{"id":43535,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/purchase-and-sale-agreement-healthsouth-corp-horizon-cms2.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"purchase-and-sale-agreement-healthsouth-corp-horizon-cms2","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/purchase-and-sale-agreement-healthsouth-corp-horizon-cms2.html","title":{"rendered":"Purchase and Sale Agreement &#8211; HealthSouth Corp., Horizon\/CMS Healthcare Corp. and Integrated Health Services Inc."},"content":{"rendered":"<pre>\n                    AMENDMENT TO PURCHASE AND SALE AGREEMENT\n\n\n     THIS  AMENDMENT (the  'Amendment'),  dated as of December 31, 1997, to that\ncertain  Purchase  and Sale  Agreement,  made and entered into on the 3rd day of\nNovember,  1997 (the 'Agreement'),  by and between  HEALTHSOUTH  CORPORATION,  a\nDelaware corporation  ('HEALTHSOUTH'),  HORIZON\/CMS  HEALTHCARE  CORPORATION,  a\nDelaware  corporation  ('Seller'),  and  INTEGRATED  HEALTH  SERVICES,  INC.,  a\nDelaware corporation ('Buyer'), with reference to the following facts:\n\n     A. The  parties  desire to amend the  Agreement  to the extent set forth in\nthis Amendment and to enter into certain  agreements  ancillary to the Agreement\nin connection with such amendments.\n\n     NOW,  THEREFORE,  in  consideration  of  the  foregoing  recitals  and  the\nagreements contained herein, and for other good and valuable consideration,  the\nreceipt and  sufficiency of which are hereby  acknowledged,  the parties hereto,\nintend to be legally bound, do hereby agree as follows:\n\n\n                                    ARTICLE 1\n\n                                   DEFINITIONS\n\n\n     For  purposes  of  this  Amendment,  all  capitalized  terms  used  in this\nAmendment  that are not  defined  in this  Amendment  shall  have  the  meanings\nassigned to them in the Agreement.\n\n\n                                    ARTICLE 2\n\n                   MATTERS RELATING TO SCHEDULES TO AGREEMENT\n\n\n     Section 2.1 Amendment of Certain Schedules.  The Schedules to the Agreement\nare hereby amended as follows:\n\n          (a)  Schedule A-2 is amended to:\n\n               (i) delete the asterisks  shown next to Facilities 216, 304, 188,\n               306 and 168 and to add Facility 218 (Medical Specialty Overhead),\n               reflecting  that Buyer has agreed to accept  such  facilities  as\n               Transferred Assets and to assume the related Assumed Liabilities;\n               and\n\n               (ii) delete all  references  to  Facilities  51, 60, 292 and 273,\n               reflecting  that  Seller  has  agreed to retain  all  assets  and\n               liabilities  relating  thereto as  Excluded  Assets and  Excluded\n               Liabilities.\n\n\n                                      B-1\n\n\n\n\n\n          (b)  Schedule  2.1(a) is amended to add to the list of Assigned  Stock\nand Transferred  Subsidiaries  Midwest Regional  Rehabilitation  Center, Inc., a\nSubsidiary of Seller which shall be a Transferred Subsidiary.\n\n          (c) The  first  sentence  of  Schedule  2.1(b) is  amended  to read as\nfollows:  'Horizon\/CMS  Healthcare Corporation or a Subsidiary or a wholly owned\npartnership  owns in fee  simple  the  real  property  on which  all  facilities\nidentified on the attached 'Chart of Owned Facilities' are located.\n\n          (d)  Schedule 2.1(c) is amended to:\n\n               (i) delete the  asterisks  with respect to Leases 100,  101, 102,\n               103,  105,  106, 203, 204, 205, 501, 502, 503, 504, 506, 127, 188\n               and 169,  reflecting  that Buyer has agreed to accept such leases\n               as  Transferred   Assets  and  to  assume  the  related   Assumed\n               Liabilities;\n\n               (ii) add  references  to leases  relating  to  Advanced  Clinical\n               Technology,  Inc.'s  locations in Plantation,  Florida and Niles,\n               Ohio,  reflecting  that Buyer has agreed to accept such leases as\n               Transferred Assets and to assume the related Assumed Liabilities;\n               and\n\n               (iii) delete all  references  to leases 65, 115,  130,  157, 187,\n               235, 202 and 206, reflecting that Seller has agreed to retain all\n               assets and  liabilities  relating  thereto as Excluded Assets and\n               Excluded Liabilities.\n\n          (e)  Schedule  2.1(d) is hereby  amended to delete the  references  to\ninterests in InHouse Rehab  Associates  and  RehabWorks of Utah,  L.L.C.,  which\nshall be Excluded Assets and Excluded Liabilities.\n\n          (f)  Schedule  7.5 is amended  to delete  therefrom  all items  except\nletters of credit numbers L150065,  L150066, L150067 and L906140, which shall be\nthe only  letters  of  credit  and bonds  required  to be  provided  by Buyer to\nsubstitute for letters of credit and bonds  heretofore  maintained by Seller and\nits Affiliates.\n\n     Section  2.2  Deliveries  at Closing.  At the  Closing,  the parties  shall\nexecute and deliver such  instruments  of conveyance,  transfer and  assumption,\nconsistent  with the terms of the  Agreement,  as are  necessary  to effect  the\nforegoing amendments to the Schedules.\n\n\n                                    ARTICLE 3\n\n                         OTHER AGREEMENTS OF THE PARTIES\n\n\n     Section 3.1  Assumption  of ACT 401(k) Plan.  Prior to the Closing,  Seller\nshall assume the 401(k) plan maintained by Advanced  Clinical  Technology,  Inc.\n('ACT') and,  from and after the Closing,  shall be solely  responsible  for the\nadministration  and  termination  of such plan and for the  satisfaction  of all\nobligations  and liabilities of any kind whatsoever with respect to such plan or\nthe operation, assumption or termination thereof, including, but not limited to,\nobligations and liabilities to plan participants and\n\n\n                                      B-2\n\n\n\n\n\nobligations  and  liabilities  resulting from any adverse  determination  by any\ngovernmental  entity with  respect to such plan,  all of which  obligations  and\nliabilities  shall be deemed  to be  Excluded  Liabilities  and  subject  to the\nindemnification provisions of Sections 11.3, 11.5 and 11.6 of the Agreement.\n\n     Section3.2 Ortenzio  Litigation.  HEALTHSOUTH,  Seller and Buyer agree that\nall rights and liabilities of Seller or any Affiliate of Seller,  whether or not\nsuch Affiliate is a Transferred  Subsidiary,  with respect to litigation brought\nby Seller or any Affiliate of Seller against Rocco Ortenzio, Robert Ortenzio and\ntheir Affiliates  (collectively,  the 'Ortenzios'),  or by the Ortenzios against\nSeller or any Affiliate of Seller, shall constitute Excluded Assets and Excluded\nLiabilities,  and Buyer and its  Affiliates  shall have no rights or obligations\nwith  respect  to  any  amounts  receivable  or  payable  with  respect  to  the\nprosecution  and defense of such  litigation or any judgments,  awards,  amounts\npaid  in  settlement  or  other  costs  or  proceeds  of  such  litigation.  Any\nliabilities  which may be asserted  against Buyer or its Affiliates  (including,\nafter the Closing, any Transferred Subsidiaries) with respect to such litigation\nshall be subject to the  indemnification  provisions of Sections 11.3,  11.5 and\n11.6 of the Agreement.  Buyer  acknowledges that neither  HEALTHSOUTH nor Seller\nhas made any  representation  to Buyer  concerning the value of such litigation.\nBuyer  shall cause the  Transferred  Subsidiaries  to  cooperate  as  reasonably\nrequested by  HEALTHSOUTH  or Seller,  at the expense of  HEALTHSOUTH or Seller,\nwith respect to such litigation.\n\n     Section 3.3 Other Agreements to be Executed and Delivered.  At the Closing,\nHEALTHSOUTH  and Buyer  shall  execute  and  deliver a Service  Agreement  and a\nTransition Services Agreement, satisfactory to HEALTHSOUTH and Buyer in form and\nsubstance, with respect to the provision of certain leased employees to Buyer or\nits  Affiliates  and with  respect to  certain  information  systems  transition\nmatters, respectively.\n\n     Section 3.4 Bank  Accounts and Cash  Reconciliation.  On the Closing  Date,\nSeller and its Affiliates shall assign to Buyer or designated Buyer Subsidiaries\nall rights of Seller and its Affiliates in depository  accounts  relating to the\nTransferred   Assets  and  disbursing   accounts  relating  to  the  Transferred\nSubsidiaries, subject, however, to the following provisions:\n\n          (a) On the Closing  Date,  HEALTHSOUTH  shall  withdraw all  collected\nfunds from the depository accounts and all funds in excess of outstanding checks\nfrom the transferred disbursing accounts.\n\n          (b) On January 6, 1998,  HEALTHSOUTH shall wire to accounts designated\nby Buyer an amount equal to $10,000,000 less (i) the uncollected balances in the\ndepository  accounts  at the  Closing  Date  (ii)  amounts  deposited  into  the\ndepository  accounts  on December  31, 1997 and (iii) cash and cash  equivalents\notherwise  inaccessible on December 31, 1997, which shall satisfy  HEALTHSOUTH's\nobligation to transfer cash and cash  equivalents  in the amount of  $10,000,000\npursuant to Section 2.1(m) of the Agreement.\n\n          (c) In the event that (i) HEALTHSOUTH and Seller remove funds from the\ntransferred  disbursing accounts so that funds in such accounts are insufficient\nto cover checks  outstanding  at December  31,  1997,  or (ii) after the payment\ndescribed in paragraph (b) above, the cash and cash  equivalents  deemed to have\nbeen  transferred  to Buyer as of  December  31, 1997  exceed  $10,000,000,  the\nparties  shall pay to each  other on demand  such  amounts as are  necessary  to\nreconcile such discrepancies.\n\n     Section 3.5 Amounts  Expended to Obtain Consents and Releases.  HEALTHSOUTH\nshall,  by check on the Closing  Date,  pay to Buyer the sum of  $11,000,000  in\nrespect of liabilities  incurred by Buyer in connection with obtaining all third\nparty  consents  and releases of  HEALTHSOUTH  and Seller  obtained  through the\nClosing Date, including,  but not limited to, liabilities in favor of Health and\nRetirement  Properties Trust,  Connecticut Subacute Corporation II. With respect\nto amounts expended as  consideration  for all third party consents and releases\nafter the Closing Date,  HEALTHSOUTH and Seller\n\n\n                                      B-3\n\n\n\n\n\nshall  reimburse  Buyer for 50% of such  amounts  in excess of  $500,000.  Buyer\nrepresents  that it has agreed to accept the terms  required  for consent by LTC\nProperties,  Inc.  specified in Buyer's agreement of even date herewith with LTC\nProperties, Inc. (provided that guaranties for the Citation properties shall not\nexceed 20% of the underlying mortgage amount) and the terms for consent required\nby Zev Karkomi\/Karell Capital Ventures,  Inc. in Karell's letters dated December\n20 and December 30, 1997.\n\n     Section 3.6 Certain  Employees.  The parties agree that those  employees of\nSeller  identified  on  Schedule  3.6  attached  hereto  shall  not be  Retained\nEmployees or Hired Employees, and HEALTHSOUTH and Seller shall retain all rights\nand obligations with respect to such employees other than those assumed by Buyer\npursuant to Section 2.3(n) of the Agreement.\n\n     Section 3.7 Amendment of Section 2.3(n). Section 2.3(n) of the Agreement is\nhereby amended to be and read in its entirety as follows:\n\n                  (n)  Liabilities or obligations of Seller or the  Subsidiaries\n         arising under the  employment,  change-of-control,  retention bonus and\n         pay-to-stay agreements described on Schedule 2.3(n); provided, however,\n         that if HEALTHSOUTH or Seller shall have paid any amounts in respect of\n         such liabilities or obligations prior to the Closing Date, or shall pay\n         any amounts in respect of such  liabilities  or  obligations  after the\n         Closing  Date,  Buyer  shall  reimburse  HEALTHSOUTH  or Seller for the\n         amounts  so paid upon  demand on or after the  Closing  Date (but in no\n         event  earlier  than the date on which such  amounts are paid,  if paid\n         after the Closing Date);\n\n     Section 3.8 B&amp;G Note.  With respect to the Note from B&amp;G  Partners  Limited\nPartnership  described in Section  2.1(g) of the  Agreement,  HEALTHSOUTH  shall\nindemnify  Buyer  against any failure of Buyer to receive  payment of  principal\nvalued at at least  $5,000,000  by paying to Buyer,  upon demand,  the shortfall\nbetween  $5,000,000  and the value of the  consideration  received as payment of\nprincipal;  provided, however, that HEALTHSOUTH shall not be responsible for any\nshortfall  resulting from the surrender of securities issued by Buyer as payment\nof principal on such note.\n\n     Section 3.9 Certain Development Projects. The parties agree that all right,\ntitle and  interest of Seller or any  Affiliate in and to the  facilities  under\ndevelopment in Reno, Las Vegas and Carson City,  Nevada, and all liabilities and\nobligations   with  respect   thereto,   are  Transferred   Assets  and  Assumed\nLiabilities.\n\n\n                                    ARTICLE 4\n\n                                  MISCELLANEOUS\n\n\n     Section 4.1  Affirmation  of  Agreement.  The parties  hereby affirm to one\nanother their  respective  obligations  pursuant to the Agreement and affirm the\nAgreement,  amended as set forth above. The parties hereby represent and warrant\nto one another that none of them is in default in the  performance of any of its\nobligations to the other as of the date of this Amendment.\n\n     Section 4.2  Representations  and  Warranties.  The parties  represent  and\nwarrant to one  another  that this  Amendment  has been duly  authorized  by all\ncorporate  action required to be taken on each of their parts,  that it has been\nduly executed and delivered,  that it constitutes  the legal,  valid and binding\nobligations of each of them, except as enforcement may be subject to bankruptcy,\nmoratorium and similar laws and except as the availability of equitable remedies\nmay be subject to customary limitations.\n\n\n                                      B-4\n\n\n\n\n\n     Section 4.3 Further  Assurances.  Each party  hereby  agrees to perform any\nfurther acts and to execute and deliver any  documents  which may be  reasonably\nnecessary to carry out the provisions of this Amendment.\n\n     IN WITNESS  WHEREOF,  the parties have duly executed this  Amendment on the\ndate first above written.\n\n\n                                             HEALTHSOUTH CORPORATION\n\n\n                                             By \/s\/WILLIAM W. HORTON\n\n                                                Its     Senior Vice President\n\n                                             HORIZON\/CMS HEALTHCARE CORPORATION\n\n\n                                             By \/s\/WILLIAM W. HORTON\n\n                                                Its     Vice President\n\n\n                                             INTEGRATED HEALTH SERVICES, INC.\n\n\n                                             By \/s\/TAYLOR PICKETT\n\n                                                Its     Executive Vice President\n\n\n\n                                       B-5\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7751],"corporate_contracts_industries":[9438],"corporate_contracts_types":[9622,9626],"class_list":["post-43535","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-healthsouth-corp","corporate_contracts_industries-health__misc","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43535","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43535"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43535"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43535"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43535"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}