PURCHASE AND SALE AGREEMENT
This Agreement is made and entered into this 1st day of
November, 1996, by and between PLANTATION ASSOCIATES, L.P. a
Delaware limited partnership ("Seller"), and CAREY DEAN ERWIN, an
Oregon resident, or his assignee ("Purchaser").
PURCHASE AND SALE
1. On the terms and conditions set forth herein, Seller shall
sell to Purchaser and Purchaser shall purchase from Seller the
following:
a. The real property situated in the state of Oregon, which
is more particularly described in Exhibit A attached hereto
(the "Real Property") and the improvements on the Real
Property that constitute the 100 bed long term care facility
commonly known as Plantation Care Center and located in Salem,
Oregon (the "Facility").
b. All equipment, furniture, fixtures, inventory (including
linens, dietary supplies and housekeeping supplies but speci-
fically excluding food and other consumable inventories) and
other tangible and intangible personal property owned by
Seller and located on the Real Property or used in connection
with the operation of the Facility, including but not limited
to, entitlements, telephone numbers, any right, title or
interest which Seller may have in and to any service marks,
trademarks or trade names owned or employed by Seller in
conjunction with the operation of the Facility specifically
including the name "Plantation Care Center" and any trade
names and trade marks related thereto and goodwill associated
therewith, and all motor vehicles owned or leased by Seller
and used in conjunction with the operation of the business
conducted at the Facility, but specifically excluding cash,
cash equivalents and accounts receivable for the period prior
to the Closing Date (as defined below) (the "Personal
Property"), which Personal Property is more particularly
described in Exhibit B.
c. The food and other consumable inventories located at, and
usable in the operation of, the Facility on the Closing Date
(the "Consumables").
Hereinafter the foregoing shall sometimes be collectively
referred to as "Seller's Assets."
CONSIDERATION
2. a. The purchase price payable by Purchaser to Seller for
Seller's Assets shall be One Hundred and no/100 Dollars ($100.00)
and shall be payable in cash at Closing. In addition, Purchaser
shall assume that Amended and Restated Promissory Note dated
December 31, 1996 executed by Seller and by Seller's general
partner, Consolidated Resources Health Care Fund V in favor of
Evergreen Health Care, Inc. ("Evergreen") in the original principal
amount of One Million Two Hundred Fifty Thousand and no/100 Dollars
($1,250,000), with a current outstanding principal balance of
approximately One Million Two Hundred Fifty Thousand and no/100
Dollars ($1,250,000) (the "Evergreen Note") and shall reduce the
principal balance thereof by Two Hundred Fifty Thousand and no/100
Dollars ($250,000) (the "Evergreen Principal Paydown Payment") to
One Million and no/100 Dollars ($1,000,000) (the "Adjusted
Principal Balance"), subject, however, to the execution and
recording at Closing by Evergreen and Purchaser of such documents
as may be necessary to amend the Evergreen Note on the terms
reflected in that letter dated April 17, 1996 from Todd Andrews to
Purchaser, a true and correct copy of which is attached hereto as
Exhibit C, and subject to such further modifications to the
Evergreen Note as may be required by Purchaser. Seller
acknowledges and agrees that Purchaser may pay a portion of the
Evergreen Principal Paydown Payment by directing it to pay the
Cost/Deferred Maintenance Payment (as defined below) to Evergreen
or the current holder of the Note, as applicable.
b. Seller acknowledges and agrees that the Seller's Assets
are in need of certain repairs and in consideration for Purchaser
acquiring Seller's Assets in their current physical condition,
subject, however, to Seller's representations and warranties set
forth herein, and agreeing to pay certain closing costs for which
Seller might otherwise be responsible, Seller agrees to remit to
Purchaser at Closing a payment in immediately available funds in
the amount of Two Hundred Thousand and no/100 Dollars ($200,000).
Except as specifically provided in this Agreement, Purchaser
does not hereby or in connection herewith assume any liability of
Seller whatsoever in relation to Seller's Assets, the Real
Property, the Personal Property or the Facility which relates to
the period prior to Closing.
CLOSING
3. The Closing of the purchase and sale under this Agreement (the
"Closing") shall take place on or before November 1, 1996 (provided
all of the conditions to closing set forth in Paragraphs 13 and 14
have been satisfied or waived) (the "Closing Date"); provided,
however, that Purchaser shall have the right on written notice to
Seller delivered on or prior to the Closing Date to extend the
Closing Date for a period of up to thirty one (31) days in the
event all of the conditions to closing other than that set forth in
Paragraph 13(i) have been satisfied or waived as of November 1,
1996; and provided, further, that Seller shall have the right to
extend the Closing Date for a period of up to thirty one (31) days
in the event all of the conditions to closing other than those set
forth in Paragraphs 13(d), (e), (f) or (g) have been satisfied or
waived and Seller is diligently pursuing satisfaction of said
conditions. Closing shall occur at the Portland, Oregon offices of
Lawyers Title Insurance Company or at such other place as Purchaser
and Seller may mutually agree. Time is of the essence hereto.
CONVEYANCE
4. Conveyance of the Seller's Assets to Purchaser shall be
effected by a Warranty Deed and Bill of Sale in form and substance
substantially the same as those attached hereto as Exhibits D and
E. Fee simple insurable title to the Real Property and
indefeasible title to the Personal Property shall be conveyed from
Seller to Purchaser free and clear of all liens, charges, easements
and encumbrances of any kind, other than the following:
a. Liens for real estate taxes not yet due and payable;
b. Such items of record as described in the Title Report (as
defined below) which are not objected to by Purchaser in
accordance with the terms of Paragraph 11(a)(ii);
c. All laws, ordinances and governmental regulations,
including, but not limited to, all applicable building,
zoning, land use and environmental ordinances and regulations;
provided, however, that the provisions of this clause (c)
shall be subject to Purchaser's right to object thereto and
Seller's agreement to take corrective action in response to
said objections all as specified more fully in Paragraph
11(a)(ii); and
d. The rights of the residents of the Facility under written
admission agreements.
COSTS, PRORATIONS AND ADJUSTMENTS
5. The costs of the transaction and the expenses related to the
ownership and operation of the Seller's Assets shall be allocated
among Seller and Purchaser as follows:
a. Purchaser shall pay any transfer or documentary stamp tax
due on the recording of the Deed.
b. Purchaser shall pay any sales tax due on the sale of the
Personal Property.
c. Seller shall pay the cost of the Title Report and title
insurance policy issued pursuant thereto and the ALTA survey
required to deliver the same; provided, however, Purchaser
shall pay the cost of any title endorsements requested by
Purchaser.
d. Seller shall pay for an Phase I Environmental Assessment
of the Seller's Assets.
e. All revenues (including but not limited to rent due from
the residents of the Facility) and expenses (including but not
limited to payroll and employee benefits) related to the
ownership or operation of the Seller's Assets shall be
prorated as of the Closing Date, with Seller responsible
therefor for the period prior to the Closing Date and with
Purchaser's Tenant (as defined below) responsible therefor for
the period from and after the Closing Date by virtue of the
terms of the Transfer of Operations Agreement to be entered
into between Seller and Purchaser's Tenant (the "Transfer of
Operations Agreement").
f. Real and Personal Property taxes shall be prorated as of
the Closing Date, with Seller responsible therefor for the
period prior to the Closing Date or Purchaser's Tenant respon-
sible therefor for the period from and after the Closing Date
under the terms of the Transfer of Operations Agreement.
g. Seller shall arrange for a final statement with respect
to all utilities serving the Real Property and the Facility as
of the Closing Date and shall pay all fees identified thereon
and Purchaser's Tenant shall, under the terms of the Transfer
of Operations Agreement, arrange for all such utilities to be
billed in its name from and after the Closing Date and shall
pay all fees due therefor as of the Closing Date.
h. Purchaser and Seller shall each pay their own attorney's
fees.
i. Purchaser and Seller shall share recording fees related
to the recording of the Deed and any escrow fees on a 50-50
basis.
j. In the event Seller elects to cure any objections
Purchaser makes to the items described in the Title Report,
the Survey or the UCC-1 search report, then Seller shall pay
the cost of obtaining and recording any releases necessary to
deliver title to the Seller's Assets in accordance with the
terms of this Agreement.
k. At Closing Seller shall remit to Purchaser's Tenant,
under the terms of the Transfer of Operations Agreement,
payments being held by Seller for services to be rendered in
the month in which Closing occurs, prorated to the date of
Closing to the extent they are not already in the possession
of Purchaser's Tenant in its capacity as the manager of the
Facility (the "Resident Pre-Payments").
POSSESSION
6. At Closing, Purchaser shall be entitled to possession of the
Seller's Assets, subject only to the rights of the residents of the
Facility under the Facility Admission Agreements (as defined
below).
REPRESENTATIONS AND WARRANTIES
7. Seller hereby warrants and represents to Purchaser that:
a. Status of Seller. Seller is a limited partnership duly
organized, validly existing and in good standing under the
laws of the State of Delaware and duly qualified to do
business in the State of Oregon.
b. Seller's Authority. Seller's general partner has full
power and authority to execute and to deliver on behalf of and
in the name of Seller this Agreement and all related docu-
ments, and to carry out the transaction contemplated herein.
This Agreement is valid, binding and enforceable against
Seller in accordance with its terms, except as such enforce-
ability may be limited by creditors' rights laws and appli-
cable principles of equity. The execution of this Agreement
and the consummation of the transaction contemplated herein do
not result in a breach of the terms and conditions of nor
constitute a default under or violation of Seller's Agreement
or Certificate of Limited Partnership any law, regulation,
court order, mortgage, note, bond, indenture, agreement,
license or other instrument or obligation to which Seller is
now a party or by which Seller or any of the assets of Seller
may be bound or affected.
c. Title. Seller has good and insurable fee simple title to
the Real Property, and the Facility, subject only to the
easements, reservations and encumbrances, if any, permitted
under Paragraph 4, and good and indefeasible title to the
Personal Property free and clear of all leases, liens and
encumbrances. All of the Personal Property is, and at Closing
will be, in good operating condition and repair and
accordingly in the same or better condition and repair, as on
the date of Purchaser's inspection thereof pursuant to
Paragraph 11(a)(ii). The Personal Property is sufficient in
quantity to operate the Facility at its full licensed
capacity.
d. The Real Property. The Facility is located on that cer-
tain parcel of land more particularly described in Exhibit A
attached hereto. Except with respect to those items listed in
Exhibit F which Purchaser acknowledges are in need of repair
and will remain in need of repair at Closing, the Facility
roof and all major mechanical systems at the Facility,
including, but not limited to, the Air Conditioning,
Electrical and Heating and Ventilating Systems, are, and at
Closing shall be, in the good operating condition and repair
and accordingly in the same or better condition and repair as
on the date of Purchaser's inspection thereof pursuant to
Paragraph 11(a)(ii).
e. Necessary Action. Seller will proceed with all due
diligence to take all action and obtain all consents prior to
Closing necessary for it to lawfully enter into and carry out
the terms of this Agreement.
f. Taxes and Tax Returns. All tax returns, reports and
filings of any kind or nature required to be filed by Seller
prior to Closing with respect to its ownership and operation
of the Facility and its ownership of the Real Property and the
Personal Property have been properly completed and timely
filed in material compliance with all applicable requirements
and all taxes or other obligations which are due and payable
by Seller have been timely paid where the failure to timely
file the same or to pay the taxes related thereto could result
in a lien at or prior to closing against any or all of
Seller's Assets.
g. Litigation. There is no litigation, investigation, or
other proceeding pending or, to the best of Seller's
knowledge, threatened against or relating to Seller, its
properties or business, which is material to Seller's Assets,
the Facility, the Real Property or the Personal Property or to
this Agreement, or which would prevent Seller from performing
its obligations hereunder, and the transaction contemplated
herein has not been challenged by any governmental agency or
any other person, nor does Seller know or have reasonable
grounds to know, of any basis for any such litigation,
investigation or other proceeding. For purposes hereof,
litigation, an investigation or other proceeding shall be
deemed to be pending if the same has been served on Seller or
Seller has otherwise been advised either orally or in writing
of the pendency thereof.
h. Books and Records. All of the books and records
maintained by Seller with respect to its ownership and/or
operation of the Seller's Assets are true and correct in all
material respects, it being understood and agreed that Seller
has not operated the Facility since June 17, 1996 and thus
makes no representations or warranties with respect to the
books and records maintained by Westcare Management, Inc. (the
"Facility Manager") since that date.
i. The Facility Admission Agreements. Attached hereto as
Exhibit G is a true and correct copy of an exemplar of the
form of admission agreement entered into by Seller with each
of the current residents of the Facility and each of the
admission agreements entered into by Seller is in
substantially the form as the exhibit attached hereto (the
"Facility Admission Agreements"). A true and correct copy of
each of the Facility Admission Agreements entered into by
Seller with each of the individuals residing at the Facility
on or before the date on which Purchaser's Tenant commenced
operation of the Facility on June 17, 1996 has been provided
by Seller to Purchaser or made available by Seller to
Purchaser's Tenant to review at the Facility. A true and
correct list of all such Admission Agreements is attached
hereto as Exhibit G. Each of the Facility Admission Agreements
executed by Landlord with the residents of the Facility is in
full force and effect and none of the Facility Admission
Agreements has been modified or amended except as set forth in
Exhibit G. Seller has no knowledge or notice that it is in
default of any of its obligations under the Facility Admission
Agreements nor is Seller aware of any default or any action
which, with the passage of time or the giving of notice or
both would constitute a default, under the Facility Admission
Agreements by any of the residents who are parties thereto. At
Closing Seller shall deliver to Purchaser's Tenant a duly
executed assignment of the Facility Admission Agreements.
j. Census Report. Attached hereto as Exhibit H is a true and
correct Facility census report as of August 1, 1996, which
identifies each of the residents of the Facility, their payor
status, the daily rate currently being paid by each such
resident and the date to which said rate has been paid and, in
the event of any payment delinquencies, including from
Medicare, Medicaid or any other third party payor, an
explanation of the reason therefor and the efforts being
undertaken by Seller to collect said payment. Seller shall
update the census report on a monthly basis between the date
hereof and the Closing Date. Seller further represents and
warrants that it has the right under the Facility Admission
Agreements to increase the rates and related fees and charges
paid by the private pay residents of the Facility on no more
than sixty (60) days notice and that it has not agreed orally
or in writing to provide room, board or other services to any
resident or prospective resident for a reduced or nominal fee
or without charge.
k. Liens. There are no mechanics', materialmen's or similar
liens presently claimed or, to the best of Seller's knowledge,
which will be claimed against the Seller's Assets for work
performed or commenced prior to the date hereof at the request
of Seller or of which Seller has knowledge, including work
performed at the request of the Facility Manager but with the
consent of Seller, Seller having made or caused to be made
arrangements for payment of all those improvements now under
construction or development.
l. Environmental Matters. Except as disclosed in the Phase
I Environmental Assessment dated May, 1996 prepared by Welch
Enterprises, Inc., a true and correct copy of which has been
delivered to Purchaser (the "Phase I Assessment"), Seller has
no knowledge that Seller has (i) released into the
environment, or discharged, placed or disposed of any such
hazardous materials, substances or wastes or caused the same
to be so released into the environment or discharged, placed
or disposed of at, on or under the Seller's Assets except in
non-reportable quantities in the ordinary course of Seller's
business, (ii) installed any underground storage tanks on the
Real Property, (iii) used the Real Property as a dump for
waste material or (iv) used the incinerator located on the
Real Property other than in compliance with applicable law.
Except as disclosed in the Phase I Environmental Assessment,
Seller has no knowledge that (i) any hazardous materials,
substances or wastes are located on the Real Property or the
Facility or have been released into the environment or
discharged, placed or disposed of in, on or under the Real
Property or the Facility except in non-reportable quantities
in the ordinary course of the Seller's business; (ii) any
underground storage tanks are located on the Real Property;
(iii) the Real Property has ever been used as a dump for waste
material or (iv) the Real Property and the Facility and the
prior uses of the Real Property and the Facility, including
the incinerator located on the Real Property, did not at all
times comply with all Environmental Laws. Seller makes no
representation or warranty with respect to any acts or
omissions of the Facility Manager under the applicable
Environmental Laws.
m. Employees; Unions. None of the employees of the Facility
are members of a labor union or subject to collective
bargaining agreement with respect to their employment at the
Facility. There are no labor disputes or grievances pending
with respect to the operations at the Facility, except as
otherwise provided in Exhibit I. For purposes hereof, a labor
dispute or grievance shall be deemed to be pending if the same
has been served on Seller or Seller has otherwise been advised
either orally or in writing of the pendency thereof.
n. Compliance with Law
(i) The Seller's Assets are in compliance with all currently
applicable municipal, county, state and federal laws, regula-
tions, ordinances, standards and orders and with all munici-
pal, health, building and zoning by-laws and regulations
(including, without limitation, the building and zoning codes)
where the failure to comply therewith or to obtain a waiver
therefrom could have a material adverse effect on the
business, property, condition (financial or otherwise) or
operation of the Seller's Assets;
(ii) There are no outstanding deficiencies or work orders of
any authority having jurisdiction over the Seller's Assets
requiring conformity to any applicable statute, regulation,
ordinance or by-law pertaining thereto;
(iii) Seller is not aware of any claim, requirement or
demand of any agency supervising or having authority over the
Facility to rework or redesign it or to provide additional
furniture, fixtures or equipment so as to conform to or comply
with any existing law, code or standard which has not been
fully satisfied prior to the date hereof or which will not be
satisfied prior to the Closing Date; and
(iv) Attached hereto as Exhibit J is a true and correct copy
of each room size or other life safety code or other waiver
granted to Seller by the State of Oregon Senior and Disabled
Services Division in connection with its operations at the
Facility.
o. Operating Contracts. Set forth in Exhibit K is a true
and correct copies of all operating contracts entered into by
Seller or the Facility in connection with the operation of the
Facility prior to the date on which Purchaser's Tenant assumed
management responsibility for the Facility (the "Operating
Contracts"). Each of the Operating Contracts has been made
available to Purchaser's Tenant for its review at the Facility
and each is in full force and effect and none of the Operating
Contracts has been modified or amended except as set forth in
Exhibit K. Seller has no notice or knowledge that it or the
Facility, as applicable, is in default of any obligations
under the Operating Contracts nor is Seller aware of any
default or any action which, with the passage or time or the
giving of notice or both would constitute a default, under the
Operating Contracts by any other party thereto. At Closing
Seller shall deliver, or cause to be delivered, to Purchaser's
Tenant duly executed assignments of any of the Operating
Contracts which Purchaser's Tenant elects to assume under the
terms of the Transfer of Operations Agreement.
p. The Facility. The Facility is a long term care facility
duly licensed by the State of Oregon with a total of 100
licensed beds. The Facility is certified to participate in
Medicare and Medicaid. There is no action pending or, to the
best knowledge of Seller, recommended by the appropriate state
agency having jurisdiction thereof, to terminate the
Facility's license or its participation in Medicare or
Medicaid or any action of any other type which would have a
material adverse effect on the Facility, its operations or
business.
q. Inventory. To the best of Seller's knowledge based on
its inquiries of the Facility Manager, (i) all inventories of
non-perishable food, central supplies, linen, housekeeping and
other supplies located at the Facility are in sufficient
condition and quantity to operate the Facility at normal
capacity for two weeks and (ii) all inventories of perishable
food are at the level normally maintained at the Facility.
r. Financial Statements. The financial statements prepared
by Seller or at Seller's direction and delivered to Purchaser
for the 12 month period ended December 31, 1995 and for the
two month period ended February 29, 1996 are true and correct
in all material respects, fairly present the operating
results, assets and liabilities of Seller with respect to the
Facility and do not materially distort income or losses. All
such financial statements with respect to Seller have been
prepared in accordance with generally accepted accounting
principles ("GAAP"), it being understood and agreed that the
Facility financial statements have not been prepared in
accordance with GAAP. The financial statements to be
delivered by Seller to Purchaser between the date hereof and
the Closing Date pursuant to Paragraph 10(a)(xviii), will when
prepared, be true and correct in all material respects, will,
in the case of the financial statements with respect to
Seller, be prepared in accordance with GAAP, will fairly
present the operating results, assets and liabilities of
Seller with respect to the Facility and will not materially
distort income or issues.
s. Cost Reports. Seller has duly and timely filed all
cost reports which are required as of the date hereof to be
filed in connection with the operation of the Facility where
the failure to file the same or to secure extensions for the
filing thereof could reasonably be expected to have a material
adverse effect on the reimbursement due and payable to the
Facility. All of such cost reports are true, correct and
complete in all material respects and have been prepared in
accordance with the requirements of the Medicare and/or
Medicaid Act, as applicable. True and correct copies of the
most recent Medicare and Medicaid cost reports prepared by
Seller with respect to the Facility are attached hereto as
Exhibit L.
t. Disclosure. No representation or warranty by Seller
contained in this Agreement and no statement contained in any
certificate, list, exhibit, or other instrument furnished or
to be furnished to Purchaser pursuant hereto, or in connection
with the transaction contemplated hereby, contains or will
contain any untrue statement of a material fact, or omits or
will omit to state any material facts which are necessary in
order to make the statements contained herein or therein not
misleading.
The representations and warranties of Seller in this Paragraph
7 shall be true and correct in all respects, are made by Seller
both as of the date hereof and as of the date of Closing.
8. Purchaser hereby warrants and represents to Seller that:
a. Status of Purchaser. Purchaser is a resident of the
State of Oregon.
b. Authority. Purchaser has full power and authority to
execute and to deliver this Agreement and all related docu-
ments, and to carry out the transactions contemplated herein.
This Agreement is valid, binding and enforceable as against
Purchaser in accordance with its terms, except as such
enforceability may be limited by creditors' rights laws and
applicable principles of equity. The execution of this
Agreement and the consummation of the transaction contemplated
herein do not result in a breach of the terms and conditions
of nor constitute a default under or violation of any law,
regulations, court order, mortgage, note, bond, indenture,
agreement, license or other instrument or obligation to which
Purchaser is a party or by which Purchaser or any of the
assets or Purchaser may be bound or affected.
c. Litigation. There is no litigation, investigation or
other proceeding pending or, to the best of Purchaser's
knowledge, threatened against or relating to Purchaser, its
properties or business which is material to this Agreement, or
which would prevent Purchaser from performing its obligations
hereunder, nor does Purchaser know or have reasonable grounds
to know of any basis for any such action. For purposes
hereof, litigation, an investigation or a proceeding shall be
deemed to be pending if the same has been served on Purchaser
or Purchaser has been advised either orally or in writing of
the pendency thereof.
d. Necessary Action. Purchaser will proceed with all due
diligence to take all action and obtain all consents prior to
Closing necessary for it to lawfully enter into and carry out
the terms of this Agreement.
e. Disclosure. No representation or warranty by Purchaser
contained in this Agreement and no statement contained in any
certificate, list, exhibit, or other instrument furnished or
to be furnished to Seller pursuant hereto, or in connection
with the transaction contemplated hereby, contains or will
contain any untrue statement of a material fact, or omits or
will omit to state any material facts which are necessary in
order to make the statements contained herein or therein not
misleading.
In the event of the assignment of this Agreement by Purchaser in
accordance with the terms of Paragraph 24, the Assignment Agreement
shall include an update of these representations and warranties for
the benefit of Seller.
9. BROKER
Each party hereby represents and warrants to the other party
that it has not contacted or entered into any agreement with any
real estate broker, agent, finder, or any other party in connection
with this transaction and that it has not taken any action which
would result in any real estate broker's, finder or other fees or
commissions being due and payable to any other party with respect
to the transaction contemplated by this Agreement. Each party
hereby indemnifies and agrees to hold the other party harmless from
any loss, liability, damage, cost, or expense (including reasonable
attorney's fees) resulting to the other party by reason of a breach
of the representation and warranty made by the indemnifying party
in this paragraph. Notwithstanding anything to the contrary
contained in this Agreement, the indemnity set forth in this
paragraph and any sums due pursuant to such indemnity shall
constitute separate agreements in causes of action in addition to
any liquidated damages provided for in this Agreement.
COVENANTS
10. Seller
a. Pre-Closing. Between the date hereof and the Closing
Date, except as contemplated by this Agreement or with the
consent of Purchaser:
i. Other than as set forth in Paragraph 4 Seller will
satisfy and discharge all claims, liens, security interests,
tenancies (other than the Facility Admission Agreements and
any Operating Contracts which Purchaser's Tenant assumes at
Closing pursuant to the terms of the Transfer of Operations
Agreement), and encumbrances on Seller's Assets;
ii. Seller will file all tax returns, reports and filings of
any kind or nature required to be filed by Seller and will
timely pay all taxes or other obligations which are due and
payable with respect to Seller's Assets where the failure to
timely file the same or to pay the taxes related thereto could
result in a lien at or prior to closing against any or all of
Seller's Assets;
iii. Seller will not take any action inconsistent with its
obligations under this Agreement or which could hinder or
delay the consummation of the transactions contemplated by
this Agreement, and Seller will or will cause the Facility
Manager to continue until the Closing to fulfill any
obligations which Seller may have under the Facility Admission
Agreements;
iv. Seller will, or will cause the Facility Manager to,
operate the Facility only in the ordinary course and with due
regard to the proper maintenance and repair of the Facility
and the Personal Property;
v. Seller will, or will cause the Facility Manager to, take
all reasonable action to preserve the goodwill of the
residents of the Facility;
vi. Seller will not, nor will it permit the Facility Manager
to, make any material change in the operation of the Facility
nor sell or agree to sell any of the items which comprise the
Personal Property nor otherwise enter into an agreement
materially affecting any of the Seller's Assets;
vii. Seller will, or will cause the Facility Manager to, use
its reasonable efforts to retain the services and goodwill of
the employees located at or connected with the operation of
the Facility;
viii. Seller will maintain in force the existing hazard
and liability insurance policies, or comparable coverage, for
the Seller's Assets as now in effect;
ix. Seller will not, nor will it permit the Facility Manager
to, increase the compensation or other benefits or bonuses
payable or to become payable to any of the Seller's employees
connected with the operation of the Facility, except for
increases substantially in accordance with existing employment
practices disclosed to and approved by Purchaser's Tenant
under the terms of the Transfer of Operations Agreement, if
any or except for increases which will not affect Purchaser's
Tenant's operations at the Facility after closing;
x. Seller will not, nor will it permit the Facility Manager
to, enter into any contract or commitment affecting the
Seller's Assets except in the ordinary course of business and
Seller will advise Purchaser of any contracts or commitments
which it enters, whether in the ordinary course of business or
otherwise;
xi. During normal business hours, Seller will, or will cause
the Facility Manager to, provide Purchaser, Purchaser's
Tenant and their agents, with access on 24 hours notice to the
Real Property and the Facility, provided Purchaser does not
interfere with the operation of the Facility and provided
Purchaser uses its best efforts not to disturb any residents
of the Facility during the course of such inspections and at
such times Seller shall permit Purchaser and Purchaser's
Tenant to inspect the books and records and the physical and
structural condition of the Facility, the Real Property and
the Personal Property and to interview the Administrator and
the Director of Nursing Services regarding the operations at
the Facility;
xii. Seller will timely pay all obligations which are due and
payable with respect to the Seller's Assets;
xiii. Seller will, or will cause the Facility Manager to,
operate the Facility in substantial compliance with all
applicable municipal, county, state and federal laws,
regulations, ordinances, standards and orders as now in effect
(including without limitation, the building and zoning codes
as currently applied with respect thereto) and with the
Environmental Laws, where the failure to comply therewith
could have a material adverse effect on the business,
property, condition (financial or otherwise) or operation of
the Facility or on the Seller's Assets;
xiv. Seller will, or will cause the Facility Manager to, take
all reasonable action to achieve substantial compliance with
any laws, regulations, ordinances, standards and orders
applicable to the Seller's Assets which are enacted after
execution of this Agreement and prior to Closing;
xv. As soon as practicable after the date hereof but in no
event later than twenty (20) days following full execution of
this Agreement, Seller will (a) deliver to Purchaser a UCC-1
search report (herein so called), (b) shall cause Lawyers
Title Insurance Company to furnish to Purchaser a current
title commitment (the "Title Report") for the issuance to
Purchaser of an extended coverage Owner's title insurance
policy with a value equal to the purchase price (the "Title
Policy"), insuring Purchaser's interest in the Real Property
and the Facility, subject to no exceptions other than those of
the usual printed exceptions, which are acceptable to
Purchaser and the Permitted Exceptions (hereafter defined)
and (c) arrange with a survey firm acceptable to Purchaser for
the preparation and delivery of an ALTA Survey of the Real
Property and the Facility (the "Survey");
xvi. Seller will provide Purchaser within ten (10) days after
execution of this Agreement with copies of any environmental
reports, structural report or geological reports which may be
in Seller's possession with respect to the Facility and the
Real Property and, to the extent Seller does not have in its
possession a current Phase I Environmental Assessment, Seller
will order such a report for Purchaser's benefit within ten
(10) days after the execution of this Agreement from a
reputable environmental testing firm approved by Purchaser and
will cause the same to be delivered to Purchaser as soon
thereafter as practicable; and
xvii. Seller will, or will cause the Facility Manager to,
provide Purchaser with copies of monthly Facility financial
statements, including a balance sheet, between the date hereof
and the Closing Date by no later than the 15th day after the
end of each month.
b. Closing. On the Closing Date, Seller agrees that it
will:
i. Execute and deliver to Purchaser a good and sufficient
Warranty Deed to the Real Property (including the Facility)
and Bill of Sale with respect to the Personal Property and
such endorsements, assignments and other instruments of
transfer and conveyance as shall be necessary to transfer and
assign Seller's Assets to Purchaser as herein provided;
ii. Deliver to Purchaser a certificate dated as of the
Closing Date, certifying in such detail as Purchaser may
reasonably specify the fulfillment of the conditions set forth
in Paragraph(s) 13(a) and (b) subject to the limitations set
forth in Paragraph 26 and setting forth the incumbency of the
persons executing documents on behalf of Seller, a copy of the
resolutions adopted by Seller's partners authorizing the
transaction provided for herein and the execution of this
Purchase Agreement and the other documents contemplated herein
and attaching certificates of good standing issued by the
offices of the Delaware and Oregon Secretary of State within
no more than thirty (30) days prior to Closing;
iii. Deliver the tangible property included in the Seller's
Assets to Purchaser in the condition and repair required by
the terms of this Agreement;
iv. Deliver to Purchaser's Tenant any and all documents and
funds required by the terms of the Transfer of Operations
Agreement.
v. Pay its share of the Closing costs, including, but not
limited to, the Title Report, Title Policy and Survey
described in Paragraph 10(a)(xvi);
vi. Deliver to Purchaser evidence of the designation of a
duly authorized representative to act with full power and
authority on behalf of Seller with respect to any post-closing
obligations imposed on Seller hereunder;
vii. Pay the Cost/Deferred Maintenance Payment due at Closing;
and
c. Post-Closing. After the Closing of this Agreement,
Seller agrees that, at Purchaser's sole cost and expense, it
will take such actions and properly execute and deliver to
Purchaser such further instruments of assignment, conveyance
and transfer as, in the reasonable opinion of counsel for
Purchaser and Seller, may be reasonably necessary to assure,
complete and evidence the full and effective transfer and
conveyance of Seller's Assets.
11. Purchaser
a. Pre-Closing. Between the date hereof and the Closing
Date, except as contemplated by this Agreement or with the
consent of Seller, Purchaser agrees that:
i. Purchaser will not take any action inconsistent with his
obligations under this agreement or which could hinder or
delay the consummation of the transaction contemplated by this
Agreement;
ii. Within ten (10) days after his receipt of the UCC-1
Search Report, the Title Report and the Survey, Purchaser
shall advise Seller in writing of his objections, if any, to
each of the UCC-1 Search Report, the Title Report and the
Survey. In the event Purchaser fails to notify Seller in
writing of Purchaser's objections within said ten (10) day
period, Purchaser shall be deemed to have waived his right to
object. Within five (5) days of Seller's receipt of
Purchaser's objections, Seller shall advise Purchaser whether
it intends to correct the defects to which Purchaser has
objected. Seller shall be obligated to act in good faith in
responding to Purchaser's title objections. If Seller refuses
to correct some or all of such defects, Purchaser shall have
five (5) days to advise Seller of his decision to close,
notwithstanding the defects, or to terminate this Agreement,
in which case neither party shall have any further rights or
obligations hereunder. Any matter reflected in the UCC-1
Search Report, the Title Report or the Survey not objected to
in accordance with the terms hereof shall be deemed accepted
by Purchaser and to be "Permitted Exceptions".
Notwithstanding anything contained herein to the contrary, in
the event Seller requires additional time to prepare either
the Survey or the Title Report, then Seller shall have such
additional time to deliver the same to Purchaser, however, in
no event shall such extension be longer than fifteen (15)
additional days;
iii. Purchaser will proceed with all due diligence to obtain
all consents and approvals necessary to permit the consumma-
tion of the transaction contemplated by this Agreement and/or
necessary to permit Purchaser to own and to operate the
Facility, including, but not limited to, a license from the
State of Oregon Senior and Disabled Services Department.
iv. Purchaser will proceed with all due diligence and at its
sole cost and expense to conduct such investigations and to
complete the same within forty five (45) days after the date
of this Agreement with respect to Seller's Assets as he deems
to be reasonably necessary in connection with his purchase
thereof, including, but not limited to, zoning investigations,
soil studies, environmental assessments, seismic assessments,
wetlands reports and investigations of Seller's and the
Facility's books and records and operations, including a
review of the licensure files maintained by the State of
Oregon with respect to the Facility to the extent the same are
publicly available, and structural inspections, provided no
investigations will be physically intrusive on the Real
Property or the Facility unless Seller consents thereto, which
consent shall not be unreasonably withheld (the "Due Diligence
Review"); provided, however, nothing herein shall be construed
as amending or modifying in any manner the representations or
warranties of Seller set forth in this Agreement, which
representations and warranties shall be separate from and
unaffected by Purchaser's Due Diligence Review; and provided,
further, that Purchaser shall maintain the confidentiality of
any documents or information obtained by it during the course
of its Due Diligence Review and shall return the same to
Seller in the event the transaction provided for herein fails
close for any reason whatsoever Purchaser shall indemnify,
defend and hold Seller and the Seller's Assets harmless of and
from any and all losses, liabilities, costs, expenses
(including without limitation, reasonable attorney's fees and
costs of court at trial and on appeal), damages, liens, claims
(including, without limitation mechanics' or materialmans'
liens or claims of liens), actions and causes of action
arising from or relating to Purchaser's (or Purchaser's
Agents, employees, or representatives) entering on the Real
Property and/or the Facility to test, study, investigate or
inspect the same or any part thereof, whether pursuant to this
paragraph or otherwise or breach of his confidentiality
obligations hereunder. The foregoing indemnity shall expressly
survive the Closing or the earlier termination of this
Agreement; and
v. Purchaser will cause Purchaser's Tenant to advise Seller
in writing which, if any of the Operating Contracts it elects
to assume as of the Closing Date in accordance with and within
the time periods provided for in the Transfer of Operations
Agreement..
b. Closing. On the Closing Date, Purchaser agrees that he
will:
i. Pay the cash portion of the Purchase Price due at
Closing;
ii. Pay his share of the Closing costs as herein provided;
iii. Deliver to Seller a certificate dated as of the Closing
Date, certifying in such detail as Seller may reasonably
specify the fulfillment of the conditions set forth in
Paragraph(s) 14(a) and (b) subject to the limitations set
forth in Paragraph 26 and setting forth the incumbency of the
officers or partners, if applicable in the event of an
assignment of this Agreement by Purchaser prior to Closing in
accordance with Paragraph 24, executing documents on behalf of
Purchaser, a copy of the resolutions adopted by Purchaser's
Board of Directors or partners, if applicable in the event of
an assignment of this Agreement by Purchaser prior to Closing
in accordance with Paragraph 24, authorizing the transaction
provided for herein and the execution of this Purchase
Agreement and the other documents contemplated herein and
attaching, if applicable in the event of an assignment of this
Agreement by Purchaser prior to Closing in accordance with
Paragraph 24, a certificate of good standing issued by the
Oregon Secretary of State within no more than thirty (30) days
prior to Closing;
iv. Use its best efforts to cause Purchaser's Tenant to
deliver to Purchaser any and all documents or funds required
under the terms of the Transfer of Operations Agreement;
v. Pay the Evergreen Principal Paydown Payment; and
vi. Execute any and all documents reasonably required by
Evergreen to evidence Purchaser's assumption of the Evergreen
Note and any security documents executed in connection
therewith (the "Evergreen Assumption Documents").
c. Post-Closing. After the Closing of this Agreement,
Purchaser agrees that he will and will use his best efforts to
cause Purchaser's Tenant, if and to the extent required by the
terms of the Transfer of Operations Agreement, to:
i. Provide Seller with access during normal business hours
to any books or records which Seller may need to file or to
defend tax returns or other filings filed prior or subsequent
to the Closing Date which relate to periods prior to the
Closing Date; and
ii. Take such actions and properly execute and deliver such
further instruments as Seller may reasonably request to
assure, complete and evidence the transaction provided for in
this Agreement.
12. Mutual
Following the execution of this Agreement, Purchaser and
Seller agree:
a. If any event should occur, either within or without the
knowledge or control of Purchaser or Seller, which would
prevent fulfillment of the conditions to the obligations of
any party hereto to consummate the transaction contemplated by
this Agreement, to use its, his or their reasonable efforts to
cure the same as expeditiously as possible; and
b. To cooperate fully with each other in preparing, filing
prosecuting, and taking any other actions which are or may be
reasonable and necessary to obtain the consent of any govern-
mental instrumentality or any third party or to accomplish the
transaction contemplated by this Agreement.
CONDITIONS
13. All obligations of Purchaser under this Agreement are subject
to fulfillment, prior to or at Closing, of each of the following
conditions, any one or all or which may be waived in writing by
Purchaser:
a. Seller's Representations and Warranties True at Closing.
Seller's representations and warranties contained in this
Agreement or in any certificate delivered in connection with
this Agreement or the transactions contemplated herein shall
be true in all material respects at and as of the date of
Closing as though such representations and warranties were
then again made.
b. Seller's Performance. Seller shall have performed all of
its obligations under this Agreement that are to be performed
prior to or at Closing to the extent the same have not been
waived by Purchaser in accordance with the terms hereof,
including, but not limited to, making the Cost/ Deferred
Maintenance Payment at Closing in the manner directed by
Purchaser.
c. No Defaults. Seller shall not be in default, where said
default cannot be cured by Closing, under any mortgage,
contract, lease or other agreement to which Seller is a party
or by which Seller is bound and which affects or relates to
the Real Property, the Personal Property or the Facility,
including, but not limited to, the Facility Admission
Agreements.
d. Due Diligence Review. Purchaser shall be satisfied with
the results of its Due Diligence Review of the Real Property
and the Facility within the period specified in Paragraph
11(a) (iv); provided, however, nothing herein shall be
construed as amending or modifying in any manner the repre-
sentations or warranties of Seller set forth in this Agree-
ment, which representations and warranties shall be separate
from and unaffected by Purchaser's Due Diligence Review except
as to any representations or warranties which, during the
course of Purchaser's Due Diligence Review, Seller
demonstrates Purchaser obtained knowledge of falsity or
inaccuracy thereof. In the event Purchaser elects to
terminate this Agreement within the period specified in
Paragraph 11(a)(iv) and this Paragraph 13(d), the parties
shall have no further rights or obligations hereunder, other
than Seller's obligation to pay any title cancellation and UCC
search fees incurred as a result of such termination.
e. Title. The Title Insurer shall issue to Purchaser as of
the date of Closing, an Owner's extended coverage policy of
title insurance for the Real Property and the Facility in the
full amount of the purchase price and in accordance with the
requirements of Paragraph 4.
f. Survey. Purchaser shall be reasonably satisfied as to
the results of the ALTA Survey in accordance with the
provisions of Paragraph 11(a)(ii).
g. UCC Search. Purchaser shall be reasonably satisfied with
the results of the UCC search conducted by Seller pursuant to
Paragraph 10(a)(xvi) in accordance with the provisions of
Paragraph 11(a)(ii).
i. Approvals. Purchaser shall have received all consents,
and approvals as may be necessary for him to own and
Purchaser's Tenant shall have received all consents and
approvals as may be necessary for it to operate the Facility,
including, but not limited to, the issuance by the Oregon
Senior and Disabled Services Department to Purchaser of a
license to operate the Facility.
j. Licensure Status. The Facility shall be fully licensed
and certified to participate in Medicare and Medicaid and
there shall be no action pending or threatened to revoke or
withdraw its license or certification or to place the Facility
on stop placement or otherwise limit admissions to the
Facility.
k. Facility Operations. Purchaser shall have entered into
a lease with Columbia River Health Services, Inc.
("Purchaser's Tenant") for the leasing of the Facility
effective as of the Closing Date on terms acceptable to
Purchaser and Purchaser's Tenant and Purchaser's Tenant shall
have entered into a Transfer of Operations Agreement with
Seller and/or the Facility Manager with respect to the
transition of certain Facility operational issues as of the
Closing Date.
l. Facility Manager. Seller shall provide Purchaser with
evidence reasonably satisfactory to it that the Facility
Management Agreement has terminated effective as of the
Closing Date and that neither Purchaser nor Purchaser's Tenant
will have any liability thereunder after the Closing Date.
m. Evergreen Note Assumption. Purchaser and Evergreen or
the current Evergreen Note holder, as applicable, shall have
negotiated acceptable terms for and shall have executed the
Evergreen Assumption Documents and Purchaser shall have
received from Evergreen or the current Evergreen Note holder,
an Estoppel Certificate confirming that the Evergreen Note is
in full force and effect, has not been modified except by the
terms of the Evergreen Assumption Document and that there is
no Event of Default outstanding thereunder nor any event
which, with the giving of notice of the passage of time or
both would constitute an Event of Default thereunder.
Subject to the limitations set forth in the foregoing
Paragraph 13, in the event any of the foregoing conditions is not
satisfied by Seller or Purchaser, as appropriate, or waived by
Purchaser prior to Closing, Purchaser shall have the right to
terminate this Agreement in accordance with the provisions of
Paragraph 17.
14. CONDITIONS TO SELLER'S OBLIGATIONS
All obligations of Seller under this Agreement are subject to
the fulfillment, prior to or at Closing, of each of the following
conditions, any one or all of which may be waived by Seller in
writing:
a. Purchaser's Representations and Warranties True at
Closing. Purchaser's representations and warranties contained
in this Agreement or in any certificate or document delivered
in connection with this Agreement or the transactions contem-
plated herein shall be true in all material respects at and as
of the date of Closing as though such representations and
warranties were then again made.
b. Purchaser's Performance. Purchaser shall have performed
its obligations under this Agreement that are to be performed
prior to or at Closing to the extent the same have not been
waived by Seller in accordance with the terms hereof.
INDEMNIFICATION
15. Seller shall indemnify and hold Purchaser or Purchaser's
Tenant, if required by the terms of the Transfer of Operations
Agreement, harmless from and against:
a. Except as otherwise provided in this Agreement, any and
all obligations relating to the ownership of Seller's Assets
and the operation of the Facility which exist at the Closing
Date, including, but not limited to (i) any obligations under
the Facility Admission Agreements or the Operating Contracts
which Purchaser's Tenant elects to assume at Closing under the
terms of the Transfer of Operations Agreement and (ii) any
obligations with respect to the Resident Trust Funds;
b. Any and all damage, loss or liability arising either
before or after the Closing Date under any of the Operating
Contracts which Purchaser's Tenant does not elect to assume
at Closing under the terms of the Transfer of Operations
Agreement;
c. Subject to the limitations set forth in Paragraph 26, any
and all damage, loss, or liability resulting from any
misrepresentation of a material fact, breach of warranty or
nonfulfillment of any agreement on the part of Seller under
this Agreement or from any misrepresentation in any certifi-
cate furnished or to be furnished to Purchaser hereunder;
d. Any and all liability or loss arising out of or relating
to any failure in connection with the transaction contemplated
herein to comply with the requirements of any laws or regula-
tions relating to bulk sales or transfers; and
e. Any and all actions, suits, proceedings, demands, assess-
ments, judgments, reasonable costs, and other reasonable
expenses, including, but not limited to, reasonable attorney's
fees, incident to any of the foregoing.
For purposes of Paragraph 15(a), an obligation shall be deemed
to "exist" as of the Closing Date if it relates to events which
occurred prior to the Closing Date even if it is not asserted until
after the Closing Date.
16. Purchaser shall indemnify and hold Seller harmless from and
against and if and to the extent Purchaser's Tenant has assumed an
indemnity obligation with respect thereto under the terms of the
Transfer of Operations Agreement, shall use its best efforts to
cause Purchaser's Tenant to:
a. Except as otherwise provided in this Agreement, any and
all obligations relating to the ownership of the Seller's
Assets and the operation of the Facility from and after the
Closing Date, including, but not limited to any obligations
under any of the Facility Leases or Operating Contracts which
Purchaser elects to assume at Closing and any obligations with
respect to the Resident Prepayments;
b. Subject to the limitations set forth in Paragraph 26, any
and all damage, loss or liability resulting from any
misrepresentation of a material fact, breach of warranty or
nonfulfillment of any agreement on the part of Purchaser under
this agreement or from any misrepresentation in any certi-
ficate furnished or to be furnished to Seller hereunder;
c. Any and all damage, loss or liability resulting from the
conduct by or the negligence or willful misconduct of
Purchaser in performing its Due Diligence Review; and
d. Any and all actions, suits, proceedings, demands, assess-
ments, judgments, reasonable costs and other reasonable
expenses, including, but not limited to, reasonable attorney's
fees, incident to any of the foregoing.
TERMINATION
17. a. This Agreement may be terminated and the transaction
contemplated herein abandoned at any time prior to Closing:
i. By mutual agreement of the parties;
ii. By Seller, if any of the conditions set forth in
Paragraph 14 shall have become incapable of fulfillment prior
to the Closing Date or such earlier date as may be specifi-
cally provided for the performance thereof (as the same may be
extended) through no fault of Seller and as a result of a
material breach by Purchaser of its obligations hereunder and
the same shall not have been waived by Seller;
iii. By Purchaser, if any of the conditions set forth in
Paragraph 13 shall have become incapable of fulfillment prior
to the Closing Date or such earlier date as may be specifi-
cally provided for the performance thereof (as the same may be
extended) through no fault of Purchaser and as a result of a
material breach by Seller of its obligations hereunder and the
same shall not have been waived by Purchaser;
iv. By either Seller or Purchaser in the event of a material
breach by the other party of its obligations hereunder;
v. If the Closing has not occurred by December 1, 1996 (the
"Outside Closing Date").
b. In the event that prior to the Closing Date, a material
portion of the Real Property, the Facility or the Personal
Property shall have been damaged or destroyed by fire or other
casualty, or shall have been taken or condemned by any public
or quasi-public authority under the power of eminent domain,
Purchaser shall have the right to terminate this Agreement on
written notice to Seller which notice must be delivered within
ten (10) days after Purchaser receives notice of such damage,
destruction or condemnation. In the event Purchaser fails to
exercise its termination rights hereunder, then it shall be
conclusively deemed to have waived said right and Seller shall
assign to Purchaser all of its rights to any insurance pro-
ceeds or condemnation award and all claims in the connection
therewith. In the event Purchaser exercises its termination
rights hereunder, the parties shall have no further rights or
obligations hereunder.
c. Neither party to this Agreement may claim termination or
pursue any other remedy referred to in Paragraph 17(a) on
account of a breach of a condition, covenant or warranty by
the other, without first giving such other party written
notice of such breach and not less than ten (10) days within
which to cure such breach; provided, however, in no event
shall the Closing Date be postponed beyond the Outside Closing
Date.
d. In the event of the termination of this Agreement by
Seller under Paragraphs 17(a)(ii) or (iv) or under Paragraph
17(a)(v) in the event the Closing has failed to occur as a
result of a material breach by Purchaser of its obligations
hereunder, Seller's sole remedy shall be to terminate this
Agreement and to sue Purchaser for any damages suffered as a
result thereof.
e. In the event of the termination of this Agreement by
Purchaser under Paragraphs 17(a)(iii) or (iv) or under
Paragraph 17(a)(v) in the event the Closing has failed to
occur as of a material breach by Seller of its obligations
hereunder, Purchaser shall have the right as Purchaser's sole
and exclusive remedies either to (i) terminate this Agreement
and sue Seller for damages suffered as a result thereof or
(ii) seek specific performance of Seller's obligations
hereunder.
EMPLOYEE BENEFITS
18. Seller and Purchaser agree that any and all issues with
respect to the termination and hiring of, and wages and benefits
due to, the employees of the Facility shall be addressed directly
between Seller and Purchase's Tenant under the terms of the
Transfer of Operations Agreement.
RESIDENT TRUST FUNDS
19. Seller and Purchaser agree that any and all issues with
respect to resident trust funds shall be addressed directly between
Seller and Purchase's Tenant under the terms of the Transfer of
Operations Agreement.
NOTICES
20. Any notice, request or other communication to be given by any
party hereunder shall be in writing and shall be sent by registered
or certified mail, postage prepaid, by overnight courier
guaranteeing overnight delivery or by facsimile transmission (if
confirmed verbally or in writing by mail as aforesaid), to the
following address:
To Seller: Plantation Associates, L.P.
c/o WelCare International Management Corporation
7000 Central Parkway, Suite 970
Atlanta, GA 30328
Attn: Alan Dahl
Phone No.: (770) 698-9040
FAX No.: (770) 395-9776
with copy to: Lynn Scott, Esq.
Nelson, Mullins, Riley & Scarborough
400 Colony Square
Suite 2200
1201 Peachtree Street, N.E.
Atlanta, GA 30361
Phone No.: (404) 817-6169
FAX No.: (404) 817-6050
To Purchaser: Carey Dean Erwin
One Jefferson Parkway, No. 107
Lake Oswego, OR 97035-8809
Phone No.: (503) 697-8528
FAX No.: (503) 697-6969
with copy to: Randi S. Nathanson, Esq.
The Nathanson Group
1411 Fourth Avenue, Suite 905
Seattle, WA 98101
Phone No.: (206) 623-6239
FAX No.: (206) 623-1738
Notice shall be deemed given three (3) business days after
deposit in the mail, on the next day if sent by overnight courier
and on receipt if sent by facsimile (and confirmed verbally or by
mail as aforesaid).
SOLE AGREEMENT
21. This Agreement may not be amended or modified in any respect
whatsoever except by instrument in writing signed by the parties
hereto. This Agreement constitutes the entire agreement between
the parties hereto and supersedes all prior negotiations,
discussions, writings and agreements between them, including but
not limited to that letter dated May ____, 1996 from Purchaser to
Seller and signed by the parties on or about May 30, 1996 (the
"Letter of Intent").
SUCCESSORS
22. The terms of this Agreement shall be binding upon and inure to
the benefit of and be enforceable by and against the heirs and
successors of the parties hereto, it being specifically understood
and agreed that Purchaser shall have the right, without the consent
of Seller to assign in whole or in part its rights and obligations
hereunder to an affiliate (which for purposes hereof shall include
a partnership in which Purchaser is partner, a limited liability
company in which Purchaser is member or a corporation in which
Purchaser is a shareholder) and with the consent of Seller to
assign in whole or in part its rights and obligations hereunder to
an unrelated third party; provided no such assignment shall relieve
Purchaser of its obligations hereunder and provided, further, that
Purchaser shall provide Buyer with notice of any such assignment
and such assignee shall assume all of Purchaser's obligations
hereunder in writing.
CAPTIONS
23. The captions of this Agreement are for convenience of refer-
ence only and shall not define or limit any of the terms or
provisions hereof.
SURVIVAL/LIMITATION OF ACTIONS
24. All covenants, warranties and representations of Purchaser and
Seller herein other than Seller's representation and warranty in
Paragraph 7(l), which shall survive for the applicable statute of
limitations period and Seller's representation and warranty in
Paragraph 7(d) which shall survive for a period of ninety (90)
days, shall survive for two years after Closing after which they
shall automatically expire; provided, however, that in the event
notice of a claim is delivered by Seller or Purchaser prior to
expiration of said ninety day, two year or statutory period, as
applicable, the representation, warranty or covenant which is the
subject of said claim shall survive until the final, non-appealable
resolution thereof.
GOVERNING LAW
25. This Agreement shall be governed by and construed in accord-
ance with the laws of the State of Oregon.
SEVERABILITY
26. Should any one or more of the provisions of this Agreement be
determined to be invalid, unlawful or unenforceable in any respect,
the validity, legality and enforceability of the remaining provi-
sions hereof shall not in any way be affected or impaired thereby.
COUNTERPARTS
27. This Agreement may be executed in any number of counterparts,
each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument. This
Agreement may be executed (i) on an original, (ii) a copy of an
original, or (iii) by a facsimile transmission copy of an original
followed within five (5) calendar days with execution of an
original.
THIRD PARTY BENEFICIARY
28. The provisions of this Agreement are not intended to confer
any benefits upon any person or entity not a party to this
Agreement other than Purchaser's Tenant, who is an intended
beneficiary of the provisions of Paragraphs 5(e), 5(f), 5(k), 7(i),
7(o), 10(a)(ix), 10(b)(iv), 10(b)(vi), 10(b)(vii), 10(b)(viii), 15,
18, 19 and 29 as set forth more fully in the Transfer of Operations
Agreement.
ACCOUNTS RECEIVABLE
29. Seller and Purchaser agree that any and all issues with
respect to the accounts receivable of the Facility shall be
addressed directly between Seller and Purchase's Tenant under the
terms of the Transfer of Operations Agreement.
IN WITNESS WHEREOF, the parties hereby execute this Agreement
as of the day and year first set forth above.
SELLER: PLANTATION ASSOCIATES, L.P.
By: CONSOLIDATED RESOURCES
HEALTH CARE FUND V, L.P.
Its: GENERAL PARTNER
By:
Its:
PURCHASER: CAREY DEAN ERWIN
____________________________
<PAGE>
EXHIBIT INDEX
EXHIBIT A--Real Property Description
EXHIBIT B--Personal Property List
EXHIBIT C--Evergreen Note Letter
EXHIBIT D--Deed
EXHIBIT E--Bill of Sale
EXHIBIT F--List of Repairs
EXHIBIT G--Facility Admission Agreements
EXHIBIT H--Census Report
EXHIBIT I--Labor Disputes
EXHIBIT J--Waivers
EXHIBIT K--Operating Contracts
EXHIBIT L--Cost Reports
<PAGE>
EXHIBIT A
REAL PROPERTY DESCRIPTION
Omitted herein. To be supplied upon request
<PAGE>
EXHIBIT B
PERSONAL PROPERTY LIST
Omitted herein. To be supplied upon request
<PAGE>
EXHIBIT C
EVERGREEN NOTE LETTER
Omitted herein. To be supplied upon request
<PAGE>
EXHIBIT D
DEED
After recording, return to:
Randi S. Nathanson, Esq.
The Nathanson Group
1411 Fourth Avenue, Suite 905
Seattle, Washington 98101
Until further notice, all future
tax statements shall be sent to:
Carey Dean Erwin
One Jefferson Parkway, No. 107
Lake Oswego, OR 97035-8809
STATUTORY BARGAIN AND SALE DEED
PLANTATION ASSOCIATES, L.P. a Delaware limited partnership
Grantor, conveys to CAREY DEAN ERWIN Grantee, the following
described real property situated in ______ County, State of Oregon,
to-wit:
SEE ATTACHED EXHIBIT A
THIS INSTRUMENT WILL NOT ALLOW USE OF THE PROPERTY DESCRIBED IN
THIS INSTRUMENT IN VIOLATION OF APPLICABLE LAND USE LAWS AND
REGULATIONS, BEFORE SIGNING OR ACCEPTING THIS INSTRUMENT, THE
PERSON ACQUIRING FEE TITLE TO THE PROPERTY SHOULD CHECK WITH THE
APPROPRIATE CITY OR COUNTY PLANNING DEPARTMENT TO VERIFY APPROVED
USES AND TO DETERMINE ANY LIMITS ON LAWSUITS AGAINST FARMING OR
FOREST PRACTICES AS DEFINED IN ORS 30.930.
The true consideration for this conveyance is $__________.
Dated this ___ day of ___________, 1996.
PLANTATION ASSOCIATES, L.P.
By: CONSOLIDATED RESOURCES
HEALTH CARE FUND V, L.P.
Its: GENERAL PARTNER
By:
Its:
By:
Its:
ACKNOWLEDGEMENT
STATE OF ___________________
COUNTY OF___________________
On ________________, 1996, personally appeared _______________ and
_______________ each for himself and not one for the other, did say
that the former is the _____________ and that the latter is the
__________ of Consolidated Health Resources Fund V L.P., a
_________ limited partnership, which is the general partner of
Plantation Associates, L.P., and that said instrument was signed
and sealed on behalf of said limited partnership in its capacity as
the general partner of Plantation Associates, L.P. by authority of
its general partner; and each of them acknowledged said instrument
to be his voluntary act and deed.
Notary Public for
STATE OF ____________________
My commission expires:
<PAGE>
EXHIBIT E
BILL OF SALE
In consideration of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Plantation Associates, L.P. ("Seller") does
hereby grant, bargain, sell, convey and transfer to Carey Dean
Erwin ("Buyer") all of its right, title and interest in and to, all
and singular, the furniture, fixtures and equipment described in
Exhibit A attached hereto (the "Property").
TO HAVE AND TO HOLD, all and singular, the Property hereby sold,
assigned, transferred and conveyed to Buyer, its successors and
assigns, to and for its own use and benefit.
Seller hereby represents and warrants to Buyer that Seller is the
owner of said Property, that Seller has full right, power and
authority to sell said Property and to make this Bill of Sale, that
said Property is free and clear of all liens and encumbrances.
Dated: _________________, 1996
PLANTATION ASSOCIATES, L.P.
By: CONSOLIDATED RESOURCES
HEALTH CARE FUND V, L.P.
Its: GENERAL PARTNER
By:
Its:
By:
Its:
<PAGE>
EXHIBIT F
LIST OF REPAIRS
Omitted herein. To be supplied upon request
<PAGE>
EXHIBIT G
FACILITY ADMISSION AGREEMENTS
Omitted herein. To be supplied upon request
<PAGE>
EXHIBIT H
CENSUS REPORT
Omitted herein. To be supplied upon request
<PAGE>
EXHIBIT I
LABOR DISPUTES
Omitted herein. To be supplied upon request
<PAGE>
EXHIBIT J
WAIVERS
Omitted herein. To be supplied upon request
<PAGE>
EXHIBIT K
OPERATING CONTRACTS
Omitted herein. To be supplied upon request
<PAGE>
EXHIBIT L
COST REPORTS
Omitted herein. To be supplied upon request
