Exhibit 10.2
INCORPORATION AGREEMENT
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THIS INCORPORATION AGREEMENT ("AGREEMENT") is made and entered into as of
the _____ day of June, 1996 by and among (i) ATRIA COMMUNITIES, INC., a Delaware
corporation ("CORPORATION"), (ii) VENCOR, INC., a Delaware corporation
("VENCOR"), (iii) FIRST HEALTHCARE CORPORATION, a Delaware corporation ("FHC"),
(iv) NATIONWIDE CARE, INC., an Indiana corporation ("NATIONWIDE"), and (v) NEW
POND VILLAGE ASSOCIATES, a Massachusetts general partnership ("NEW POND").
RECITALS:
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A. The Corporation is a newly formed corporation formed for the purpose
of acquiring substantially all of the assisted living and independent living
communities of Vencor and its affiliates ("DIVISION").
B. The parties desire to convey the Division to the Corporation in
connection with an initial public offering of shares of the Corporation's common
stock, par value $.10 per share ("COMMON STOCK").
C. The parties desire to enter into this Agreement to set forth their
understanding with respect to the manner in which the Corporation will acquire
the Division in exchange for shares of Common Stock and the assumption of
certain liabilities related thereto.
AGREEMENT:
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NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. TRANSFER OF RETIREMENT HOUSING DIVISION. As part of a single plan, on
the Closing Date (as hereinafter defined) Vencor, FHC, Nationwide and New Pond
(collectively, the "TRANSFERORS") will convey the assets referred to below,
which constitute substantially all of the assets of the Division, to the
Corporation in connection with the Corporation's initial public offering, in
consideration for the issuance by the Corporation of its Common Stock to the
Transferors as provided in Section 3, and the assumption by the Corporation of
the liabilities associated with the Division referred to in Section 4, all in a
transaction designed to meet the requirements of section 351(a) of the
Internal Revenue Code of 1986, as amended ("CODE"). Such transfers shall be as
follows:
(a) Vencor shall do the following:
(i) Transfer to the Corporation a 98% limited partner interest in
Lantana Partners Limited Partnership, a Florida limited partnership.
(ii) Transfer to the Corporation 2,000 shares of Common Stock of
Phillippe Enterprises, Inc., an Indiana corporation, being all of the issued and
outstanding shares of Phillippe Enterprises, Inc.
(iii) Cancel, and cause all of its affiliated entities to cancel, all
intercompany receivables of such entities which relate to the Division, except
for a $14 million receivable from HPL (as hereinafter defined). On the Closing
Date, HPL shall execute a promissory note in favor of Vencor in such amount,
such note to bear interest at the announced prime rate of National City Bank of
Kentucky as the same shall exist from time to time, plus one percentage point
and shall be payable one year from the Closing Date.
(iv) Transfer to the Corporation all of Vencor's right, title and
interest in that certain Lease Agreement dated November 1, 1991, by and among
The Newark Company, Vencor and FHC relating to the McMillan Center (as
hereinafter defined) ("MCMILLAN LEASE").
(b) FHC shall transfer to the Corporation the following:
(i) 1,000 shares of Common Stock of Hillhaven Properties, Ltd., an
Oregon corporation ("HPL"), being all of the issued and outstanding shares of
HPL.
(ii) A 98% general partner interest in Castle Gardens Retirement
Center Partnership, a Colorado general partnership ("CASTLE GARDENS").
(iii) A 68.6% limited partner interest in Hillcrest Retirement
Center, Ltd., an Oregon limited partnership ("HILLCREST RETIREMENT").
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(iv) A 98% limited partner interest in Sandy Retirement Center Limited
Partnership, an Oregon limited partnership ("SANDY RETIREMENT").
(v) A 10% limited partner interest in Topeka Retirement Center, Ltd.,
a Missouri limited partnership ("TOPEKA RETIREMENT").
(vi) A 99% limited partner interest in
Twenty-Nine Hundred Associates Limited Partnership, a Florida limited
partnership ("TWENTY-NINE HUNDRED").
(vii) All of the real property and personal property which
constitutes the Valley Manor Retirement Apartments in Tucson, Arizona ("VALLEY
MANOR").
(viii) All of the real property and personal property which
constitutes the Villa Ventura Retirement in Kansas City, Missouri ("VILLA
VENTURA").
(ix) All of the real property and personal property owned by FHC which
constitutes The Greens in Hanover, New Hampshire ("THE GREENS").
(x) All of the real property and personal property owned by FHC which
constitutes a part of the McMillan Center in Newark, Ohio ("MCMILLAN CENTER").
(xi) All of FHC's right, title and interest in the McMillan
Lease.
(xii) All of the real property more particularly described in Exhibit
A attached hereto and made a part hereof ("REAL PROPERTY").
(xiii) Enter into a Lease with the Corporation in the form of Exhibit
B attached hereto and made a part hereof pursuant to which FHC leases to the
Corporation certain real property located in Redding, California.
(c) Nationwide shall transfer to the Corporation the following:
(i) A 99% general partner interest in Evergreen Woods, Ltd., a
Florida limited partnership ("EVERGREEN WOODS").
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(ii) All of the real property and personal property which constitutes
the Heritage at Wildwood in Wildwood, Indiana.
(iii) All of its right, title and interest in and to that certain
Management Agreement dated September 1, 1989 between Nationwide Management, Inc.
and Wesleyan Retirement Center, Inc. with respect to Colonial Oaks in Marion,
Indiana ("MANAGEMENT AGREEMENT").
(iv) $4,500,000.
(d) New Pond shall do the following:
(i) Transfer to the Corporation $9,500,000.
(ii) Transfer to the Corporation all of the assets constituting New
Pond Retirement Center ("NEW POND CENTER") other than those assets which are
secured by that certain Mortgage and Trust Indenture by and between New Pond and
First National Bank of Boston, as Trustee, dated November 1, 1990, Securing
Resident Mortgage Bonds (New Pond Village Project) Series A ("NEW POND
MORTGAGE").
(iii) Enter into a Lease with the Corporation in the form of Exhibit
C attached hereto and made a part hereof pursuant to which New Pond leases to
the Corporation all of the assets secured by the New Pond Mortgage.
2. OTHER TRANSFERS.
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(a) In addition to the transfers provided for in Section 1(b), on the
Closing Date, FHC shall transfer to HPL the following:
(i) A 1% limited partner interest in Evergreen Woods.
(ii) All of the real property and personal property which constitutes
Villa Campana Retirement in Tucson, Arizona ("VILLA CAMPANA").
(b) FHC shall cause the following to occur on the Closing Date:
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(i) HPL to transfer to Nationwide the following:
(A) A 2% general partner interest in St. George Nursing Home
Limited Partnership, an Oregon limited partnership.
(B) A 1% general partner interest in Stockton Healthcare Center
Limited Partnership, an Oregon limited partnership.
(C) A 1% general partner interest in Hillhaven Indiana
Partnership, an Indiana general partnership.
(D) A 1% general partner interest in Hillhaven/Westfield
Partnership, a Washington general partnership, upon receipt of consent from the
United States Department of Housing and Urban Development (which is not expected
to be received prior to the Closing Date).
(E) A 1% general partner interest in New Pond.
(ii) HPL to transfer to FHC the real property located in Tulsa,
Oklahoma more particularly described in Exhibit D attached hereto and made a
part hereof.
(iii) Evergreen Woods to transfer all of the assets and liabilities
relating to the skilled nursing home facility owned by it to Nationwide.
(c) On the Closing Date, the Corporation shall pay to Vencor $150,000
in consideration for the assistance provided to the Corporation by Vencor in
connection with the Corporation's initial public offering.
3. ISSUANCE OF COMMON STOCK. In consideration of the transfer of the
assets by the Transferors provided for in Section 1, on the Closing Date the
Corporation shall issue an aggregate of 9,999,900 shares of its Common Stock to
the Transferors, such shares to be allocated among them as they shall agree on
or before the Closing Date. All such shares of Common Stock shall be fully paid
and nonassessable.
4. ASSUMPTION OF LIABILITIES. In part consideration for the transfer of
the assets by the Transferors to the Corporation as provided for in Section 1,
on the Closing Date the Corporation
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will enter into appropriate assumption agreements with each of the Transferors
with respect to the following:
(a) With respect to Vencor, any and all liabilities which Vencor may
have had as a partner of Lantana.
(b) With respect to FHC, all of FHC's liabilities with respect to the
following:
(i) All of its liability as a partner of Castle Gardens,
Hillcrest Retirement, Sandy Retirement, Topeka Retirement, Twenty-Nine Hundred,
San Marcos, Evergreen Woods and New Pond.
(ii) All of its liabilities and obligations with respect to
Valley Manor, Villa Ventura, The Greens, McMillan Center and Villa Campana.
(iii) All of its liabilities and obligations with respect to the
Real Property.
(c) With respect to Nationwide, the following:
(i) All of its liabilities as a partner of Evergreen Woods.
(ii) All of its liabilities and obligations with respect to
Heritage at Wildwood.
(iii) All of its liabilities and obligations with respect to
the Management Agreement.
(d) With respect to New Pond, all of its liabilities and obligations
with respect to New Pond Center.
The liabilities and obligations to be assumed by the Corporation pursuant to the
provisions of this Section 4 shall include all of the liabilities referred to
therein, whether or not reflected on the books and records of the Transferor or
the entity whose ownership is being transferred, and whether known or unknown,
accrued or unaccrued, absolute, contingent or otherwise.
5. CLOSING DATE. The closing of the transactions contemplated by this
Agreement shall occur on the day immediately following the day that all of the
conditions precedent of the
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Transferors and the Corporation have been met or waived by the party entitled to
the benefit thereof, but in all events no later than the date the Registration
Statement with respect to the Corporation's initial public offering becomes
effective.
6. REPRESENTATIONS AND WARRANTIES.
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(a) Each of the Transferors hereby represent to Atria with respect to
themselves as follows:
(i) It is a corporation or partnership, as applicable, duly
organized and validly existing.
(ii) It has the full corporate or partnership power and
authority, as applicable, to execute and deliver this Agreement and to
consummate the transactions contemplated hereby.
(iii) This Agreement constitutes its valid and legally binding
obligation, enforceable in accordance with its terms.
(iv) It owns the stock and partnership interests to be
transferred by it to the Corporation pursuant to the terms of this Agreement
free and clear of all liens and encumbrances, other than restrictions contained
in the partnership agreement with respect to a particular partnership.
(v) All of the partnerships whose interests are to be
transferred pursuant to terms of this Agreement are duly organized and validly
existing.
Except as specifically warranted in this Section 6(a), the Transferors make no
representations and warranties to the Corporation whatsoever regarding the
assets transferred, or the assets of the entities whose ownership is being
transferred, including, but not limited to, the warranty of merchantability or
fitness for a particular use, which is specifically disclaimed. The Corporation
acknowledges that all of the assets to be conveyed by the Transferors to the
Corporation will be conveyed "as is, where is."
(b) The Corporation hereby represents, warrants and covenants with and
to the Transferors as follows:
(i) The Corporation is a corporation duly organized and
validly existing.
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(ii) The Corporation has the full corporate power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby.
(iii) This Agreement constitutes the valid and legally binding
obligation of the Corporation, enforceable in accordance with its terms.
(iv) The Common Stock to be issued by the Corporation to the
Transferors pursuant to the terms of this Agreement will be duly authorized,
fully paid and nonassessable.
(v) As of the Closing Date, the Corporation will have 100 shares
of Common Stock issued and outstanding, all of which will be owned by Vencor.
(vi) The Corporation will not take any action which would cause
the transfers provided for in Section 1 not to qualify for tax-free treatment
under section 351 of the Code.
(vii) On the Closing Date, it will hire all of the employees of
the Transferors associated with the Division transferred.
(c) All of the representations and warranties provided for in this
Section 6 shall survive the Closing Date and the delivery of the closing
documents on the Closing Date.
7. CONDITIONS PRECEDENT.
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(a) The obligation of the Transferors to consummate the transactions
contemplated hereby is subject to the satisfaction of the following conditions
(any of which may be waived by the Transferors in writing):
(i) All the terms, covenants and conditions of this Agreement to
be complied with and performed by the Corporation on or before the Closing Date
shall have been fully complied with and performed in all respects.
(ii) All the representations and warranties made by the
Corporation herein shall be true and correct in all respects on and as of the
Closing Date.
(iii) All consents required for the valid and effective transfer
of the assets to be transferred in accordance
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with Sections 1 and 2 shall have been obtained and the consent to the assumption
by the Corporation of the debts to be assumed by the Corporation pursuant to
Section 4 shall have been obtained.
(iv) There shall be no pending or threatened litigation against
any of the parties hereto concerning or relating to the transactions
contemplated hereby.
(v) The approval of all administrative agencies, if any, whose
approval of the transactions contemplated hereby is necessary or desirable shall
have been obtained.
(vi) The Corporation and Vencor shall have entered into a
Registration Rights Agreement in the form of Exhibit E attached hereto and made
a part hereof.
(b) The obligation of the Corporation to consummate the transactions
contemplated hereby is subject to the satisfaction of the following conditions
(any of which may be waived by the Corporation in writing):
(i) All the terms, covenants and conditions of this Agreement to
be complied with and performed by the Transferors on or before the Closing Date
shall have been fully complied with and performed in all respects.
(ii) All the representations and warranties made by the
Transferors herein shall be true and correct in all respects on and as of the
Closing Date.
(iii) All required consents necessary for the valid and effective
transfer of the assets to be transferred to the Corporation in accordance with
the provisions of Section 1 shall have been obtained.
(iv) The Corporation shall have obtained title insurance (or
endorsed commitment) insuring that all the real property to be transferred to
the Corporation pursuant to the provisions of Section 1, and all real property
owned by the entities interests in which are to be transferred to the
Corporation in accordance with Section 1, are vested in the Corporation or such
entities, respectively, free and clear of all mortgages, liens and encumbrances
except those reasonably acceptable to the Corporation.
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(v) The conditions referred to in Sections 7(a)(iv) and 7(a)(v)
shall have been complied with.
(vi) Vencor and the Corporation shall have entered into a Tax
Sharing Agreement substantially in the form of Exhibit F attached hereto and
made a part hereof.
(vii) The Corporation and Vencor shall have entered into an
Administrative Services Agreement substantially in the form of Exhibit G
attached hereto and made a part hereof.
(viii) The Corporation and Vencor shall have entered into a
Guaranty Agreement substantially in the form of Exhibit H attached hereto and
made a part hereof.
8. DISPUTE RESOLUTION.
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(a) In the event that any dispute arises among the parties with
respect to their rights and obligations under the terms of this Agreement or any
agreement entered into as a result of this Agreement ("DISPUTE"), the parties
agree that the provisions of this Section 8 shall be their sole and exclusive
remedy. The parties shall first attempt to settle such Dispute by having senior
management or other mutually agreed upon representatives of the parties address
the issue. Such shall occur within 20 days of the giving of notice by a party
that a Dispute exists and that such party desires the Dispute to be resolved by
senior management in accordance with the provisions of this Section 8(a).
(b) If the above referred to parties are unable to resolve the Dispute
within 60 days of the giving of the notice referred to in Section 8(a), then
either of the parties shall have the right to submit the Dispute to mediation.
Such mediation shall be conducted in accordance with the Center for Public
Resources Model Procedure for Mediation of Business Disputes. If mediation
proves unsuccessful in resolving the Dispute within 60 days of the initiation of
the mediation procedure, then either party may require that the Dispute be
resolved by binding arbitration if the Dispute involves less than $5 million. If
the parties disagree as to whether the Dispute involves less than $5 million,
such issue may be resolved by binding arbitration. All arbitrations provided for
herein shall be conducted under the commercial rules of the American Arbitration
Association using a single arbitrator mutually agreed to by the parties or, if
the parties cannot agree on the
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arbitrator, then the arbitrator shall be selected by the American Arbitration
Association. It is intended that the arbitrator actively manage the arbitration
with a view to achieving a just, speedy and cost effective resolution of the
Dispute. Except as provided in Section 8 (d), the decision of the arbitrator
shall be final and binding upon the parties and the prevailing party in such
arbitration shall be entitled to a judgment on such award in any court of
competent jurisdiction. The parties hereby acknowledge that except as provided
in Section 8(d), this provision constitutes a waiver of their right to commence
a lawsuit with respect to any Dispute.
(c) Any party involved in the arbitration may request limited document
production from the other party or parties of specific and expressly relevant
documents, with the reasonable expenses of the producing party incurred in such
production paid by the requesting party. Any such discovery (which rights to
documents shall be substantially less than document discovery rights prevailing
under the Federal Rules of Civil Procedure) shall be conducted expeditiously and
shall not cause the arbitration hearing to be adjourned except upon consent of
all parties involved in the arbitration or upon an extraordinary showing of
cause demonstrating that such adjournment is necessary to permit discovery
essential to a party to the proceeding. Depositions, interrogatories or other
forms of discovery (other than the document production set forth above) shall
not occur except by consent of all of the parties to the arbitration. Disputes
concerning the scope of document production and enforcement of the document
production requests will be determined by written agreement of the parties
involved or, failing such agreement, will be referred to the arbitrator for
resolution. All discovery requests will be subject to the parties' rights to
claim any applicable privilege. The arbitrator will adopt procedures to protect
the proprietary rights of the parties and to maintain the confidential treatment
of the arbitration proceedings (except as may be required by law). Subject to
the foregoing, the arbitrator shall have the power to issue subpoenas to compel
the production of documents relevant to the Dispute.
(d) Notwithstanding the provisions of Section 8(b), if any arbitration
award, exclusive of interest, exceeds $10 million, then such award shall not be
final and binding upon the parties unless the party in whose favor the award was
rendered agrees to accept $10 million in full settlement within 15 days after
the rendering of the decision by the arbitrator. If the
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party in whose favor the award was rendered does not so agree within such 15-day
period, then the party against which such award was rendered shall have a period
of 60 days following the end of the 15-day period referred to above in which to
commence a legal proceeding in a court of competent jurisdiction with respect to
the Dispute which was the subject of such arbitration award. If no legal
proceedings are commenced within such 60 day period, then the arbitration award
shall become final and binding upon the parties.
(e) Each party shall bear its own attorneys' fees and other costs and
expenses involved in resolving a Dispute. The costs of mediation and arbitration
shall be borne equally by the parties to the mediation or arbitration.
9. INDEMNIFICATION
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(a) Each Transferor hereby agrees to indemnify the Corporation for,
and to hold the Corporation harmless from the following:
(i) Any and all damages or deficiencies resulting from any
misrepresentation, breach of any warranty or nonfulfillment of any agreement or
covenant on the part of that Transferor, whether contained in this Agreement or
in any document furnished in connection with the transactions contemplated
hereby; and
(ii) Any and all actions, suits, proceedings, demands,
assessments, judgments, costs and expenses incident to the foregoing, including
attorney's fees.
(b) The Corporation hereby agrees to indemnify each Transferor for,
and to hold each Transferor harmless from, the following:
(i) Any and all liabilities and obligations assumed, or to be
assumed, by the Corporation in accordance with the terms hereof;
(ii) Any and all damages or deficiencies resulting from any
misrepresentations, breach of any warranty or nonfulfillment of any agreement or
covenant on the part of the Corporation, whether contained in this Agreement or
in any document furnished in connection with the transactions contemplated
hereby; and
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(iii) Any and all actions, suits, proceedings, demands,
assessments, judgments, costs and expenses incident to any of the foregoing,
including attorneys' fees.
(c) The party seeking indemnification ("INDEMNITEE") shall promptly
(within 20 days if a third party has commenced actual litigation against the
Indemnitee) give notice to the party from which indemnification is sought
("INDEMNITOR") after the Indemnitee has knowledge of any claim against the
Indemnitor as to which recovery may be sought against the Indemnitee pursuant to
this Section 9, or of the commencement of any legal proceedings against the
Indemnitee as to such claim after the Indemnitee has knowledge of such
proceedings, whichever shall first occur, and shall permit the Indemnitor to
assume the defense of any such claim or any litigation resulting from such
claim. Such notice shall specify in reasonable detail the facts known to the
Indemnitee giving rise to such indemnification rights and, if possible, an
estimate of the amount of liability which could result therefrom. The right of
the Indemnitee to indemnification hereunder shall be deemed agreed to unless,
within ten days after the receipt of such notice, the Indemnitee is notified in
writing by the Indemnitor that it disputes the right to indemnification as set
forth in such notice. Failure by the Indemnitor to notify the Indemnitee of the
Indemnitor's election to defend such action within ten days after notice thereof
shall have been given to the Indemnitor, or notification to the Indemnitee by
the Indemnitor that the Indemnitee's right to indemnification is being disputed,
shall be deemed a waiver by the Indemnitor of its right to defend such action.
If the Indemnitee shall be so notified of such dispute of such right to
indemnification, the dispute resolution procedures of Section 8 shall apply. The
Indemnitor shall not, in the defense of such claim or any litigation resulting
therefrom, consent to entry of any judgment (except with the consent of the
Indemnitee) or enter into any settlement (except with the consent of the
Indemnitee) which does not include as an unconditional term thereof the giving
by the claimant or the plaintiff to the Indemnitee of a release from all
liability in respect of such claim or litigation.
(d) If the Indemnitor shall not assume the defense of any such claim
or litigation resulting therefrom, the Indemnitee may defend against such claim
or litigation in such manner as it may deem appropriate. The Indemnitee may
settle such claim or litigation on such terms as it may deem appropriate and the
Indemnitor shall promptly reimburse the Indemnitee for the amount
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of such settlement, and all expenses, legal or otherwise, incurred by the
Indemnitee in connection with the defense against, or settlement of, such claim
or litigation. If no settlement of such claim or litigation is made, the
Indemnitor shall promptly reimburse the Indemnitee for the amount of any
judgment rendered with respect to such claim or in such litigation, and of all
expenses, legal or otherwise, incurred by the Indemnitee in the defense against
such claim or litigation. Notwithstanding the foregoing, if the Indemnitor has
disputed the Indemnitee's right to indemnification in accordance with the
provisions of Section 9(c), the Indemnitor shall not be obligated to pay the
Indemnitee the amount provided for in this Section 9(d) until such dispute has
been resolved and it has been determined that the Indemnitor is required to make
such indemnification.
10. MISCELLANEOUS.
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(a) Each of the Transferors hereby covenants and agrees that
subsequent to the Closing Date they will, at any time, and from time to time,
upon the request and at the expense of the Corporation, do, acknowledge and
deliver, or cause to be done, executed, acknowledged and delivered, all such
further acts, deeds, assignments, transfers, conveyances, powers of attorney and
assurances as may reasonably be required to fully effectuate the transfers
contemplated in Section 1. Each of the Transferors hereby constitutes and
appoints the Corporation as its true and lawful attorney-in-fact, with full
power of substitution, to collect for the account of the Corporation any
receivables and other items conveyed to the Corporation pursuant to the
provisions of Section 1, to endorse in the name of the Transferor or the
Corporation, or both, any check received on account of any receivable, claim or
other item, to institute and prosecute in the name of a Transferor or otherwise,
any and all proceedings which the Corporation may deem proper in order to
collect, assert or enforce any claim, right or title of any kind in and to any
of such transferred assets.
(b) (i) Notwithstanding anything to the contrary in this Agreement,
neither the Corporation nor Vencor shall have any obligation to refer any
resident or patients, as the case may be, of either of them or any other person
to the Corporation or Vencor for the provision of any service or item of any
kind. The Corporation and Vencor hereby acknowledge that the compensation for
services provided for in this Agreement are set in advance, are consistent with
the fair market value in arm's-length commercial transactions and are not
determined in a manner that takes into account in any way any volume or value of
referrals or business generated between the parties.
(ii) If Vencor or the Corporation shall determine upon advice of
counsel that this Agreement will likely be deemed to be a violation of any
applicable Federal or state law regarding fraus and abuse, referral prohibitions
or any similar matter, either party, upon receiving such advice of counsel, may
at any time give the other party written notice of such advice and if, after
consultation the parties have not determined to their reasonable satisfaction
that no such violation exists and the parties have not amended this Agreement to
remove that risk to the other party's reasonable satisfaction, then either party
may terminate this Agreement effective as of the date 60 days after its initial
written notice to the other party.
(c) All notices, requests, demands or other communications required or
permitted under this Agreement shall be in writing and be personally delivered
against a written receipt, delivered to a reputable messenger service (such as
Federal Express, DHL Courier, United Parcel Service, etc.) for overnight
delivery, transmitted by confirmed telephonic facsimile (fax) or transmitted by
mail, registered, express or certified, return receipt requested, postage
prepaid, addressed as follows:
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If to Vencor: 3300 Providian Center
400 West Market Street
Louisville, Kentucky 40202
Fax: (502) 596-1104
Attention: Chief Financial Officer
If to Atria: 515 West Market Street
Louisville, Kentucky 40202
Fax: (502) 596-4160
Attention: Chief Financial Officer
All notices, demands and requests shall be effective upon being properly
personally delivered, upon being delivered to a reputable messenger service,
upon transmission of a confirmed fax, or upon being deposited in the United
States mail in the manner provided in this Section ?. However, the time period
in which a response to any such notice, demand or request must be given shall
commence to run from the date of personal delivery, the date of delivery by a
reputable messenger service, the date on the confirmation of a fax, or the date
on the return receipt, as applicable. If any party refuses delivery, the notice,
demand or request shall be deemed received two days after the notice, demand or
request was delivered to a reputable messenger service or deposited in the
United States mail.
(c) This Agreement may be modified or amended from time to time only
by a written instrument executed by all of the parties hereto.
(d) Captions contained in this Agreement are inserted only as a matter
of convenience and reference, and in no way define, limit, extend or describe
the scope of this Agreement, or the intent of any provision hereof. All
references to Sections herein shall refer to Sections of this Agreement unless
the context clearly requires otherwise.
(e) This Agreement shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and assigns.
(f) This Agreement shall be governed by, and construed in accordance
with, the laws of the Commonwealth of Kentucky without regard to its conflicts
of laws rule.
(g) This Agreement represents the entire agreement of the parties
hereto with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
CORPORATION:
ATRIA COMMUNITIES, INC.
By:___________________________
Title:________________________
TRANSFERORS:
VENCOR, INC.
By:___________________________
Title:________________________
FIRST HEALTHCARE CORPORATION
By:___________________________
Title:________________________
NATIONWIDE CARE, INC.
By:___________________________
Title:________________________
NEW POND VILLAGE ASSOCIATES
By: First Healthcare
Corporation, General Partner
By:___________________________
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Title:________________________
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