United States
Securities and Exchange Commission
Washington, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
September 30, 1997 0-28752
Date of Report (Date of Commission File Number
earliest event reported)
Kapson Senior Quarters Corp.
(Exact name of registrant as specified in its charter)
Delaware 11-3323503
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
125 Froehlich Farm Boulevard
Woodbury, New York 11797
(Address of Principal Executive Offices) (Zip Code)
(516) 921-8900
(Registrant's telephone number, including area code)
Item 2. Acquisition or Disposition of Assets.
On September 30, 1997, Kapson Senior Quarters Corp.'s
(the "Company") wholly owned subsidiary, Kapson Lynbrook Corp.,
acquired the assisted living facility (the "Facility") known as
Senior Quarters at Lynbrook, located at 100 Peninsula Boulevard,
Lynbrook, New York, from Pensun Associates. The Company's
subsidiary, Senior Quarters Management Corp., had been the
manager of the Facility pursuant to a management agreement with
Pensun Associates. The purchase price was $25.8 million,
comprised of $15.3 million in cash and assumption of a $10.5
million mortgage note on the Facility held by Fleet Bank, N.A.
The mortgage note, payment of which has been guaranteed by the
Company, bears interest at a fixed rate of 8.12% and matures in
September 2002. The Facility, which contains 126 units and has a
capacity for 200 residents, had an occupancy level of 87% on the
date of acquisition. The contract of sale with respect to the
Facility is filed herewith as Exhibit 1 and is incorporated
herein by reference.
The Facility is a single-purpose assisted care facility
which commenced operations in January 1997. Prior thereto,
commencing in 1994, the Facility was involved in construction and
development, including purchasing in 1994 the land on which the
Facility is located, obtaining the necessary zoning approvals in
1994 and 1995, obtaining construction financing during the latter
half of 1995 and constructing the Facility during 1996. For
financial reporting purposes, all of the costs in connection with
these construction and development activities were capitalized.
The Facility does not have a predecessor.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
(a) The unaudited financial statements of the Facility for the
nine months ended September 30, 1997 are filed herewith as
Exhibit 2.
(b) Unaudited pro forma consolidated financial statements of the
Company (balance sheet as of December 31, 1996 and statement of
operations for the nine months ended September 30, 1997) are
filed herewith as Exhibit 3.
(c) Exhibits
1. Contract of sale, dated as of August 27, 1997, between
Kapson Lynbrook Corp. and Pensun Associates, as amended
September 29, 1997.
2. Unaudited financial statements of the Facility for the
nine months ended September 30, 1997.
3. Unaudited pro forma consolidated financial statements
of the Company
-Balance sheet as of December 31, 1996
-Statement of operations for the nine months ended
September 30, 1997
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
Date: March 30, 1998 KAPSON SENIOR QUARTERS CORP.
By:/s/ Glenn Kaplan
Glenn Kaplan
Chairman of the Board and
Chief Executive Officer<PAGE>
EXHIBIT INDEX
Exhibit Description
1 Contract of sale, dated as of August 27, 1997, between
Kapson Lynbrook Corp. and Pensun Associates, as amended
September 29, 1997
2 Unaudited financial statements of the Facility for the
nine months ended September 30, 1997
3 Unaudited pro forma consolidated financial statements
of the Company
-Balance sheet as of December 31, 1996
-Statement of operations for the nine months ended
September 30, 1997
EXHIBIT 1
CONSULT YOUR LAWYER BEFORE SIGNING THIS INSTRUMENT -- THIS
INSTRUMENT SHOULD BE USED BY LAWYERS ONLY.
---------------------------
NOTE: FIRE LOSSES. This form of contract contains no express
provision as to risk of loss by fire or other casualty
before delivery of the deed. Unless express provision
is made, the provisions of Section 5-1311 of the
General Obligations Law will apply. This section also
places risk of loss upon purchaser if title or
possession is transferred prior to closing.
THIS AGREEMENT, made the 27th day of August, nineteen
hundred and ninety-seven BETWEEN PENSUN ASSOCIATES, a partnership
organized and existing under the laws of the State of New York,
and having a place of business at 70 E. Sunrise Highway, Valley
Stream, New York, hereinafter described as the seller, and KAPSON
LYNBROOK CORP., a New York Corporation with offices located at
242 Crossways Park West, Westbury, New York 11797, hereinafter
described as the purchaser.
WITNESSETH, that the seller agrees to sell and convey, and
the purchaser agrees to purchase, all that certain plot, piece or
parcel of land, with the buildings and improvements thereon
erected, situate, laying and being in the Incorporated Village of
Lynbrook, Town of Hempstead, County of Nassau and State of New
York, as more particularly described on Schedule A annexed hereto
and made a part hereof. The premises are also known as Section
42, Block M-1, Lot 323 on the Land and Tax Map of the County of
Nassau.
1. This sale includes all right, title and interest, if
any, of the seller in and to any land lying in the bed of any
street, road or avenue opened or proposed, in front of or
adjoining said premises, to the center line thereof, and all
right, title and interest of the seller in and to any award made
or to be made in lieu thereof and in and to any unpaid award for
damage to said premises by reason of change of grade of any
street: and the seller will execute and deliver to the purchaser,
on closing of title, or thereafter, on demand, all proper
instruments for the conveyance of such title and the assignment
and collection of any such award.
2. The price is TWENTY-FIVE MILLION FIVE HUNDRED THOUSAND
AND 00/100 ($25,500,000.00) DOLLARS, payable as follows: FIVE
HUNDRED THOUSAND AND 00/100 ($500,000.00) DOLLARS, on the signing
of this contract by check subject to collection, the receipt of
which is hereby acknowledged; FOURTEEN MILLION FIVE HUNDRED
THOUSAND AND 00/100 ($14,500,000.00) DOLLARS in cash or good
certified check to the order of the seller on the delivery of the
deed as hereinafter provided; TEN MILLION FIVE HUNDRED THOUSAND
AND 00/100 ($10,500,000.00) DOLLARS, by taking title subject to a
first mortgage now a lien on said premises in that amount,
bearing interest at the rate of ____ per cent per annum held by
Fleet Bank, N.A.
5. If there be a mortgage on the premises the seller
agrees to deliver to the purchaser at the time of delivery of the
deed a proper certificate executed and acknowledged by the holder
of such mortgage and in form for recording, certifying as to the
amount of the unpaid principal and interest thereon, date of
maturity thereof and rate of interest thereon, and the seller
shall pay the fees for recording such certificate. Should the
mortgagee be a bank or other institution as defined in Section
274-a, Real Property Law, the mortgagee may in lieu of the said
certificate, furnish a letter signed by a duly authorized
officer, or employee, or agent, containing the information
required to be set forth in said certificate. Seller represents
that such mortgage will not be in default at or as a result of
the delivery of the deed hereunder and that neither said mortgage
nor any modification thereof contains any provision to accelerate
payment, or to change any of the other terms or provisions
thereof by reason of the delivery of the deed hereunder.
6. Said premises are sold and are to be conveyed subject
to:
a. Zoning regulations and ordinances of the city,
town or village in which the premises lie which are not violated
by existing structures.
b. Consents by the seller or any former owner of
premises for the erection of any structure or structures on,
under or about any street or streets on which said premises may
abut.
c. Encroachments of stoops, areas, cellar steps, trim
and cornices, if any, upon any street or highway.
d. The Permitted exceptions set forth on Schedule B
attached hereto and made a part thereof.
7. All notes or notices of violations of law or municipal
ordinances, orders or requirements noted in or issued by the
Departments of Housing and Buildings, Fire, Labor, Health, or
other State or Municipal Department having jurisdiction, against
or affecting the premises at the date hereof, shall be complied
with by the seller and the premises shall be conveyed free of the
same, and this provision of this contract shall survive delivery
of the deed hereunder. The seller shall furnish the purchaser
with an authorization to make the necessary searches therefor.
10. The following are to be apportioned:
(a) Rents as and when collected; (b) Interest on mortgages;
(c) Premiums on existing transferable insurance policies or
renewals of those expiring prior to the closing; (d) Taxes and
sewer rents, if any, on the basis of the fiscal year for which
assessed; (e) Water charges on the basis of the calendar year;
(f) Fuel, if any.
12. If there be a water meter on the premises, the seller
shall furnish a reading to a date not more than thirty days prior
to the time herein set for closing title, and the unfixed meter
charge and the unfixed sewer rent, if any, based thereon for the
intervening time shall be apportioned on the basis of such last
reading.
13. The deed shall be the usual Bargain and Sale with
Covenants Against Grantor's Acts deed in proper statutory short
form for record and shall be duly executed and acknowledged so as
to convey to the purchaser the fee simple of the said premises,
free of all encumbrances, except as herein stated, and shall
contain the covenant required by subdivision 5 of Section 13 of
the Lien Law.
If the seller is a corporation, it will deliver to the
purchaser at the time of the delivery of the deed hereunder a
resolution of its Board of Directors authorizing the sale and
delivery of the deed, and a certificate by the Secretary or
Assistant Secretary of the corporation certifying such resolution
and setting forth facts showing that the conveyance is in
conformity with the requirements of Section 909 of the Business
Corporation Law. The deed in such case shall contain a recital
sufficient to establish compliance with said section.
14. At the closing of the title the seller shall deliver to
the purchaser a certified check to the order of the recording
officer of the county in which the deed is to be recorded for the
amount of the documentary stamps to be affixed thereto in
accordance with Article 31 of the Tax Law and a certified check
to the order of the appropriate county officer for any other tax
payable by reason of the delivery of the deed and a return if any
be required, duly signed and sworn to by the seller; and the
purchaser also agrees to sign and swear to the return and to
cause the check and the return to be delivered to the appropriate
county officer promptly after the closing of title.
16. The seller shall give and the purchaser shall accept a
title such as Chicago Title Insurance Company, a Member of the
New York Board of Title Underwriters, will approve and insure.
17. All sums paid on account of this contract, and the
reasonable expenses of the examination of the title to said
premises and of the survey, if any, made in connection therewith
are hereby made liens on said premises, but such liens shall not
continue after default by the purchaser under this contract.
18. All fixtures and articles of personal property attached
or appurtenant to or used in connection with said premises are
represented to be owned by the seller, free from all liens and
encumbrances except as herein stated, and are included in this
sale: without limiting the generality of the foregoing, such
fixtures and articles or personal property include plumbing,
heating, lighting and cooking fixtures, air conditioning fixtures
and units, ranges, refrigerators, radio and television aerials,
bathroom and kitchen cabinets, mantels, door mirrors, venetian
blinds, shades, screens, awnings, storm windows, window boxes,
storm doors mail boxes, weather vanes, flagpoles, pumps,
shrubbery and outdoor statuary, all to the extent same presently
exist in an "AS IS" condition.
19. The amount of any unpaid taxes, assessments, water
charges and sewer rents which the seller is obligated to pay and
discharge, with the interest and penalties thereon to a date not
less than two business days after the date of closing title, may
at the option of the seller be allowed to the purchaser out of
the balance of the purchase price, provided officials bills
therefor with interest and penalties thereon figured to said date
are furnished by the seller at the closing.
20. If at the date of closing there may be any other liens
or encumbrances which the seller is obligated to pay and
discharge, the seller may use any portion of the balance of the
purchase price to satisfy the same, provided the seller shall
simultaneously either deliver to the purchaser at the closing of
title instruments in recordable form and sufficient to satisfy
such liens and encumbrances of record together with the cost of
recording or filing said instruments; or, provided that the
seller has made arrangements with the title company employed by
the purchaser in advance of closing, seller will deposit with
said company sufficient monies, acceptable to and required by it
to insure obtaining and the recording of such satisfactions and
the issuance of title insurance to the purchaser either free of
any such liens and encumbrances, or with insurance against
enforcement of same out of the insured premises. The purchaser,
if request is made within a reasonable time prior to the date of
closing of title, agrees to provide at the closing of title,
agrees to provide at the closing separate certified checks as
requested, aggregating the amount of the balance of the purchase
price, to facilitate the satisfaction of any such liens or
encumbrances. The existence of any such taxes or other liens and
encumbrances shall not be deemed objections to title if the
seller shall comply with the foregoing requirements.
21. If a search of the title discloses judgments,
bankruptcies or other returns against other persons having names
the same as or similar to that of the seller, the seller will on
request deliver to the purchaser an affidavit showing that such
judgments, bankruptcies or other returns are not against the
seller.
22. In the event that the seller is unable to convey title
in accordance with the terms of this contract, the sole liability
of the seller will be to refund to the purchaser the amount paid
on account of the purchase price and to pay the net cost of
examining the title, which cost is not to exceed the charges
fixed by the New York Board of Title Underwriters, and the net
cost of any survey made in connection therewith incurred by the
purchaser, and upon such refund and payment made this contract
shall be considered canceled.
23. The deed shall be delivered upon the receipt of said
payments at the office of SEE RIDER
at o'clock on
, 19 .
24. The parties agree that no broker brought about this
sale.
25. It is understood and agreed that all understandings and
agreements heretofore had between the parties hereto are merged
in this contract, which alone fully and completely expresses
their agreement, and that the same is entered into after full
investigation, neither party relying upon any statement or
representation, not embodied in this contract, made by the other.
The purchaser has inspected the buildings standing on said
premises and is thoroughly acquainted with their condition and
agrees to take title "as is" and in their present condition and
subject to reasonable use, wear, tear, and natural deterioration
between the date thereof and the closing of title.
26. This agreement may not be changed or terminated orally.
The stipulations aforesaid are to apply to and bind the heirs,
executors, administrators, successors and assigns of the
respective parties.
27. If two or more persons constitute either the seller or
the purchaser, the word "seller" or the word "purchaser" shall be
construed as if it read "sellers" or "purchasers" whenever the
sense of this agreement so requires.
IN WITNESS WHEREOF, this agreement has been duly executed by
the parties hereto.
In presence of:
PENSUN ASSOCIATES
By: /s/ M.F. Serah
KAPSON LYNBROOK CORP.
By: /s/ Glenn Kaplan
RIDER TO CONTRACT OF SALE BETWEEN: PENSUN ASSOCIATES, as Seller
and KAPSON LYNBROOK CORP., as Purchaser.
Dated: August 27, 1997
- ---------------------------------------------------------------
28. The acceptance of a deed by Purchaser shall constitute full
performance and discharge of every agreement and obligation
on the part of Seller to be performed pursuant to the
provisions of this contract, except those which are herein
specifically stated to survive the closing of title
hereunder. Purchaser's sole remedy in the event of any
breach of any representation or warranty contained herein
shall be to reject title and receive back the deposit made
hereunder.
29. Purchaser, or an affiliate of Purchaser is, at the present
time, the Manager of the facility operating on the premises
being conveyed hereby and, consequently, Seller has not made
any representations or warranties as to the physical
condition, use or operation, or any other matter or things
affecting or related to the aforesaid premises except as set
forth herein, and Purchaser hereby expressly acknowledges
that no representations or warranties have been made.
30. The Purchaser agrees to accept conveyance and transfer
thereof "as is," and the Seller shall not be obligated to
make any repairs, alterations, improvements or additions
thereto whatsoever, except as otherwise expressly provided
herein. It is understood and agreed that all understandings
and agreements heretofore had between the parties hereto are
merged in this contract, which along fully and completely
expresses their agreement, and that the same is entered into
after full investigation, neither party relying upon any
statement or representation not embodied in this contract
made by the other.
31. In the event that the Seller is unable to convey the
premises as herein provided for any reason whatsoever, then,
and in such event, the Seller's sole obligation shall be to
refund the Purchaser's down payment made hereunder and to
reimburse the Purchaser for the actual cost of title
examination and survey charges incurred, and thereupon all
rights and obligations hereunder, by either party against
the other shall cease and terminate, and this agreement
shall be null and void and the lien, if any, of the
Purchaser against the premises shall wholly cease. Except
as herein provided, the Seller shall not be required to
bring any action or proceeding or otherwise to incur any
expense to render the title to the premises marketable. The
Purchaser, without reduction of the purchase price or any
credit or allowance against the same and without any
liability on the part of the Seller, may nevertheless,
accept such title as the Seller may be able to convey. The
term "cost of title examination" is defined, for the purpose
of this agreement, as the expense actually incurred by the
Purchaser for title examination, but in no event, however,
to exceed the net amount which would be charged by a title
company in the State of New York for title examination of
the premises without issuance of a policy.
32. A. Purchaser agrees to accept title subject to the
Permitted Exceptions set forth on Schedule B annexed hereto
and made a part hereof. In the event Purchaser's title
report shall show objections other than the Permitted
Exceptions, Purchaser shall notify Seller thereof and Seller
agrees to satisfy any judgments or other monetary liens
recorded against the premises and any other defect in title
which is the result of an affirmative act by Seller from and
after the date hereof.
B. If there are any objections to title which Seller
shall have been unable to remove at or prior to the
scheduled or any adjourned date of closing of title, and
which objections may, according to reasonable expectations,
be removed within sixty (60) days after such date, the
Seller shall be entitled to one or more adjournments of the
closing of title for the purpose of such removal for a
period not exceeding the aggregate of sixty (60) days.
However, any action taken by Seller to remove such defect,
lien and/or encumbrance shall not be deemed an admission on
Seller's part that such defect, lien, deed/or encumbrance is
one which would give Purchaser the right to cancel this
contract.
C. In addition to any other rights of Purchaser
herein, Purchaser shall be entitled, at its option, to waive
any objections to title and/or other contingencies herein
and accept title to the premises subject thereto upon notice
to Seller.
33. A. In view of the nature of the property to be
conveyed, and the present condition of the real estate
market, if this sale shall not be consummated by reason of
Purchaser's default, or if the Purchaser shall fail or
refuse to comply with and perform all of the terms,
provisions, conditions, agreements and obligations on his
part to be observed, kept and performed hereunder, the
entire damages which Seller will thereby sustain cannot be
exactly determined; therefore, it is agreed that in the
event of any default by the Purchaser, all amounts paid by
Purchaser as a deposit pursuant to this agreement shall be
considered as liquidated damages for such failure or refusal
of the Purchaser to consummate this transaction or for any
non-compliance, non-performance, breach or default by the
Purchaser, and shall become the exclusive property of, and
be permanently retained by Seller. Seller shall retain such
amounts as liquidated damages and no further rights or
causes of action shall remain against Purchaser, nor shall
Purchaser have any further rights under this agreement or
otherwise, with respect to Seller.
B. In the event that title pursuant to this Contract
does not close for any reason whatsoever, the Management
Agreement between Seller and Kapson Senior Quarters
Corporation (or its affiliate) shall remain in full force
and effect.
34. In the event Seller shall default in its obligations to
convey title hereunder and shall thereafter sell the
premises to a competitor of the Kapson Senior Quarters
Corporation, Seller will pay to Purchaser liquidated damages
in the amount of $500,000.00 and neither Kapson Lynbrook
Corp. nor any affiliate of Kapson Lynbrook Corp. or Kapson
Senior Quarters Corporation, or any subsidiary of theirs or
any affiliate of theirs, shall have any other claims against
Seller.
35. Seller and Purchaser represent to each other that they have
not dealt with any person or entity in connection with this
transaction. Each of the parties hereto does hereby
indemnify the other against the claim of any person or
entity with whom the indemnitor may have dealt for brokerage
commissions in connection with this transaction, including
the reasonable costs in connection with any claim or
defending of any suit for same.
The provisions of this paragraph shall survive the closing
of title hereunder.
36. All sums which are to be paid to the Seller under this
contract shall be paid to Seller by unendorsed certified or
cashier's checks drawn on a bank which is a member of the
New York Clearinghouse, or, at Seller's option, by wire
transfer into Seller's account (or other account at Seller's
direction) at closing. Upon two (2) days' oral notice from
Seller, Purchaser shall deliver separate checks at closing
or make separate wire transfers at closing in the number and
amounts requested by Seller payable as designated in said
notice.
37. Fuel on the premises on the date as of which adjustments
shall be made, shall be paid for by Purchaser at the time
of closing title, at the cost (including sales tax and labor
charges, if any) thereof to Seller. The amount of fuel on
the premises and the cost to Seller shall be evidenced by a
written statement from Seller's fuel company.
38. This agreement constitutes the entire contract between the
parties hereto and may not be modified except by an
instrument in writing signed by the parties hereto. If any
provision of this Rider shall conflict with any printed
provision of this contract, the provision of the Rider shall
control.
39. It is expressly understood and agreed that delivery of this
agreement for inspection or otherwise by Seller to the
Purchaser shall not constitute an offer or create any rights
in favor of the Purchaser or others and shall in no way
obligate or be binding upon the Seller, and this agreement
shall have no force or effect unless and until the same is
fully executed and delivered by the Seller and the
Purchaser, and fully executed copies of this agreement are
exchanged by the parties hereto.
40. Purchaser will accept unacknowledged receipts, checks,
letters, statements or other proof as to the amount of any
liens on the property in the event that said liens are less
than the record amounts and similar proof will be acceptable
as to the payment of such liens, provided that Purchaser's
title company omits any exception as to such liens from
Purchaser's title policy.
41. Unpaid franchise taxes of any corporation in the chain of
title and any other taxes, such as transfer, inheritance and
estate taxes, and any violations filed in the office of any
federal, state or municipal department which Seller is
required to remove hereunder shall not be objections to
title provided the Seller deposits with Purchaser's title
company at closing in escrow a reasonable amount to secure
the payment of such unpaid taxes and/or the performance of
the work necessary to remove such violations within sixty
days after the date of closing of title. In the event the
aggregate cost of removal of any violations which Seller may
be required to remove hereunder shall exceed the sum of
$25,000.00, Seller shall have the following options, to be
exercised by notice to Purchaser: (a) removing such
violations in accordance with the provisions of this
Contract; or (b) refusing to remove such violations. In the
event that Seller refuses to remove such violations,
Purchaser shall have the following options, exercisable by
notice to Seller so as to be received by Seller within five
(5) days after notice from Seller of Seller's refusal to
remove such violations:
(i) taking title subject to such violations in which even
Purchaser shall receive an allowance of $25,000 in
reduction of the purchase price payable hereunder; or,
(ii) canceling this Contract, in which event, upon return of
the down payment made by Purchaser hereunder, together
with interest, if any, and the net cost of title
examination, the parties shall be released from any
further obligation hereunder. Notwithstanding the
foregoing, radio and television antenna violations and
violations which a tenant is required to comply with or
otherwise remove pursuant to the terms of its lease or
occupancy arrangement shall not be violations which
Seller is required to remove hereunder and Purchaser
will take title to the Premises subject to such
violations. In addition, a policy insuring that in the
case of encroachments not herein mentioned, the
building or the portions hereof which encroach may
remain undisturbed so long as the building stands; and
in the case of covenants, easements, agreements and
restrictions of record not hereinbefore excepted, that
they are not violated by the property or its use, shall
be deemed an acceptable policy under this contract with
respect to such terms.
42. Seller represents that all personal property used in
connection with the premises not owned by residents is owned
by Seller and is included in this sale and shall be deemed
conveyed by the deed to be delivered pursuant hereto and no
part of the purchase price is deemed to be assigned to any
such personal property.
43. Notwithstanding anything contained in this contract to the
contrary, all notices pursuant hereto shall be given in
writing and shall be either personally delivered with proper
receipt therefor, sent by prepaid registered or certified
mail, return receipt requested, or sent by one-day express
delivery service to the other party at the address in the
preamble to this Contract, with a copy to the attorney for
such party as follows:
If to Seller:
CERTILMAN BALIN ADLER & HYMAN, LLP
90 MERRICK AVENUE
EAST MEADOW, NEW YORK 11554
ATTENTION: LOUIS SOLOWAY, ESQ.
If to Purchaser:
CERTILMAN BALIN ADLER & HYMAN, LLP
90 MERRICK AVENUE
EAST MEADOW, NEW YORK 11554
ATTENTION: DAVID Z. HERMAN, ESQ.
Notices shall be deemed given upon receipt of first refusal
thereof. Notices may be sent by the attorneys for the party
sending such notice with the same force and effect as if
sent by the actual party. Any party may change its address
for notices by notice to the other party given in accordance
with this Contract.
44. This contract may not be assigned, except to an affiliate or
subsidiary of Kapson Senior Quarters Corporation, or to a
joint venture partner up to a 49% interest of the Kapson
Group, without the prior written consent of Seller in each
instance and any assignment or attempted or purported
assignment made without such consent shall be null and void
and of no force or effect.
45. A. Seller and Purchaser agree that CERTILMAN BALIN
ADLER & HYMAN, LLP (the "Escrow Agent") shall hold the
proceeds of the check for the down payment of the purchase
price hereunder in escrow in its special account. Upon
closing said proceeds shall be paid over to Seller. In case
in accordance with the provisions of this contract Purchaser
shall be entitled to the return of said sum, said proceeds
shall be paid over to Purchaser. In the event said proceeds
are placed in an interest-bearing account, the party
entitled to the principal amount of the down payment shall
be entitled to the interest earned thereon. If there shall
be any dispute between the parties as to the proper
disposition of the down payment, Escrow Agent shall not be
required to make any payment thereof except pursuant to a
final order or judgment of a court having jurisdiction of
the matter after the time to appeal shall have expired.
B. The parties acknowledge that Escrow Agent is
acting solely as a stakeholder at their request and for
their convenience, that Escrow Agent shall not be deemed to
be the agent of either of the parties, and that Escrow Agent
shall not be liable to either of the parties for any act or
omission on its part unless taken or suffered in bad faith,
in willful disregard of this contract or involving gross
negligence. Seller and Purchaser shall jointly and
severally indemnify and hold Escrow Agent harmless from and
against all costs, claims and expenses, including reasonable
attorneys' fees, incurred in connection with the performance
of Escrow Agent's duties hereunder, except with respect to
actions or omissions taken or suffered by Escrow Agent in
bad faith, in willful disregard of this contract or
involving gross negligence on the part of Escrow Agent.
Purchaser hereby acknowledges that Escrow Agent represents
and shall continue to represent Seller in this transaction
and any dispute which may arise in connection herewith.
46. Closing of title hereunder shall take place on September 5,
1997 at 10:00 a.m. in the forenoon thereof at the offices of
CERTILMAN BALIN ADLER & HYMAN, LLP, 90 Merrick Avenue, East
Meadow, New York 11554, or at the offices of Purchaser's
lending institution or their attorney, located within the
New York City metropolitan area.
47. This agreement shall be interpreted and enforced in
accordance with the laws of the State of New York. If any
provisions of this agreement shall be unenforceable or
invalid, the same shall not affect the remaining provisions
of this agreement and to this end the provisions of this
agreement are intended to be and shall be severable.
48. This agreement shall not be recorded by Purchaser and any
recordation or attempted recordation by Purchaser hereof, or
of any assignment hereof or other instrument related hereto,
shall be void and shall constitute a default by Purchaser
hereunder.
49. No failure or delay of either party in the exercise of any
right given to such party hereunder or the waiver by any
party of any condition hereunder for its benefit (unless the
time specified herein for exercise of such right, or
satisfaction of such condition, has expired) shall
constitute a waiver of any other or further right nor shall
any single or partial exercise of any right preclude other
or further exercise thereof or any other right. The waiver
of any breach hereunder shall not be deemed to be a waiver
of any other or any subsequent breach hereof.
50. A. At the closing of title, Purchaser shall cause
Purchaser's affiliate presently managing the premises to
deliver to Seller a final accounting up to and including the
date of closing, together with a certified check for any
amounts due Seller pursuant thereto.
B. In addition to the provisions of Paragraph 10 of
the printed portion of this agreement, the parties shall
adjust service contracts, salaries, employee benefits,
management fees, and other operating expenses of the
facility, if any.
C. At closing, Purchaser will reimburse Seller for
deposits with utility companies and will cause its affiliate
managing the premises to arrange for a transfer of utilities
into Purchaser's name as of the date of closing. Purchaser
will further cause its affiliate to obtain a statement from
the fuel oil company servicing the premises as to the amount
of fuel oil on the premises and the cost thereof, including
all taxes.
51. At closing, Seller shall assign any Resident Agreements and
Service Contracts to Purchaser and Purchaser shall assume
the obligations under the Resident Agreements and Service
Contracts as of the date of closing.
52. If a proceeding is pending to correct or reduce the assessed
valuation of the property described in this contract, such
proceeding shall be continued by the Seller, and the
Purchaser agrees to pay a share of the fees and
disbursements in the event that a reduction is obtained
which shall be in proportion to the share of the benefit to
Purchaser from the closing to the date of determination of
the proceeding. This provision shall survive the delivery
of the deed.
53. At the closing Seller shall deliver an appropriate
certification to the effect that Seller is not a "foreign
person" as defined by the Internal Revenue Code and
regulations promulgated thereunder or other information
necessary for withholding as same is required.
54. This Contract of sale is completely non-recourse as to
Seller and as such, neither Purchaser or its respective
nominees, successors, assigns, employees, licensees, agents,
or any other person or entity controlled by it or with which
it is affiliated shall initiate, seek, pursue, or
participate in any action, legal or equitable, against
Seller, or its agents, and their respective heirs,
executors, administrators, successors or assigns on account
of any obligation of Seller hereunder, it being agreed that
with respect to Seller, only Seller's interest in the
property being conveyed pursuant to this Contract shall be
subject to execution, attachment or any other claim or
proceeding on account of any obligation of Seller hereunder.
55. In the event any errors or omissions are made with respect
to adjustments at the closing, which errors and omissions
are discovered after the closing of title, or if the
information necessary for the adjustment is not available at
the closing of title, the parties agree to correct any such
errors or omissions, or to make the adjustments, after
closing and to make appropriate adjustments and payments in
connection therewith. This Paragraph shall survive the
closing of title.
56. This contract provides for Purchaser to take title subject
to an existing $10,500,000.00 mortgage held by Fleet Bank,
N.A. Purchaser and Seller will cooperate in obtaining the
consent of Fleet Bank, N.A. to this transfer.
In the event Fleet Bank shall not consent to the transfer,
Purchaser agrees to take title "all cash" and pay the
additional $10,500,000.00 at closing.
Purchaser is aware that included in the obligations secured
by said mortgage is a $75,000.000 Letter of Credit given by
Seller to the Village of Lynbrook for the maintenance of
landscaping on the premises for a period of two (2) years.
Purchaser will obtain from Fleet Bank a replacement Letter
of Credit in the amount of $75,000.00 for delivery to the
Village of Lynbrook. Purchaser will also pay to Seller an
additional $75,000.00 (unadvanced under the mortgage), which
secures the said $75,000.00 Letter of Credit or arrange for
release of such funds by Fleet Bank to Seller.
In the event that Fleet Bank shall not consent to this sale
subject to the mortgage held by it, then at the time of the
closing of title, Purchaser will obtain from its own source
said Letter of Credit and if Purchaser desires the Fleet
Bank mortgage to be assigned and if Fleet Bank fails to
advance the Seller the $75,000.00 available under the
mortgage after the cancellation of the Letter of Credit,
Purchaser will pay same to Seller at closing.
57. In the event of any inconsistency between this Rider and the
printed portion of the contract, the terms of this Rider
shall govern.
58. In addition to any other deliveries required by Seller
hereunder, Seller shall also deliver at or prior to closing
all documents reasonably requested by Purchaser's title
insurance company to enable such company to issue a title
insurance policy in accordance with the terms of this
agreement.
59. At the closing, Seller shall execute an affidavit upon which
Purchaser may rely, containing the following information:
a. As of the date of closing, Seller shall not have
received any notices of violation issued by any governmental
authority having jurisdiction over the Premises, which as of
the date of closing have not been cleared or dismissed.
60. In the event there presently exists a mortgage against the
subject premises which will remain a lien up to the date of
closing, Seller shall reasonably cooperate with Purchaser,
at Purchaser's request and at Purchaser's expense to have
such mortgage assigned by the existing lender to a new
lender from whom Purchaser may be obtaining a purchase money
mortgage at the time of closing.
61. Seller warrants and represents that all of the partners of
Seller have ratified this sale and the terms hereof.
SELLER: PENSUN ASSOCIATES
By: /s/ M. F. Serah
PURCHASER: KAPSON LYNBROOK CORP.
By: /s/ Glenn Kaplan
AMENDMENT TO CONTRACT OF SALE
THIS AGREEMENT, made between PENSUN ASSOCIATES, a
partnership organized and existing under the laws of the State of
New York, and having an office at 70 E. Sunrise Highway, Valley
Stream, New York, and KAPSON LYNBROOK CORP., a New York
Corporation with offices located at 242 Crossways Park West,
Westbury, New York.
W I T N E S S E T H:
WHEREAS, the parties hereto did enter into a certain
Contract of Sale for property known as Section 42, Block M-1, Lot
323, on the Land and Tax Map of Nassau County on the 27th day of
August, 1997 (the "Contract"); and
WHEREAS, the parties desire to amend Paragraph "2" of the
Contract.
NOW, THEREFORE, in consideration of One ($1.00) Dollar and
other good and valuable consideration, each in hand paid to the
other, the parties agree as follows:
1. Paragraph "2" of the Contract is hereby deleted and the
following is inserted in its place:
The Purchase Price is $25,800,000.00; $500,000.00 on
the signing of the Contract, by check subject to
collection, the receipt of which is acknowledged;
$14,800,000.00 in cash or good certified check or wire
transfer on the delivery of the deed as hereinafter
provided; $10,500,000.00 by taking title subject to a
first mortgage now a lien on the premises held by Fleet
Bank, N.A.
2. Purchaser shall pay the Transfer Tax on $300,000.00 of
the Purchase Price in the amount of $1,200.00
3. All other terms, covenants and conditions of the
Contract shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have signed this
agreement the 29 day of September, 1997.
SELLER: PENSUN ASSOCIATES
By: /s/ M. F. Serah
PURCHASER: KAPSON LYNBROOK CORP.
By: /s/ Glenn Kaplan
EXHIBIT 2
PENSUN ASSOCIATES
Balance Sheet
(Unaudited)
September 30, 1997
Assets
Current Assets:
Cash $ 266,757
Accounts Receivable, Net of Allowance
for Doubtful Accounts of $0 191,853
Other Current Assets 6,605
___________
Total Current Assets 465,215
___________
Property and Equipment
Land 2,156,532
Building & Equipment 9,971,575
Furniture & Fixtures 738,747
Capitalized Leased Vehicle 48,136
___________
12,914,990
273,338
___________
Less Accumulated Depreciation 12,641,652
___________
Security Deposits 3,382
Deferred Financing Fees, Net 500,407
___________
Total Assets $13,610,656
===========
Liabilities and Partners' Capital
Current Liabilities:
Accounts Payable & Accrued Expenses $ 160,390
Deferred Revenue 146,174
Security Deposits Payable 306,150
Current Portion of Capital Lease 9,627
Construction Loan Payable 10,425,000
Due to Affiliates 3,388,014
____________
Total Current Liabilities 14,435,355
Capitalized Lease 30,134
____________
Total Liabilities 14,465,489
Partners' Capital (854,833)
____________
Total Liabilities and Shareholders' Equity $ 13,610,656
============
See Notes to Financial Statements
PENSUN ASSOCIATES
Statement of Operations and Partners' Capital
(Unaudited)
Nine Months
Ended September 30, 1997
Revenues $ 2,517,230
Operating Expenses 1,853,455
___________
Operating Income 663,775
Interest Expense, Net 639,301
Depreciation and Amortization 361,645
___________
Net Loss (337,171)
Partners' Capital - Beginning (517,662)
===========
Partners' Capital - End $ (854,833)
===========
See Notes to Financial Statements
PENSUN ASSOCIATES
Statement of Cash Flows
(Unaudited)
Nine Months Ended
September 30, 1997
Operating Activities:
Net Loss $ (337,171)
Adjustments to Reconcile Net Loss to Net
Cash: Depreciation and Amortization 361,645
Changes in Assets and Liabilities:
Accounts Receivable (191,853)
Inventory (6,605)
Accounts Payable and Accrued Expenses (63,591)
Deferred Revenue 146,174
Security Deposits Payable 282,500
__________
Net Cash Operating 191,099
__________
Investing Activities:
Purchases of Property and Equipment (15,270)
Payments to Affiliates (Net) (1,161,798)
__________
Net Cash - Investing (1,177,068)
Financing Activities:
Proceeds from Construction Financing 1,260,001
Payments on Capital Lease (7,275)
__________
Net Cash - Financing 1,252,726
__________
Net Increase in Cash 266,757
Cash - Beginning of Year 0
__________
Cash - End of Year $ 266,757
==========
See Notes to Financial Statements
PENSUN ASSOCIATES
(A Partnership)
NOTES TO FINANCIAL STATEMENTS
Note A - Scope of Business
The Partnership was organized in the state of New York and is
engaged in the operation of a one hundred thirty-nine (139)
certified bed care facility in Lynbrook, New York. The facility
was under construction during 1995 and 1996 and commenced
operations in January, 1997.
Note B - Summary of Significant Accounting Policies
Method of Accounting
The Partnership maintains its books and prepares its
financial statements on the accrual basis of accounting.
Property, Equipment and Depreciation
Property and equipment are stated at cost, less accumulated
depreciation. Depreciation of property and equipment is provided
over the estimated useful lives of the respective assets on the
straight line basis as follows:
Building and improvements 40 years
Furniture and fixtures 7 years
Vehicle 5 years
Maintenance and repairs are charged to expense. The cost of
property and equipment retired or otherwise disposed of and the
related accumulated depreciation are removed from the accounts.
Deferred Financing Fees
Deferred financing fees have been capitalized and are being
amortized using the straight line method over a five year term,
which was to be the initial term of the permanent debt.
Use of Estimates
The preparation of financial statements in conformity with
generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amounts
of assets and liabilities and disclosure of contingent assets and
liabilities as of the date of the financial statements and the
reported amounts of revenues and expenses during the reported
period. Actual results can differ from those estimates.
Income Taxes
Partnership profit and losses are reported by the individual
partners on their personal tax returns. Accordingly, no
provision for taxes is reflected in these financial statements.
Note C - Property and Equipment
Property and equipment consisted of the following:
Land $ 2,156,532
Building and Improvements 9,971,575
Furniture, fixtures and equipment 738,747
Capitalized lease vehicle 48,136
Total property and equipment 12,914,990
Accumulated Depreciation (273,338)
____________
Net property and equipment 12,641,652
Depreciation expense for the period ended September 30, 1997 was
$273,338.
Note D - Construction Loan Payable
The Partnership entered into a financing arrangement with a bank
to develop the facility. The construction loan commenced on
October, 1995 and was available for an eighteen (18) month period
(maturity date March 31, 1997), at which time the loan would be
converted into a permanent mortgage. The maximum available debt
was $10,500,000 with interest charged monthly on the aggregate
outstanding principal balance at 1% in excess of the prime rate.
The Partnership had the right to extend the construction loan
period, which it did, prior to selling the facility (see Note G).
Note E - Capital Lease
The Partnership acquired a vehicle under the provisions of a
long-term lease. For financial reporting purposes, minimum lease
payments relating to the vehicle have been capitalized. The
lease expires December, 2001. As of September 30, 1997, the cost
capitalized was $48,136 and accumulated depreciation was $7,220.
The future minimum lease payments under capital lease and the net
present value of future minimum lease payments at September 30,
1997 are as follows:
Total minimum lease payments $ 50,511
Amount representing interest (10,750)
_________
Present value of net minimum
lease payments 39,761
Current portion (9,627)
Long-term capital lease obligation $ 30,134
PENSUN ASSOCIATES
(A Partnership)
NOTES TO FINANCIAL STATEMENTS
Note F - Related Party Transactions
The facility was constructed and developed by companies related
to the partners. All development and construction costs were
requisitioned, in the normal course of business, by the related
companies. As of September 30, 1997, the Partnership owed a
balance of $3,388,014 to these related companies.
Note G - Sale of Facility
On September 30, 1997, the Partnership sold substantially all the
assets and certain liabilities of the facility to Kapson Lynbrook
Corporation, a wholly-owned subsidiary of Kapson Senior Quarters
Corp. The sale price was $25.8 million.
EXHIBIT 3
Kapson Senior Quarters Corp.
Pro Forma Consolidated Financial Statements
The accompanying unaudited Pro Forma Balance Sheet as of December
31, 1996 and the Pro Forma Consolidated Statement of Operations
for the nine months ended September 30, 1997 are based on the
historical financial statements of the Company, assuming that the
acquisition of the Lynbrook assisted living facility had occurred
as of January 1996.
Pro forma statement of operations for the year ended December 31,
1996 and a pro forma balance sheet as of September 30, 1997 are
not included herewith, because prior to January 1997, the
facility was under construction and all associated costs were
capitalized. Accordingly, there was no statement of operations
for the facility for the year ended December 31, 1996. In
addition, since the acquisition occurred, effective September 30,
1997, the impact of the acquisition was reported in the
consolidated balance sheet included in the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30, 1997 and,
accordingly, would not require any pro forma presentation herein.
These Pro Forma Consolidated Financial Statements have been
prepared by the management of the Company. These pro forma
statements may be indicative of the results that may be achieved
in the future. The Pro Forma Statements should be read in
conjunction with the Company's audited financial statements as of
December 31, 1996 and for the year then ended (which are
contained in the Company's Annual Report on Form 10-K for the
year ended December 31, 1996), and the unaudited consolidated
financial statements as of and for the nine months ended
September 30, 1997 (which are contained in the Company's
Quarterly Report on Form 10-Q for the quarter ended September 30,
1997) and, in each case, the accompanying notes thereto.
Kapson Senior Quarters Corp.
Pro Forma Consolidated Balance Sheet
December 31, 1996
(unaudited)
As Pro Forma
Reported Acquisition Adjustments Pro Forma
Current assets
Cash $16,053,307 $(15,385,626) $ 667,481
Accounts
receivable 80,329 80,329
Prepaid
expenses 574,733 574,733
Deferred
income
taxes 503,000 503,000
---------- ----------- ------------ -----------
Total
current
assets 17,211,369 (15,385,626) 1,825,543
Property and
equipment,
net 58,377,735 58,377,735
Facility
development
costs 1,190,727 12,899,720 10,047,316 24,137,763
Restricted
cash 3,134,695 23,650 3,158,345
Deferred
financing
costs 2,595,407 588,714 (502,888) 2,681,233
Intangibles 4,821,842 2,900,000 7,721,842
Investment
in joint
ventures 551,829 551,829
Other assets 8,104,648 8,104,648
---------- ----------- ------------ -----------
Total assets$ 95,988,252 $13,512,084 $(2,941,398)$ 106,558,938
============ =========== =========== =============
Current liabilities
Current portion
of long-term
debt $ 943,658 $9,174,499 $(9,164,999)$ 953,158
Accounts
payable
and accrued
expenses 3,294,040 4,794,061 (4,794,061) 3,294,040
Deferred
revenue 519,168 519,168
---------- ----------- ------------ -----------
Total current
liabilities 4,756,866 13,968,560 (13,959,060) 4,766,366
Long-term
debt 72,408,516 37,536 10,500,000 82,946,052
Loan payable 555,000 555,000
Resident
security
deposits 1,725,192 23,650 1,748,842
Deferred
income taxes 2,542,000 2,542,000
Deferred
interest
payable 147,500 147,500
Construction
retainage
payable 613,057 613,057
---------- ----------- ------------ -----------
Total
liabilities 82,748,131 14,029,746 (3,459,060) 93,318,817
---------- ----------- ------------ -----------
Minority
interest 948,925 948,925
---------- ----------- ------------ -----------
Shareholder's equity
Common stock/
partners'
capital 77,500 (517,662) 517,662 77,500
Additional
paid-in-
capital 16,603,348 16,603,348
Accumulated
deficit (4,389,652) (4,389,652)
---------- ----------- ------------ -----------
Total
shareholders'
equity 12,291,196 (517,662) 517,662 12,291,196
---------- ----------- ------------ -----------
Total liabilities
and shareholders'
equity $95,988,252 $13,512,084 $(2,941,398)$106,558,938
=========== =========== =========== ============
The accompanying notes are an integral part of this pro forma
balance sheet.
Kapson Senior Quarters Corp.
Pro Forma Consolidated Statement of Operations
For The Nine Months Ended September 30, 1997
(Unaudited)
As Pro Forma
Reported Acquisition Adjustments Pro Forma
---------- ----------- ------------ -----------
Revenues:
Assisted
living
revenues $23,892,687 $ 2,517,230 $ 26,409,917
Managing
fees 1,417,159 $ (77,426) 1,339,733
---------- ----------- ------------ -----------
25,309,846 2,517,230 (77,426) 27,749,650
Operating expenses:
Assisted
living
operating
expenses 16,481,609 1,853,455 (77,426) 18,257,638
Rent 1,239,187 1,239,187
General and
administra-
tive 3,787,746 3,787,746
Depreciation
and
amortization 2,123,586 361,645 179,656 2,664,887
---------- ----------- ------------ -----------
23,632,128 2,215,100 102,230 25,949,458
Operating
income 1,677,718 302,130 (179,656) 1,800,192
Equity in
income
(loss)
from joint
venture (159,520) (159,520)
Interest
income 1,276,878 1,276,878
Interest
expense (5,382,622) (639,301) (5,011) (6,026,934)
Other income
(expense),
net (402,991) (402,991)
---------- ----------- ------------ -----------
Loss before
minority
interest (2,990,537) (337,171) (184,667) (3,512,375)
Minority
interest in
net loss of
partnerships 295,663 295,663
Loss before
benefit for
income taxes (2,694,874) (337,171) (184,667) (3,216,712)
(Provision)
benefit for
income taxes 1,077,950 208,735 1,286,685
---------- ----------- ------------ -----------
Loss before
extraordinary
item (1,616,924) (337,171) 24,068 (1,930,027)
Extraordinary
loss, net (776,612) (776,612)
---------- ----------- ------------ -----------
Net loss $(2,393,536) $ (337,171) $ 24,068 $ (2,706,639)
=========== =========== ============ ===========
Net loss available
to common
shareholders$(3,480,203) $(3,816,731)
=========== ============
Loss per common share:
Loss before
extra-
ordinary
item $ (0.35) $ (0.39)
Extraordinary
loss (0.10) (0.10)
----------- ------------
Net loss $ (0.45) $ (0.49)
The accompanying notes are an integral part of this pro forma
statement of operations.
Kapson Senior Quarters Corp.
Notes To Pro Forma Consolidated Financial Statements
1. Background
On September 30, 1997, Kapson Senior Quarters Corp. (the
"Company") acquired certain assets and assumed certain
liabilities of a 126-unit assisted living facility in Lynbrook,
New York for $25.8 million. The acquisition was funded through a
mortgage note of $10.5 million and $15.3 million in cash.
2. Basis of Presentation
As reported amounts have been derived from the Company's audited
financial statements as of and for the year ended December 31,
1996 and the Company's Quarterly Report on Form 10-Q for the nine
months ended September 30, 1997.
3. Pro Forma Adjustments
Consolidated Balance Sheet
The adjustments reflect the following:
- The elimination of assets not acquired and liabilities not
assumed by the Company.
- Allocation of fair value in excess of historical costs to
existing assets.
- Allocation of excess purchase price over the fair value of
net assets acquired to intangible assets.
- Net cash payment including deferred financing costs.
- Mortgage notes in the amount of $10.5 million maturing in
September 2002 bearing interest at a fixed rate of 8.12%.
Consolidated Statement of Operations
The adjustment to management fees and assisted living operating
expenses relates to the elimination of the net fees paid to the
Company under a management contract with the licensed operator of
the facility.
The adjustment to depreciation and amortization reflects
depreciation based on an estimated useful life of 35 years for
the building, three to 10 years for furniture, equipment and
deferred financing fees and 40 years for goodwill.
The adjustment for interest expense reflects the difference in
borrowing costs.
The adjustment to income taxes reflects an income tax rate of
40%.
