SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 of 15(d) of the
Securities Exchange Act of 1934
May 18, 1999
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Date of Report (date of earliest event reported)
NEWCARE HEALTH CORPORATION
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Exact name of Registrant as Specified in its Charter
Nevada 0-24110 86-0594391
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State or Other Jurisdiction Commission File IRS Employer Identification
of Incorporation Number Number
6000 Lake Forrest Drive, Suite 200, Atlanta, Georgia 30328
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Address of Principal Executive Offices, Including Zip Code
(404) 255-7500
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Registrant's Telephone Number, Including Area Code
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
Effective May 18, 1999, subsidiaries of NewCare Health Corporation (the
"Company") transferred all of their interests in four nursing homes and one
assisted living facility to affiliates of Nationwide Health Properties
("NHP"). NHP held mortgages on each of these nursing homes which were unable
to generate sufficient cash flow to make the required payments on their
respective mortgage obligations totaling $21.5 million. The four nursing
homes transferred are the Central Tampa Nursing Home, Tampa, Florida; Dania
Nursing Home, Dania, Florida; Oak Manor Nursing Home, Largo, Florida; and the
Windward Nursing Center, Flowery Beach, Georgia. The assisted living facility
is the Oak Manor Villas in Largo, Florida.
The transfers were made in exchange for the release of the $21.5 million
loan mortgaged by the properties. The Company's related subsidiaries are
still liable for certain obligations and debts related to these facilities
incurred prior to the transfer.
The Company and Chris Brogdon, Chairman and Chief Executive Officer of
the Company, have provided guarantees of the representations, warranties and
other obligations of the subsidiaries which transferred the properties.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) PRO FORMA FINANCIAL INFORMATION. Pro Forma Financial Information
will be filed by amendment.
(c) EXHIBITS.
EXHIBIT NO. DESCRIPTION LOCATION
Exhibit 10.1 Purchase and Sale Agreement Filed herewith
with JJS Properties, Inc. electronically
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.
NEWCARE HEALTH CORPORATION
Dated: June 18, 1999 By:/s/ Darrell C. Tucker
Darrell C. Tucker, President
PURCHASE AND SALE AGREEMENT
BY AND AMONG
WINDWARD NURSING CENTER, INC.,
a Georgia corporation;
HEALTHCARE FACILITIES LIMITED PARTNERSHIP I,
a Louisiana limited partnership;
OAK MANOR NURSING HOME, LTD.,
a Florida limited partnership
and
CENTRAL TAMPA NURSING HOME, LTD.,
a Florida limited partnership
(collectively, "SELLERS")
AND
JJS PROPERTIES, INC.,
a Delaware corporation
("BUYER")
April 30, 1999
WINDWARD NURSING CENTER
DANIA NURSING CENTER
OAK MANOR VILLAS
CENTRAL TAMPA NURSING CENTER
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of April
30, 1999, by and among WINDWARD NURSING CENTER, INC., a Georgia corporation
("Windward"); HEALTHCARE FACILITIES LIMITED PARTNERSHIP I, a Louisiana limited
partnership ("HFLP"); OAK MANOR NURSING HOME, LTD., a Florida limited
partnership ("Oak Manor"); and CENTRAL TAMPA NURSING HOME, LTD., a Florida
limited partnership ("Central Tampa") (each a "Seller" and collectively the
"Sellers") and JJS PROPERTIES, INC., a Delaware corporation ("Buyer").
R E C I T A L S:
A. Sellers are the fee owners of those certain parcels of real property
more particularly described in Exhibit A attached hereto and by this reference
incorporated herein (each individually, a "Parcel," and collectively, the
"Land").
B. The Land is improved with certain buildings and other Improvements
(as hereinafter defined) and each Parcel together with the improvements
thereon is presently being operated either as a skilled nursing facility or a
CCRC facility.
C. Sellers desire to sell, and Buyer desires to buy, all of the Property
(as hereinafter defined) upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual
covenants, agreements and conditions set forth herein and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used herein (including any Exhibits attached hereto), the following
terms shall have the following meanings:
"Acquisition Guaranty" shall mean that certain Guaranty of Obligations of
even date herewith executed by Guarantors in favor of Buyer pursuant to which
Guarantors guaranteed Sellers' representations, warranties and other
obligations, under this Agreement, any management agreements with respect to
the Facilities and any Transition Agreements.
"Affiliate" shall mean, with respect to any person or entity, any other
person or entity which controls, is controlled by or is under common control
with the first person or entity.
"Bills of Sale" shall mean bills of sale in the form attached as Exhibit
B hereto and sufficient to transfer to Buyer and/or Buyer's Designees all
Personal Property. Sellers acknowledge that Buyer may form one or more
affiliated entities or may designate one or more third parties prior to
Closing to take title to the Property and agree to execute the Bills of Sale
in favor of such affiliated entity or entities or third party or parties at
Closing if so requested by Buyer.
"Business Agreement" shall mean any management agreement, Patient
Agreement, loan agreement, mortgage, easement, covenant, restriction or other
agreement or instrument affecting all or a portion of the Property and which
is presently in effect or binding upon any Seller or all or any portion of the
Property.
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"Buyer's Designee" or "Buyer's Designees" shall mean each third party, or
collectively, those third parties (a) to which Buyer may direct Sellers to
deed at Closing all or a portion of the Land and the other Property relating
to such Land, or (b) with which Buyer may enter into an operating lease or
operating leases at Closing with respect to all or a portion of the Land and
the other Property relating to such Land.
"Central Tampa Facility" shall mean a one hundred (100) bed skilled
nursing facility commonly known as Central Tampa Nursing Home and located in
Hillsborough County, Florida.
"Certificates of Need" shall mean any and all certificates of need and
other similar instruments issued by the Florida Agency for Health Care
Administration or Georgia Department of Human Services with respect to the
licensing and operations of the Facilities located in the State of Florida or
the State of Georgia, as applicable.
"Certificates of Non-Foreign Status" shall mean certificates dated as of
the Closing Date, addressed to Buyer and/or Buyer's Designees and duly
executed by each Seller, in the form of Exhibit C attached hereto.
"Claim" shall mean any obligation, liability, lien, encumbrance, loss,
damage, cost, expense or claim, including, without limitation, any claim for
damage to property or injury to or death of any person or persons.
"Closing" shall mean the consummation of the sale and purchase provided
for herein.
"Closing Conference" shall mean a conference held on the Closing Date in
order to bring about the Closing at the offices of Buyer's counsel, or such
other place as the parties hereto may hereafter mutually agree upon.
"Closing Date" shall mean April 30, 1999, or such earlier or later date
as shall be hereafter agreed upon by the parties hereto.
"Closing Procedure Letter" shall mean a letter to Title Company executed
by Sellers and Buyer setting forth directions for Title Company in connection
with the Closing and in the form of Exhibit E attached hereto.
"Dania Facility" shall mean an eighty-eight (88) bed skilled nursing
facility commonly known as Dania Nursing Home and located in Broward County,
Florida.
"Deeds" shall mean the deeds for each of the Parcels substantially in the
form of Exhibit D attached hereto, executed by the applicable Seller, as
grantor, in favor of Buyer or Buyer's Designee, as grantee, conveying each of
the Parcels and Improvements to Buyer and/or Buyer's Designees, subject only
to the Permitted Exceptions. Sellers acknowledge that Buyer may form one or
more affiliated entities or may designate one or more third parties prior to
Closing to take title to the Property and agree to execute the Deeds in favor
of such affiliated entity or entities or third party or parties at Closing if
so requested by Buyer.
"Due Diligence Review" shall have the meaning given such term in Section
3.2.
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"Environmental Activities" shall mean the use, generation,
transportation, handling, discharge, production, treatment, storage, release
or disposal of any Hazardous Materials at any time to or from the Land or the
Improvements or located on or present on or under the Land or the
Improvements.
"Facilities" shall mean, collectively, Central Tampa Facility, Dania
Facility, Oak Manor Facility and Windward Facility.
"Fixture" shall mean all property now or upon the Closing Date located on
or about the Property which is attached or appurtenant thereto.
"Guarantors" shall mean NewCare Health Corporation, a Nevada corporation
and Chris Brogdon, an individual.
"Hazardous Materials" shall mean (a) any petroleum products and/or
by-products (including any fraction thereof), flammable substances,
explosives, radioactive materials, hazardous or toxic wastes, substances or
materials, known carcinogens or any other materials, contaminants or
pollutants which pose a hazard to the Property or to persons on or about the
Property or cause the Property to be in violation of any Hazardous Materials
Laws; (b) asbestos in any form which is friable; (c) urea formaldehyde in foam
insulation or any other form; (d) transformers or other equipment which
contain dielectric fluid containing levels of polychlorinated biphenyls in
excess of fifty (50) parts per million or any other more restrictive standard
then prevailing; (e) medical wastes and biohazards; (f) radon gas; and (g) any
other chemical, material or substance, exposure to which is prohibited,
limited or regulated by any governmental authority or may or could pose a
hazard to the health and safety of the occupants of the Property or the owners
and/or occupants of property adjacent to or surrounding the Property,
including, without limitation, any materials or substances that are listed in
the United States Department of Transportation Hazardous Materials Table (49
CFR 172.101) as amended from time to time.
"Improvements" shall mean all buildings, improvements, structures and
Fixtures now or on the Closing Date located on the Land, including, without
limitation, parking lots and structures, roads, drainage and other utility
structures and other so-called "infrastructure" improvements.
"Intangible Property" shall mean all of Sellers' right, title and
interest in and to (a) all Patient Agreements and all rents, profits, income
or revenue derived from and after the Closing Date from such Patient
Agreements or from the providing of services in or from the Facilities,
documents, chattel paper, instruments, contract rights, deposit accounts,
general intangibles, choses in action, now owned or hereafter acquired by
Seller (including any right to any refund of any taxes or other charges
heretofore or hereafter paid to any governmental authority) arising from or in
connection with Seller's operation or ownership of the Facilities; (b) all
Permits; and (c) all other intangible property or any interest therein now or
on the Closing Date owned or held by Sellers (or any of their respective
Affiliates) arising from or in connection with the Land, the Improvements or
the Fixtures, or any business or businesses now or hereafter conducted by
Sellers (or any of their respective Affiliates) or any lessee thereon or with
the use thereof, including all rights of Sellers in and to all Plans and
Specifications, leases, contract rights, agreements, trade names (including,
without limitation, "Central Tampa Nursing Home", "Dania Nursing Home", "Oak
Manor Villas" and "Windward Nursing Center"), water rights and reservations,
zoning rights, business licenses and warranties (including those relating to
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construction or fabrication) related to the Land, the Improvements or the
Fixtures, or any part thereof.
"Land" shall have the meaning given such term in Recital A hereof.
"Laws" shall mean all federal, state and local laws, moratoria,
initiatives, referenda, ordinances, rules, regulations, standards, orders and
other governmental requirements, including, without limitation, those relating
to the environment, health and safety, or handicapped persons, where the
failure to abide by the same would have a material adverse effect on Buyer,
any Seller or the Property or the operation or use thereof.
"Letter of Credit" shall mean that certain Irrevocable Standby Letter of
Credit Number 9766 dated June 23, 1997, issued by Fidelity National Bank in
the amount of $1,159,000.
"Loan" shall mean that certain loan from NHP, as lender, to Sellers, as
borrower, pursuant to the terms of the Loan Agreement, in the principal amount
of Twenty-One Million Five Hundred Thousand Dollars ($21,500,000), as
evidenced by, inter alia, that certain Secured Promissory Note dated May 14,
1997, executed by Sellers, as maker, in favor of NHP, as holder, in the
original principal amount of the Loan.
"Loan Agreement" shall mean that certain Loan Agreement dated as of May
14, 1997, between Sellers, as borrower, and NHP, as lender.
"Loan Amount" shall mean the amount of Twenty-One Million Five Hundred
Thousand Dollars ($21,500,000).
"NHP" shall mean Nationwide Health Properties, Inc., a Maryland
corporation.
"Oak Manor Facility" shall mean a four hundred five (405) bed CCRC
facility commonly known as Oak Manor Villas and located in Pinellas County,
Florida.
"Operating Settlement Statement" shall have the meaning given such term
in Section 6.2.
"Parcel" shall have the meaning given such term in Recital A.
"Patient Agreements" shall mean all life care contracts, leases, rental
and occupancy agreements, lease commitments, nursing care admission and
payment documents, reservation agreements and concessions, and all deposits
made thereunder with respect to the period from and after the Closing Date,
relating to the Property.
"Permits" means all permits, licenses, approvals, entitlements and other
governmental and quasi-governmental authorizations, including, without
limitation, any Certificates of Need or other similar certificates and any
certificates of occupancy, required in connection with the ownership,
planning, development, construction, use, operation or maintenance of the
Property, and all amendments, modifications, supplements, general conditions
and addenda thereto. As used herein, "quasi-governmental" shall include the
providers of all utility services to the Property.
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"Permitted Exceptions" shall mean those title exceptions or defects which
have been approved in writing by Buyer and Buyer's Designees to appear as
exceptions on the Title Policies.
"Person" shall mean any individual, partnership, association,
corporation, Governmental Authority or other entity.
"Personal Property" shall mean all Intangible Property and all machinery
(excluding any financed vehicles unless such debt is assumed by Buyer or
Buyer's Designee), equipment, furniture, tools, furnishings, movable walls or
partitions, computers or other personal property, other than the Fixtures,
acquired by or for the account of Sellers and used or useful in the operation
of Sellers' business at the Facilities whether now or on the Closing Date
located on or about the Land or the Improvements or used in connection with
the operation thereof which is owned or hereafter acquired by Sellers,
together with all accessions, additions, parts, attachments, accessories or
appurtenances thereto.
"Plans and Specifications" shall mean all drawings, plans,
specifications, blueprints, studies, structural reviews, and engineering,
soil, seismic, geologic, architectural and other reports relating to the
Property.
"Property" means, collectively, the Land and all rights, titles, and
appurtenant interests, the Improvements, the Fixtures, the Personal Property
and the Intangible Property. As used in the foregoing, "appurtenant
interests" shall mean those interests which pass by operation of law with the
conveyance of the fee simple estate in the Land and Improvements.
"Purchase Price" shall mean an amount equal to the Loan Amount.
"Real Property" shall mean the Land, the Improvements and the Fixtures.
"Rent Roll" shall have the meaning given such term in Section 3.1(a).
"Service Contracts" shall have the meaning given such term in Section
3.1(d).
"Transition Agreements" shall have the meaning given such term in Section
5.5(b)(i).
"Title Company" shall mean the underwriter of the Title Policies and
shall be Chicago Title Insurance Company, whose address is c/o Gregory D.
Hughes, Esq., Hughes and White, 2000 Riveredge Parkway, Suite 850, Atlanta,
Georgia 30328.
"Title Policies" shall mean, with respect to each Parcel, an ALTA
Extended Coverage Owner's Policy of Title Insurance, together with such
endorsements thereto as are reasonably requested by Buyer and/or Buyer's
Designees, with liability in the amount of the Purchase Price as allocated to
each of the Facilities in Buyer's discretion, dated as of the Closing Date,
issued by Title Company, insuring title to the fee interest in the Real
Property in Buyer or Buyer's Designee, as the case may be, subject only to the
Permitted Exceptions and to the standard printed exceptions included in the
ALTA standard form owner's extended coverage policy of title insurance.
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"Warranties" shall mean all warranties, representations and guaranties
with respect to the Property, whether express or implied, which Sellers (or
any of their respective Affiliates) now hold or under which Sellers or any
such Affiliates are the beneficiaries.
"Windward Facility" shall mean a one hundred (100) bed skilled nursing
facility commonly known as Windward Nursing Center located in Hall County,
Georgia.
"Written Authorization to Close" shall mean a letter to Title Company, in
the form of Exhibit F, executed by Buyer and Sellers, directing Title Company
to comply with the instructions in the Closing Procedure Letter.
ARTICLE II
AGREEMENT OF PURCHASE AND SALE;
LETTER OF CREDIT PROCEEDS
2.1 Agreement to Purchase and Sell. Sellers hereby agree to sell,
convey and assign the Property to Buyer, and Buyer agrees to buy and accept
the Property from Sellers, on the terms and conditions and for the Purchase
Price as hereinafter set forth.
ARTICLE III
DELIVERY OF INFORMATION AND DUE DILIGENCE REVIEW
3.1 Delivery of Information. Prior to or concurrently with the Closing,
Sellers shall deliver or shall cause to be delivered to Buyer and/or Buyer's
Designees the following documents:
(a) a copy of the Patient Agreements together with a rent roll (the
"Rent Roll") containing the following information as to each Patient
Agreement: (i) the name and unit occupied by the resident; (ii) the
commencement and expiration dates of each Patient Agreement; (iii) the amount
of security deposit, if any, and prepaid amounts in excess of the amounts due
for the current month; (iv) the monthly amounts payable by each resident; (v)
the existence of any options to renew or extend; and (vi) a complete list of
all services provided to each resident and the charges incurred by the
resident for the services;
(b) to the extent in the possession of Sellers or any of their
respective Affiliates, all plans and specifications and as-built drawings and
all building permits, certificates of occupancy, soil reports, engineers'
reports and studies and all similar information relating to the Property or
its management, operation, maintenance or use;
(c) a list of all Personal Property;
(d) a list of all equipment lessors and/or service providers,
together with true copies of all equipment leases, service and other contracts
pertaining to the Property in respect to which any Seller is obligated and
which cannot be terminated upon thirty (30) days notice (the "Service
Contracts");
(e) all licenses and permits relating to the operation of the
Property as either a skilled nursing facility, assisted living facility and/or
independent living facility, as applicable;
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(f) copies of property tax bills, utility bills, and similar
records for the past year;
(g) operating statements, financial statements (for year-end 1997,
1998 and interim 1999) and such other documents as may be material to a
financial evaluation of the Property; and
(h) a copy of the three most recent Medicaid surveys and/or other
governmental inspection reports for each of the Facilities (which shall
include all licensure and/or certification and/or complaint surveys), along
with any outstanding or proposed plans of correction.
ARTICLE IV
OBLIGATIONS OF SELLER AFTER CLOSING
4.1 Obligations of Seller After Closing.
(a) Sellers Obligations. Except for such expenses as are prorated
pursuant to Section 6.2 below, Sellers shall be responsible for payment of all
charges, bills and invoices for utilities, labor, goods, materials and
services of any kind relating to the Property for the period prior to the
Closing.
(b) Cooperation of Sellers after the Closing. Upon Buyer's or any
Buyer's Designee's request, Sellers shall cooperate with Buyer or such Buyer's
Designee in obtaining any and all permits, licenses, authorizations, and other
governmental approvals necessary for the operation of the Property.
ARTICLE V
CLOSING AND CONDITIONS
5.1 Closing Conference. The Closing shall take place at the Closing
Conference on or before the Closing Date.
5.2 Delivery to Title Company.
(a) Deliveries by Sellers. On or before the Closing Date Sellers
shall deliver or cause to be delivered to Title Company the following items,
all of which shall be in form and substance acceptable to Buyer and/or Buyer's
Designees, and each of which shall be executed by the applicable Seller (or
other appropriate party) and acknowledged by a notary public where applicable:
(i) a Deed for Central Tampa Facility duly executed and
acknowledged by Central Tampa;
(ii) a Deed for Dania Facility duly executed and acknowledged
by HFLP;
(iii) a Deed for Oak Manor Facility duly executed and
acknowledged by Oak Manor;
(iv) a Deed for Windward Facility duly executed and
acknowledged by Windward;
(v) payoff letters from the holders or claimants of, or with
respect to, any encumbrance or monetary lien affecting the Property (other
than monetary lien in favor of NHP affecting the Property); and
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(vi) any and all transfer declarations or disclosure documents,
duly executed by the appropriate parties, required in connection with the
Deeds by any state, city or county agency having jurisdiction over the
Property or the transactions contemplated hereby.
(b) Deliveries by Buyer. On or before the Closing Date, Buyer
shall deliver to Title Company any closing adjustments and prorations due from
Buyer described in Article VI and set forth on the closing statement, by wire
transfer to Title Company in same day available funds.
(c) Form of Payment of Purchase Price. Sellers acknowledge and
agree that the Purchase Price to be paid hereunder shall be deemed to have
been fully paid and satisfied at Closing by the delivery of a release or
releases from NHP in favor of Sellers and the guarantors under the Loan
Agreement, which fully release Sellers and such guarantors from all of their
respective obligations under the Loan Agreement and the other loan documents
evidencing and/or securing the Loan. Sellers further acknowledge that the
delivery of such release or releases by NHP is contingent upon NHP's ability
to draw upon the full amount of the Letter of Credit and to apply the proceeds
for such Letter of Credit to (i) all amounts due from Sellers to NHP through
the Closing Date under the terms of the Loan Agreement and the other loan
documents (excluding the obligation to make payments of principal, the
obligation to pay Accrued Basic Interest and any increase in the Basic
Interest rate relating thereto), and (ii) certain transaction costs and fees
payable by Sellers under the terms of this Agreement, all as set forth on the
closing statement delivered pursuant to the terms of the Closing Procedure
Letter. In no event shall any of the funds received by NHP from the draw upon
the Letter of Credit be deemed or construed to reduce or repay any portion of
the outstanding principal amount of the Loan.
(d) Closing Procedure Letter. The deliveries to be made to Title
Company under this Section 5.2 shall be made in accordance with and subject to
the Closing Procedure Letter.
5.3 Delivery to Parties at Closing Conference. Upon satisfaction of all
the conditions in the Closing Procedure Letter for recordation of the Deeds
and upon receipt by Buyer and Sellers of written advice from Title Company
that such conditions have been satisfied and that Title Company is prepared to
record the Deeds, disburse funds and issue its unconditional, irrevocable
commitment to issue the Title Policies, the following items are to be
delivered at the Closing Conference:
(a) Items To Be Delivered by Sellers. Sellers shall deliver or
cause to be delivered to Buyer and/or Buyer's Designees the following items,
all of which shall be in form and substance acceptable to Buyer and/or Buyer's
Designees, and each of which shall be executed by the applicable Seller (or
other appropriate party) and acknowledged by a notary public where applicable:
(i) a Bill of Sale for Central Tampa Facility executed by
Central Tampa;
(ii) a Bill of Sale for Dania Facility executed by HFLP;
(iii) a Bill of Sale for Oak Manor Facility executed by Oak
Manor;
(iv) a Bill of Sale for Windward Facility executed by
Windward;
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(v) the Acquisition Guaranty;
(vi) Certificates of Non-Foreign Status executed by each of
Windward, HFLP, Oak Manor and Central Tampa;
(vii) a termination of any existing management agreements with
respect to the Facilities;
(viii) any consents, approvals and other governmental and
quasi-governmental authorizations reasonably required by Buyer and/or Buyer's
Designees relating to the transfer of the Certificates of Need and any other
Permits;
(ix) any information reasonably required to enable Buyer or
Buyer's Designees to take possession of the Property upon Closing; and
(x) such evidence of the due execution, delivery and
authorization of documents executed by any Seller in connection with this
Agreement and the transactions contemplated hereunder as Buyer and/or Buyer's
Designees may reasonably request.
(b) Items To Be Delivered by Buyer. Buyer shall deliver to Sellers
the following items, all of which shall be in form and substance acceptable to
Sellers:
(i) Such evidence of the due execution, delivery and
authorization of documents executed by Buyer in connection with this Agreement
and the transactions contemplated hereunder as Sellers may reasonably request;
and
(ii) A release or releases in favor of Sellers and the
guarantors under the Loan Agreement as described in Section 5.2(c) above.
(c) Items To Be Delivered by Both Buyer and Sellers. Buyer or
Buyer's Designees, as the case may be, and Sellers shall jointly deliver all
notices of change of ownership or other similar notices required by any
governmental or quasi-governmental authority or agency having jurisdiction
over the Property or any portion thereof or any activities occurring on the
Property or deemed reasonably advisable by Buyer and/or Buyer's Designees.
(d) Written Authorization to Close. Upon receipt of the items
described in this Section 5.3, and upon compliance with the other terms and
conditions of this Agreement, Sellers and Buyer shall execute and deliver to
Title Company the Written Authorization to Close; provided, however, Buyer
shall not execute or deliver the Written Authorization to Close if there is a
material change in any representation or warranty of Sellers, and Buyer does
not waive the same in writing.
5.4 Title Insurance. As a condition to Buyer's obligation to
consummate the transactions herein contemplated, Buyer shall receive on the
Closing Date a proforma of each of the Title Policies acceptable to Buyer and
an unconditional, irrevocable commitment from Title Company to issue the Title
Policies in conformity with the aforementioned proformas. Sellers shall
deliver to Title Company such instruments, documents, payments, indemnities,
releases and agreements and shall perform such other acts as Title Company
shall reasonably require in order to issue the Title Policies.
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5.5 Additional Conditions.
(a) Mutual Conditions. In addition to the conditions provided in
other provisions of this Agreement, each party's obligation to perform its
undertakings provided in this Agreement is conditioned upon the following:
(i) Performance by Other Party. The due performance by the
other party of each and every material undertaking and agreement to be
performed by it hereunder (including the delivery by such other party of the
items specified in Sections 5.2 and 5.3 above).
(ii) Representations and Warranties. Each representation and
warranty made by the other party in this Agreement shall be true and correct
in all material respects on the date hereof and at all times up to and
including the Closing Date.
(iii) No Bankruptcy or Dissolution. As of the Closing Date,
none of the following shall have been done by, against or with respect to
Buyer, any Seller (or any Affiliate of any of them), any constituent general
partner in any of the entities that comprise Sellers, or any person or entity
as to which any Seller or its principals have effective management control:
(A) the commencement of a case under Title 11 of the U.S. Code, as now
constituted or hereafter amended, or under any other applicable federal or
state bankruptcy law or other similar law; (B) the appointment of a trustee or
receiver of any property interest; (C) an assignment for the benefit of
creditors; (D) an attachment, execution or other judicial seizure of a
substantial property interest; (E) the taking of, failure to take, or
submission to any action indicating an inability to meet its financial
obligations as they accrue; (F) a dissolution or liquidation; or (G) any
material adverse change in the financial condition of such party.
(b) Conditions to Buyer's Performance. In addition to the
conditions provided elsewhere in this Agreement, Buyer's obligation to perform
its undertakings provided in this Agreement is conditioned upon the following:
(i) Transition Agreements with Buyer or Buyer's Designees.
Sellers shall enter into such agreements with Buyer and/or Buyer's Designees
as are reasonably necessary to facilitate the transfer of operations at the
Property from Sellers to such parties following the Closing (the "Transition
Agreements"). Such Transition Agreements shall include, without limitation,
provisions providing for: (A) assignment and assumption of the Service
Contracts by the applicable transferee, and (B) the matters set forth in
Section 6.2.
5.6 Waiver of Conditions. Any party may at any time or times, in its
sole discretion, waive any of the conditions to its obligations hereunder, but
any such waiver shall be effective only if contained in a writing signed by
such party. No waiver by a party of any breach of this Agreement or of any
warranty or representation hereunder by the other party shall be deemed to be
a waiver of any other breach by such other party (whether preceding or
succeeding and whether or not of the same or similar nature), and no
acceptance of payment or performance by a party after any breach by the other
party shall be deemed to be a waiver of any breach of this Agreement or of any
representation or warranty hereunder by such other party, whether or not the
first party knows of such breach at the time it accepts such payment or
performance. No failure or delay by a party to exercise any right it may have
by reason of the default of the other party shall operate as a waiver of such
default or as a modification of this Agreement nor shall any such failure or
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delay prevent the exercise of any right by the nonbreaching party while the
default continues. Without limiting the generality of the foregoing, in the
event that for any reason any item required to be delivered to Buyer or
Sellers hereunder shall not be delivered when required, then the party
obligated to make such delivery shall nevertheless remain obligated to deliver
the same to the party entitled to receive such delivery provided the other
party delivers a written request for such delivery within six (6) months
following the Closing Date and nothing (including the closing of the
transaction hereunder) shall be deemed a waiver by the party entitled to
receive such delivery of any such requirement, except an express written
waiver or a failure to make such request within the foregoing time period.
5.7 Outside Date. In the event that for any reason the transactions
contemplated hereby shall not be consummated on or before the Closing Date,
either Buyer or Sellers may extend the Closing Date to May 10, 1999, by
delivering written notice of such election to the other parties. In the event
that for any reason the transactions contemplated hereby shall not be
consummated on or before May 10, 1999, then (unless Buyer commences an action
to specifically enforce this Agreement within 30 days thereafter) either Buyer
or Sellers may at any time after the Closing Date, by written notice to the
other parties, terminate this Agreement and the obligations of the parties
hereunder; provided, however, that such termination shall not release any
party from liability for any breach of this Agreement occurring prior to such
termination.
ARTICLE VI
COSTS AND PRORATIONS
6.1 Closing Costs.
(a) Sellers' Costs. Sellers shall pay:
(i) any and all broker's fees or similar fees claimed by any
party employed by any Seller in connection with the transactions contemplated
herein;
(ii) Sellers' legal, accounting and other professional fees and
expenses and the cost of all opinions, certificates, instruments and documents
required to be delivered, or to cause to be delivered, by Sellers hereunder,
including, without limitation, the cost of all performances by each Seller of
its respective obligations hereunder;
(iii) any and all state, municipal or other documentary,
transfer, sales or use taxes payable in connection with the delivery of any
instrument or document provided in or contemplated by this Agreement, any
agreement or commitment described or referred to herein or the transactions
contemplated herein;
(iv) one-half of all escrow fees and charges;
(v) the charges for or in connection with the recording and/or
filing of any instrument or document provided herein or contemplated by this
Agreement or any agreement or document described or referred to herein; and
(vi) all expenses of or related to the issuance of the Title
Policies.
(b) Buyer's Costs. Buyer shall pay:
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(i) any and all broker's fees or similar fees claimed by any
party employed by Buyer in connection with the transactions hereunder;
provided, however, Buyer shall not be deemed to have employed any party by
merely receiving information concerning Sellers, the Property or related to
the transactions contemplated hereunder or by executing any agreement to hold
such information confidential;
(ii) one-half of all escrow fees and charges;
(iii) all costs of any ALTA surveys, any site inspections or
environmental audits required by Buyer and relating to the Property; and
(iv) Buyer's legal, accounting and other professional fees and
expenses and the cost of all certificates, instruments and documents required
to be delivered by Buyer hereunder, including, without limitation, the cost of
all performances by Buyer of its obligations hereunder.
6.2 Transfer of Operations and Prorations. Sellers acknowledge that
pursuant to Section 5.5(b)(i) and as a condition to the Closing, the
operations of the Facilities are to be transferred directly from Sellers to
Buyer and/or Buyer's Designees at Closing pursuant to the terms of the
Transition Agreements. The Transition Agreements shall set forth the specific
terms under which the physical operations of the Facilities are to be
transferred to such parties and shall provide for, among other things: (i) the
proration of the income and expenses for each of the Facilities; and (ii) the
preparation of a statement of cash in hand in the operating accounts for the
Facilities, and other cash accounts maintained by Sellers with respect to the
Property, all of which shall be set forth in a final accounting of the
prorations specified therein (an "Operating Settlement Statement"), subject to
the following:
(a) Taxes. All general real estate and ad valorem personal
property taxes and assessments shall be prorated as of the Closing Date using
the latest available tax rates and assessments. Sellers shall be responsible
for all general real estate and ad valorem personal property taxes and all
special taxes or assessments accruing with respect to the Property for all
periods prior to and through the Closing Date and Buyer or any Buyer's
Designees shall be responsible for all such taxes and assessments which accrue
after the Closing Date.
(b) Utilities. Sellers shall notify all utility companies
servicing the Property of the anticipated change in ownership of the Property
and request that all billings after the Closing be made to Buyer or Buyer's
Designee (if so requested by Buyer) at the address of the Facility being
serviced. Utility meters will be read, to the extent that the utility
companies will do so, during the daylight hours on the calendar day
immediately before the Closing, with charges accruing prior to the Closing
Date paid by Sellers and charges accruing thereafter paid by Buyer or Buyer's
Designee, as the case may be.
(c) Patient Agreements and Service Contracts. All accrued income
and expenses with respect to the Patient Agreements and Service Contracts
which continue to affect the Property after the Closing will be prorated as of
the Closing Date.
(d) Reservations. Buyer agrees to cause the Buyer's Designees to
honor all reservation agreements and deposits for dates after the Closing.
Buyer authorizes Sellers to continue to accept reservations for units and beds
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at the Property for periods after the Closing, provided the terms and
conditions of the reservations are in the ordinary course of Sellers'
business, and Buyer agrees to cause the Buyer's Designees to honor all such
reservations in accordance with their terms. Any pre-closing deposits made to
Sellers with respect to confirmed reservations for dates after the Closing
will be credited to Buyer or such Buyer's Designees (if so requested by
Buyer). Any post-closing deposits received by Sellers with respect to
confirmed reservations for dates after the Closing shall be forwarded to Buyer
or the applicable Buyer's Designee (if so requested by Buyer) upon receipt by
Sellers.
(e) Accounts Payable and Expenses. Subject to the Transition
Agreements, all unpaid accounts payable and expenses relating to operations of
the Property (i.e., accounts payable and expenses arising from items not a
part of inventory (e.g., energy, utilities, insurance, advertising, trade
association dues, subscriptions, etc.) or services provided (e.g., by
employees, independent contractors, professionals and other consultants, by
vendors pursuant to Service Contracts, etc.)) prior to the Closing shall be
paid by Sellers.
(f) Employees. Periodic employee compensation (accrued through the
Closing Date), accrued vacation pay and other employee benefits that employees
of Sellers are entitled to shall be paid by Sellers to those employees upon
Closing. Sellers shall be fully responsible following the Closing for any
unpaid employee benefits, severance obligations and liabilities of Sellers'
employees, and shall indemnify, defend and hold harmless Buyer and Buyer's
Designees with respect to all claims related thereto.
(g) Inventory. The Purchase Price shall include all items on hand
at the Property as of the Closing Date (including open and unopened items)
normally inventoried at the Property on a monthly or quarterly basis
including, but not limited to, all glass, china, linen and silver, all food
and beverages, all medical, pharmaceutical and operating supplies, as well as
all other personal property, furniture, fixtures and equipment located at the
Property as of the Closing Date.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1 Representations and Warranties of Sellers. In order to induce Buyer
to enter into this Agreement, each Seller represents and warrants to Buyer as
follows which representations and warranties shall be true and correct without
exception as of the date hereof and as of the Closing Date:
(a) Title. Sellers have good, marketable (and insurable with
respect to the Land and Improvements) title to, and the entire right, title,
and interest in, the Facilities, free and clear of any and all leases, liens,
encumbrances or other liabilities, subject only to the Permitted Exceptions
and the Patient Agreements approved by Buyer.
(b) Utilities. The Facilities have available to their respective
boundaries adequate utilities, including, without limitation, adequate water
supply, storm and sanitary sewage facilities, telephone, gas, electricity and
fire protection, as is required for the operation of each of the Facilities as
a skilled nursing facility, assisted living facility and/or independent living
facility, as applicable.
(c) [Intentionally deleted].
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(d) Compliance.
(i) Sellers have obtained all approvals, licenses, permits and
other permissions related to the operation of the Facilities for their current
use as are required under any applicable Laws (including, without limitation,
any such approvals with respect to any licenses or Certificates of Need with
respect to each of the Facilities).
(ii) Sellers have and shall maintain all Permits and all other
consents, approvals, licenses, permits and other permissions related to the
operation of the Facilities for their current and intended use Intended Use as
are required under any Business Agreements or applicable Laws (including,
without limitation, any such approvals with respect to any Certificates of
Need with respect to each of the Facilities).
(iii) Notwithstanding the foregoing in (i) and (ii) above, if
any additional consents, approvals, licenses, permits or other permissions are
required in connection with the operation of the Facilities for their current
and intended use, Sellers hereby agrees that Sellers shall, as promptly as
practical, use their reasonable best efforts to obtain all such additional
consents, approvals, licenses, permits and other permissions related to such
use and required under any Business Agreement or applicable Laws.
(iv) The licences and certifications are in full force and
effect, and Sellers have received no notice that, and after due inquiry
Sellers have no knowledge that the transactions contemplated herein will in
any way jeopardize or threaten the validity of the licenses and
certifications.
(e) Zoning. To the best knowledge of Sellers, the Facilities are
properly and fully zoned for their current use and the Facilities and the
operation and use thereof, including, without limitation, all boundary line
adjustments to the Facilities, comply in all material respects with all
applicable Laws (including, without limitation, those Laws which govern the
subdivision of real property).
(f) No Notices of Non-Compliance. Sellers have not received any
notice that and Sellers have no knowledge that (a) any government authority or
any employee or official thereof considers that the operation or use of any
one or more of the Facilities for its current use to have failed or will fail
to comply with any Laws (excluding any notices of correction or other
statements of non-compliance arising out of the routine licensing survey
process), (b) any investigation has been commenced or is contemplated
respecting any such possible or actual failure of the operation or use of any
one or more of the Facilities for such use to comply with any Laws, and (c)
there are any unsatisfied requests for repairs, restorations or alterations
with regard to any one or more of the Facilities (excluding repair work in
progress at Central Tampa) from any Person, including, but not limited to, any
lender, insurance carrier or government authority.
(g) Due Authorization, Execution, Organization, etc.
(i) This Agreement is, and on the Closing Date will be, duly
authorized, executed and delivered by and is binding in accordance with its
terms upon Sellers, subject to the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general application and of
legal or equitable principles generally and covenants of good faith and fair
dealing.
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(ii) Windward is a duly organized, validly existing Georgia
corporation and is in good standing to do business in the State of Georgia.
HFLP is a duly organized, validly existing Louisiana limited partnership and
is in good standing to do business in the State of Florida. Oak Manor and
Central Tampa are duly organized, validly existing Florida limited
partnerships and are in good standing to do business in the State of Florida.
Sellers have the power and authority to enter into this Agreement.
(iii) Neither this Agreement nor any agreement, document or
instrument executed or to be executed in connection with this Agreement, nor
anything provided in or contemplated by this Agreement or any such other
agreement, document or instrument, does now or shall hereafter breach,
invalidate, cancel, make inoperative or interfere with, or result in the
acceleration or maturity of, any agreement, document, instrument, right or
interest, affecting or relating to Sellers or the Facilities.
(h) True, Correct and Complete Information.
(i) To the best of Sellers' knowledge, all documents, plans,
surveys and other data or information prepared by parties other than Sellers
or Sellers' agents or employees and provided to Buyer in connection herewith,
are true, correct and complete in all material respects and disclose all
material facts with no material omissions with respect thereto.
(ii) All documents and other data or information prepared by
Sellers or Sellers' agents or employees and delivered to Buyer in connection
herewith are true, correct and complete in all material respects with no
material omissions with respect thereto.
(i) Existing Agreements. There are no material agreements or
understandings (whether written or oral) to which Sellers are a party or are
bound, including, without limitation, any Business Agreements, relating to any
one or more of the Facilities or the operation or use thereof other than the
Permitted Exceptions and those documents and instruments which have been
delivered by Sellers to Buyer prior to the Closing Date pursuant to Section
3.1.
(j) Loan Defaults.
(i) There are no defaults or other outstanding obligations of
Sellers under the Loan Agreement and the other Loan Documents (as defined in
the Loan Agreement) (excluding any obligation to pay the principal amount of
the Loan) that will not be satisfied by the proceeds of the Letter of Credit
applied to such obligations pursuant to the settlement agreement and mutual
release to be executed concurrently with the Closing among NHP, Sellers and
the guarantors under the Loan Agreement.
(ii) Sellers are not in default with respect to any of their
material obligations or liabilities pertaining to any one or more of the
Facilities.
(k) Litigation; Condemnation. Except for the matter of Gloworth,
Inc. v. NewCare Health et al, Case No. 98-2244-C-I-15, 6th Judicial County,
Pinellas County, Florida, there are no material actions, suits or proceedings
pending or threatened before or by any judicial, administrative or union body,
any arbiter or any governmental authority, against or affecting Sellers or the
Facilities or any portion thereof. There are no existing, proposed or
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threatened eminent domain or similar proceedings which would affect the Land
or Improvements in any manner whatsoever.
(l) No Taxes or Utilities Due. Excluding any property taxes and
other costs to be paid at Closing, Sellers are not in default in the payment
of any and all insurance premiums relating to the Facilities, real and
personal property taxes and assessments on the Facilities and the cost of all
gas, water, electricity, heat, fuel, sewer, telecommunications and other
utilities relating to the Facilities.
(m) Taxes or Special Assessments. No taxes or special assessments
against the Property exist, except for those shown as existing liens by the
public records.
(n) Employee Benefit Plans.
(i) Sellers and each of their ERISA Affiliates are in
compliance in all material respects with all applicable provisions and
requirements of ERISA and the regulations and published interpretations
thereunder with respect to each Employee Benefit Plan, and have performed all
their obligations under each Employee Benefit Plan.
(ii) No ERISA Event has occurred.
(iii) Except to the extent required under Section 4980B of
the Code, no Employee Benefit Plan provides health or welfare benefits
(through the purchase of insurance or otherwise) for any retired or former
employees of Sellers or any of their ERISA Affiliates.
(o) Union Agreements. Sellers have delivered to Buyer true and
correct copies of all collective bargaining and other agreements with labor
unions or other employee groups or associations which include Sellers'
operations at the Facilities.
(p) Hazardous Materials Representations. The Facilities and their
current use do currently, and will at all times through the Closing Date
continue to, comply in all material respects with all applicable Laws
including, without limitation, all Laws relating to Hazardous Materials.
(q) Patient Agreements. The Patient Agreements are in full force
and effect according to the terms set forth therein. There are no uncured
defaults on the part of any Seller and, to the best of each Seller's
knowledge, by a resident under the Patient Agreements and, to the best of each
Seller's knowledge, no resident has asserted, or has any defense to, offsets
or claims against rent payable or obligations under its Patient Agreement.
All of Sellers' obligations under the Patient Agreements which accrue prior to
the Closing will have been performed as of the Closing Date. Sellers have no
reason to believe that any resident is or may become unable or unwilling to
perform any or all of the resident's obligations under its Patient Agreement.
To the best of each Seller's knowledge, no claim, controversy, dispute,
quarrel or disagreement exists between any resident and any Seller.
(r) No Intangible Property. Other than any right Sellers may have
to use the name of the Facilities, and other than the Permits required for
such use, there is no Intangible Property owned or held by any third party
necessary in any material way to the use or operation of the Property.
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(s) No Further Action by Partners. Central Tampa, HFLP and Oak
Manor have each obtained all approvals and consents of its respective partners
as are required pursuant to its respective partnership agreement and
applicable laws to enter into this Agreement, the documents contemplated
hereunder and to consummate the transactions contemplated hereunder, and no
further consents, approvals or notices to or from its respective constituent
partners are required to consummate the transactions contemplated hereunder.
7.2 Representations and Warranties of Buyer. Buyer represents and
warrants to Sellers as follows which representations and warranties shall be
true and correct without exception as of the date hereof and as of the Closing
Date:
(a) This Agreement and all agreements, instruments and documents
herein provided to be executed or to be caused to be executed by Buyer are and
on the Closing Date will be duly authorized, executed and delivered by and are
binding upon Buyer, subject to the effect of bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general application and by
legal or equitable principles relating to, limiting or affecting the
enforceability of creditors' rights generally.
(b) Buyer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and duly authorized and
qualified to do all things required of it under this Agreement.
(c) Buyer has the authority to enter into this Agreement and
consummate the transactions herein provided and nothing prohibits or restricts
the right or ability of Buyer to close the transactions contemplated hereunder
and carry out the terms hereof.
7.3 Indemnifications.
(a) Indemnification by Sellers. Sellers shall jointly and
severally hold harmless, indemnify and defend Buyer, Buyer's Designees and the
Property from and against any Claim that (i) is inconsistent with (or results
from any actual or alleged fact that is inconsistent with) any representation
or warranty of any Seller contained in this Agreement or in any document
executed in connection with this Agreement, (ii) results from any breach or
default by any Seller under this Agreement, or (iii) arises out of the
negligent or intentional act or omission of any Seller, to the extent such
Claim arises out of such negligent or intentional act or omission occurring
prior to the Closing Date. Nothing in this Agreement shall be construed to
relieve any Seller of any liability which such Seller may have to Buyer or
Buyer's Designee under any Laws relating to Hazardous Materials, including,
without limitation, any Claims arising out of any Environmental Activities
described in any environmental assessments of the Land in the possession of
Buyer or delivered to Buyer or Buyer's Designees by Sellers.
(b) Indemnification by Buyer. Buyer shall hold harmless, indemnify
and defend Sellers from and against any Claim that (i) is inconsistent with
(or results from any actual or alleged fact that is inconsistent with) any
representation or warranty of Buyer contained in this Agreement or in any
document executed in connection with this Agreement, (ii) results from any
breach or default by Buyer under this Agreement, or (iii) arises out of the
negligent or intentional act or omission of Buyer, to the extent such Claim
arises out of such negligent or intentional act or omission of Buyer,
occurring after the Closing Date or occurring during the course of Buyer's
inspection of the Property prior to the Closing Date.
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(c) General Indemnity Provisions. Each indemnity provided for
under this Agreement shall be subject to the following provisions:
(i) The indemnity shall cover the costs and expenses of the
indemnitee, including reasonable attorneys' fees and costs (including expert
fees), related to any actions, suits or judgments incident to any of the
matters covered by such indemnity.
(ii) The indemnitee shall notify the indemnitor of any Claim
against the indemnitee covered by the indemnity within one hundred eighty
(180) days after it has notice of such Claim, but failure to notify the
indemnitor shall in no case prejudice the rights of the indemnitee under this
Agreement unless the indemnitor shall be prejudiced by such failure and then
only to the extent the indemnitor shall be prejudiced by such failure. Should
the indemnitor fail to discharge or undertake to defend the indemnitee against
such liability upon learning of the same, then the indemnitee may settle such
liability, and the liability of the indemnitor hereunder shall be conclusively
established by such settlement, the amount of such liability to include both
the settlement consideration and the reasonable costs and expenses, including
attorneys' fees and costs (including expert fees), incurred by the indemnitee
in effecting such settlement.
(iii) The indemnity shall also run in favor of any officer,
director, employee, advisor, accountant, attorney, partner or shareholder of
the indemnitee or any person or entity having a direct or indirect ownership
interest in the indemnitee.
ARTICLE VIII
MISCELLANEOUS
8.1 Brokers and Consultants. Each Seller and Buyer represent and
warrant to the other parties hereto that no broker or finder has been engaged
by such party in connection with any of the transactions contemplated by this
Agreement. In the event of a claim for broker's or finder's fee or
commissions in connection herewith based upon any agreement inconsistent with
the foregoing representations and warranties by each Seller and Buyer, the
party hereto which is alleged to have engaged or otherwise retained a broker
or finder shall indemnify and defend the other parties hereto from such claim.
For purposes of this Section 8.1, Buyer shall not be deemed to have engaged
any broker or finder by merely receiving information concerning Sellers, the
Property or related to the transactions contemplated hereunder or by executing
any agreement to hold such information confidential.
8.2 Survival. All warranties, representations, covenants, obligations
and agreements contained in this Agreement shall survive the Closing hereunder
and the transfer and conveyance of the Property hereunder and any and all
performances hereunder. All warranties and representations shall be effective
regardless of any investigation made or which could have been made.
8.3 Further Instruments. Each party will, whenever and as often as it
shall be reasonably requested so to do by the other, cause to be executed,
acknowledged or delivered, any and all such further instruments and documents
as may be necessary or proper, in the reasonable opinion of the requesting
party, in order to carry out the intent and purpose of this Agreement.
8.4 Limitation of Liability. No advisor, trustee, director, officer,
employee, accountant, attorney, beneficiary, shareholder, partner, participant
or agent of or in Buyer or Sellers (other than the general partner(s) in the
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entities comprising Sellers) shall have any personal liability, directly or
indirectly, under or in connection with this Agreement or any agreement made
or entered into under or pursuant to the provisions of this Agreement, or any
amendment or amendments to any of the foregoing made at any time or times,
heretofore or hereafter. Sellers and Buyer and their respective successors
and assigns and, without limitation, all other persons and entities, shall
look solely to Sellers' (or the general partners in the entities comprising
Sellers, if applicable) or Buyer's, as applicable, assets for the payment of
any claim or for any performance, and Buyer and Sellers hereby waive any and
all such personal liability except as set forth herein. The limitations of
liability provided in this Section are in addition to, and not in limitation
of, any limitation on liability applicable to Sellers or Buyer, as applicable,
provided by law or by any other contract, agreement or instrument.
8.5 Entire Agreement; Amendments; Captions. This Agreement and the
documents referenced herein contain the entire agreement between the parties
respecting the matters herein set forth and supersede all prior or
contemporaneous agreements or understandings, verbal or written, between the
parties hereto respecting such matters. This Agreement may be amended by
written agreement of amendment executed by both parties hereto, but not
otherwise. Section headings shall not be used in construing this Agreement.
8.6 Consents and Approvals. Except as otherwise expressly provided
herein, any approval or consent provided to be given by a party hereunder may
be given or withheld in the absolute discretion of such party.
8.7 Incorporation of Schedules, Exhibits and Recitals. All schedules
and exhibits attached and referred to in this Agreement and all Recitals set
forth at the beginning of this Agreement are hereby incorporated herein as
fully set forth in this Agreement.
8.8 Time of the Essence; Non-Business Days. Subject to the next full
sentence, time is of the essence of this Agreement. Whenever action must be
taken (including the giving of notice or the delivery of documents) under this
Agreement during a certain period of time or by a particular date that ends or
occurs on a non-business day, then such period or date shall be extended until
the immediately following business day. As used herein, "business day" means
any day other than Saturday, Sunday or a federal holiday.
8.9 Terminology. Whenever the words "including" "include" or "includes"
are used in this Agreement, they should be interpreted in a non-exclusive
manner as though the words ", without limitation," immediately followed the
same. Except as otherwise indicated, all Section and Exhibit references in
this Agreement shall be deemed to refer to the Sections and Exhibits in or to
this Agreement.
8.10 Attorneys' Fees. In the event any legal action or proceeding is
commenced to interpret or enforce the terms of, or obligations arising out of,
this Agreement, or to recover damages for the breach thereof, the party
prevailing in any such action or proceeding shall be entitled to recover from
the non-prevailing party all reasonable attorneys' fees and reasonable costs
and expenses incurred by the prevailing party, including such fees and costs
incurred with respect to appeals, arbitrations and bankruptcy proceedings. As
used herein, "attorneys' fees" shall mean the reasonable fees and expenses of
counsel to the parties hereto, which may include printing, photostating,
duplicating and other expenses, air freight charges, and fees billed for law
clerks, paralegals, librarians and others not admitted to the bar but
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performing services under the supervision of an attorney. The term
"attorneys' fees" shall also include, without limitation, all such fees and
expenses incurred with respect to appeals, arbitrations and bankruptcy
proceedings.
8.11 Cumulative Remedies. No remedy conferred upon any party in this
Agreement is intended to be exclusive of any other remedy herein or by law
provided or permitted, but each shall be cumulative and shall be in addition
to every other remedy given hereunder or now or hereafter existing at law, in
equity or by statute (except as otherwise expressly herein provided).
8.12 Governing Law. This Agreement shall be construed and enforced in
accordance with the internal laws of the State of Florida without regard to
the rules governing choice of law. Notwithstanding the foregoing, any
provisions of this Agreement and the documents contemplated hereunder (or any
disputes arising from such documents) which relate solely to Windward Facility
shall be construed and enforced in accordance with the internal laws of the
State of Georgia without regard to the rules governing choice of law.
8.13 Successors and Assigns. Neither Buyer nor Sellers may assign or
transfer their respective rights or obligations under this Agreement without
the prior written consent of the other party (in which event such transferee
shall assume in writing all of the transferor's obligations hereunder, but
such transferor shall not be released from its obligations hereunder). No
consent given by either party hereto to any transfer or assignment of the
other party's rights or obligations hereunder shall be construed as a consent
to any other transfer or assignment of such other party's rights or
obligations hereunder. No transfer or assignment in violation of the
provisions hereof shall be valid or enforceable. Subject to the foregoing,
this Agreement and the terms and provisions hereof shall inure to the benefit
of and be binding upon the successors and assigns of the parties.
8.14 Notices. Any notice which a party is required or may desire to
give the other shall be in writing and shall be sent by personal delivery or
by any of the following means: (a) United States registered or certified
mail, return receipt requested, postage prepaid; (b) Federal Express or
similar generally recognized overnight carrier regularly providing proof of
delivery; or (c) electronic telecopying (if confirmed in writing sent by
personal delivery or by either of the means specified in (a) or (b) above),
addressed as follows:
To Sellers: To Buyer:
c/o NewCare Health Corporation JJS Properties, Inc.
6000 Lake Forest Drive, Suite 200 c/o Nationwide Health Properties, Inc.
Atlanta, Georgia 30328 610 Newport Center Drive, Suite 1150
Attn: Chris Brogdon & Newport Beach, California 92660
Philip M. Rees, Esq. Attn: President and General Counsel
Facsimile: (404) 255-5789 Facsimile: (949) 759-6887
With Copy To: With Copy To:
Vincent, Berg, Stalzer & Menedez, P.C. Sherry, Coleman & Holthouse LLP
3699 Peachtree Road, N.E., Suite 1400 610 Newport Center Drive, Suite 1200
Atlanta, Georgia 30326 Newport Beach, California 92660
Attn: Gregory P. Youra, Esq. Attn: Kevin L. Sherry, Esq.
Facsimile: (404) 812-5699 Facsimile: (949) 719-1212
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Any notice so given by mail shall be deemed to have been given as of the date
of delivery (whether accepted or refused) established by U.S. Post Office
return receipt or the overnight carrier's proof of delivery, as the case may
be, whether accepted or refused. Any notice so given by electronic
telecopying shall be deemed to have been given as of the date of dispatch by
electronic means. Any such notice not so given as set forth in the two
preceding sentences shall be deemed given upon receipt of the same by the
party to whom the same is to be given. Any party hereto may designate a
different address for itself by notice to the other party in accordance with
this Section 8.14. In the event a party is not a natural person, delivery to
an officer, director or partner of such party shall be deemed delivery to such
party.
8.15 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same document.
8.16 Books and Records. In the event Buyer reasonably requires copies
thereof, each Seller hereby covenants and agrees that it shall cooperate and
comply in a timely fashion with Buyer's reasonable requests for delivery of
any financial documents, instruments, bills, checks, invoices and other books
and records relating to all or any part of the Property.
8.17 Interpretation. Both Buyer and Sellers have been represented by
counsel and this Agreement has been freely and fairly negotiated.
Consequently, all provisions of this Agreement shall be interpreted according
to their fair meaning and shall not be strictly construed against any party.
8.18 No Third Parties Benefitted. This Agreement is made and entered
into for the sole protection and benefit of Buyer and Sellers and their
permitted successors and assigns. Except as hereinafter provided, no other
persons or entities shall have any right of action under this Agreement. The
foregoing language shall not apply to Buyer's Designees, which are hereby made
a third party beneficiary of Sections 4.1(b), 5.5(b)(i), 6.2, 7.1 and 7.3 of
this Agreement, with the right to enforce such Sections of this Agreement.
8.19 Joint and Several Obligations. The obligations of each of the
entities executing this Agreement on behalf of Sellers shall be joint and
several.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
"BUYER"
Witnesses: JJS PROPERTIES, INC.,
a Delaware corporation
/s/ Dennis M. Manez
Name: Denise M. Manez By: /s/ Gary E. Stark
Its: Vice President
/s/ Lezlie F. Sherry
Name: /s/ Lezlie F. Sherry
21
<PAGE>
"SELLERS"
Witnesses: WINDWARD NURSING CENTER, INC.,
a Georgia corporation
/s/ Kathy Pifer
Name: Kathy Pifer By: /s/ Darrell C. Tucker
Its: President
/s/ Kathy Branigan
Name: Kathy Branigan
Witnesses: HEALTHCARE FACILITIES LIMITED PARTNERSHIP
I, a Louisiana limited partnership
/s/ Kathy Pifer By: Equity General Partner, Inc.,
Name: Kathy Pifer a Florida corporation
General Partner
/s/ Kathy Branigan
Name: Kathy Branigan By: /s/ Darrell C. Tucker
Its: President
Witnesses: OAK MANOR NURSING HOME, LTD.,
a Florida limited partnership
/s/ Kathy Pifer By: Equity General Partner, Inc.,
Name: Kathy Pifer a Florida corporation
General Partner
/s/ Kathy Branigan
Name: Kathy Branigan By: /s/ Darrell C. Tucker
Its: President
Witnesses: CENTRAL TAMPA NURSING HOME, LTD., a
Florida limited partnership
/s/ Kathy Pifer By: Equity General Partner, Inc.,
Name: Kathy Pifer a Florida corporation
General Partner
/s/ Kathy Branigan
Name: Kathy Branigan By: /s/ Darrell C. Tucker
Its: President
22
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION OF LAND
WINDWARD
ALL THAT TRACT OR PARCEL OF LAND, TOGETHER WITH ANY AND ALL IMPROVEMENTS
THEREON, SITUATE, LYING AND BEING IN LAND LOT 97 OF THE 8TH DISTRICT G.M.,
HALL COUNTY, GEORGIA, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT AN IRON PIN FOUND ON THE SOUTHEASTERN RIGHT-OF-WAY OF CANTRELL
ROAD, IRON PIN STANDING 1478 FEET MORE OR LESS IN A SOUTHWESTERLY DIRECTION
FROM THE RIGHT-OF-WAY OF GEORGIA STATE HIGHWAY 13; THENCE RUNNING WITH
PROPERTIES OF WAGES, GARNER AND WAGES S 27o 43' 06" E, FOR A DISTANCE OF
700.41 FEET TO AN IRON PIN FOUND; THENCE RUNNING WITH PROPERTY OF ATLANTA ONE
LTD. PARTNERSHIP S 60o 31' 20" W, FOR A DISTANCE OF 400.10 FEET TO AN IRON PIN
FOUND; CONTINUING WITH ATLANTA ONE LTD. PARTNERSHIP N 27o 41' 58" W (BASIS OF
BEARINGS, P.B. 116 PAGE 120) A DISTANCE OF 700.09 FEET TO AN IRON PIN FOUND ON
THE SOUTHEASTERN RIGHT-OF-WAY OF CANTRELL ROAD; THENCE ALONG THE RIGHT-OF-WAY
OF SAID CANTRELL ROAD N 60o 28' 30" E, A DISTANCE OF 399.88 FEET TO THE POINT
OF BEGINNING. CONTAINS 6.427 ACRES MORE OR LESS SHOWN ON A PLAT OF SURVEY
PREPARED BY SMITH-ROBERTS NATIONAL CORPORATION, BEARING THE CERTIFICATION OF
FULTON V. CLINKSCALES, JR. G.R.L.S. NO. 2197, DATED APRIL 29, 1997.
THIS BEING THE SAME PROPERTY CONVEYED BY LIMITED WARRANTY DEED FROM
SOUTHMARK/NATIONAL HERITAGE, INC., A GEORGIA CORPORATION, TO ROBERT W. HAGAN
ON FEBRUARY 22, 1990, AS RECORDED IN DEED BOOK 1444, PAGES 308-310, HALL
COUNTY, GEORGIA DEED RECORDS.
OAK MANOR
A TRACT OF LAND IN THE SOUTHWEST 1/4 OF SECTION 5, TOWNSHIP 30 SOUTH, RANGE 15
EAST, PINELLAS COUNTY, FLORIDA, DESCRIBED AS FOLLOWS:
FROM THE SOUTHWEST CORNER OF SECTION 5, TOWNSHIP 30 SOUTH, RANGE 15 EAST, RUN
NORTH 00o 32' 53" EAST, ALONG THE WEST LINE OF SAID SECTION 5, 337.54 FEET FOR
A POINT OF BEGINNING; THENCE CONTINUE NORTH 00o32'53" EAST, ALONG SAID SECTION
LINE, 300.39 FEET TO A POINT ON THE SOUTHERLY RIGHT-OF-WAY LINE OF INDIAN
ROCKS ROAD (STATE ROAD S-697) AS PER RIGHT-OF-WAY DEED RECORDED IN OFFICIAL
RECORDS BOOK 2191, PAGE 654, OF THE PUBLIC RECORDS OF PINELLAS COUNTY,
FLORIDA; THENCE RUN NORTH 44o49'57" EAST, ALONG THE SAID RIGHT-OF-WAY LINE,
86.58 FEET; THENCE CONTINUE NORTHEASTERLY ALONG SAID RIGHT-OF-WAY LINE ALONG A
CURVE TO THE RIGHT OF 1,382.40 FEET RADIUS (CHORD BEARING NORTH 45o22'54"
EAST, CHORD DISTANCE 26.50 FEET) 26.50 FEET; THENCE RUN SOUTH 33o24'33" EAST,
ALONG THE WESTERLY RIGHT-OF-WAY LINE OF HARBOR HEIGHTS DRIVE AS SHOWN IN PLAT
OF HARBOR HEIGHTS (SEE PLAT BOOK 44, PAGE 50, OF THE PUBLIC RECORDS OF
PINELLAS COUNTY, FLORIDA) 57.86 FEET; THENCE RUN SOUTHERLY CONTINUING ON SAID
RIGHT-OF-WAY LINE ALONG A CURVE TO THE RIGHT OF 50.00 FEET RADIUS (CHORD
BEARING SOUTH 16o25'50" EAST, CHORD DISTANCE OF 29.20), 29.63 FEET; THENCE RUN
SOUTH 00o32'53" WEST, CONTINUING ON SAID RIGHT-OF-WAY LINE, 145.62 FEET;
THENCE RUN SOUTHEASTERLY CONTINUING ON SAID RIGHT-OF-WAY LINE ALONG A CURVE TO
THE LEFT OF 60.00 FEET RADIUS (CHORD BEARING SOUTH 18o43'36" EAST, CHORD
DISTANCE 39.61 FEET), 40.37 FEET; THENCE RUN SOUTH 67o42'06" WEST, ALONG THE
NORTHERLY LINE OF A LOT CONVEYED BY DEED RECORDED IN OFFICIAL RECORDS BOOK
1709, PAGE 35, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA, 57.72 FEET;
THENCE RUN SOUTH 00o39'52" WEST, ALONG THE WESTERLY LINE OF SAID LOT, 100 FEET
TO THE SOUTHWESTERLY CORNER OF SAID LOT; THENCE RUN NORTH 89o20'08" WEST,
ALONG A WESTERLY EXTENSION OF THE SOUTHERLY LINE OF SAID PLAT OF HARBOR
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HEIGHTS, 79.67 FEET TO THE POINT OF BEGINNING; THENCE SOUTH 89o20'08" EAST,
ALONG THE SOUTH LINE OF THE ABOVE MENTIONED LEGAL AND PLAT, 1334.30 FEET TO
THE SOUTHEAST CORNER OF LOT 34, OF SAID PLAT; THENCE ALONG THE EAST LINE OF
SAID PLAT TO THE SOUTH LINE OF HARBOR HEIGHTS MANOR, RECORDED IN PLAT BOOK 49,
PAGE 15, OF THE PUBLIC RECORDS OF PINELLAS COUNTY, FLORIDA, NORTH 00o16'52"
EAST, A DISTANCE OF 219.72 FEET; THENCE SOUTH 46o51'00" EAST, A DISTANCE OF
94.85 FEET; THENCE BY A CURVE TO THE LEFT HAVING A RADIUS OF 280.00 FEET, ARC
OF 380.62 FEET, A CHORD BEARING OF SOUTH 85o47'34" EAST, A CHORD DISTANCE OF
351.98 FEET; THENCE BY A CURVE TO THE RIGHT HAVING A RADIUS OF 114.50 FEET, AN
ARC DISTANCE OF 32.96 FEET, A CHORD BEARING OF NORTH 63o30'39" EAST, A CHORD
DISTANCE OF 32.84 FEET; THENCE SOUTH 00o11'26" WEST, A DISTANCE OF 485.73 FEET
TO THE SOUTH LINE OF SECTION 5, TOWNSHIP 30 SOUTH, RANGE 15 EAST, PINELLAS
COUNTY; THENCE ALONG SAID LINE, NORTH 89o19'54" WEST, A DISTANCE OF 450.00
FEET TO THE SOUTHEAST CORNER OF THE SOUTHWEST 1/4 OF THE SOUTHWEST 1/4 OF
SECTION 5; THENCE CONTINUE ON SAID LINE A DISTANCE OF 1,336.40 FEET TO THE
SOUTHWEST CORNER OF SAID SECTION 5, TOWNSHIP 30 SOUTH, RANGE 15 EAST; THENCE
ALONG THE WEST LINE OF SAID SECTION 5, TOWNSHIP 30, RANGE 15, NORTH 00o32'53"
EAST, A DISTANCE OF 336.70 FEET TO THE POINT OF BEGINNING.
TOGETHER WITH AN EASEMENT FOR INGRESS AND EGRESS AS RECORDED IN OFFICIAL
RECORDS BOOK 3506, PAGE 936, AS AMENDED BY INSTRUMENT RECORDED IN OFFICIAL
RECORDS BOOK 3538, PAGE 356, OF THE PUBLIC RECORDS OF PINELLAS COUNTY,
FLORIDA.
CENTRAL TAMPA
PARCEL 1:
THE EAST 1/2 OF THE NORTHEAST 1/4 OF THE SOUTHWEST 1/4 OF THE NORTHWEST 1/4 OF
SECTION 4, TOWNSHIP 29 SOUTH, RANGE 19 EAST, HILLSBOROUGH COUNTY, FLORIDA,
LESS THE SOUTH 150 FEET; LESS THE NORTH 180 FEET; LESS THE WEST 125 FEET AND
LESS THE EAST 30 FEET FOR RIGHT-OF-WAY FOR 40TH STREET.
PARCEL 2:
THE NORTH 180 FEET OF THE EAST 1/2 OF THE NORTHEAST 1/4 OF THE SOUTHWEST 1/4 OF
THE NORTHWEST 1/4 OF SECTION 4, TOWNSHIP 29 SOUTH, RANGE 19 EAST, LESS THE
WEST 125 FEET AND LESS THE EAST 30 FEET FOR ROAD RIGHT-OF-WAY, ALL LYING IN
HILLSBOROUGH COUNTY, FLORIDA.
DANIA
FROM A POINT ON THE WEST LINE OF SECTION 3, TOWNSHIP 51 SOUTH, RANGE 42 EAST,
WHICH IS 1946.1 FEET SOUTH OF THE NORTHWEST CORNER OF SAID SECTION 3, GO
EASTERLY ALONG THE NORTH LINE OF SW 5TH STREET, AS SHOWN BY THE PLAT OF
COLLEGE TRACT, ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT BOOK 19, PAGE 9,
PUBLIC RECORDS OF BROWARD COUNTY, FLORIDA, A DISTANCE OF 375 FEET TO A POINT
OF BEGINNING, SAID POINT ALSO BEING THE SOUTHWEST CORNER OF LOT 20, BLOCK 8,
OF COLLEGE TRACT 2ND ADDITION, ACCORDING TO THE PLAT THEREOF RECORDED IN PLAT
BOOK 19, PAGE 19, PUBLIC RECORDS OF BROWARD COUNTY, FLORIDA; THENCE CONTINUE
EASTERLY 277.14 FEET TO THE INTERSECTION OF SAID NORTH LINE OF SW 5TH STREET
WITH THE WEST LINE OF PHIPPEN ROAD, AS SHOWN ON SAID PLAT OF COLLEGE TRACT;
THENCE GO NORTHEASTERLY ALONG THE SAID WEST LINE OF PHIPPEN ROAD A DISTANCE OF
206.64 FEET TO THE NORTHEAST CORNER OF LOT 14, OF SAID BLOCK 8; THENCE GO
WESTERLY ALONG A LINE WHICH IS 200 FEET NORTH OF AND PARALLEL TO THE SAID
NORTH LINE OF SW 5TH STREET, A DISTANCE OF 25 FEET; THENCE GO SOUTH 9 FEET;
THENCE GO WEST 10 FEET; THENCE GO NORTH 9 FEET; THENCE CONTINUE WESTERLY 68.34
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FEET TO THE NORTHWEST CORNER OF SAID LOT 14; THENCE GO SOUTHWESTERLY ALONG A
LINE 103.34 FEET WEST OF AND PARALLEL TO THE SAID WEST LINE OF PHIPPEN ROAD A
DISTANCE OF 103.34 FEET; THENCE GO WESTERLY 199.30 FEET ALONG A LINE WHICH IS
100 FEET NORTH OF AND PARALLEL TO THE NORTH LINE OF SW 5TH STREET; THENCE GO
SOUTH 100 FEET TO THE POINT OF BEGINNING. THE SAID DESCRIBED LAND LYING AND
BEING IN THE CITY OF DANIA, BROWARD COUNTY, FLORIDA, AND IN SECTION 3,
TOWNSHIP 51 SOUTH, RANGE 42 EAST, AND ALSO KNOWN AS LOTS 14 TO 20, INCLUSIVE,
BLOCK 8, OF COLLEGE TRACT 2ND ADDITION, ACCORDING TO THE PLAT THEREOF RECORDED
IN PLAT BOOK 19, PAGE 19, PUBLIC RECORDS OF BROWARD COUNTY, FLORIDA.
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<PAGE>
EXHIBIT B
FORM OF BILL OF SALE AND ASSIGNMENT
THIS BILL OF SALE AND ASSIGNMENT is made as of _____________________,
1999, by ___________________________________ ("Seller"), in favor of JJS
PROPERTIES, INC., a Delaware corporation ("Buyer") [OR BUYER'S DESIGNEE],
pursuant to that certain Purchase and Sale Agreement dated as of April ____,
1999, by and among JJS Properties, Inc., a Delaware corporation, as buyer, and
Seller and certain Affiliates of Seller, collectively as sellers (the
"Purchase Agreement"). All initially-capitalized terms used herein and not
otherwise defined herein shall have the same meaning given such terms in the
Purchase Agreement.
FOR VALUE RECEIVED, receipt of which is hereby acknowledged, Seller does
hereby grant, bargain, sell, convey, assign, transfer, set over, deliver to
and vest in Buyer, its successors and assigns forever, all of Seller's right,
title and interest in and to all of the following property, whether now
existing or hereafter arising:
(a) All Fixtures to the real property more particularly described on
Exhibit A attached hereto (the "Real Property");
(b) All of the Personal Property;
(c) All of the Permits;
(d) All Warranties;
(e) All deposits and bonds of Seller relating to the Property or any
portion thereof, including, without limitation, deposits and bonds provided to
any governmental agency for construction, use or operation of the Property;
(f) All original reports, drawings, plans, blueprints, studies,
specifications, certificates of occupancy, building permits and grading
permits relating to all or any part of the Real Property and all amendments,
modifications, supplements, general conditions and addenda thereto. In the
event Buyer reasonably requires copies thereof, Seller hereby covenants and
agrees that it shall cooperate and comply in a timely manner with Buyer's
reasonable requests for delivery of copies of all financial documents,
instruments, bills, checks, invoices and all other books and records relating
to all or any part of the Property;
(g) All of Seller's legal and equitable claims, causes of action, and
rights against the architects, engineers, designers, contractors,
subcontractors, suppliers and materialmen and any other party who has supplied
labor, services, materials or equipment, directly or indirectly, in connection
with the design, planning, marketing, construction, manufacturing or operation
of all or any part of the Property;
(h) All contracts of sale, if any, affecting the Property or any
portion thereof and all deposits in connection therewith; and
(i) All casualty and liability insurance policies.
Seller hereby represents and warrants to Buyer that Seller is the owner
of all right, title and interest in and to the above property, that said
property is free and clear of all liens, charges and encumbrances and that
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Seller has full right, power and authority to sell said property and to make
this Bill of Sale and Assignment. Seller shall warrant and forever defend
title to said property unto Buyer.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale and Assignment
as of the day and year first above written.
"SELLER"
By: ___________________
Name: ___________________
Title: ___________________
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<PAGE>
SCHEDULE TO EXHIBIT B
EXHIBIT A
LEGAL DESCRIPTION OF REAL PROPERTY
B-3
<PAGE>
EXHIBIT C
FORM OF CERTIFICATE OF NON-FOREIGN STATUS
___________________________________ ("Seller"), is the owner of that
certain real property more particularly described in Exhibit A attached hereto
and incorporated herein by this reference (the "Property"). Seller is one of
the Sellers under that certain Purchase and Sale Agreement dated
_______________________, 1999 (the "Purchase and Sale Agreement"), with
respect to the Property, by and among Seller and certain Affiliates of Seller,
collectively as sellers, and JJS PROPERTIES, INC., a Delaware corporation
("JJS"), as buyer.
Section 1445 of the Internal Revenue Code of 1986, as amended (the
"Code") provides that a transferee of a U.S. real property interest must
withhold tax if the transferor is a foreign person. To inform JJS that
withholding of tax will not be required when the Property is transferred
pursuant to the Purchase and Sale Agreement, the undersigned hereby certifies
the following on behalf of Seller:
1. Seller is not a foreign corporation, foreign partnership, foreign
trust, or foreign estate, as those terms are defined in the Code and the
Income Tax Regulations promulgated thereunder;
2. Seller's U.S. employer identification number is
______________________; and
3. Seller's office address is ______________________________________
__________________________________.
Seller understands that this Certification may be disclosed to the
Internal Revenue Service by NHP and that any false statement contained herein
could be punished by fine, imprisonment, or both.
Under penalty of perjury I declare that I have examined this
Certification and to the best of my knowledge and belief it is true, correct
and complete, and I further declare that I have authority to sign this
document on behalf of Seller.
Dated as of:
"SELLER"
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SCHEDULE 1 TO EXHIBIT C
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
C-2
<PAGE>
EXHIBIT D
FORMS OF DEEDS
D-1
<PAGE>
EXHIBIT E
FORM OF CLOSING PROCEDURE LETTER
_____________________, 1999
Chicago Title Insurance Company
c/o, Hughes and White
2000 Riveredge Parkway, Suite 850
Atlanta, Georgia 30328
Attention: Gregory D. Hughes, Esq.
Re: Purchase and Sale Agreement dated April ___, 1999 (the
"Purchase Agreement") by and among WINDWARD NURSING
CENTER, INC., a Georgia corporation; HEALTHCARE FACILITIES
LIMITED PARTNERSHIP I, a Louisiana limited partnership;
OAK MANOR NURSING HOME, LTD., a Florida limited partnership;
and CENTRAL TAMPA NURSING HOME, LTD., a Florida limited
partnership (each a "Seller" and collectively the "Sellers"),
and JJS PROPERTIES, INC., a Delaware corporation ("Buyer");
Your Order No.:_________________
Ladies and Gentlemen:
Please refer to the Purchase Agreement, a copy of which is being
delivered to you with this letter. Except as otherwise defined herein, all
initially-capitalized terms used herein shall have the same meaning given such
terms in the Purchase Agreement.
This letter shall constitute your instructions with respect to the
"Funds" and "Documents" described herein.
A. Delivery of Funds.
On or before _________________________, 1999 (the "Closing Date"), Buyer
shall wire-transfer to you an amount equal to any closing adjustments and
prorations described in Article VI (the "Funds").
B. Delivery of Documents.
1. Delivery of Recordation Documents. On or before the Closing Date,
you shall receive one fully executed and acknowledged original of each of the
following documents (the "Recordation Documents"):
(a) From Sellers, the Deeds referred to in Section 5.2(a) of the
Purchase Agreement (the "Deeds").
2. Delivery of Non-Recordation Documents. On or before the Closing
Date, Sellers shall deliver to you one fully executed original of each of the
following documents (the "Non-Recordation Documents"):
(a) Pay-off letters or demands (the "Pay-Off Letters") from the
then record holders or claimants of any encumbrance or monetary lien affecting
the Property (other than monetary liens affecting the Property in favor of
Buyer), stating the cash amount required to be paid and where and to whom such
amount is to be paid in order to satisfy and discharge of record such
encumbrances.
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3. Delivery and Approval of Closing Statement. On or before the
Closing Date, you shall prepare and Sellers and Buyer shall approve and
execute a closing statement showing the source and application of funds
received by you and the costs and expenses incurred in connection herewith
(the "Closing Statement").
4. Definition of Documents. As used herein, "Documents" shall mean,
collectively, the Recordation Documents, the Non-Recordation Documents and the
Closing Statement.
C. Conditions to Closing.
The Funds shall not be disbursed and the Documents shall not be recorded,
filed or delivered to any person or entity until each of the following
conditions is satisfied:
1. You have received the Funds and are unconditionally and irrevocably
prepared to wire the same in accordance with Paragraph D hereof.
2. You have received the Documents, all of the Documents have been
executed by all of the parties thereto and acknowledged by a notary public
where necessary, and you shall have telecopied the signature pages of such
documents evidencing such execution to Kevin L. Sherry, Esq. at facsimile
number (949) 719-1212.
3. You are unconditionally and irrevocably prepared to record the
Recordation Documents in accordance with Paragraph D hereof.
4. You are unconditionally and irrevocably committed to issue the Title
Policies, together with [LIST OF ENDORSEMENTS], subject only to those
exceptions (the "Permitted Exceptions") which appear on the proforma title
policy attached hereto as Exhibit A.
5. You have received the Written Authorization to Close.
6. You have received all the necessary information for filing the form
then required to be filed pursuant to Section 6045 of the Internal Revenue
Code (the "Information Return") with respect to the transactions contemplated
by the Purchase Agreement and you are unconditionally and irrevocably prepared
to file the same. Buyer and Seller hereby agree, as between themselves, to
cooperate in providing any information within their possession or control that
is necessary for filing. The purchase and sale of the Property is the sale of
"reportable real estate" within the meaning of U.S. Treasury Regulations
Section 1.605-4 (the "Regulations").
YOU ARE THE "REAL ESTATE REPORTING PERSON" WITHIN THE MEANING OF THE
REGULATIONS AND SHALL MAKE ALL REPORTS TO THE FEDERAL GOVERNMENT AS REQUIRED
BY THE REGULATIONS.
7. You have delivered to Buyer and Seller a written confirmation of the
satisfaction of the foregoing conditions in the form of Schedule 2 hereto
(which confirmation shall evidence your agreement to immediately take or cause
to be taken the actions hereinafter set forth). Notwithstanding any failure
or refusal by you to sign and deliver to Buyer and Seller this letter and/or
the written confirmation in the form of Schedule 2, your recordation of any of
the Recordation Documents shall constitute conclusive proof of your
unconditional and irrevocable acceptance of, and agreement to comply with, all
of the instructions set forth in this letter.
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D. Closing.
If the conditions specified in Paragraph C above are satisfied on or
before the Closing Date, then you shall immediately:
1. Record the Recordation Documents in the Official Records of the
applicable counties in Florida and Georgia in the order listed in Paragraph B
above.
2. Wire the respective amounts due to third parties (e.g., lien
holders) under the Closing Statement in accordance with the respective
instructions from such third parties.
3. Wire the amount due each Seller under the Closing Statement in
accordance with the wiring instructions to be provided by such Seller.
4. Wire any amounts due Buyer under the Closing Statement in
accordance with the following wiring instructions (the "Buyer Wiring
Instructions"):
Wells Fargo Bank
420 Montgomery Street
San Francisco, California
ABA No. 121000248
for the benefit of
Nationwide Health Properties, Inc.
Account No. 4692089329
Upon receipt, notify Mark Desmond
by telephone at (949) 718-4412
5. Issue the Title Policies and deliver the same to Sherry, Coleman &
Holthouse LLP, at the address specified in Paragraph E hereof, within 20
business days.
6. File the Informational Return and all other filings and reports
required pursuant to the Regulations and deliver copies of the same to counsel
for Buyer and Sellers (at the respective addresses set forth below) within 3
business days.
E. Delivery of Documents. As soon as they are available, please deliver
the Documents as follows:
1. To Sherry, Coleman & Holthouse LLP, 610 Newport Center Drive, Suite
1200, Newport Beach, California 92660, Attention: Kevin L. Sherry, Esq., the
following:
(a) The recorded original of each of the Recordation Documents;
and
(b) The originals of the remaining Documents.
2. To [Name and Address for delivery of Sellers documents]:
(a) A conformed copy of each of the Recordation Documents; and
(b) A copy of the remaining Documents.
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F. Closing Costs. All closing costs incurred in carrying out your duties
under this letter are to be billed in accordance with Section 6.1 of the
Purchase Agreement.
G. Investment of Funds. As soon as you receive any portion of the Funds,
you shall notify Buyer of such fact. If Buyer gives you written instructions
to do so, you shall invest the Funds in treasury bills (or such other
short-term investment as may be authorized by Buyer) for the benefit of Buyer.
H. Cancellation of Instructions. Notwithstanding anything to the contrary
herein, if the conditions specified in Paragraph C hereof are not satisfied on
or before the Closing Date, then, if you receive written instructions to
cancel this transaction from any one of the undersigned parties hereto, the
instructions set forth in Paragraphs A through E above shall be deemed
canceled, you shall immediately return the Funds and any interest thereon to
Buyer, in accordance with the Buyer Wiring Instructions and you shall destroy
the Documents on the next business day thereafter.
I. Limitation of Liability. You are acting solely as closing agent, and you
shall be liable solely for your failure to comply with the terms of this
letter. The foregoing will not limit your liability as title insurer under
the terms of the Title Policies (such liability being in accordance with the
terms of such policy).
J. Execution by Counterparts; Facsimile Signatures. This letter of
instructions may be executed in two or more counterparts, each of which shall
be an original, but all of which shall constitute one and the same letter of
instructions. You are hereby authorized to accept facsimile signatures on
this letter of instructions as original signatures, and such facsimile
signatures are hereby deemed originals.
K. Interpleader. Buyer and Sellers expressly agree that if they give you
contradictory instructions, you shall have the right, at your election, to
file an action in interpleader requiring the Buyer and Sellers to answer and
litigate their several claims and rights between themselves and you are
authorized to deposit with the clerk of the court all documents and funds held
by you. In the event such action is filed, Buyer and Sellers agree to pay
your cancellation charges and costs, expenses and reasonable attorneys' fees
which you are required to expend or incur in the interpleader action, the
amount thereof to be fixed and judgment therefor to be rendered by the court.
Upon the filing of such an action, you shall be fully released and discharged
from all obligations to perform further any duties or obligations imposed
hereunder.
Very truly yours,
"BUYER"
JJS PROPERTIES, INC.,
a Delaware corporation
By:______________________________
Gary E. Stark, Vice President
"SELLERS"
[Sellers' signature block]
E-4
<PAGE>
ACCEPTED AND AGREED TO
as of the date first
above written:
CHICAGO TITLE INSURANCE COMPANY
By:____________________________
Its:___________________________
E-5
<PAGE>
SCHEDULE 1 TO EXHIBIT E
EXHIBIT A
PRO FORMA TITLE POLICIES
E-6
<PAGE>
SCHEDULE 2 TO EXHIBIT E
EXHIBIT B
CONFIRMATION BY TITLE COMPANY
___________, 1999
JJS Properties, Inc.
c/o Sherry, Coleman & Holthouse LLP
610 Newport Center Drive, Suite 1200
Newport Beach, California 92660
Attention: Kevin L. Sherry, Esq.
Vincent, Berg, Stalzer & Menedez, P.A
3699 Peachtree Road, N.E., Suite 1400
Atlanta, Georgia 30326
Attn: Gregory P. Youra, Esq.
Re: Purchase and Sale Agreement dated April ___, 1999 (the
"Purchase Agreement") by and among WINDWARD NURSING CENTER,
INC., a Georgia corporation; HEALTHCARE FACILITIES LIMITED
PARTNERSHIP I, a Louisiana limited partnership; OAK MANOR
NURSING HOME, LTD., a Florida limited partnership; and CENTRAL
TAMPA NURSING HOME, LTD., a Florida limited partnership (each
a "Seller" and collectively the "Sellers"), and JJS PROPERTIES,
INC., a Delaware corporation ("Buyer"); Your Order
No.:_________________
Ladies and Gentlemen:
Please refer to that certain letter (the "Letter of Instructions")
captioned "CLOSING PROCEDURE LETTER", dated as of _________________________,
1999, from Sellers and Buyer to the undersigned.
Pursuant to Paragraph D of the Letter of Instructions, we hereby confirm
that each of the conditions to disbursement and recordation set forth in
Paragraph C of the Letter of Instructions has been satisfied.
Very truly yours,
CHICAGO TITLE INSURANCE COMPANY
By:_________________________________
Its:________________________________
E-7
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EXHIBIT F
FORM OF WRITTEN AUTHORIZATION TO CLOSE
April __, 1999
Chicago Title Insurance Company
c/o, Hughes and White
2000 Riveredge Parkway, Suite 850
Atlanta, Georgia 30328
Attention: Gregory D. Hughes, Esq.
Re: Purchase and Sale Agreement dated April ___, 1999 (the
"Purchase Agreement") by and among WINDWARD NURSING CENTER,
INC., a Georgia corporation; HEALTHCARE FACILITIES LIMITED
PARTNERSHIP I, a Louisiana limited partnership; OAK MANOR
NURSING HOME, LTD., a Florida limited partnership; and
CENTRAL TAMPA NURSING HOME, LTD., a Florida limited partner-
ship (each a "Seller" and collectively the "Sellers"), and
JJS PROPERTIES, INC., a Delaware corporation ("Buyer"); Your
Order No.:_________________
Ladies and Gentlemen:
You are hereby authorized to comply with the instructions delivered to
you in our Closing Procedure Letter dated _____________________, 1999.
Please confirm your receipt hereof and compliance with the
aforementioned instructions by contacting, via telephone, either Kevin L.
Sherry, Esq., at (949) 719-2190 or Andrew P. Hanson, Esq., at (949) 719-2199.
This Written Authorization to Close may be executed in several
counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same document.
"BUYER"
JJS PROPERTIES, INC.,
a Delaware corporation
By:_________________________________
Gary E. Stark, Vice President
"SELLERS"
[Sellers' signature block]
F-1
