Exhibit 10.24
PURCHASE OPTION AGREEMENT
THIS PURCHASE OPTION AGREEMENT (this "Agreement") is entered into
as of this 11th day of February, 1994, by and between HEALTH AND
REHABILITATION PROPERTIES TRUST, a Maryland real estate investment trust
("HRP"), and HORIZON HEALTHCARE CORPORATION, a Delaware corporation
("HHC").
W I T N E S S E T H :
WHEREAS, HRP is the owner of certain real property and the
improvements thereon as more particularly described in Exhibits
A-1 through A-7, attached hereto and made a part hereof (collectively,
the "Properties"); and
WHEREAS, on the date hereof, HRP and HHC are entering into lease
agreements (collectively, the "Leases"), pursuant to which HRP is
leasing to HHC and HHC is leasing from HRP the Properties; and
WHEREAS, HHC would like an option to purchase each of the
Properties and HRP is willing to grant such an option to HHC, all
subject to and upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the mutual receipt
and legal sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
1. Purchase Option. Provided no Default or Event of Default (as
defined therein) shall have occurred and be continuing under the Leases,
HHC shall, subject to and upon the terms and conditions set forth in
this Agreement, have the option to purchase one or more of the
Properties. The purchase price for each of the Properties shall be an
amount equal to the allocable purchase price set forth on Exhibit B,
attached hereto and made a part hereof, plus the cost of any
improvements made or purchased by HRP with respect thereto after the
date of this Agreement, without deduction or adjustment for depreciation
or otherwise. HHC may exercise its option to purchase one or more of
the Properties described in Exhibits A-1 through A-6 at any time after
January 1, 1994 and prior to the first to occur of December 31, 2003 and
the sooner termination of the Leases (the "Option Period") and may
exercise its option to purchase the property described in Exhibit A-7 at
any time after July 1, 1995 and prior to the expiration of the Option
Period (or at such other time as HRP may approve), in either case, by
the giving of sixty (60) days prior written notice (any such notice, an
"Exercise Notice") thereof to HRP. The failure of HHC to give an
Exercise Notice with respect to any Property prior to the expiration of
the Option Period shall be deemed a waiver by HHC of its option to
purchase the Properties pursuant to this Agreement; it being expressly
understood and agreed that time shall be of the essence with respect to
the giving of any such Exercise Notice. Any Exercise Notice shall be
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accompanied by a refundable deposit (the "Option Deposit") in the amount
of five percent (5%) of the purchase price of the applicable Property.
2. Certain Terms and Conditions. HHC's right to purchase one or
more of the Properties pursuant to this Agreement shall be subject to
the following additional terms and conditions:
(i) the first Property acquired pursuant to this Agreement shall
be the Property located in Slidell, Louisiana;
(ii) among the first four (4) Properties acquired pursuant to this
Agreement shall be either the Property located in Middleboro,
Massachusetts or the Property located in Cannonsburg, Pennsylvania;
(iii) among the first six (6) Properties acquired pursuant to this
Agreement shall be both the Property located in Middleboro,
Massachusetts and the Property located in Cannonsburg, Pennsylvania; and
(iv) HHC shall not have the right to acquire more than one (1)
Property in any consecutive twelve (12) month period during the Option
Period.
HHC shall have no right to acquire the Properties other than in a
manner consistent with this Section 2.
3. Purchase and Sale. Any closing pursuant to this Agreement
shall occur sixty (60) days after the giving of the applicable Exercise
Notice. The purchase price for each Property shall be payable in cash
or by wire transfer of immediately available Federal funds. Any
applicable Property shall be conveyed by HRP to HHC by insurable deed
with warranties and other instruments customary therefor in the
jurisdiction in which the applicable property is located. Upon such
conveyance, the applicable Lease shall be terminated. All closing costs
shall be paid by HHC.
4. Default. In the event of any default by HHC in purchasing any
Property subsequent to the giving of the applicable Exercise Notice (for
reasons other than HHC's determination of sufficiency of title, any
encumbrances and matters of record affecting such Property), HRP's sole
remedy shall be to retain that portion of the applicable Option Deposit
equal to the reasonable costs and expenses (including, without
limitation, attorneys' fees) incurred by HRP in connection with the
exercise of such option by HHC and HHC shall, thereafter, have no
further right to purchase any of the Properties pursuant to this
Agreement.
5. Financing. In the event that HHC shall elect to obtain
financing for the purchase of any Property pursuant to this Agreement
from a third party, HHC shall give HRP notice thereof, which notice
shall set forth in reasonable detail the terms of such financing, shall
identify the source thereof and shall include a copy of any applicable
term sheet, letter of intent or commitment letter. HRP shall have the
right, exercisable by the giving of notice to HHC within 10 days after
such notice from HHC, to provide financing for such acquisition on the
same terms and conditions as offered by such third party. In the event
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HRP shall exercise such option, HHC shall be obligated to obtain such
financing from HRP on the terms and conditions set forth in HHC's notice
to HRP. In the event HRP shall decline to provide such financing or
shall fail to give such notice to HHC, HHC shall be free to obtain such
financing from the third party and on the terms and conditions set forth
in HHC's notice.
6. Notices. (a) Any and all notices, demands, consents,
approvals, offers, elections and other communications required or
permitted under this Agreement shall be deemed adequately given if in
writing and the same shall be delivered either in hand, by telecopier
with written acknowledgment of receipt, or by mail or Federal Express or
similar expedited commercial carrier, addressed to the recipient of the
notice, postpaid and registered or certified with return receipt
requested (if by mail), or with all freight charges prepaid (if by
Federal Express or similar carrier).
(b) All notices required or permitted to be sent hereunder shall
be deemed to have been given for all purposes of this Agreement upon the
date of acknowledged receipt, in the case of a notice by telecopier,
and, in all other cases, upon the date of receipt or refusal, except
that whenever under this Agreement a notice is either received on a day
which is not a business day or is required to be delivered on or before
a specific day which is not a business day, the day of receipt or
required delivery shall automatically be extended to the next business
day.
(c) All such notices shall be addressed,
If to HRP, to:
Health and Rehabilitation Properties Trust
400 Centre Street
Newton, Massachusetts 02158
Attn: Mr. David J. Hegarty
[Telecopier No. (617) 332-2261]
with a copy to:
Sullivan & Worcester
One Post Office Square
Boston, Massachusetts 02109
Attn: Lena G. Goldberg, Esq.
[Telecopier No. (617) 338-2880]
if to HHC to:
Horizon Healthcare Corporation
6001 Indian School Road, NE, Fl. 5
Albuquerque, NM 87110
Attn: Neal Elliott
[Telecopier No. (505) 881-5097]
with a copy to:
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Horizon Healthcare Corporation
6001 Indian School Road, NE, Fl. 5
Albuquerque, NM 87110
Attn: Scot Sauder, Esq.
[Telecopier No. (505) 881-5097]
(d) By notice given as herein provided, the parties hereto and
their respective successors and assigns shall have the right from time
to time and at any time during the term of this Agreement to change
their respective addresses effective upon receipt by the other parties
of such notice and each shall have the right to specify as its address
any other address within the United States of America.
7. Waivers, Etc. Any waiver of any term or condition of this
Agreement, or of the breach of any covenant, representation or warranty
contained herein, in any one instance, shall not operate as or be deemed
to be or construed as a further or continuing waiver of any other breach
of such term, condition, covenant, representation or warranty or any
other term, condition, covenant, representation or warranty, nor shall
any failure at any time or times to enforce or require performance of
any provision hereof operate as a waiver of or affect in any manner such
party's right at a later time to enforce or require performance of such
provision or any other provision hereof. This Agreement may not be
amended, nor shall any waiver, change, modification, consent or
discharge be effected, except by an instrument in writing executed by or
on behalf of the party against whom enforcement of any amendment,
waiver, change, modification, consent or discharge is sought.
8. Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective legal representatives, successors and permitted assigns.
This Agreement is not intended and shall not be construed to create any
rights in or to be enforceable in any part by any other persons.
9. Severability. If any provision of this Agreement shall be held
or deemed to be, or shall in fact be, invalid, inoperative or
unenforceable as applied to any particular case in any jurisdiction or
jurisdictions, or in all jurisdictions or in all cases, because of the
conflict of any provision with any constitution or statute or rule of
public policy or for any other reason, such circumstance shall not have
the effect of rendering the provision or provisions in question invalid,
inoperative or unenforceable in any other jurisdiction or in any other
case or circumstance or of rendering any other provision or provisions
herein contained invalid, inoperative or unenforceable to the extent
that such other provisions are not themselves actually in conflict with
such constitution, statute or rule of public policy, but this Agreement
shall be reformed and construed in any such jurisdiction or case as if
such invalid, inoperative or unenforceable provision had never been
contained herein and such provision reformed so that it would be valid,
operative and enforceable to the maximum extent permitted in such
jurisdiction or in such case.
10. Counterparts, Etc. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This
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Agreement constitutes the entire agreement of the parties hereto with
respect to the subject matter hereof and shall supersede and take the
place of any other instruments purporting to be an agreement of the
parties hereto relating to the subject matter hereof. Each of the
parties hereto shall cooperate with one another in order to consummate
the transactions contemplated by this Agreement.
11. Section and Other Headings. The headings contained in this
Agreement are for reference purposes only and shall not in any way
affect the meaning or interpretation of this Agreement.
12. Memorandum of Option. Neither HRP nor HHC shall record this
Agreement. However, HRP and HHC shall promptly, upon the request of
either, enter into a short form memorandum of this Agreement, in form
suitable for recording under the laws of the states in which the
Properties are located, in which reference to the options herein
contained shall be made. The party requesting such memorandum shall pay
all costs and expenses incurred in recording such memorandum.
13. Limitation of Liability. The Declaration of Trust of HRP, as
amended, is duly filed in the Office of the Department of Assessments
and Taxation of the State of Maryland, provides that the name "Health
and Rehabilitation Properties Trust" refers to the trustees under the
Declaration collectively as Trustees, but not individually or
personally, and that no trustee, officer, shareholder, employee or agent
of HRP shall be held to any personal liability, jointly or severally,
for any obligation of, or claim against, HRP. All persons dealing with
HRP, in any way, shall look only to the assets of HRP for the payment of
any sum or the performance of any obligation.
14. Governing Law. This Agreement shall be interpreted,
construed, applied and enforced in accordance with the laws of The
Commonwealth of Massachusetts applicable to contracts between residents
of Massachusetts which are to be performed entirely within
Massachusetts, regardless of (i) where this Agreement is executed or
delivered; or (ii) where any payment or other performance required by
this Agreement is made or required to be made; or (iii) where any breach
of any provision of this Agreement occurs, or any cause of action
otherwise accrues; or (iv) where any action or other proceeding is
instituted or pending; or (v) the nationality, citizenship, domicile,
principle place of business, or jurisdiction of organization or
domestication of any party; or (vi) whether the laws of the forum
jurisdiction otherwise would apply the laws of a jurisdiction other than
The Commonwealth of Massachusetts; or (vii) any combination of the
foregoing.
To the maximum extent permitted by applicable law, any action to
enforce, arising out of, or relating in any way to, any of the
provisions of this Lease may be brought and prosecuted in such court or
courts located in The Commonwealth of Massachusetts as is provided by
law; and the parties consent to the jurisdiction of said court or courts
located in The Commonwealth of Massachusetts and to service of process
by registered mail, return receipt requested, or by any other manner
provided by law.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as a sealed instrument as of the date above first written.
HEALTH AND REHABILITATION
PROPERTIES TRUST
By: David J. Hegarty
Its: Executive Vice President
HORIZON HEALTHCARE CORPORATION
By: Neal Elliott
Its: President
EXHIBIT A-1
[See attached copy.]
EXHIBIT A-2
[See attached copy.]
EXHIBIT A-3
[See attached copy.]
EXHIBIT A-4
[See attached copy.]
EXHIBIT A-5
[See attached copy.]
EXHIBIT A-6
[See attached copy.]
EXHIBIT A-7
[See attached copy.]
EXHIBIT B
Purchase Price
Hyannis $ 8,300,000
North Andover $12,500,000
Middleboro $17,000,000
Worcester $17,500,000
Cannonsburg $15,600,000
Slidell $24,500,000
Boston $25,000,000