Exhibit M(iv)
CONVEYANCE AND TRANSFER AGREEMENT
(Riverview Ridge)
THIS CONVEYANCE AND TRANSFER AGREEMENT (this "Agreement") is made this
______ day of September, 2003, between GENESIS HEALTH VENTURES OF WILKES-
BARRE, INC., a Pennsylvania corporation ("GHV of WB"), and GENESIS HEALTHCARE
CORPORATION, a Pennsylvania corporation ("GHC"), as buyer (collectively,
"Genesis"), and ET SUB-RIVERVIEW RIDGE LIMITED PARTNERSHIP, L.L.P., a Virginia
limited partnership, as seller ("ET").
W I T N E S S E T H:
WHEREAS, ET is the owner in fee simple of that certain skilled nursing
facility known as Riverview Ridge, located at 300 Courtright Street, in Wilkes
Barre, Luzerne County, Pennsylvania ("Facility"); and
WHEREAS, ET is the landlord and GHV of WB is the tenant under that certain
Lease Agreement (as defined below); and
WHEREAS, the conveyance and transfer of the Facility is part of a series
of transactions required to occur in accordance with the Master Agreement (as
defined below); and
WHEREAS, the parties hereto desire to convey to Genesis the Facility, and
Genesis desires to acquire the Facility from ET.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and conditions contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. The following terms, not otherwise defined in the body
of this Agreement, shall have the meanings set forth below for purposes of
this Agreement:
"Accounts" shall mean all accounts, as defined in the UCC, including
notes, notes receivable, amounts payable to ET under the RLAs, if any, and
proceeds thereof.
"Assumed Debt" shall have the meaning set forth in Section 2.2(a) below.
"Assumed Loan Documents" means those certain loan documents identified on
Exhibit 3.1(c).
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"Business Day" means a day on which national banking associations are
open for the transaction of business in Philadelphia, Pennsylvania.
"Closing" and "Closing Date" shall be the settlement of and date for the
occurrence of particular described events associated with the conveyance and
transfer described in this Agreement, which Closing Date shall be that date
which is designated by written notice from ET to Genesis at least ten (10)
Business Days prior to such settlement, and as soon as practicable after the
Reorganization, but in no event earlier than the consummation of the
Reorganization (except as provided in the next sentence) and in no event later
than March 31, 2004. If the Reorganization does not occur by December 31,
2003, then ET may schedule the Closing Date upon not less than ten (10)
Business Days prior notice to Genesis but in no event later than March 31,
2004.
"Contract Rights" shall mean all agreements to which ET is a party or
beneficiary, relating to the development, construction and operation of the
Facility, such as rights under architect and construction contracts (including
rights in plans and specifications), warranties, guaranties or other
assurances relating to the development, construction and operation of the
Facility, agreements relating to the service and operation of the Facility and
the Land, such as service, property management, supply and maintenance
agreements, and agreements as to off-site improvements or access that are
likely to affect the Property, including agreements relating to pedestrian
access, storm water management, road access and improvements, stream
preservation, forest remediation, environmental remediation and monitoring,
wetlands remediation and the like, if any, but not including any contracts
related to the occupancy and care of the Residents of the Facility.
"Environmental Laws" shall mean all applicable statutes, regulations,
rules, ordinances, codes, licenses, permits, common law, orders, demands,
approvals, authorizations and similar items of all governmental agencies,
departments, commissions, boards, bureaus or instrumentalities of the United
States, states and political subdivisions thereof and all applicable judicial,
administrative and regulatory decrees, judgments and orders relating to the
protection of human health, or the environment, as in effect on the date
hereof or as later amended, including but not limited to those pertaining to
reporting, licensing, permitting, investigation, removal and remediation of
emissions, discharges, releases or threatened releases of Hazardous Materials,
into the air, surface water, ground water or land, or relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport, handling or release of Hazardous Materials, including: (y) the
Comprehensive Environmental Response, Compensation and Liability Act (42
U.S.C. 9601 et seq.), the Resource Conservation and Recovery Act (42 U.S.C.
6901 et seq.), the Clean Air Act (42 U.S.C. 7401 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. 1251 et seq.), the Safe Drinking Water Act
(42 U.S.C. 300f et seq.), the Toxic Substances Control Act (15 U.S.C. 2601 et
seq.), the Emergency Planning and Community Right-to-Know Act (42 U.S.C. 1101
et seq.), and the regulations implementing these statutes, and (z) analogous
state and local provisions.
"Execution Date" shall be the date on which this Agreement has been fully
executed by all parties.
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"Facility" shall have the meaning set forth in the recitations.
"General Intangibles" shall mean general intangibles, as defined in the
UCC, including contractual rights including the Contract Rights, goodwill,
literary rights, rights to performance, copyrights, trademarks, servicemarks
and patents..
"Hazardous Materials" shall mean any chemicals, substances, pollutants,
contaminants, materials, or wastes, whether solid, liquid or gaseous in nature
(including, without limitation, any medical waste), other than in nominal
quantities found in office products and common cleaning solutions: (i) the
presence of which requires investigation or remediation under any federal,
state or locate statue, regulation, ordinance, order, action or policy,
administrative request or civil complaint under any of the foregoing or under
common law; or (ii) which is defined as a "hazardous waste", "pollutant or
contaminant", or "hazardous substance" under any applicable Environmental
Laws; or (iii) which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic or otherwise hazardous and as of the
Execution Date, or as thereafter amended, is regulated by any governmental
authority, agency, department, commission, board or instrumentality of the
United States, or any state or any political subdivision thereof having or
asserting jurisdiction over the Property; or (iv) the presence of which on the
Property causes or threatens to cause a nuisance upon the Property or to other
properties or poses a hazard to the health or safety of persons on or about
the Property; or (v) which, except as contained in building materials,
contains gasoline, diesel fuel or other petroleum hydrocarbons,
polychlorinated biphenyls (PCBs) or friable asbestos or friable asbestos-
containing materials or urea formaldehyde foam insulation; or (vi) radon gas.
"Intangible Property" shall mean Accounts and General Intangibles.
"Inventory" shall mean all of ET's inventory, as defined in the UCC, used
in the operation of the Facility.
"Land" shall mean all of that real property described on Exhibit A
attached hereto.
"Lease Agreement" shall mean that certain Lease Agreement dated as of
March 27, 1998, between ET, as landlord, and GHV of WB, as tenant, pursuant to
which GHV of WB leased the Facility from ET.
"Legal Requirements" shall mean all federal, state, county, municipal and
other governmental statutes, laws (including any zoning or subdivision
ordinance, the Americans with Disabilities Act, the Fair Housing Act, as
applicable, and any applicable Environmental Law), rules, orders, regulations,
ordinances, judgments, decrees and injunctions affecting either the Property
or the construction, use or alteration thereof, whether now or hereafter
enacted and in force, including any which may (i) require repairs,
modifications or alterations in or to the Property; (ii) in any way adversely
affect the use and enjoyment thereof, and all Permits and
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Licenses and authorizations and regulations relating thereto, and all
covenants, agreements, restrictions and encumbrances contained in any
instruments, either of record or known to ET, at any time in force affecting
the Property; (iii) require the cleanup or other treatment of any Hazardous
Materials; or (iv) impose parking requirements, building setback lines or
other building or operating requirements.
"Licenses and Permits" shall mean all licenses, franchises, privileges,
permits, approvals, authorizations, consents, certificates of need and similar
documents in connection with the right to use the Land, construct and develop
the Facility and operate the Facility, including a personal care license, all
building permits and certificates of occupancy, all variances, special
exceptions and any other zoning permits and licenses required for the
ownership, use, or operation of the Property, and all other permits, licenses
and other authorizations issued in any connection with the Property.
"Master Agreement" shall mean that certain Master Agreement dated
September 11, 2003, between Genesis Health Ventures, Inc. ("GHV") and
ElderTrust Operating Limited Partnership.
"Person" shall mean an individual, fiduciary, estate, trust, partnership,
firm, association, corporation, limited liability company, or other
organization, or a government or governmental authority.
"Personal Property" shall mean all personal property, building materials,
fixtures, equipment, tools and tangible personal property of every kind and
nature whatsoever located on the Land and/or used in connection with the
operation of the Facility.
"Permitted Exceptions" shall mean those exceptions set forth on Exhibit
B.
"Property" shall mean collectively: (A) the Land and any buildings,
structures, work in progress, and other improvements, if any, erected on the
Land or attached thereto, including the Facility, and all facilities,
fixtures, equipment, machinery, furnishings and other property attached to,
located in or used in connection with any such building, structure, or other
improvement; (B) all work product of engineers, architects, similar
professionals, and others pertaining to the Land or to existing or proposed
improvements thereon; (C) any topsoil located on the Land as of the date
hereof; (D) all interest in any land lying in the bed of any street, alley,
road or avenue, open or proposed, in front of or adjoining the Land; (E) all
awards or recoveries or rights thereto, arising out of eminent domain or
condemnation proceedings or as a result of damage to the Land by reason of any
change of grade of any street or highway; (F) all trees, vegetation, and other
living things on the Land; (G) all rights of way or use, riparian rights,
water rights, profits, easements, corporeal and incorporeal hereditaments,
benefits, privileges, appurtenances, and advantages to the Land belonging or
in anywise appertaining; (H) all Personal Property; (I) all Accounts, General
Intangibles and other rights growing out of or in connection with the
operation of the Facility, including without limitation, all cash or
securities
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deposited thereunder to secure performance by the Residents, and (J) all
leases, rents, royalties, issues, revenues, profits and benefits therefrom.
Included as part of the Property shall be appurtenant easement rights.
Excluded from the definition of Property shall be those items on or within the
Facility which are owned by Residents or by Genesis as tenant.
"Reorganization" means the "Reorganization" as described in the press
release issued by GHV dated February 12, 2003, which is attached hereto as
Exhibit C, and the Form 10 Registration Statement filed with the Securities
and Exchange Commission dated July 25, 2003, as may be amended by subsequent
filings, which more specifically define the Reorganization as the transaction
whereby the shareholders of GHV common stock as of the record date of the
Reorganization will receive a pro-rata distribution of shares of GHC common
stock for every share of GHV common stock held on such record date; GHV and
certain of its subsidiaries will contribute to GHC all of the legal entities
comprising the Eldercare Businesses (as defined below), together with certain
assets and liabilities associated with the Eldercare Businesses, and any
variation of such described reorganization that is not materially different
therefrom. For the purposes of this section, "Eldercare Businesses" shall
mean inpatient services provided in skilled nursing and assisted living
centers, rehabilitation therapy services, diagnostic services, respiratory
services and management services.
"Residents" shall mean those residents occupying the Facilities under the
RLAs.
"RLAs" means the residential living agreements pursuant to which
Residents occupy the Facility.
"State" shall mean the Commonwealth of Pennsylvania.
"Survey" shall mean the ALTA/ASCM Land Title Survey for the Property
obtained by Genesis pursuant to Section 4.2 hereof.
"Surveyor" shall mean a firm acceptable to Genesis experienced in the
preparation of ALTA/ASCM land title surveys.
"Title Company" shall mean Lawyers Title Insurance Corporation.
"UCC" shall mean the Uniform Commercial Code of the State.
ARTICLE II
CONVEYANCE AND TRANSFER
2.1 Conveyance and Transfer. ET agrees to convey and transfer the
Property to Genesis and Genesis agrees to acquire and accept the Property from
ET in accordance with the terms hereof.
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2.2 Consideration. The consideration for the Property is Five Million
Seventy-Five Thousand Five Hundred Forty-One Dollars ($5,075,541.00) (the
"Consideration"). Genesis shall pay the consideration to ET in the following
manner:
(a) At Closing, Genesis shall assume the existing mortgage debt
encumbering the Facility, which mortgage debt had an outstanding balance as of
June 30, 2003, of Two Million Four Hundred Forty-Eight Thousand Eight Hundred
Forty-Six and 62/100 Dollars ($2,448,846.62) (the "Assumed Debt").
(b) The balance of the Purchase Price, as adjusted pursuant to
Paragraphs 6.4 and 6.5 of this Agreement, shall be paid to ET at Closing by
immediately available federal U.S. funds, wire transferred to an account
designated by ET.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties of ET. ET hereby warrants and
represents as of the Effective Date and as of the Closing Date as follows:
(a) Authorization/Validity. ET is duly organized, validly existing and
in good standing in the state of its formation; the execution, delivery and
performance by ET of this Agreement and the transactions contemplated herein
have been duly authorized by all necessary actions and do not contravene or
constitute a default or require the further consent of any person under any
provision of applicable law or regulation or of the organization documents of
ET, or of any agreement, judgment, injunction, order, decree or other
instrument binding upon ET or to which any of its properties are subject; the
execution, delivery and performance by ET of this Agreement and the other
agreements executed or to be executed by ET in connection with the
transactions contemplated by this Agreement (the "Transaction Documents")
require no action by or in respect of, or filing with, any governmental body,
agency or official, and no third?party consents are required to consummate
this transaction; this Agreement has been duly executed by, and constitutes a
valid and binding agreement of ET enforceable in accordance with its terms
(except as the same may be restricted, limited or delayed by applicable
bankruptcy or other laws affecting creditor's rights generally), subject in
each case to receipt of consent from ET's lenders as identified on Exhibit
5.2, and neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated herein, will constitute a
default under any other agreement, License and Permit, or Legal Requirement.
(b) Title; Consents. ET has good and valid title to the Personal
Property. Except as identified on Exhibit 5.2, no other consents are
necessary to convey title to the Property to Genesis in accordance with the
terms hereof. With respect to the consents of the ET Lenders set forth on
Exhibit 5.2, ET covenants to use commercially reasonable best efforts to
pursue and to obtain such consent to the terms and provisions of this
Agreement on a timely basis as contemplated herein.
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(c) Assumed Loan Documents. Prior to or contemporaneously with the
execution of this Agreement, ET has provided to Genesis true, correct and
complete copies of all material Assumed Loan Documents, all of which have been
initialed by ET for identification purposes. To ET's knowledge, there is no
default or facts which with the giving of notice and passage of time could
become an event of default under such Assumed Loan Documents, and ET has not
received written notice of the existence of any default or facts which with
the giving of notice and passage of time could become an event of default
under such Assumed Loan Documents. ET will use commercially reasonable
efforts to provide to Genesis, as soon as reasonably practicable after the
execution of this Agreement, true, correct and complete copies of the non-
material Assumed Loan Documents which were not previously provided to Genesis.
(d) FIRPTA. ET is not a "foreign person" as such term is defined in
Section 1445 of the Internal Revenue Code of 1986, as amended.
(e) Litigation. To ET's knowledge, there is no pending or threatened
litigation or government investigation which materially affects, or could
materially affect ET's ability to perform its obligations hereunder, or which
materially affects, or could materially affect, the operation of the Facility,
or the ownership of the Property, except as set forth on Exhibit 3.1(e).
(f) Compliance with Laws. To ET's knowledge, the current use of the
Property does not violate any ordinance, law, regulation or order of any
governmental authority or that any investigation has been commenced or is
contemplated respecting such possible violation which investigation, if
concluded adversely, would have a material effect on the owner of such
Property.
(g) Taxes. There are no current municipal improvement or like
assessments against the Property, and to the knowledge of ET, no such
assessments are in process or planned by any municipal or other government;
and ET has received no written notice of any proposed increase in the assessed
valuation or rate of taxation.
(h) Pending Assessments and Eminent Domain. ET has no knowledge and
has received no written notice of any pending proceeding for the imposition of
any special assessment, or the formation of a special assessment district, or
for a condemnation proceeding which would affect in any manner any portion of
the Property.
(i) Governmental Proceedings. ET has neither received written notice
of nor has any knowledge of any governmental action or governmental proceeding
(zoning or otherwise) or governmental investigation pending or threatened
against or relating to the Property or the transactions contemplated by this
Agreement. ET is not obligated to any city, county or state authority or
entity under any agreements or performance bonds or letters of credit relating
to the Property, or any part thereof.
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(j) Defects. To the knowledge of ET, there are no material defects or
deficiencies in the Property which would have a material effect on the
insurability of the Facility or materially increase the cost of insuring the
Facility, except for those material defects or deficiencies of which Genesis
has provided ET with written notice.
(k) Environmental Matters. Except as set forth in Exhibit 3.1(k)
attached hereto ("Disclosure Schedule"), to the knowledge of ET, ET has not:
(i) caused the release or discharge of any Hazardous Material at, on or under
the Property which requires remediation under applicable Environmental Laws,
(ii) used the Real Property for the use, generation, treatment, storage,
transportation or disposal of any Hazardous Material (as such term is defined
below) in quantities that would constitute a violation of any applicable
Environmental Law, (iii) used the Property at any time as a landfill or for
the purposes of disposing of Hazardous Materials, or (iv) installed or removed
underground storage tanks on or from the Property.
(l) Contract Rights. Exhibit 3.1(l) hereto sets forth all the Contract
Rights and any other understandings, written or oral, to which ET is a party
or by which ET is bound that relate to the Facility. For purposes of Exhibit
3.1(l) Contract Rights shall not be construed to include any RLAs; except as
set forth on Exhibit 3.1(l), each of the Contract Rights relates only to the
Facility and not to any property other than the land and improvements
constituting the Facility, is valid and binding on ET and is in full force and
effect in all material respects; except as set forth in Exhibit 3.1(l),
neither ET, nor to ET's knowledge, any other party thereto has breached or
defaulted under the terms of any Contract Rights.
(m) Licenses and Permits. Excluding those Licenses and Permits held
directly by Genesis as operator of the Facility, to the knowledge of ET, ET
has all Licenses and Permits as are necessary for the owner of the fee title
to the Facility to own, occupy and use such Facility as it is currently being
used, and, to the knowledge of ET, ET is not in violation of any Licenses and
Permits relating to the Facility and all Licenses and Permits relating to the
Facility are in full force and effect.
(n) Utilities. To ET's knowledge, public utilities ("Public
Utilities"), of adequate capacity are installed in, and are duly connected to,
the Property and can be used without any charge except the normal and usual
metered charges imposed for such Public Utilities for the operation of an
skilled nursing or assisted living facility of similar size and design; and
that to ET's knowledge, no amounts due and owing with respect to the Property
in connection with utilities, insurance, assessments or other charges
customarily prorated in real estate transactions have been outstanding more
than thirty (30) days.
(o) Operations. During the pendency of this Agreement, ET shall not:
(a) sell or dispose of the Facility, or (b) enter into or grant any easements,
covenants, conditions, restrictions or rights of way, or (c) modify any lease
which is a part of or constitutes the Property, or (d) modify any of the
Assumed Loan Documents or fail to make any payment under or comply with any
provision of any of the Assumed Loan Documents.
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As used herein, the term "knowledge" means the actual knowledge of
Michael R. Walker, D. Lee McCreary, Jr. and/or Kevin Smith, whom ET
represents to be the individuals having primary responsibility for the assets
which are the subject of this Agreement.
The representations and warranties of ET under this Section 3.1 shall
survive Closing under this Agreement for a period of six (6) months.
3.2 Representations and Warranties of Genesis. Genesis hereby represents
and warrants, as of the Effective Date and the Closing Date as follows:
(a) Genesis is duly organized, validly existing and in good standing in
the state of its formation and in the State.
(b) Genesis is duly organized, validly existing and in good standing
under the Laws of the Commonwealth of Pennsylvania; the execution, delivery
and performance by Genesis of this Agreement and the transactions
contemplated herein have been duly authorized by all necessary actions and do
not contravene or constitute a default or require the further consent of any
person under any provision of applicable law or regulation or of the
organization documents of Genesis, or of any agreement, judgment, injunction,
order, decree or other instrument binding upon Genesis or to which any of its
properties are subject; the execution, delivery and performance by Genesis of
this Agreement and the other agreements executed or to be executed by Genesis
in connection with the transactions contemplated by this Agreement (the
"Transaction Documents") require no action by or in respect of, or filing
with, any governmental body, agency or official, and no third?party consents
are required to consummate this transaction; this Agreement has been duly
executed by, and constitutes a valid and binding agreement of Genesis
enforceable in accordance with its terms (except as the same may be
restricted, limited or delayed by applicable bankruptcy or other laws
affecting creditor's rights generally), subject to Genesis' receipt of the
consents set forth in Exhibit 4.6 below. With respect to such consents as are
set forth on Exhibit 4.6, Genesis covenants to use commercially reasonable
best efforts to pursue and to obtain such consent to the terms and provisions
of this Agreement on a timely basis as contemplated herein.
(c) This Agreement is valid and binding upon Genesis and enforceable
against Genesis in accordance with its terms.
3.3 Brokerage Fees and Commissions. Genesis and ET represent and warrant
that they have not dealt with any broker or with any other entity or
individual that would be entitled to any commission, finder's fee or any
similar compensation in connection with Genesis's acquisition of the Property.
ET and Genesis shall each indemnify and hold harmless the other from all
liability arising from any claim for which the indemnifying party is
responsible with respect to any finder's or brokerage fees or agent's
commissions in connection with this transaction. The provisions of this
paragraph shall survive any termination of this Agreement.
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3.4 General. All of the foregoing representations and warranties shall be
true at the time of this Agreement, as of the Closing, and shall survive for a
period of twelve (12) months following the Closing.
ARTICLE IV
CONDITIONS TO CONSUMMATION OF TRANSACTION BY GENESIS
The obligation of Genesis to consummate Closing shall be subject to
fulfillment (or waiver at or prior to the date of the Closing) of the
following conditions:
4.1 Representations, Warranties and Covenants. The representations and
warranties made by ET in this Agreement, and in any document delivered by ET
pursuant to this Agreement, shall be true and correct in all material respects
when made and on and as of the date of the Closing as though such
representations and warranties were made on and as of such date. ET shall not
have defaulted in the performance of any covenant required to be performed
hereunder.
4.2 No Material Adverse Change. There shall have been no material adverse
change in the value or condition of the Property since the date hereof
4.3 Title Insurance; Survey. The Title Company shall have issued to
Genesis an ALTA owner's title insurance policy effective as of the date of the
Closing or an unconditional commitment therefor insuring fee simple title to
the Property to be vested in Genesis in an amount at least equal to the
Consideration hereunder, subject to no exceptions other than (a) the Assumed
Loan Documents (or if appropriate, a lease or sublease with GHV of WB or an
Affiliate of Genesis), (b) those easements, reservations and restrictions (but
specifically excluding any monetary liens and/or encumbrances other than liens
and encumbrances pursuant to the Assumed Loan Documents) existing as of March
27, 1998, (c) those survey matters existing as of March 27, 1998, and (d) the
Permitted Exceptions. Title shall otherwise be in a form acceptable to
Genesis in its sole and absolute discretion. In addition, Genesis shall have
received, at its sole discretion, an ALTA survey of the Property, showing no
encroachments on the Property or from the Property onto an adjacent property,
or any other condition that may adversely affect the title thereto or the
value thereof, in Genesis's sole discretion, except as described above in this
section
4.4 No Order or Injunction. Closing shall not have been restrained,
enjoined or prohibited by any order or injunction of any court or governmental
authority of competent jurisdiction nor shall there be any pending or
threatened condemnation proceeding with respect to the Property or any portion
thereof.
4.5 Instruments of Conveyance. ET shall have delivered the instruments
referred to in Section 6.2.
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4.6 Consents. All required consents, including those from Genesis' lender
as set forth on Exhibit 4.6, and those from ET's lender, shall have been
obtained to the satisfaction of Genesis, with no modification of the Assumed
Loan Documents unless otherwise disclosed to and approved by Genesis, and ET
shall have paid all required transfer or other fees required by ET's lender in
connection therewith, subject, however, to the provisions of Section 9(d)) of
the Master Agreement dealing with sharing of closing costs.
4.7 Violation of Environmental Law. There shall exist no violation of any
Environmental Law not caused by Genesis or presence on the Property of any
Hazardous Material other than those brought on the Property by Genesis.
Genesis is authorized to conduct whatever environmental tests Genesis deems
necessary to satisfy this condition, and to hire consultants to do so, but
Genesis agrees to repair any physical damage caused by any such test.
4.8 Intentionally Deleted.
4.9 Violation of Law. ET shall not have committed or created any
violation of law with respect to the Property.
ARTICLE V
CONDITIONS TO CONSUMMATION OF TRANSACTION BY ET
The obligation of ET to consummate Closing shall be subject to fulfillment
(or waiver) at or prior to the date of the Closing of the following
conditions:
5.1 Representations, Warranties and Covenants. The representations,
warranties and covenants made by Genesis in this Agreement, in any document
delivered by Genesis pursuant to this Agreement shall be true and correct in
all material respects when made and on and as of the date of the Closing as
though such representations, warranties and covenants were made on and as of
such date.
5.2 Consents. All consents necessary for the consummation of the Closing
by ET shall have been obtained, including those from ET's lender, as further
identified on Exhibit 5.2.
ARTICLE VI
THE CLOSING
Subject to the terms and conditions of this Agreement, the Closing shall
take place promptly after satisfaction or waiver of the conditions set forth
in Articles IV and V hereof.
6.1 Closing Location. Closing shall occur commencing at 10:00 A.M. at the
offices of Genesis' counsel, Blank Rome, LLP, One Logan Square, Philadelphia,
Pennsylvania 19103.
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6.2 Closing Deliveries by ET: At Closing, ET shall deliver or cause to be
delivered the following:
(a) a special warranty deed in recordable form, conveying good,
marketable and insurable fee simple title to the Property (subject only to the
Permitted Exceptions), in the form attached hereto as Exhibit "D";
(b) a bill of sale pursuant to which ET shall convey to Genesis good
title to all the Personal Property, free and clear of all liens and
encumbrances, in the form attached hereto as Exhibit "E";
(c) a certification duly executed by ET under penalty of perjury,
setting forth ET's address and Federal tax identification number and
certifying that ET is not a "foreign person" under section 1445 (as may be
amended) of the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder, in the form attached hereto as Exhibit "F";
(d) such assignment agreements as may be deemed necessary and
appropriate by Genesis and ET, including, without limitation, an assignment of
licenses, permits and contracts in the form attached hereto as Exhibit "G",
and an assignment of intangibles in the form attached hereto as Exhibit "H".
(e) a certificate from a duly authorized agent of ET certifying that the
representations and warranties of ET set forth herein are true and correct in
all material respects as of the Closing Date;
(f) such other documents and instruments as Genesis and ET agree are
necessary or appropriate, or as may be reasonably required by the title
insurance company.
(g) ET shall deliver to GHV of WB (a copy of which shall be delivered at
least two Business Days prior to Closing for inspection by GHV of WB) an
estoppel certificate in recordable form executed by ET addressed to GHV of WB
certifying: (i) the then principal balance of the applicable Assumed Loan
Documents, (ii) the amount of any other monies on deposit, (iii) the dates
through which all payments have been made with respect to the applicable
Assumed Loan Documents, (iv) that there is no default or event of default
under the applicable Assumed Loan Documents, and (v) confirming that the
appropriate Assumed Loan Documents are the only documents being assumed by GHV
of WB.
6.3 Closing Deliveries by Genesis. At Closing Genesis shall deliver or
cause to be delivered the following:
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(a) a certificate from a duly authorized officer of Genesis certifying
that the representations and warranties of Genesis set forth herein are true
and correct in all material respects as of the Closing Date;
(b) such other documents and instruments as ET and Genesis agree are
necessary or appropriate, or as may be reasonably required by the title
insurance company.
6.4 Closing Costs. Subject to the provisions of Section 9(d) of the
Master Agreement, Genesis shall pay the following costs: (i) survey costs;
(ii) costs, including the payment of the title insurance premium, of obtaining
a title insurance policy for the benefit of Genesis and (iii) all recording
fees and charges for the deed. ET will pay all recording fees and release
charges to satisfy, release or remove any encumbrance or lien of record. Each
party shall pay its own legal fees. Documentary and transfer fees imposed on,
or in connection with, the transfer of the Property and fees related to the
consent of ET's lenders or fees related to the assumption of loans by Genesis
will be shared by the parties in accordance with Section 9(d) of the Master
Agreement.
6.5 Rent Prorations. ET and Genesis agree that adjustments of rent under
the Lease Agreement shall be made as of the Closing Date, and a statement
setting forth such adjustments shall be initialed by the parties. In
addition, all security deposits and any escrow reserves which ET is holding
shall be refunded to Genesis at Closing.
6.6 Possession. At Closing, Genesis shall be in possession of the
Property.
6.7 Further Assurances. In addition to the obligations required to be
performed hereunder by ET at the Closing, ET agrees to perform such other
acts, and to execute, acknowledge, and/or deliver subsequent to the Closing
such other instruments, documents, and other materials, as Genesis may
reasonably request in order to vest title to the Property in Genesis.
6.8 Deadline for Closing. In the event the Closing has not occurred by
March 31, 2004, and neither party is in breach hereunder, this Agreement shall
be terminated, unless otherwise extended by mutual agreement of the parties in
writing. Except as to matters which by the terms hereof are to survive any
termination, neither party shall have any further obligations hereunder in
conjunction with a termination pursuant to this provision.
6.9 Consent to Reorganization. As of the Reorganization, and subject to
ET's receipt of consent from ET's lenders as set forth on Exhibit 5.2, ET
shall be deemed to consent to the Reorganization as defined herein with
respect to the impact thereof on the Facility and shall be deemed to waive any
right of ET which may arise upon the Reorganization between ET and GHV of WB.
Effective as of the consummation of the Reorganization and conditioned upon
the receipt of any necessary lender consents and GHC's execution and delivery
to ET of a guaranty of the Lease Agreement substantially in the form of
Exhibit H to the Master Agreement, ET shall
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be deemed to have consented to the release of GHV, as a guarantor of the Lease
Agreement, and to the replacement of GHV with GHC, as guarantor of the Lease
Agreement.
ARTICLE VII
CONDEMNATION; DESTRUCTION
7.1 Condemnation of the Property. If after the date hereof and prior to
the Closing all or a material part of the Property is taken by eminent domain
or condemnation (or sale in lieu thereof) such that the operation of the
Property as an assisted living facility in the present form or the Property's
compliance with zoning laws is disturbed or otherwise compromised, Genesis
may, by written notice to ET delivered within thirty (30) days of receipt of a
copy of the notice of condemnation from ET, elect to cancel this Agreement, in
which event both parties shall be relieved and released of and from any
further liability hereunder, and this Agreement shall be considered canceled.
If no such election is made, this Agreement shall remain in full force and
effect and the purchase contemplated herein, less any interest taken by
eminent domain or condemnation, shall be effected with no further adjustment
except that the condemnation award shall be assigned to Genesis.
7.2 Destruction of Property, Risk of Loss. The Property is to be held at
the risk of ET until Closing. In the event of any substantial destruction or
damage to the Property, Genesis may terminate this Agreement within thirty
(30) days of the event to the extent that Genesis, as tenant, may terminate
the Lease Agreement as a result of such destruction or damage, and upon such
termination, neither party shall have any liability to the other. If no such
election is made, or if Genesis is not entitled to terminate this Agreement,
then the purchase contemplated herein shall be effected with no adjustment
except that the insurance award shall be assigned to Genesis and Genesis shall
receive a credit in the amount of any deductible.
ARTICLE VIII
REMEDIES ON DEFAULT
8.1 ET's Remedies. Except for any breaches waived in writing by ET, if
Genesis has breached any of its covenants or obligations under this Agreement
or has failed, refused or is unable to consummate the Closing by the date of
the Closing when and as required to do so hereunder, then ET shall have the
sole and exclusive right either: (a) to bring an action seeking the specific
performance of the obligations of Genesis hereunder, or (b) to be paid an
amount equal to ten percent (10%) of the Consideration described in Section
2.2 above, as liquidated and agreed upon damages, in which case upon Genesis'
payment of such amount to ET, this Agreement shall terminate and the parties'
obligations hereunder shall become null and void. It is agreed that the
provisions of this Paragraph 8.1 for liquidated and agreed upon damages are a
bona fide pre?estimate of actual damages and a provision for such, and are not
a penalty, the parties understanding that by reason of the withdrawal of the
Property from sale to the general public at a time when other parties would be
interested in purchasing the Property, that Seller shall have sustained
damages which will be substantial, but will not be capable of determination
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with mathematical precision. Therefore, this provision for liquidated and
agreed upon damages has been incorporated as part of this Agreement as a
provision beneficial to both parties and ET shall have no other remedies
except as provided herein and shall have no right to pursue or receive
consequential or special damages.
8.2 Genesis' Remedies. Except for any breaches waived in writing by
Genesis, if ET has breached any of its covenants or obligations under this
Agreement or has failed, refused or is unable to consummate the Closing by the
date of the Closing when and as required to do so hereunder, then Genesis
shall have the sole and exclusive right either: (a) to bring an action
seeking the specific performance of the obligations of ET hereunder, or (b) to
bring an action for actual damages, in which case this Agreement shall
terminate and the parties' obligations hereunder shall become null and void.
In no event shall Genesis have the right to pursue or to receive special or
consequential damages.
ARTICLE IX
INDEMNIFICATION
9.1 Indemnification by ET. ET hereby, jointly and severally, indemnify
and agree to defend and hold harmless Genesis, and its officers, directors,
employees, agents and successors and assigns, and its general partners and any
officers, trustees, directors, employees, agents and successors and assigns of
such general partners ("Genesis Indemnitees"), from and against any and all
demands, claims, actions or causes of action, assessments, expenses, costs,
damages, losses and liabilities (including attorneys' fees and other charges)
which may at any time be asserted against or suffered by any Genesis
Indemnitee, the Property, or any part thereof whether before or after the date
of the Closing, as a result of, on account of or arising from (a) the failure
of ET to perform any of its obligations hereunder or the breach by ET of any
of its representations and warranties made herein, (b) events, contractual
obligations, acts or omissions of ET that occurred in connection with the
ownership or operation of the Property prior to the Closing, (c) damage to
property or injury to or death of any person or any claims for any debts or
obligations occurring on or about or in connection with the Property or any
portion thereof or with respect to the operation of the Property at any time
or times prior to the Closing, or (d) any obligation, claim, suit, liability,
contract, agreement, debt or encumbrance (other than Permitted Exceptions)
created, arising or accruing prior to the date of the Closing, regardless of
when asserted, relating to the Property or its operation, including, without
limitation, and all liabilities for federal or state income taxes or other
taxes, which shall not have been set forth or specifically described in this
Agreement or the Schedules and the Exhibits hereto, provided however, that
with respect to (b), (c) and (d) above, ET shall not be obligated to indemnify
the Genesis Indemnitees for those matters for which Genesis was otherwise
obligated under the Lease. The obligations of ET under this Section 9.1 shall
survive the Closing for a period of twelve (12) months.
9.2 Indemnification by Genesis. Genesis hereby indemnifies and agrees to
defend and hold harmless ET and its officers, directors, employees, agents and
successors and assigns
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("ET Indemnitees"), from and against any and all demands, claims, actions or
causes of action, assessments, expenses, costs, damages, losses and
liabilities (including attorneys' fees and other charges) which may at any
time be asserted against or suffered by any ET Indemnitee, whether before or
after the date of the Closing, as a result of, on account of or arising from
(a) the failure of Genesis to perform any of its obligations hereunder or the
breach by Genesis of any of its representations and warranties made herein,
(b) events, contractual obligations, acts or omissions of Genesis that
occurred in connection with the ownership of the Property subsequent to the
Closing, or (c) damage to property or injury to or death of any person or any
claims for any debts or obligations occurring on or about or in connection
with the Property or any portion thereof or with respect to the operation of
the Property at any time or times subsequent to the Closing. The obligations
of Genesis under this Section 9.2 shall survive the Closing for a period of
twelve (12) months.
ARTICLE X
GENERAL
10.1 Notices.
(a) All notices, demands and requests required under this Agreement
shall be in writing. All such notices, demands and requests shall be deemed
to have been properly given if hand delivered or if sent by, facsimile,
nationally recognized overnight delivery service, or United States registered
or certified mail, return receipt requested, postage prepaid, at the following
addresses:
If to: ET: c/o ElderTrust
Little Falls Center One
2711 Centerville Road - Suite 108
Wilmington, DE 19808
Attention: Michael R. Walker, Acting
President
Telephone: (302) 993-1022
Facsimile: (302) 993-1023
With a copy to: Hogan & Hartson L.L.P.
8300 Greensboro Drive - Suite 1100
McLean, Virginia 22102
Attention: Lee E. Berner, Esquire
Telephone: (703) 610-6137
Facsimile: (703) 610-6200
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If to Genesis: c/o Genesis Health Ventures, Inc.
101 East State Street
Kennett Square, PA 19348
Attention: Chief Executive Officer
Telephone: (610) 925-6350
Facsimile: (610) 925-4242
Attention: Law Department
Telephone: (610) 444-6350
Facsimile: (610) 925-4242
with a copy to: Blank Rome LLP
One Logan Square
Philadelphia, PA 19103-6998
Attention: Matthew J. Comisky, Esquire
Telephone: (215) 569-5678
Facsimile: (215) 832-5678
(b) The parties may change the address to which such communications are
to be directed by giving written notice to the others in the manner provided
in this section.
(c) Notices, demands and requests shall be deemed sufficiently served
or given for all purposes hereunder (i) if hand delivered or sent by
facsimile, on the date of receipt; (ii) if sent by facsimile, upon
confirmation and voice confirmed, (iii) if sent by overnight delivery service,
one (1) day following the deposit with such delivery service; or (iv) if sent
by registered or certified mail, three (3) days following the deposit in any
Post Office or Branch Post Office regularly maintained by the United States
Government.
10.2 No Waiver. No failure by a party to exercise and no delay in
exercising any right, power, privilege or discretion under this Agreement
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, power, privilege or discretion hereunder preclude any other or
further exercise thereof or the exercise of any right, power, privilege or
discretion provided for herein; nor shall any waiver thereof be effective
unless in writing and signed by the party waiving the same.
10.3 Benefit and Assignment. No party hereto shall assign this Agreement,
in whole or in part, whether by operation of law or otherwise, without the
prior written consent of the other party, which consent shall not be
unreasonably withheld, and any purported assignment contrary to the terms
hereof shall be null, void and of no force and effect, provided that Genesis
may (i) assign this Agreement and its rights hereunder, to a corporation
partnership, limited liability company or other entity of which the entire
ownership interest is owned directly or indirectly by Genesis or its
affiliates without the consent of ET, or (ii) contribute the Property, or any
portion thereof, to a corporation, partnership, limited liability company or
other entity in exchange for
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100% of the ownership interests in such entity; no such assignment or
contribution shall relieve ET of its obligations hereunder.
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns as permitted
hereunder. No person or entity other than the parties hereto is or shall be
entitled to bring any action to enforce any provision of this Agreement
against any of the parties hereto, and the covenants and agreements set forth
in this Agreement shall be solely for the benefit of, and shall be enforceable
only by, the parties hereto or their respective successors and assigns as
permitted hereunder.
10.4 Governing Law. This Agreement, the rights and obligations of the
parties hereto and any claims and disputes relating thereto shall be governed
by and construed under the laws of the State (but not including the choice of
law rules thereof).
10.5 Entire Agreement Amendment. This Agreement and the exhibits and
schedules hereto and the agreements referred to herein set forth the entire
agreement and understanding of the parties in respect of the transactions
contemplated hereby and supersede all prior agreements, arrangements and
understandings relating to the subject matter hereof. No amendment, change or
modification of this Agreement shall be valid unless the same is in writing
and signed by the parties hereto.
10.6 Counterparts/Facsimile Signature Pages. This Agreement may be
executed in any number of counterparts and each such counterpart shall be
deemed to be an original, but all such counterparts together shall constitute
but one Agreement. For purposes of binding the parties, signatures may be
exchanged by the use of facsimile and confirmed by live signatures circulated
immediately thereafter.
10.7 Severability. In case any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
10.8 Miscellaneous.
(a) Both parties participated in the drafting of this Agreement and no
presumptions shall arise by virtue of the identity of the draftsmen.
(b) Delivery of the conveyancing instruments, the documents and/or the
consideration required hereunder of either party shall constitute good and
sufficient tender of performance of the terms hereof by the complying party.
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(c) Section and subsection headings contained in this Agreement are
inserted for convenience of reference only, shall not be deemed to be part of
this Agreement for any purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof.
(d) The parties hereto represent and warrant to the other that neither
party has engaged the services of a broker or agent and no fees or commissions
are due or owing with respect to the transactions contemplated herein.
(e) Genesis and ET shall consult with one another in advance concerning
the form and substance of any press release relating to this Agreement or the
transactions contemplated hereby; provided, however, that this obligation
shall not prohibit any party hereto from making any disclosure which is
necessary to fulfill such party's disclosure obligations imposed by law or
regulation.
(f) Time is of the essence of this Agreement. If any time period or
date ends on a day or time which is a weekend, legal holiday or bank holiday,
such period shall be extended to the same time on the next Business Day.
(g) Should any provision of this Agreement require judicial
interpretation, it is agreed that the court interpreting or construing the
same shall not apply a presumption that the terms hereof shall be more
strictly construed against one party by reason of the rule of construction
that a document is to be construed more strictly against the party who itself
or through its agent prepared the same, it being agreed that the agents of all
parties have participated in the preparation of this Agreement.
(h) Genesis and ET agree to execute and deliver such further documents
as are necessary or desirable to implement and accomplish the agreements and
terms of this Agreement.
(i) Genesis and ET shall use commercially reasonable efforts to keep
confidential all information relating to the terms of this Agreement and all
information relating to the parties, their officers and directors (other than
information which is a matter of public knowledge or which has heretofore been
or is hereafter published in any publication for public distribution or filed
as public information with any governmental authority) and such information
shall not at any time be used for the advantage of, or disclosed to third
parties (other than the counsel, accountants, lenders of each of the parties
hereto and other parties necessary for the consummation of the transactions
contemplated herein).
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed and sealed this
Agreement as of the day and year first written above.
WITNESS: ET
ET SUB-RIVERVIEW RIDGE LIMITED
PARTNERSHIP, L.L.P., a Virginia limited partnership
By: ET GENPAR, L.L.C., general partner
By: ElderTrust Operating Limited Partnership,
sole member
By: ElderTrust, general partner
_________________________ By: ____________________________
Name: Michael R. Walker
Title: Acting President and
Chief Executive Officer
Date: September ____, 2003
GENESIS
GENESIS HEALTH VENTURES OF WILKES-BARRE, INC.,
a Pennsylvania corporation
_______________________ By: ______________________________________
Name: James V. McKeon
Title: Senior Vice President
Date: September ____, 2003
GENESIS HEALTHCARE CORPORATION,
a Pennsylvania corporation
_______________________ By: ______________________________________
Name: James V. McKeon
Title: Senior Vice President
Date: September ____, 2003
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Date: September ____, 2003
JOINDER
The undersigned, as the parent corporation of GHV-WB, hereby joins in the
execution of the foregoing Conveyance and Transfer Agreement as buyer and
agrees to perform, or cause the performance of all of the obligations of GHV-
WB hereunder, provided, however, that upon the consummation of the
Reorganization the undersigned shall be released automatically from any and
all obligations under this Agreement without the need for notice, consent,
acknowledgement or the execution of further documentation.
GENESIS HEALTH VENTURES, INC., a
Pennsylvania corporation
By: _______________________________
Name: James V. McKeon
Title: Senior Vice President
Date: September ______, 2003
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List of Exhibits
Exhibit "A" - The Land
Exhibit "B" - Permitted Exceptions
Exhibit "C" - Definition of Reorganization
Exhibit "D" - Form of Special Warranty Deed
Exhibit "E" - Form of Bill of Sale
Exhibit "F" - Form of FIRPTA Affidavit
Exhibit "G" - Form of Assignment of Licenses,
Permits and Contracts
Exhibit "H" - Form of Assignment of Intangibles
Exhibit 3.1(e) - Schedule of Litigation
Exhibit 3.1(k) - Environmental Disclosure Schedule
Exhibit 3.1(l) - Contract Rights
Exhibit 4.6 - List of Required Consents from Genesis
Exhibit 5.2 - List of Required Consents from ET
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Exhibit A
The Land
ALL the surface or right of soil of and in that certain lot, piece or
parcel of land situate in the City of Wilkes-Barre, County of Luzerne, and
Commonwealth of Pennsylvania, bounded and described as follows, to wit:
BEGINNING at an iron pin corner in the southwesterly line of Courtright
Avenue, being the northeasterly corner of land now or formerly of River Street
Associates as described in Luzerne County Deed Book 2125, page 120, said
corner being located North 35 degrees 59 minutes 19 seconds West, 404.00 feet
from the northwesterly side of North River Street, said corner being the
southeasterly corner of Lot No. 2 as shown on Minor Subdivision Plan as
prepared by Mozeleski & Baer on April 20, 1991;
THENCE along land now or formerly of River Street Associates South 57
degrees 33 minutes 19 seconds West, 176.00 feet to a found iron pin;
THENCE continuing along land now or formerly of River Street Associates
South 33 degrees 53 minutes 24 seconds West, 291.63 feet to a found iron pin
corner;
THENCE along land now or formerly of Dorr Corporation, successor by merger
Pagnotti Coal Company, North 09 degrees 18 minutes 29 seconds West, 400.86
feet to a set iron pin corner;
THENCE along the same North 57 degrees 32 minutes 31 seconds East, 296.96
feet to a set iron pin corner;
THENCE along the southwesterly line of Courtright Avenue South 35 degrees
59 minutes 19 seconds East, 252.00 feet to the PLACE OF BEGINNING.
CONTAINING 2.21 acres of land, being the same, more or less.
SUBJECT to a twenty (20) foot wide sanitary sewer easement crossing the
above described parcel as shown on aforesaid Minor Subdivision map as prepared
by Mozeleski and Baer, in favor of Wyoming Valley Sanitary Authority, as more
particularly set forth in Luzerne County Deed Book 1631 at Page 8 and a
certain condemnation action filed to No. 539, January Term, 1968, in the
Office of the Prothonotary of Luzerne County,
UNDER AND SUBJECT to all easements, reservations, and exceptions in the
prior chain of title including the reservation of the sewer easement in favor
of Pagnotti Coal Company as shown on the map attached to a certain Deed from
Dorr Corporation, now by merger Pagnotti Coal Company, to Susquehanna Holdings
Company dated December 17, 1991, and recorded in Luzerne
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County Deed Book 2406 at Page 1018, and SUBJECT to a 12 foot easement in both
directions from the northeast corner of the property described above in favor
of Pagnotti Coal Company, as shown on the map attached to Luzerne County Deed
Book 2406 at Page 1018.
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Exhibit B
Permitted Exceptions
1. Special taxes or assessments, if any, for the year 2003 and subsequent
years, not yet due and payable.
2. General taxes for the year 2003 and any subsequent years, not yet due
and payable.
3. Rights or claims of parties in actual possession of any or all of the
property.
4. Unrecorded easements, discrepancies or conflicts in boundary lines,
shortage in area and encroachment which an accurate and complete survey
would disclose.
5. Public or private rights, if any, in such portion of the subject
premises as may be presently used, laid out or dedicated in any manner,
for street, highway or alley purposes.
6. Those certain easements of the Dorr Corporation, now by merger Pagnotti
Coal Company as in Deed Book 2406, page 1018.
7. Reservations, conditions, restrictions and exceptions of the Lehigh
Valley Coal Company as in Deed Book 1515 page 423, including the right
to mine and remove coal and minerals.
8. Coal and minerals beneath the surface and the right to mine and remove
same as may be found in prior deeds forming the chain of title.
9. Rights granted to Pennsylvania Power & Light Company as in Deed Book
2432 page 449 and 453 and as shown on ALTA/ASCM Land Survey made for
Genesis ElderCare Development Group by Baer Surveying Inc., Thomas S.
Baer, Registered Prof. Land Surveyor dated 7/26/1997.
10. Rights granted to Pennsylvania Gas and Water Company as in Deed Book
2416 page 53 and as shown on ALTA/ASCM Land Survey made for Genesis
ElderCare Development Group by Baer Surveying Inc., Thomas S. Baer,
Registered Prof. Land Surveyor dated 7/26/1997.
11. Rights granted to The Bell Telephone Company of Pennsylvania as in Deed
Book 2430 page 790 and as shown on ALTA/ASCM Land Survey made for
Genesis ElderCare Development Group by Baer Surveying Inc., Thomas S.
Baer, Registered Prof. Land Surveyor dated 7/26/1997.
12. Declaration of Taking by the Wyoming Valley Sanitary Authority for
Sanitary Sewer as
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in Deed Book 1631 page 8 and as shown on ALTA/ASCM Land Survey made for
Genesis ElderCare Development Group by Baer Surveying Inc., Thomas S.
Baer, Registered Prof. Land Surveyor dated 7/26/1997.
13. Conditions as shown on ALTA/ASCM Land Survey made for Genesis ElderCare
Development Group by Baer Surveying Inc., Thomas S. Baer, Registered
Prof. Land Surveyor dated 7/26/1997 and revised 12/30/1997: (a)
easement of paved drive, leading over lands of River Street Associates
into Courtright Street (Avenue); (b) encroachment of stone wall; (c)
encroachment of building over setback line from rear.
14. Open-End Mortgage, Assignment and Security Agreement dated October 18,
2995 from Susquehanna Holdings Company to Nationsbanc Mortgage Capital
Corp. recorded October 20, 1995 in Mortgage Book 2072, page 536;
Consent and Assumption Agreement recorded in Deed Book 2633, page 890.
15. Assignment of Loan Documents by and between Nationsbank Mortgage
Capital Corporation and The Chase Manhattan Bank, N.A. as in Deed Book
2171 page 598.
16. Assignment of Lessor's Interest in Leases between Susquehanna Holdings
Company to Nationsbanc Mortgage Capital Corp. as in Deed Book 2543 page
453.
17. Assignment of Lessee's Interest in Leases from River Ridge Partnership
and Nationsbanc Mortgage Capital Corp. as in Deed Book 2574 page 547.
18. Confirmation and Amendment of Mortgage and Assignment of Leases between
Susquehanna Holdings Company and Nationsbanc Mortgage Capital Corp. as
in Deed Book 2158 page 408.
-26-
Exhibit C
Description of Reorganization
-27-
Exhibit D
Form of Deed
-28-
DEED
THIS INDENTURE is made this _______ day of _______________, 2003, BETWEEN
[INSERT APPROPRIATE ET ENTITY] (hereinafter referred to as the "Grantor"), of
the one part, and [INSERT APPROPRIATE GHV ENTITY] (hereinafter referred to as
the "Grantee"), of the other part.
WITNESSETH, That the said Grantor, for and in consideration of the sum of
[INSERT APPROPRIATE CONSIDERATION] ($____________) lawful money of the United
States of America paid to it, the said Grantor, by the said Grantee, at and
before the sealing and delivery of these presents, the receipt whereof is
hereby acknowledged, has granted, bargained, sold, conveyed, released and
confirmed, and by these presents does grant, bargain, sell, convey, release
and confirm unto the said Grantee, its successors and assigns.
ALL THAT certain parcel of land with the buildings and improvement thereon
erected situate in the City of Wilkes-Barre, County of Luzerne, and
Commonwealth of Pennsylvania, as more particularly described on Exhibit "A"
attached hereto and made a part hereof.
TOGETHER with all and singular the Buildings, Improvements, Streets,
Alleys, Passages, Ways, Waters, Water-Courses, Rights, Liberties, Privileges,
Hereditaments and Appurtenances whatsoever thereunto belonging, or in any way
appertaining, and the Reversions and Remainders, Rents, Issues and Profits
thereof; and all the estate, right, title, interest, property, claim and
demand whatsoever, of it, the said Grantor, in law, equity, or otherwise, of,
in, and to the same and every part thereof.
TO HAVE AND TO HOLD the above described land together with all buildings
and improvements thereon and all Hereditaments and Premises hereby granted, or
mentioned and intended so to be, with the Appurtenances, unto the said
Grantee, and to its successors and assigns, to and for the only proper use and
behoof of the said Grantee, and its successors and assigns, forever.
AND the said Grantor, for itself and its heirs, personal representatives,
successors and assigns, Does by these presents, covenant, grant and agree to
and with the said Grantee, its successors and assigns, that it, the said
Grantor and its successors and assigns, all and singular the Hereditaments and
Premises herein above described and granted, or mentioned and intended so to
be, with the Appurtenances, unto the said Grantee, its successors and assigns,
against it, the said Grantor, its successors and assigns, and against all and
every other person or persons whomsoever lawfully claiming or to claim the
same or any part thereof, by, from, or under it, them, or any of them, shall
and will WARRANT AND FOREVER DEFEND.
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IN WITNESS WHEREOF, Grantor has signed and delivered this Deed as a sealed
instrument as of the day and year first above written.
[INSERT APPROPRIATE ET ENTITY]
By: _______________________
Name: Michael R. Walker
Title: Acting President and
Chief Executive Officer
COMMONWEALTH OF PENNSYLVANIA :
: SS.
COUNTY OF PHILADELPHIA :
On this, the _____ day of ________, 2003, before me, the undersigned
notary public, personally appeared Michael R. Walker, known or satisfactorily
proven to me to be the person who signed the foregoing instrument, who
acknowledged himself to be the Acting Vice President and Chief Executive
Officer of [INSERT APPROPRIATE ET ENTITY], and who further acknowledged that
he, being authorized to do so, executed the foregoing instrument as the act
and deed of the trust by signing the name of the trust by himself as such
officer, in the capacity set forth herein.
In witness whereof, I hereunto set my hand and official seal.
_________________________________
Notary Public
My commission expires:
[affix seal and stamp]
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DEED
[INSERT APPROPRIATE ET ENTITY]
Grantor
TO
[INSERT APPROPRIATE GHV ENTITY]
Grantee
Record and return to:
William V. McGroarty, Esquire
Blank Rome LLP
One Logan Square
Philadelphia, PA 19103
The address of the within-named Grantee is:
c/o Genesis Health Ventures, Inc.
101 East State Street
Kennett Square, Pennsylvania 191348
________________________________
On behalf of Grantee
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Exhibit "E"
Form of Bill of Sale
-32-
BILL OF SALE
THIS BILL OF SALE is made this ____ day of ____________ , 2003, by [INSERT
APPROPRIATE ET ENTITY] ("Seller") to [INSERT APPROPRIATE GHV ENTITY]
("Buyer").
WHEREAS, pursuant that certain Conveyance and Transfer Agreement dated as
of September ___, 2003 (the "Transfer Agreement"), between Buyer and GENESIS
HEALTHCARE CORPORATION, a Pennsylvania corporation ("GHC"), as buyer
(collectively, "Genesis"), and Seller, Seller agreed to execute this Bill of
Sale.
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller hereby covenants and agrees as follows:
1. The foregoing recitals are incorporated by reference as if fully set
forth herein.
2. For and in consideration of Ten Dollars ($10.00) in hand paid and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and intending to be legally bound hereby, Seller does
hereby grant, sell, convey, transfer, assign, deliver and set over unto Buyer,
its heirs, executors, administrators and assigns, forever, all estate, right,
title, interest, claim and demand of Seller, if any, in and to any and all
personal property of every kind and nature, whether tangible or intangible and
including any fixtures and equipment (the "Personal Property"), which is
located on that certain parcel of land together with the buildings (each a
"Building") and the improvements thereon, commonly known as Riverview Ridge,
located at 300 Courtright Street, Wilkes-Barre, Luzerne County, Pennsylvania
and more particularly described on Exhibit "A" attached hereto and made a part
hereof, provided however, that the term Personal Property shall not include
personal property which is located in any Building and which is the personal
property of and belongs to a residential tenant who leases space in such
Building.
3. THE PERSONAL PROPERTY IS BEING SOLD AND TRANSFERRED TO BUYER "AS IS",
"WHERE IS", AND "WITH ALL FAULTS" AS OF THE DATE OF THIS BILL OF SALE, WITHOUT
ANY REPRESENTATION OR WARRANTY WHATSOEVER AS TO ITS CONDITION, FITNESS FOR ANY
PARTICULAR PURPOSE, MERCHANTABILITY OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED.
SELLER HAS ONLY LIMITED KNOWLEDGE OF THE CONDITION OF THE PERSONAL PROPERTY.
BUYER IS HEREBY ACQUIRING THE PERSONAL PROPERTY BASED SOLELY UPON BUYER'S OWN
INDEPENDENT INVESTIGATIONS AND INSPECTIONS OF THE PERSONAL PROPERTY AND NOT IN
RELIANCE ON ANY INFORMATION PROVIDED BY SELLER OR ANY OF ITS AGENTS OR
CONTRACTORS. SELLER HAS MADE NO AGREEMENT TO ALTER, REPAIR OR IMPROVE ANY OF
THE PERSONAL PROPERTY. SELLER SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY
OR REPRESENTATION, ORAL OR WRITTEN, PAST OR
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PRESENT, EXPRESS OR IMPLIED, CONCERNING THE PERSONAL PROPERTY.
IN WITNESS WHEREOF, Seller has caused this Bill of Sale to be executed and
delivered as of the day and year first above written.
SELLER:
[INSERT APPROPRIATE ET ENTITY]
_______________________________ By:_________________________
Name: Michael R. Walker
Title: Acting President and
Chief Executive Officer
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Exhibit "E"
Form of FIRPTA Affidavit
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AFFIDAVIT OF NON-FOREIGN CITIZENSHIP
Section 1445 of the Internal Revenue Code provides that a transferee of a
U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform the transferee that withholding of tax is not required upon
the disposition of a U.S. real property interest by the undersigned, the
undersigned hereby certifies the following:
1. [INSERT APPROPRIATE ET ENTITY] ("Seller"), is not a foreign citizen,
foreign corporation, foreign partnership, foreign trust or foreign estate (as
those terms are defined in the Internal Revenue Code and Income Regulations);
2. Seller's tax identification number is __________________; and
3. Seller's office address is c/o ElderTrust, 2711 Centerville Road, Suite
108 Wilmington, DE 19808.
Seller understands that this certification may be disclosed to the
Internal Revenue Service by the transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct
and complete, and I further declare that I have authority to sign this
document on behalf of Seller.
Signed this ________ day of September, 2003.
[INSERT APPROPRIATE ET ENTITY]
By:____________________
Name: Michael R. Walker
Title: Acting President and
Chief Executive Officer
Signed and sworn to before me on
this ____ day of September, 2003.
____________________
Notary Public
My commission expires:
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Exhibit "G"
Form of Assignment of Licenses, Permits and Contracts
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QUITCLAIM ASSIGNMENT AND ASSUMPTION OF
LICENSES AND CONTRACTS
THIS ASSIGNMENT is dated as of September __, 2003, by [INSERT APPROPRIATE ET
ENTITY] ("Assignor") to [INSERT APPROPRIATE GHV ENTITY] ("Assignee").
W I T N E S S E T H:
This Assignment is made pursuant to that certain Conveyance and Transfer
Agreement dated as of September ___, 2003 (the "Transfer Agreement"), between
Assignee and GENESIS HEALTHCARE CORPORATION, a Pennsylvania corporation
("GHC"), as buyer (collectively, "Genesis"), and Assignor, wherein Assignor
agreed, among other things, to sell to Assignee that certain real property
commonly known as Riverview Ridge, located at 300 Courtright Street, Wilkes-
Barre, Luzerne County, Pennsylvania (the "Riverview Ridge Facility").
Assignor desires to assign and Assignee desires to assume whatever right
which Assignor may have in all agreements relating to the development,
construction and operation of the Riverview Ridge Facility, which are
assignable including, without limitation, architect and construction contracts
(including plans and specifications), warranties, guaranties or other
assurances relating to the development, construction and operation of the
Riverview Ridge Facility, agreements relating to the service and operation of
the Riverview Ridge Facility and the Land, such as service, property
management, supply and maintenance agreements, and agreements as to off-site
improvements or access that are likely to affect the Property, including
agreements relating to pedestrian access, storm water management, road access
and improvements, stream preservation, forest remediation, environmental
remediation and monitoring, wetlands remediation and the like, if any, but not
including any contracts related to the occupancy and care of the Residents of
the Riverview Ridge Facility, as such agreements are set forth on Exhibit
3.1(l) of the Transfer Agreement (the "Riverview Ridge Contract Rights").
Assignor desires to assign and Assignee desires to assume whatever right
which Assignor may have in all licenses, franchises, privileges, permits,
approvals, authorizations, consents, certificates of need and similar
documents in connection with the right to use the land, construct and develop
the Riverview Ridge Facility and operate the Riverview Ridge Facility,
including a personal care license, all building permits and certificates of
occupancy, all variances, special exceptions and, if required, other zoning
permits and licenses, and all other permits, licenses and other authorizations
issued in any connection with the Property, as such permits, licenses and
other authorizations are defined in the Transfer Agreement (the "Riverview
Ridge Licenses and Permits").
NOW THEREFORE, in consideration of the mutual covenants set forth herein,
and other good and valuable consideration, the parties hereto, intending to
be legally bound, agrees as follows:
1. Assignor hereby assigns, releases and quitclaims to Assignee all of
Assignor's right, title and interest, if any, in and to the Riverview Ridge
Contract Rights and the Riverview Ridge
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Licenses and Permits, which are assignable, together with any and all
extensions, modifications and renewals thereof.
2. Assignee hereby assumes the duties and obligations of Assignor under
the Riverview Ridge Contract Rights and Riverview Ridge Licenses and Permits,
which are assignable, and in effect on the date hereof, which duties and
obligations arise and accrue as of the date hereof.
3. The foregoing assignment is made without representation and warranty as
to (i) the assignability of the any of the contracts and agreements and (ii)
Assignor's interest in any of the Riverview Ridge Contract Rights and
Riverview Ridge Licenses and Permits.
4. This Assignment shall be binding upon and inure to the benefit of
Assignor and Assignee, and their respective successors and assigns.
5. All capitalized terms not otherwise defined herein shall have the
meaning ascribed to them in the Transfer Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, intending to be legally bound hereby, the parties have
duly executed this Assignment as of the day and year first above written.
ASSIGNOR:
[INSERT APPROPRIATE ET ENTITY]
By:________________________
Name: Michael R. Walker
Title: Acting President and
Chief Executive Officer
ASSIGNEE:
[INSERT APPROPRIATE GHV ENTITY]
By:________________________
Name: James V. McKeon
Title: Senior Vice President
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Exhibit "H"
Form of Assignment of Intangibles
-41-
ASSIGNMENT OF INTANGIBLE RIGHTS
THIS ASSIGNMENT is dated as of September __, 2003, by [INSERT APPROPRIATE
ET ENTITY] ("Assignor") to [INSERT APPROPRIATE GHV ENTITY] ("Assignee").
W I T N E S S E T H :
WHEREAS, Assignor is on this date conveying to Assignee that certain real
property commonly known as Riverview Ridge, located at 300 Courtright Street,
Wilkes-Barre, Luzerne County, Pennsylvania, as more particularly described on
Exhibit "A" attached hereto and made a part hereof (the "Property").
WHEREAS, Assignor has agreed to assign to Assignee certain appurtenances,
documents, intangibles and other interests pertaining to the Property.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor does hereby assign,
remise, release and quit-claim unto Assignee all of Assignor's right, title,
interest, claim and demand, if any, in and to: (i) all easements, privileges,
rights-of-way, riparian and other water rights, lands underlying any adjacent
streets or roads, and appurtenances pertaining to or accruing to the benefit
of the Property, (ii) all zoning approvals, ordinances and/or resolutions,
subdivision bonds, building permits, site plans, governmental consents,
authorizations, variances, waivers, vested rights, permits and approvals,
environmental permits, environmental indemnities, architects' or engineers'
plans and drawings, utility agreements, development agreements, subdivision
covenants, percolation, soil, topographical and traffic studies or reports
performed by or at the request of Assignor or in the possession or control of
Assignor with respect to the Property, if any, including those Licenses and
Permits as defined in that certain Conveyance and Transfer Agreement dated as
of September ___, 2003 (the "Transfer Agreement"), between Assignee and
GENESIS HEALTHCARE CORPORATION, a Pennsylvania corporation ("GHC"), as buyer
(collectively, "Genesis"), and Assignor, (iii) all General Intangibles (as
defined in the Transfer Agreement) and Intangible Property (as defined in the
Transfer Agreement), and (iv) all other intangible rights whatsoever in any
way affecting or pertaining to the use, development or operation of the
Property.
This Assignment is made by Assignor without representation or warranty of
any kind.
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IN WITNESS WHEREOF, this Assignment has been duly executed by the Assignor
as of the day and year first set forth above.
ASSIGNOR:
[INSERT APPROPRIATE ET ENTITY]
By:________________________
Name: Michael R. Walker
Title: Acting President and
Chief Executive Officer
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Exhibit 3.1(e)
Schedule of Litigation
None
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Exhibit 3.1(k)
Environment Disclosure Schedule
None.
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Exhibit 3.1(l)
Contract Rights
None.
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Exhibit 4.6
List of Required Consents from Genesis
Wachovia Bank, N.A.
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Exhibit 5.2
List of Required Consents from ET
1. Midland Mortgage, as sevicer for The Chase Manhattan Bank, N.A.,
trustee
2. Wachovia Bank, N.A.
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