agree as follows:
1. Contribution Agreement. The parties hereby declare the Contribution
Agreement to be null and void ab initio and of no force and effect, as
though it had never been entered into by them.
2. Recitals in Agreement. Recital A of the Agreement is amended and
restated in its entirety as follows:
In connection with the transactions contemplated by this
Agreement, Magellan and the Purchaser have entered into
that certain Warrant Purchase Agreement of even date
herewith (the "Warrant Purchase Agreement"). Magellan and
the Purchaser have also agreed that, follow ing the
execution of the Warrant Purchase Agreement and this
Agree ment and pursuant to the terms hereof, they will
cause certain other agreements to be executed, including,
without limitation, (i) that certain Operating Agreement
of Charter Behavioral Health Systems, LLC ("OpCo"),
between Magellan and a designee of the Purchaser to be
formed as a Delaware limited partnership or corporation
("New Cres cent") (the "Operating Agreement"), (ii) that
certain Contribution
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Agreement among Magellan, OpCo and New Crescent (the
"OpCo Con tribution Agreement"), (iii) that certain
Master Franchise Agreement between Magellan and OpCo (the
"Master Franchise Agreement") and certain additional
Franchise Agreements between Magellan and certain
subsidiaries of OpCo (the "Subsidiary Franchise
Agreements, and col lectively with the Master Franchise
Agreement, the "Franchise Agree ment"), (iv) that certain
Master Lease Agreement between the Purchaser and OpCo
(the "Facilities Lease"), (v) that certain Subordination
Agree ment by and among Magellan, the Purchaser and OpCo
(the "Subordi nation Agreement"), (vi) that certain
Warrant Purchase Agreement (the "Warrant Agreement")
between Magellan and New Crescent or Cres cent Corp. (as
such term is defined in the OpCo Contribution Agree ment)
and (vii) subject to certain conditions set forth in the
OpCo Con tribution Agreement, that certain Bridge Loan
and Security Agreement and Promissory Note between
Magellan and OpCo (the "Bridge Loan Agreement") (the
Agreement, this Amendment, the Warrant Purchase
Agreement, the Operating Agreement, the OpCo Contribution
Agree ment, the Franchise Agreement, the Facilities
Lease, the Subordination Agreement, the Warrant Agreement
and the Bridge Loan Agreement are referred to
collectively as the "Transaction Documents," and all of
the transactions contemplated hereby and thereby are
referred to collec tively as the "Transactions").
3. Seller's Representations and Warranties.
(a) Section 6.1(b) of the Agreement is amended to add the
following new first sentence:
The execution and delivery of this Agreement and the
other Transaction Documents by Magellan and the Magellan
Subsidiaries (as defined in the OpCo Contribution
Agreement) and the performance by Magellan and the
Magellan Subsidiaries of all obligations under this
Agreement and the other Transaction Documents, including,
without limitation, the sale and delivery of the
Contributed Assets, the Purchased Assets and the Working
Capital Assets (as each such term is defined in the OpCo
Con tribution Agreement) as contemplated under the OpCo
Contribution Agreement, have been duly authorized by all
necessary corporate action on the part of Magellan and
the Magellan Subsidiaries.
(b) The following new Section 6.1(bb) is added to the
Agreement:
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(bb) Magellan hereby makes the following representations
and warran ties to the Purchaser with respect to the
operation of the businesses con ducted at the Hospitals
(as defined in the OpCo Contribution Agree ment), all of
which are true as of the date hereof:
(i) Insurance. A complete and accurate schedule
of all insurance policies (including a statement
of policy limits and deductibles) held by
Magellan and the Magellan Subsidiaries relating
to the Hospitals or the businesses conducted
therein now in force, including, without
limitation, malpractice, public liability,
property damage and workers compensation or other
coverage, has been made available to the
Purchaser. All insurance policies remain in full
force and effect except where such failure to
remain in full force and effect will not have a
material adverse effect on a Hospital or on the
business of the Hospitals taken as a whole.
(ii) Litigation. Except asset forth in Schedule
5.1(f) to the OpCo Contribution Agreement, there are no
lawsuits, proceedings, actions, arbitrations, claims or
governmental investigations, inquiries or proceedings
pending or, to the knowledge of Magellan, threatened,
against Magellan or any Magellan Subsidiary seeking
damages for an amount in excess of $1 million, and there
is no action, suit or proceeding by any person or agency
pending or, to the knowledge of Magellan, threatened which
questions the legality or validity of the transactions
contemplated by the OpCo Contribution Agreement.
(iii) Licenses, Accreditation and Third-Party
Payors. Magellan and the Magellan Subsidiaries hold all
licenses, permits, registrations, approvals, certificates,
contracts, consents, accreditations, approvals and
franchises ("Operating Licenses") necessary to own or
lease the Contributed Assets and to conduct and operate
the Hospitals in the manner presently operated and for
participation in the Medicare and Medicaid reimbursement
programs, including, without limitation, all licenses,
certificates of need and permits required by the state in
which they operate and by all other appropriate health
care facility licensing agencies, federal, state, county
or local governmental authorities and regulatory agencies,
except where the failure to hold such Operating Licenses
would not have a material adverse effect on a Hospital or
on the business of the Hospitals taken as a whole.
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(iv) The Business. Upon transfer to OpCo of the
Contributed Assets, the Purchased Assets and the Working
Capital Assets as contemplated in the OpCo Contribution
Agreement, and consummation of the transactions
contemplated by the other Transactional Documents, (i)
OpCo will have or, through the Franchise Agreement, will
have access to all tangible and intangible assets and all
personnel reasonably necessary to conduct a business that
is substantially the same as and that operates in
accordance with the same standards of operation as the
business of the Hospitals prior to the Closing, and (ii)
OpCo will have the means to provide the services specified
in Section 7.9 of the OpCo Contribution Agreement.
(v) Contracts. Schedule 5.1(i) to the OpCo
Contribution Agreement contains a listing of all contracts
or series of related contracts which are material to the
business of the Hospitals, taken as a whole ("Material
Contracts"), including all amendments, modifications and
side letters thereto, currently in existence. With respect
to each Material Contract, neither Magellan nor any
Magellan Subsidiary has received a notice of termination,
has sent a notice of termination, is in default, or has
any knowledge that any other party to such Material
Contracts is in default thereunder.
(vi) No Other Owned Hospitals. Except as
described on Schedule 5.1(j), no Magellan Subsidiary owns
or operates any Hospital other than the Hospitals operated
using the assets which are being contributed or sold
pursuant to this Agreement and the OpCo Contribution
Agreement.
(vii) Financial Statements. All books and records
relating to operating income and expenses of the Hospitals
made available to the Purchaser by Magellan were and shall
be those maintained by Magellan in regard to the Hospitals
in the normal course of business. The audited Financial
Statements as of and for the year ended September 30, 1996
(the "1996 Financial Statements") furnished by Magellan to
the Purchaser as a part of the Seller's Deliveries have
been prepared from the books and records of Magellan in
the ordinary course of business and present fairly in all
material respects the results of operations of Magellan
for the periods then ended and the financial condition of
Magellan as of the date of the 1996 Financial Statements.
(viii) No Material Adverse Change. Since the date
of Magellan's 1996 Financial Statements, there has been no
material adverse change in the business or results of
operations of Magellan and the Magellan Subsidiaries taken
as a whole or the business of the Hospitals taken as a
whole.
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(ix) SEC Reports. The periodic reports filed by
Magellan with the Securities and Exchange Commission with
respect to Magellan's immediately preceding fiscal year
and any interim periods in its current fiscal year did not
as of their respective dates contain any untrue statements
of a material fact or omit to state any material fact
required to be stated therein or necessary to make the
statements therein, in the light of the circumstances
under which they were made, not misleading.
(x) Compliance With Laws. Magellan has delivered
to the Purchaser a draft dated January 24, 1997 ("Proxy
Statement") of its proxy statement to shareholders for its
Annual Meeting of Shareholders at which, among other
matters, shareholders of Magellan will consider and vote
on the transactions which are the subject of the
Transaction Documents. Except as described in the Proxy
Statement, or in documents filed with the Securities and
Exchange Commission pursuant to applicable law, Magellan
is not aware of any material risk that Magellan is, in the
conduct of the Business (as defined in the OpCo
Contribution Agreement) prior to the Closing, or that OpCo
will be, in the conduct of the Business after the Closing,
in violation of any applicable federal law specifically
designed to regulate the healthcare industry, which
violation will have a material adverse effect on Magellan
or OpCo.
4. Representations and Warranties of the Purchaser.
(a) Section 6.2(b) of the Agreement is amended to add the following new
first sentence:
The execution and delivery of this Agreement and the
other Transaction Documents by the Purchaser and the
consummation of the transactions con templated hereby and
thereby have been duly authorized by all necessary action
on the part of the Purchaser, including its general
partner.
(b) The following new Section 6.2(d) is added to the Agreement:
(d) SEC Reports. The periodic reports filed by Crescent
Real Estate Equities Company ("CEI") with the Securities
and Exchange Commission with re spect to CEI's
immediately preceding fiscal year and any interim periods
in its current fiscal year did not as of their respective
dates contain any untrue statements of a material fact or
omit to state any material fact required to be stated
therein or necessary to make the statements therein, in
the light of the circumstances under which they were
made, not misleading.
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5. Survival. Section 8.4 of the Agreement is amended to
add, as the new last sentence thereof, the following:
Notwithstanding the foregoing, the representations and
warranties set forth in (i) the first sentence of Section
6.1(b), (ii) Section 6.1(bb), (iii) the first sen tence
of Section 6.2(b), and (iv) Section 6.2(d) (all as set
forth in this Amend ment) shall not survive the Closing
except to the extent set forth in the same or similar
form in the OpCo Contribution Agreement.
6. Seller's Covenants.
(a) Section 7.1(k) of the Agreement is amended to add the
following as the new last two sentences:
Magellan and the Purchaser shall cooperate in all
reasonable respects in OpCo's application to obtain
necessary licenses, permits and governmental approvals.
In connection with each such application on the part of
OpCo, Magellan will promptly furnish OpCo with such
information and data as is reasonably necessary to obtain
such license, permit or approval.
(b) The following new Sections 7.1(s) through 7.1(aa) are
added to the Agree ment:
(s) Magellan's Pre-Closing Covenants.
(i) Preservation of Business. Magellan covenants
and agrees, and will cause each Magellan
Subsidiary to covenant and agree, that from the
date of this Agreement to the Closing Date,
except as otherwise specif ically agreed to in
writing by the Purchaser, Magellan will (i)
preserve the business organization of the
Hospitals intact, and (ii) preserve for OpCo the
goodwill of suppliers, customers and others with
whom business relationships exist.
(ii) Access to Information and Personnel.
Magellan agrees that the Purchaser shall have the
right to speak to any Magellan personnel and make
such further review as it deems necessary or
advisable, provided that the Purchaser shall
exercise reasonable efforts to coordinate such
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review with Magellan and to minimize disruption
to Magellan's opera tions. Notwithstanding the
foregoing, nothing herein contained shall be
deemed to provide the Purchaser with the right to
terminate this Agreement or any Transaction
Document as a result of any such re view, and the
results of such review shall not be a condition
to the Closing of the Transaction Documents.
(iii) Consents. Magellan shall use its
commercially reasonable best efforts to obtain
consent to the assignment of all of the contracts
as signed under Section 2.1 of the OpCo
Contribution Agreement.
(iv) No Change in Assets. Except in the ordinary
course of business consistent with past practice,
Magellan will not and will cause the Magellan
Subsidiaries not to, in any manner which would
result in a material adverse change in the
Contributed Assets, Purchased Assets or Working
Capital Assets (i) sell or transfer, (ii) create,
incur or as sume any indebtedness secured by,
(iii) grant, create, incur or suffer to exist any
liens, charges or encumbrances, which did not
exist on the date of this Agreement, on, (iv)
incur any liability or obligation (abso lute,
accrued or contingent), with respect to, or (v)
write-down the value on the books and records of
Magellan or a Magellan Subsidiary.
(v) No Change in Constitutive Documents. No
change shall be made in the Certificate or
Articles of Incorporation or bylaws of Magellan
or any of the Magellan Subsidiaries which would
result in any representa tion of Magellan
becoming untrue or in preventing Magellan from
full performance of this Agreement and the other
Transaction Documents.
(vi) Payment and Performance of Obligations.
Unless being disputed in good faith, Magellan
will not fail to pay and perform in its ordinary
course and consistent with past practice any and
all liabilities and obligations in respect of any
of the Contributed Assets as the same mature and
become owing, or cause or permit any default or
penalty to exist or occur under any of its
contracts or commitments.
(vii) No Amendment. Magellan will not amend,
alter or terminate any agreement to which it is a
party and which is to be assumed by OpCo pursuant
to this Agreement other than renewals or
amendments in the ordinary and regular course of
the Hospitals' business.
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(viii) Changes in Material Contracts. Magellan
will not, and Magellan will not permit a Magellan
Subsidiary to, without the prior written consent
of the Purchaser, (i) other than Material
Contracts entered into in the ordinary course of
business, enter into any Material Contract that
will or could be binding upon OpCo or other
entity operating the Hospitals and that is not
terminable upon at most 30 days' notice, unless
such contract will be fully performed by Magellan
or a Magel lan Subsidiary on or before the
Closing, or (ii) amend, modify, supple ment or
terminate any Material Contract other than in the
ordinary course of business. Any consent
requested by Magellan pursuant to this
subparagraph (viii) will be deemed approved if
the Purchaser does not respond by written notice
to Magellan within ten Business Days after
written notice from Magellan.
(t) Bridge Financing. On the Closing Date, either (i)
Magellan shall provide OpCo with bridge financing for a
one-year term in the amount of up to $55 million as
requested by OpCo to fund its working capital needs,
including funding OpCo's acquisition of existing
supplies, inventory, prepaid expenses, and other Working
Capital Assets (the form of the Bridge Loan Agreement is
attached as Exhibit D and D-1 to the OpCo Contribution
Agreement) or (ii) OpCo shall have obtained working
capital financing of at least $55 million pursuant to a
loan facility with a syndicate of financial institutions.
(u) Financial Statements. Magellan shall provide to the
Purchaser unaudited financial statements relating to
Magellan and the business of the Hospitals as may be
prepared by Magellan through the Closing Date.
(v) Insurance Reserves. Magellan will cause Plymouth
Insurance Company Ltd. ("Plymouth") to maintain
reserves in amounts that are reasonably actuarially
adequate to cover risks insured by Plymouth associated
with the operation of the business of the Hospitals.
(w) Trade Accounts. Except for amounts disputed in good
faith, Magellan will cause to be paid all trade accounts
and costs and expenses of operation and maintenance of
the Facilities incurred or attributable to the period
prior to the Closing, and Magellan agrees to indemnify
and hold the Purchaser harm less from such costs and
expenses.
(x) Services Agreements. Prior to closing, Magellan, in
its capacity as a joint venturer, will or will cause any
Magellan Subsidiary which is a joint
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venturer in any Joint Venture that owns or operates a
domestic Hospital, which Joint Ventures are set forth on
Schedule 7.9 to the OpCo Contribution Agreement and
defined in the Franchise Agreement as "Existing Joint Ven
tures" (a "Joint Venture"), to enter into a services
agreement with OpCo for each such Hospital owned or
operated by a Joint Venture, pursuant to which OpCo will
perform, to the extent agreed by joint venture partners,
all of Magellan's obligations under the Joint Venture
agreement in exchange for the payment to OpCo by Magellan
of all distributions and fees paid to Magellan by or on
behalf of the Joint Venture. Magellan will use its
commercially reasonable best efforts to obtain the
consent of Magellan's joint venture partners to the
performance, by OpCo, of Magellan's obligations under the
Joint Venture Agreements. Each service agreement, as
referred to in this Section 7.1(x), shall be approved by
the Purchaser, which approval shall not be unreasonably
withheld. The services agreement(s) shall continue in
effect until termination of the Facilities Lease.
(y) Third Party Consents; Further Assurances. Each of
Magellan and the Purchaser shall give (or shall cause
their respective subsidiaries to give) any notices to
third parties, and use, and cause their respective
subsidiaries to use, all commercially reasonable best
efforts to obtain any third party consents necessary,
proper or advisable for it to effect the consummation of
the trans actions contemplated by the OpCo Contribution
Agreement.
(z) Employee Solicitation. Magellan will not directly or
indirectly induce or attempt to influence any key
employee of the Purchaser to leave such em ployee's
position except as mutually agreed by the Purchaser and
Magellan. Prior to Closing, Magellan and the Purchaser
will mutually agree as to which employees will be
employed by OpCo, based on the contemplated functions of
OpCo, and which will be employed by Magellan, based on
the contem plated services to be supplied by Magellan
under the Franchise Agreement.
(aa) Assets. Magellan agrees and covenants that, between
the date hereof and the Closing Date, there will be no
material change in the type of Working Capital Assets or
type or amount of Contributed Assets or Purchased Assets.
7. Limitation on Survival of Covenants. Notwithstanding
anything to the con trary contained herein, Section
7.1(v) shall not survive the Closing except to the
extent set forth in the same or similar form in the
OpCo Contribution Agreement.
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8. Purchaser's Conditions Precedent to Closing. Section
8.1 of the Agreement is amended to add the following
new subsections:
(p) Purchaser shall have caused the formation of New
Crescent as an entity substantially conforming to the
description in Schedule 8.1(p) to the Agree ment and the
distribution to the public of shares of New Crescent
(unless New Crescent is the operating partnership, in
which case the distribution of shares will be from
Crescent Corp.).
(q) The OpCo Contribution Agreement in the form attached
hereto as Exhibit A, updated to reflect any change in the
name or form of organization of New Crescent (and/or
Crescent Corp.), shall have been executed by New
Crescent, Magellan and OpCo.
(r) The Operating Agreement in the form attached to the
OpCo Contribution Agreement as Exhibit C, updated to
reflect any change in the name or form of organization of
New Crescent, the names of the Directors and the source
of the initial bank financing referred to therein, and
with all missing information completed prior to execution
thereof, shall have been executed by New Cres cent and
Magellan.
(s) Unless working capital financing has been obtained
from a financial institution as provided in Section
7.1(t) of the Agreement, the Bridge Loan Agreement in the
form of Exhibit D and D-1 to the OpCo Contribution
Agreement shall have been executed by Magellan and OpCo.
9. Seller's Conditions Precedent to Closing. Section 8.2
of the Agreement is amended to add the following new
subsections:
(n) Purchaser shall have caused the formation of New
Crescent as an entity substantially conforming to the
description in Schedule 8.1(p) to the Agree ment and the
distribution to the public of shares of New Crescent
(unless New Crescent is the operating partnership, in
which case the distribution of shares will be from
Crescent Corp.).
(o) The OpCo Contribution Agreement in the form attached
hereto as Exhibit A, updated to reflect any change in the
name or form of organization of New Crescent (and/or
Crescent Corp.), shall have been executed by New
Crescent, Magellan and OpCo.
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(p) The Operating Agreement in the form attached to the
OpCo Contribution Agreement as Exhibit C, updated to
reflect any change in the name or form of organization of
New Crescent, the names of the Directors and the source
of the initial bank financing referred to therein, and
with all missing information completed prior to execution
thereof, shall have been executed by New Cres cent and
Magellan.
(q) The Franchise Agreement in the form of Exhibit B and
B-1 to the OpCo Contribution Agreement (except that (i)
the "Territory" for each Franchise Owner, as such term is
defined in the Franchise Agreement, shall be specified
prior to execution thereof in accordance with the
criteria set forth on Schedule 6.1(b) to the OpCo
Contribution Agreement and as reasonably determined by
Magellan with input from the individuals who have been
designated to be the President and the Chairman of the
Governing Board of OpCo, (ii) the identi ties and fees
payable by each Franchise Owner shall be specified prior
to execution thereof and (iii) all other missing
information shall be completed prior to execution thereof
and reflecting any change in the amount of the Franchise
Fee thereunder as mutually agreed by the parties) shall
have been executed by Magellan and, as applicable, OpCo
or the appropriate subsidiary of OpCo.
(r) The Warrant Agreement in the form of Exhibit E to the
OpCo Contribu tion Agreement (updated to reflect any
change in the name or form of organi zation of Crescent
Corp. and with the number of shares issuable under the
Warrant completed and the exercise price completed,
reflecting the same premium as used to calculate the
exercise price for the warrants under the Warrant
Purchase Agreement, and based upon a valuation of
Crescent Corp. conducted by a mutually agreed upon
independent appraiser) shall have been executed by
Magellan and Crescent Corp.
10. The following new Section is added to Article 8 of the
Agreement:
8.4 Ownership Limitation on Purchaser. Both parties
recognize that if the principal partner of the Purchaser,
CEI, which is a real estate investment trust under
sections 856 to 859 of the Internal Revenue Code of 1986,
as amended (the "Code") (a "REIT"), were considered to
own, directly or by operation of certain attribution
rules, a specified interest in OpCo and/or entities owned
by OpCo which are the Tenant under the Facilities Lease,
the rents to be re ceived by the Purchaser would not
constitute "rents from real property" under section
856(d) of the Code for purposes of determining CEI's
compliance
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with certain requirements of being a REIT. Both parties
agree that, notwith standing anything to the contrary in
this Agreement or any of the other Trans action
Documents, neither the Purchaser, nor any other entity
the assets of which would be attributed to CEI for
federal income tax purposes in any period during which
such entity owned such assets, has the right, option, or
obligation, directly or indirectly, (i) to enter into the
OpCo Contribution Agreement or (ii) otherwise to own any
entities constituting such Tenant, and any attempt to do
so will be null and void ab initio. Both parties agree
that the failure of the Purchaser to cause the formation
and distribution of an entity substantially conforming to
the description in Schedule 8.1(p) of the Agreement shall
not be considered (i) a breach entitling Seller to
enforce specific performance under Section 12.2(i) of the
Agreement or (ii) a breach or a failure to use
commercially reasonable best efforts entitling Seller to
recover damages under the last sentence of Section 8.3 or
under Section 12.2(ii) of the Agreement, but only if such
failure by the Purchaser occurs in reliance upon an
opinion of Shaw, Pittman, Potts & Trowbridge to the Pur
chaser that, if the Purchaser were to form and distribute
an entity substantially conforming to the description in
Schedule 8.1(p) of the Agreement, the rents to be
received by the Purchaser would likely not constitute
"rents from real property" or if such formation and
distribution would likely expose the Pur chaser to a tax
exceeding $10 million under section 857(b)(5) of the
Internal Revenue Code of 1986, as amended.
11. Continuation of Agreement. The Agreement shall continue
in full force and effect as modified hereby. In the
event of any conflicts or inconsistencies between this
Amendment (including all exhibits and Schedules
attached hereto) and the Agreement, the provisions of
this Amendment shall control.
12. Counterparts. This Amendment may be signed in any number
of counter parts, each of which shall be an original,
with the same effect as if the signa tories thereto and
hereto were upon the same instrument. Signatures may be
transmitted by facsimile and will be accepted and
considered effective as long as such signatures are
followed up with signature pages with original signa
tures within two (2) business days thereafter.
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the
parties hereto effective as of the date first above written.
CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP, a Delaware
limited partnership
By: Crescent Real Estate Equities, Ltd.,
a Delaware corporation,
its sole general partner
By: /s/ Dallas E. Lucas
------------------------------
Name: Dallas E. Lucas
Title: Chief Financial Officer
MAGELLAN HEALTH SERVICES, INC.,
a Delaware corporation
By: /s/ Craig McKnight
------------------------------
Name: Craig McKnight
Title: Executive Vice President CFO
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