EXHIBIT 2.1
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
HEALTHCARE PROPERTIES, LP
("SELLER")
AND
HHC ROUND ROCK NC, LP
("BUYER")
DECEMBER ____, 2001
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS...................................................................................1
ARTICLE 2 AGREEMENT OF PURCHASE AND SALE................................................................5
2.1 Agreement to Purchase and Sell................................................................5
ARTICLE 3 CLOSING AND CONDITIONS........................................................................5
3.1 Closing Conference............................................................................5
3.2 Delivery to Title Company.....................................................................5
3.3 Title Insurance and Survey....................................................................6
3.4 Additional Conditions.........................................................................6
3.5 Waiver of Conditions.........................................................................10
3.6 Non-Competition Agreement....................................................................10
3.7 Closing Date Extension.......................................................................10
ARTICLE 4 COSTS AND PRORATIONS.........................................................................10
4.1 Closing Costs................................................................................10
4.2 Prorations...................................................................................11
4.3 Default......................................................................................12
ARTICLE 5 REPRESENTATIONS AND WARRANTIES...............................................................12
5.1 Representations and Warranties of Seller.....................................................12
5.2 Representations and Warranties of Buyer......................................................14
5.3 Indemnifications.............................................................................15
5.4 No Additional Representations or Warranties by Seller........................................15
ARTICLE 6 MISCELLANEOUS................................................................................17
6.1 Brokers and Consultants......................................................................17
6.2 Survival of Representations and Warranties...................................................17
6.3 Further Instruments..........................................................................17
6.4 Entire Agreement; Amendments; Captions.......................................................17
6.5 Consents and Approvals.......................................................................17
6.6 Time of the Essence; Non-Business Days.......................................................17
6.7 Attorneys' Fees..............................................................................17
6.8 Cumulative Remedies..........................................................................17
6.9 Governing Law................................................................................18
6.10 Successors and Assigns.......................................................................18
6.11 Notices......................................................................................18
6.12 Counterparts.................................................................................18
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Exhibit "A" Property Description
Exhibit "B" ▇▇▇▇ of Sale
Exhibit "C" Form of Closing Certificate
Exhibit "D" Closing Procedure Letter
Exhibit "E" Form of Special Warranty Deed
Exhibit "F" Form of Estoppel Certificate
Exhibit "G" Form of SNDA
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made as of
December _____, 2001, by and between HEALTHCARE PROPERTIES, LP, a Delaware
limited partnership, fka ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Healthcare Properties, LP ("Seller") and
HHC ROUND ROCK NC, LP, a Texas limited partnership ("Buyer").
RECITALS
Seller is the fee owner of that certain parcel of real property more
particularly described in Exhibit "A" attached hereto (the "Land"). The Land is
improved with certain buildings and other Improvements (as hereinafter defined)
and together with the Improvements thereon is operated as a 120-bed long-term
care nursing home (the "Facility"). Seller desires 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 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 agree as follows:
ARTICLE 1
DEFINITIONS
As used herein (including any Exhibits attached hereto), the following
terms shall have the following meanings:
"▇▇▇▇ of Sale" shall mean a ▇▇▇▇ of sale in the form attached as
Exhibit "B" hereto.
"Business Agreement" shall mean any lease, rental agreement, management
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 Seller and relating to all or any portion of
the Property.
"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 Certificate" shall mean a certificate in the form of Exhibit
"C".
"Closing Date" shall mean December 31, 2001, unless extended as
provided herein, or such earlier or later date as shall be hereafter agreed upon
by the parties.
"Closing Procedure Letter" shall mean a letter to the Title Company
executed by Seller and Buyer setting forth directions for the Title Company in
connection with the Closing and in a form to be mutually agreed upon by the
parties and attached hereto as Exhibit "D".
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"Deed" shall mean a special warranty deed substantially in the form of
Exhibit "E" attached hereto, executed by Seller, as grantor, in favor of Buyer,
as grantee, conveying the Land and Improvements to Buyer, subject only to the
Permitted Exceptions.
"Effective Date" shall mean the date the last party hereto executes
this Agreement.
"Escrow Deposit" shall mean Twenty Five Thousand and No/100 Dollars
($25,000) to be delivered to the Title Company within two (2) business days
after the Effective Date of which $100 shall be nonrefundable independent
consideration for Buyer's exclusive option to purchase the Property and the
right for due diligence granted herein.
"Estoppel Certificate" shall mean the Tenant's estoppel certificate in
the form of Exhibit "F".
"Existing Encumbrances" shall have the meaning given such term in
Section 4.1(c).
"Facility" shall mean the 120 licensed bed long-term, care facility.
"Facility Data" shall mean all resident lists, resident leases, cost
reports, employee records, employee welfare and benefit programs, pending
insurance claims of whatsoever nature submitted in behalf of, or against, the
Facility, income statements, and balance sheets for the three prior years plus
for the reporting periods of the current year, other financial data reasonably
requested by Buyer, and other data reasonably requested by Buyer to conduct its,
and that of its investors or lenders, due diligence investigation.
"Fixture" shall mean all property now or upon the Closing Date located
on or about the Property which is attached or appurtenant thereto.
"Hazardous Materials" shall mean any hazardous, toxic or dangerous
waste, substance or material, pollutant or contaminant, as defined for purposes
of the Comprehensive Environmental Response, Compensation and Liability Act of
1980 (42 U.S.C. Section 9601 et seq.), as amended, or the Resource Conservation
and Recovery Act (42 U.S.C. Section 6901 et seq.), as amended, or any other
federal, state or local law, ordinance, rule or regulation applicable to the
Property, or any substance which is toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic, or otherwise hazardous to the
environment or to human health or safety, or any substance which contains
gasoline, diesel fuel or other petroleum hydrocarbons or byproducts,
polychlorinated byphenyls (PCBs), or radon gas, urea formaldehyde, asbestos or
lead.
"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" means all of Seller's right, title and interest
in all Permits and other intangible property or any interest therein now or on
the Closing Date in connection with the Land, the Improvements or the Fixtures,
or any business or businesses now or thereafter conducted by Seller or any
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Lessee thereon or with the use thereof, including all rights of Seller in and to
all contract rights, agreements, trade names, water rights and reservations,
zoning rights, business licenses and warranties (including those relating to
construction or fabrication) related to the Land, the Improvements or the
Fixtures, or any part thereof.
"Land" shall be the real property described on Exhibit "A".
"Laws" means 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, Seller, the
Property or the operation or use thereof.
"Lease" means that certain Hearthstone of Round Rock lease dated
January 31, 2001, between Seller and Tenant.
"Medicaid Beds" means the seventy-seven Medicaid certified beds
certified to the Facility.
"Nursing Home" means the long term care facility located at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇.
"Permits" means all of Seller's right, title and interest in all
permits, Medicaid contracts, licenses, approvals, entitlements and other
governmental and quasi-governmental authorizations including, without
limitation, certificates of occupancy, required in connection with the
ownership, planning, development, construction, use, operation or maintenance of
the Property as a long term care nursing home.
"Permitted Exceptions" shall mean those title exceptions or defects
with respect to the Land and Improvements, those exceptions or defects appearing
as listed exceptions on the Title Policy which have been approved pursuant to
the provisions hereof by Buyer.
"Personal Property" shall mean all Intangible Property and all
furnishings, equipment, tools, machinery, fixtures, appliances and all other
tangible personal property, other than the Fixtures, now or on the Closing Date
located on or about the Land or Improvements or used in connection with the
operation thereof which is owned by Seller.
"Property" means, collectively, the Land and all rights, titles, and
appurtenant interests, the Improvements, the Fixtures, architectural plans for
expansion, the Personal Property, the Intangible Property, the Medicaid Beds and
proceeds thereof. 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 Four Million and No/100
Dollars ($4,000,000.00).
"Real Property" shall mean the Land, the Improvements and the Fixtures.
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"SNDA" shall mean the Subordination, Non-Disturbance and Attornment
Agreement in the form of Exhibit "G".
"Survey" shall mean a current land title survey ("Survey") of the
Property prepared by a registered public land surveyor reasonably acceptable to
Buyer. If the Survey complies with the standards of a Category 1-A, Condition II
survey, as specified by the latest edition of the Manual of Practice for Land
Surveying published by the Texas Surveyors Association, it shall be deemed
acceptable to Buyer, however, Buyer shall retain the right to object to items
disclosed in the Survey. The Survey shall be certified to Buyer and shall
include: (i) the actual boundaries and dimensions of, and area within, the
Property; (ii) a metes-and-bounds field note legal description of the Property;
(iii) the location of any easements, set-back lines, encroachments, overlaps,
roadways or waterways, including volume and page references, if applicable; (iv)
the outside boundaries and dimensions of all improvements; (v) the surveyor's
registered number and seal, the date of the survey, and a certificate reasonably
satisfactory to Buyer; (vi) a statement that the Property has access to and from
a publicly dedicated street or road; (vii) information sufficient to cause the
Title Company to delete (except for "shortages in area") the printed exception
for "discrepancies, conflicts or shortages in area or boundary lines, or
encroachments, or any overlapping of improvements" in the Owner's Title Policy;
and (viii) the actual dimensions of, and area within, any portion of the
Property that has been designated by the Federal Emergency Management
Administration, the U.S. Army Corps of Engineers, or any other governmental
agency or body as being subject to special flooding hazards. For purposes of the
property description to be included in the Deed to be delivered to Buyer, any
field notes prepared by the surveyor shall control any conflicts or
inconsistencies with the description contained in this Agreement, and such field
notes shall be incorporated into this Agreement upon their completion and
approval by Buyer and Title Company.
"Tenant" shall mean Hearthstone Health Center, Inc.
"Tenant ROFR" shall mean Tenant's right of first refusal under the
Lease to purchase the Real Property.
"Title Commitment" shall mean the commitment for an owner's policy of
title insurance in the amount of the Purchase Price setting forth the status of
the title of the Property and showing all liens, claims, encumbrances,
easements, rights-of-way, encroachments, reservations, restrictions, and any
other matters of record affecting the Property. Seller shall additionally
deliver or cause the Title Company to deliver to Buyer (i) a true, complete, and
legible copy of all documents referred to in the Title Commitment, including,
but not limited to, deeds, lien instruments, plats, reservations, restrictions
and easements ("Title Documents"); and (ii) the results of UCC financing
statement searches of the records of ▇▇▇▇▇▇▇▇▇▇ County, Texas, and the Texas
Secretary of State (the "UCC Searches").
"Title Company" shall mean the underwriter of the Title Policy and
shall be Republic Title Company of Texas whose agent is ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇.
"Title Policy" shall mean a Texas Form T-1 Owner's Policy of Title
Insurance, together with such endorsements thereto as are reasonably requested
by Buyer, with liability in the amount of the Purchase Price, dated as of the
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Closing Date, issued by the Title Company, insuring title to the fee interest in
the Real Property in Buyer, subject only to the Permitted Exceptions and to the
standard printed exceptions included therein.
"Warranties" shall mean all of Seller's right, title and interest in
all assignable warranties, representations and guaranties with respect to the
Property, whether express or implied, which Seller now holds or under which
Seller is the beneficiary.
ARTICLE 2
AGREEMENT OF PURCHASE AND SALE
2.1 Agreement to Purchase and Sell. Subject to the Tenant ROFR, Seller
hereby agrees to sell, convey and assign the Property to Buyer, and Buyer agrees
to buy and accept the Property from Seller, on the terms and conditions and for
the Purchase Price as hereinafter set forth.
ARTICLE 3
CLOSING AND CONDITIONS
3.1 Closing Conference. The Closing shall take place in Austin, Texas
at the offices of Title Company's agent, Texas American Title Company, on or
before the Closing Date unless extended as provided herein.
3.2 Delivery to Title Company.
(a) Deliveries by Seller. On or before the Closing Date, Seller shall
deliver or cause to be delivered to Title Company in accordance with the Closing
Procedures Letter, the following monies and items, all of which shall be in form
and substance reasonably acceptable to Buyer, and each of which shall be
executed by Seller and acknowledged by a notary public where applicable:
(i) By bank wire transfer (or credit towards the Purchase
Price), the amount of Seller's income from the Property prorated from
the Closing Date through the end of that current calendar month (the
"Income Proration");
(ii) The duly executed and acknowledged Deed;
(iii) Payoff letters and UCC terminations from the holders or
claimants of, or with respect to, any encumbrance or monetary lien
affecting the Property, other than Permitted Exceptions, stating the
cash amount required to be paid and where and to whom such amount is to
be paid (by bank wire instruction) in order to satisfy and discharge of
record such encumbrances;
(iv) the ▇▇▇▇ of Sale;
(v) A Closing Certificate, dated as of the Closing Date;
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(vi) Resolutions authorizing the transactions described in
this Agreement and confirming the authority of the persons executing
conveyance documents to do so;
(vii) By bank or wire transfer, an amount equal to the 2001
real property and ad valorem taxes due with respect to the Real
Property (provided, such amount may be escrowed pursuant to an escrow
agreement mutually agreeable to the parties), or evidence acceptable to
Buyer that same have been paid in full;
(viii) An assignment of the Lease from Seller to Buyer, and
all tax, insurance and security deposit escrows held by Seller pursuant
to the Lease; and
(ix) The Estoppel Certificate and SNDA, executed by Tenant.
(b) Items To Be Delivered by Buyer. On or before the Closing Date,
except for the Escrow Deposit, Buyer shall deliver to the Title Company, in
accordance with the Closing Procedure Letter, the following items, all of which
shall be in form and substance acceptable to Seller, and each of which shall be
executed by Buyer (or other appropriate party) and acknowledged by a notary
public where applicable:
(i) By bank wire transfer, the amount of the Purchase Price;
and
(ii) A Closing Certificate, dated as of the Closing Date.
(c) Items To Be Delivered by Both Buyer and Seller. Buyer and Seller
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.
3.3 Title Insurance and Survey. As a condition to Buyer's obligation to
consummate the transactions herein contemplated, Buyer shall receive, at
Seller's expense, within five (5) days after the Effective Date the Survey and
an unconditional, irrevocable commitment from the Title Company to issue the
Title Policy Commitment. Seller 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
Policy. Buyer will have five (5) days after receipt of both the Title Policy
Commitment and Survey to object. Failure of Seller to satisfactorily correct
such objections within three (3) days after notice will entitle Buyer to
terminate this Agreement receiving a refund of the Escrow Deposit or to waive
the objections in writing.
3.4 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:
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(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 monies and items specified in Section 3.2).
(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. None of the following
shall have been done by, against or with respect to Buyer or Seller:
(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) the implementation of enforcement procedures by the
Texas Department of Human Services ("TDHS") as to the operation of the
nursing home or withholding of vendor payments.
(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) No Damage. Between the Effective Date and the Closing
Date, inclusive, no destruction of or damage or loss from any cause
whatsoever, shall have occurred with respect to the Property which,
according to Buyer's reasonable estimate, would cost, in the aggregate,
more than Fifty Thousand and No/100 Dollars ($50,000.00) to repair,
restore and replace or would take longer than thirty (30) days to
repair, restore and replace.
(ii) No Taking. No taking, threatened taking (or consideration
by a governmental authority of a taking) of the Land or any material
part thereof by eminent domain shall have occurred which would
materially and adversely affect the value or use of the Property or
portion thereof.
(iii) Approval of Due Diligence Results. On or before five (5)
days from the Effective Date, Buyer shall have received and approved
the following from Seller, if in Seller's possession ("Due Diligence
Material").
(A) an environmental assessment of the Property;
(B) evidence of compliance with all building codes,
zoning ordinances and other governmental entitlements as
necessary for the operation of the Property for the current
and intended use, including without limitations, certificates
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of occupancy, health care provider permits and agreements,
Medicare and Medicaid approvals, licenses and such other
permits, licenses, approvals, agreement and authorizations as
are required for the operation of the Property for the current
and intended use.
(C) Copies of the TDHS survey reports and plans of
correction, if any, for the three (3) prior years and for-the
current year;
(D) Architectural drawings;
(E) The Due Diligence Material, if in Seller's
possession, which shall be delivered by Seller to Buyer within
five (5) days from the Effective Date and supplemented through
the Closing Date;.
(F) Reasonable access and inspection of the Facility
which Seller will provide Buyer after the Effective Date
through the Closing;
(G) A copy of the executed Lease, including all
exhibits and schedules thereto, and Tenant's executed waiver
of the Tenant ROFR; and
(H) Copies of all financial statements and other
financial information in Seller's possession regarding Tenant
and all guarantors of Tenant.
(iv) Approval of Due Diligence Material. Buyer shall have
completed its review of, and shall have approved, all Due Diligence
Material within ten (10) days after the Effective Date and if finding
objections ("Objections") to the Due Diligence Material, Buyer shall
notify Seller in writing of Objections within the same time period.
Seller will have five (5) days to cure Objections to Buyer's
satisfaction. Failure to timely cure the Objections within this time
period will entitle Buyer to either terminate this Agreement within
five (5) days thereafter and receive a return of the Escrow Deposit or
to waive the Objections.
(v) Confidential Information.
(A) Buyer agrees to keep all of the Confidential
Information, whether transmitted orally, in writing or in any
other form, and whether prepared by Seller or its employees,
agents advisors or their representatives, in strict confidence
and shall not disclose it to any third party without the prior
written consent of the Seller, provided, however, that any of
such Confidential Information may be disclosed to a
representative of the Buyer who needs to know such information
for the purpose of evaluating any such possible transaction
between the Buyer and the Seller (it being understood that
such representatives shall be informed of the confidential
nature of such information and shall be directed to treat such
information confidentially). All Confidential Information
transmitted hereunder shall be and remain the property of
Seller. Buyer agrees that the Confidential Information shall
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be used solely for the purpose of evaluating a possible
negotiated transaction between the Seller and the Buyer and
not for any other purpose including using the Confidential
Information in the conduct of the business affairs of Buyer's
business. Buyer agrees to be responsible for a breach of this
Section 3.4(b)(v) by any third party to whom the Buyer has
provided the Confidential Information. Buyer agrees that if
the transaction contemplated by this agreement does not
proceed within a reasonable time, then Buyer shall promptly
deliver to the Seller all written Confidential Information and
any other written material containing or reflecting
Confidential Information and will not retain any copies,
extracts or other reproductions in whole or in part of such
written material. All documents, memoranda, notes and other
writings whatsoever prepared by the Buyer, or respective
representatives, based on the information included in the
Confidential Information shall be promptly destroyed, and such
destruction shall be certified in writing by an authorized
officer of Buyer. Notwithstanding the return or destruction of
any Confidential Information, the Buyer shall continue to be
bound by its obligations of confidentiality and other
obligations hereunder. Buyer hereby acknowledges and agrees
that, in the event of any breach of this Section 3.4(b)(v) by
Buyer or its representatives, including, without limitation,
the actual or threatened disclosure of Confidential
Information without the express prior written consent of
Seller, Seller will suffer irreparable harm and injury and no
remedy at law will afford it adequate protection against, or
appropriate compensation for, such injury. Accordingly, Buyer
hereby agrees that, in any such event, the Seller shall be
entitled to seek specific performance of the Buyer's
obligations under this Section 14(b)(v), as well as such
further injunctive relief as may be granted by a court of
competent jurisdiction. The provisions of this Section
3.4(b)(v) will continue in full force and effect for a two (2)
year period after the execution of this Agreement.
(B) For the purposes of this agreement, the, term
"Confidential Information" shall mean any and all sensitive
business, financial and technical information provided prior
to the execution of this Agreement and to be provided after
the execution of this Agreement by Seller to Buyer, including,
without limitation, financial statements, reports and data,
customer lists, trade secrets, technical data, software, code,
proprietary information, and any other confidential
information regarding the Seller, its affiliates and its
respective businesses.
(C) Seller acknowledges the confidential nature of
this Agreement and agrees not to disclose its terms to third
parties (other than third parties directly engaged by Seller
to assist Seller in evaluating and consummating the
transactions described in this Agreement), including, but not
limited to, competitors, lenders, landlords, employees,
constituents, vendors, hospitals, medical directors, or
residents without the written approval of Buyer.
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3.5 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 delay prevent the exercise of any
right by the nonbreaching party while the default continues.
3.6 Non-Competition Agreement. Seller, its affiliates, assigns or
employees, agree not to compete for a period of twenty-four (24) months with
Buyer in the delivery, directly or indirectly, of skilled nursing services as
provided in the Facility on the Effective Date within the county where the
Property is located or in addition within a twenty-five (25) mile radius of the
Property if the Facility is located within twenty-five (25) miles of the county
boundary. Seller also agrees not to solicit, hire, or retain the service of any
employees or subcontractors of the Nursing Home for the purpose of providing
skilled nursing services for a period of twenty-four (24) months after the
Closing Date within the county where the Property is located or in addition
within a twenty-five (25) mile radius of the Property if the Facility is located
within twenty-five (25) miles of the county boundary, or solicit, directly or
indirectly, either individually or as an employee of another provider, residents
of the Nursing Home to move elsewhere. The parties agree that injunctive
remedies, as well as other legal and equitable remedies, including damages, will
be available to Buyer in the event Seller breaches this covenant not to compete
and Seller agrees to waive all requirements that Buyer post a bond in the event
Buyer must pursue the remedies herein.
3.7 Closing Date Extension. In the event the Tenant ROFR has not
expired, terminated or been waived by Tenant prior to the Closing Date, Seller
may extend the Closing Date to January 31, 2002, by delivering written notice
thereof to Buyer.
ARTICLE 4
COSTS AND PRORATIONS
4.1 Closing Costs.
(a) Seller's Costs. Seller shall pay:
(i) all expenses of the Survey and the issuance of the Title
Policy (not including any Survey amendments or endorsements), and all
escrow fees and charges;
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(ii) 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;
(iii) other than as specifically set forth in Section 6.1, any
and all broker's fees or similar fees claimed by any party employed by
Seller in connection with the transactions contemplated herein; and
(iv) Seller's legal, accounting and other professional fees
and expenses and the cost of all opinions, certificates, instruments,
documents and papers required to be delivered, or to cause to be
delivered, by Seller hereunder, including without limitation, the cost
of all performances by Seller of its obligations hereunder.
(b) Buyer's Costs. Buyer shall pay:
(i) other than as specifically set forth in Section 6.1, any
and all broker's fees or similar fees claimed by any party employed by
Buyer in connection with the transactions hereunder;
(ii) all costs of Buyer's due diligence; and
(iii) Buyer's legal, accounting and other professional fees
and expenses and the cost of all opinions, certificates, instruments,
documents and papers required to be delivered, or to cause to be
delivered, by Buyer hereunder, including without limitation, the cost
of all performances by Buyer of its obligations hereunder.
(c) Existing Encumbrances. The Property is presently encumbered by
certain deeds of trust and certain other security instruments (collectively, the
"Existing Encumbrances"). Seller shall cause the Existing Encumbrances and all
indebtedness secured thereby to be fully satisfied, released and discharged of
record on or prior to the Closing Date (recognizing that Seller may use the
proceeds of the sale contemplated hereby to satisfy the same) so that Buyer
shall take title to the Property free of the Existing Encumbrances.
4.2 Prorations.
(a) Items To Be Prorated. Seller's income and expenses from the
Property shall be prorated between Seller and Buyer on the Closing Date,
computed as of the Closing Date with income and expenses for the Closing Date
itself being allocated to Buyer.
(b) Procedure. In the event any prorations, apportionments or
computations made under this Section 4.2 shall prove to be incorrect for any
reason, then either party shall be entitled to an adjustment to correct the
same, provided that it makes written demand on the one from whom it is entitled
to such adjustment within one hundred twenty (120) days after the Closing Date.
11
(c) Indebtedness. Seller shall pay all amounts which are due or accrue
under the Existing Encumbrances prior to and including the Closing Date,
including, without limitation, all interest accrued on all of the same prior to
and including the Closing Date.
4.3 Default.
(a) Except as otherwise set forth herein, Seller's default under the
terms of this Agreement will entitle Buyer, as its sole remedies, to:
(i) terminate this Agreement and receive a return of the
Escrow Deposit, and/or
(ii) file suit for specific performance.
(b) Buyer's default under the terms of this Agreement will entitle
Seller to terminate this Agreement and retain the Escrow Deposit.
(c) The prevailing party shall be entitled to attorneys' fees and
expenses as described in paragraph 6.7.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties of Seller. Seller represents and
warrants to Buyer the following:
(a) Title. Buyer will acquire hereunder good and indefeasible title to,
and the entire right, title, and interest in, the Property, free and clear of
any and all leases, liens, encumbrances, or other liabilities, subject only to
the Permitted Exceptions.
(b) Utilities. To the best of Seller's knowledge, the Property has
available to its 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 the
Property as a long term care nursing home.
(c) Physical Condition, Completeness.
(i) To the best of Seller's knowledge, the Property has been
constructed in a good, workmanlike and substantial manner, free from
material defects and in accordance with all Laws.
(ii) To the best of Seller's knowledge, the Property is
properly zoned for its current use.
(iii) To the best of Seller's knowledge, the Property, and
each portion thereof, is in good condition and repair and is free from
material defects.
12
(iv) To the best of Seller's knowledge, there are no soil or
drainage conditions adversely affecting the Property.
(d) Lease in Full Effect. The Lease, as currently in effect with all
amendments and modifications thereto, is attached hereto as Schedule 5.1(6). No
default under the Lease exists, on the part of the Seller, or Tenant. As of the
Closing Date, the Tenant ROFR has been satisfied or waived.
(e) Due Authorization, Execution, Organization, Etc.
(i) This Agreement and all agreements, instruments and
documents herein provided to be executed or to be caused to be executed
by Seller are, and on the Closing Date will be, duly authorized,
executed and delivered by and are binding in accordance with their
terms upon, Seller, 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.
(ii) Seller, if other than an individual, is duly organized,
validly existing and in good standing under the laws of the State of
Delaware and is duly qualified to do business in the State of Texas.
Seller has the power and authority to enter into this Agreement and all
agreements, instruments and documents herein provided and to consummate
the transactions contemplated thereby.
(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
Seller or the Property.
(iv) On and immediately after the Closing Date, Seller will be
Solvent. As used in this paragraph, the term "Solvent" means, with
respect to a particular date, that on such date (i) the present fair
market value (or present fair salable value) of the assets of Seller is
not less than the total amount required to pay the probable liabilities
of Seller on its total existing debts and liabilities (including
contingent liabilities) as they become absolute and matured; (ii)
Seller is able to realize upon its assets and pay its debts and other
liabilities, contingent obligations and commitments as they mature and
become due in the normal course of business; and (iii) Seller has not
incurred debts or liabilities beyond its ability to pay such debts and
liabilities as they mature. In computing the amount of such contingent
liabilities at any time, it is intended that such liabilities will be
computed at the amount that, in light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
13
(f) Existing Agreements. There are no material agreements or
understandings (whether written or oral) to which Seller is a party or is bound,
including, without limitation, any Business Agreements, relating to the Property
or the operation or use thereof other than the Lease, Permitted Exceptions and
those documents and instruments which have been delivered to Buyer by Seller
prior to the Closing Date.
(g) Litigation, Condemnation. Seller has received no written notice of
any 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 the Property or any portion thereof. Seller has
received no written notice of any existing, proposed or threatened eminent
domain or similar proceedings which would affect the Land or Improvements in any
manner whatsoever.
(h) No Intangible Property. Other than any right that Seller may have
to use the name of the nursing home located on the Property, there is no
Intangible Property owned or held by Seller necessary in any material way to the
use or operation of the Property.
(i) Nonsolicitation by Seller. Seller will not solicit, directly or
indirectly, residents to relocate from the Facilities to third-party facilities
or other Seller facilities not subject to the terms of this Agreement, from and
after the Effective Date and continuing for a period of twenty-four (24) months
after the Closing Date. Breach of this Seller's representation and warranty
shall entitle Buyer to pursue all judicial and equitable remedies available and
if Buyer prevails, to have Seller pay expenses and reasonable attorney's fees.
(j) Claims. To the best of Seller's knowledge without due inquiry, on
or prior to the Closing Date, there exists no intentional act or omission on the
part of Seller which is or may be the basis of any Claim with respect to the
Property.
5.2 Representations and Warranties of Buyer. Buyer represents and
warrants to Seller as follows:
(a) Execution. 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) Authorization. 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.
(c) Continuing Representation and Warranties. Buyer will reaffirm at
Closing its representations and warranties herein and prior to Closing its
14
representations and warranties herein and prior to Closing will immediately
notify Seller if Buyer discovers that an event, past, present or future, renders
any of the representations and warranties no longer accurate.
(d) Nonsolicitation by Buyer. Buyer, its agents and employees, will
maintain in strict confidence all information obtained pursuant to this
Agreement; will return all information to Seller obtained from Seller or in the
Due Diligence Period to Seller if there is no Closing; and Buyer will not
solicit or hire, directly or indirectly, any of Seller's agents or employees to
work for Buyer for a period of twenty-four (24) months if this transaction does
not close. Breach of this Buyer's representation and warranty will entitle
Seller to pursue all judicial and equitable remedies available and if Seller
prevails, to have Buyer pay expenses and reasonable attorney's fees.
5.3 Indemnifications.
(a) Indemnification by Seller. Seller shall hold harmless, indemnify
and defend Buyer and the Property from and against any Claim that (i) results
from any breach of any representation or warranty of Seller contained in this
Agreement or in any document executed in connection with this Agreement, or (ii)
results from any other breach or default by Seller under this Agreement or in
any document executed in connection with this Agreement.
(b) Indemnification by Buyer. Buyer shall hold harmless, indemnify and
defend Seller from and against any Claim that (i) results from any breach of 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 in any document executed in
connection with this Agreement, or (iii) arises out of the 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, provided
Buyer has actual knowledge of such intentional act or omission, or occurring
during the course of Buyer's inspection of the Property prior to the Closing
Date.
5.4 No Additional Representations or Warranties by Seller. BUYER
ACKNOWLEDGES AND AGREES THAT, EXCEPT AS SPECIFICALLY PROVIDED ABOVE, SELLER HAS
NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS,
WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT
OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO: (A) THE NATURE, QUALITY OR
CONDITION OF THE PROPERTY INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND
GEOLOGY; (B) THE INCOME TO BE DERIVED FROM THE PROPERTY; (C) THE SUITABILITY OF
THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH BUYER MAY CONDUCT
THEREON; (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY
LAWS, RULES, ORDINANCES, OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY
15
OR BODY; (E) THE HABITABILITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR
PURPOSE OF THE PROPERTY; OR (F) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY.
WITHOUT LIMITING THE FOREGOING, AND EXCEPT AS PROVIDED HEREIN, SELLER DOES NOT
AND HAS NOT MADE ANY REPRESENTATION OR WARRANTY REGARDING THE PRESENCE OR
ABSENCE OF ANY HAZARDOUS MATERIALS ON, UNDER OR ABOUT THE PROPERTY OR THE
COMPLIANCE OR NONCOMPLIANCE OF THE PROPERTY WITH THE COMPREHENSIVE ENVIRONMENTAL
RESPONSE, COMPENSATION AND LIABILITY ACT, THE SUPERFUND AMENDMENT AND
REAUTHORIZATION ACT, THE RESOURCE CONSERVATION RECOVERY ACT, THE FEDERAL WATER
POLLUTION CONTROL ACT, THE FEDERAL INSECTICIDE, FUNGICIDE AND RODENTICIDE ACT,
THE CLEAN WATER ACT, THE CLEAN AIR ACT, THE TEXAS NATURAL RESOURCES AND
ADMINISTRATIVE CODES, THE TEXAS WATER CODE, THE TEXAS SOLID WASTE DISPOSAL ACT,
THE TEXAS HAZARDOUS SUBSTANCES SPILL PREVENTION AND CONTROL ACT, ANY SO CALLED
FEDERAL, STATE OR LOCAL "SUPERFUND" OR "SUPERLIEN" STATUTE, OR ANY OTHER
STATUTE, LAW, ORDINANCE, CODE, RULE, REGULATION, ORDER OR DECREE REGULATING,
RELATING TO OR IMPOSING LIABILITY (INCLUDING STRICT LIABILITY) OR STANDARDS OF
CONDUCT CONCERNING ANY HAZARDOUS MATERIALS. BUYER FURTHER ACKNOWLEDGES AND
AGREES THAT, BEING GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY, BUYER WILL BE
PURCHASING THE PROPERTY PURSUANT TO ITS INDEPENDENT EXAMINATION, STUDY,
INSPECTION AND KNOWLEDGE OF THE PROPERTY, AND BUYER IS RELYING UPON ITS OWN
DETERMINATION OF THE VALUE OF THE PROPERTY AND USES TO WHICH THE PROPERTY MAY BE
PUT, AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER. BUYER
FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED
WITH RESPECT TO THE PROPERTY WAS OR WILL BE OBTAINED FROM A VARIETY OF SOURCES
AND THAT, EXCEPT AS PROVIDED HEREIN, SELLER HAS NOT MADE AND WILL NOT BE
OBLIGATED TO MAKE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH
INFORMATION AND, EXCEPT AS PROVIDED HEREIN, SELLER MAKES NO REPRESENTATIONS AS
TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. THE OCCURRENCE OF THE
CLOSING SHALL CONSTITUTE AN ACKNOWLEDGMENT BY BUYER THAT THE PROPERTY WAS
ACCEPTED WITHOUT REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED (EXCEPT FOR THE
SPECIFIC WARRANTIES SET FORTH HEREIN AND THE WARRANTIES OF TITLE SET FORTH IN
THE DEED AND ▇▇▇▇ OF SALE, IF ANY), AND OTHERWISE IN AN "AS IS," "WHERE IS," AND
"WITH ALL FAULTS" CONDITION BASED SOLELY ON BUYER'S OWN INSPECTION. THE PARTIES
AGREE THAT THIS PROVISION WAS A SUBSTANTIAL FACTOR IN DETERMINING THE PURCHASE
PRICE OF THE PROPERTY AND THAT THE ACKNOWLEDGMENTS AND AGREEMENTS OF BUYER SET
FORTH IN THIS PARAGRAPH SHALL SURVIVE THE CLOSING AND SHALL NOT BE MERGED
THEREIN.
16
ARTICLE 6
MISCELLANEOUS
6.1 Brokers and Consultants. Seller represents and warrants to Buyer
that no broker or consultant has been or will be engaged by Seller with respect
to this transaction, other than Capital Realty Group Senior Housing, Inc., which
shall be paid by Seller. Buyer represents and warrants to Seller that no broker
or consultant has been or will be engaged by Buyer with respect to this
transaction other than the ▇▇▇▇ Group, which shall be paid by Buyer.
6.2 Survival of Representations and Warranties. All warranties and
representations contained in Sections 5.1, 5.2 and 6.1 of this Agreement shall
survive the Closing hereunder and the transfer and conveyance of the Property
hereunder and any and all performances hereunder for a period of one (1) year
unless otherwise specified.
6.3 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.
6.4 Entire Agreement; Amendments; Captions. This Agreement contains the
entire agreement between the parties respecting the matters herein set forth and
supersedes 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 thereto,
but not otherwise. Section headings shall not be used in construing this
Agreement.
6.5 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.
6.6 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.
6.7 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 proceedings 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.
6.8 Cumulative Remedies. Except as provided in Section 4.3, no remedy
conferred upon a party in this Agreement is intended to be exclusive of any
other remedy herein or by law provided or permitted, but each shall be
17
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).
6.9 Governing Law. This Agreement shall be construed and enforced in
accordance with the internal laws of the State of Texas, without regard to the
rules governing choice of law.
6.10 Successors and Assigns. Either Buyer or Seller may assign or
transfer its rights or obligations under this Agreement with the prior written
consent of the other party which shall not be unreasonably withheld.
6.11 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
either (i) United States registered or certified mail, return receipt requested,
postage prepaid, or (ii) Federal Express or similar generally recognized
overnight carrier regularly providing proof of delivery, addressed as follows:
To Seller: Healthcare Properties, LP
c/o Capital Realty Group Senior Housing, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
with copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
To Buyer: HHC Round Rock NC, LP
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇ Little
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 such notice not so given shall be deemed given
upon receipt of the same by the party to whom the same into be given. Any party
hereto may designate a different address for itself by notice to the other party
in accordance with this Section 6.11. 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.
6.12 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. Facsimile signatures to this Agreement
shall be effective for all purposes.
Signature Page Follows
18
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
BUYER:
HHC ROUND ROCK NC, LP, its general partner
By: CapWest - Texas, LLC
By:
------------------------------------
Printed Name:
--------------------------
Title:
---------------------------------
SELLER:
HEALTHCARE PROPERTIES, LP
By: Capital Realty Group Senior Housing,
Inc., its general partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Printed Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Title: President
--------------------------
ACKNOWLEDGE RECEIPT OF $____________
AS THE ESCROW DEPOSIT ON ___________, ▇▇▇▇
▇▇▇▇▇▇▇▇ TITLE COMPANY OF TEXAS
By:
---------------------------------------
Printed Name:
-----------------------------
Title:
------------------------------------
19
EXHIBIT "A"
PROPERTY DESCRIPTION
Exhibit A
TRACT 1:
▇▇▇ ▇▇, ▇▇▇▇▇ "▇", ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ SECTION TWO REVISED, a
subdivision in ▇▇▇▇▇▇▇▇▇▇ County, Texas, according to the map or plat thereof
recorded in Cabinet J. Slide(s) 160-161, Plat Records of ▇▇▇▇▇▇▇▇▇▇ County,
Texas.
TRACT 2:
The reciprocal and non-exclusive easements created, defined, and limited by that
certain Reciprocal Easement Agreement dated July 10, 1987, recorded in Volume
1633, Page 61, official Records, ▇▇▇▇▇▇▇▇▇▇ County, Texas, by and between
Lifemark Hospitals, Inc., a Delaware corporation, and National Living Centers,
Inc. dba ARA Living Centers, a Delaware corporation, in over, upon and under the
properties described in Exhibits "A", "B" and "C" of said agreement.
EXHIBIT "B"
▇▇▇▇ OF SALE
▇▇▇▇ OF SALE
THE STATE OF TEXAS ss.
ss. KNOW ALL PERSONS BY THESE PRESENTS:
COUNTY OF TRAVIS ss.
That Healthcare Properties, LP, a Delaware limited partnership, flea
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Healthcare Properties, LP ("Grantor") for and in consideration of
Ten and No/100 Dollars ($10.00) and other good and valuable consideration to
Grantor in hand paid by HHC Round Rock NC, LP, a Texas limited partnership
("Grantee") the receipt of which is hereby acknowledged, has BARGAINED, SOLD AND
DELIVERED, and by these presents does BARGAIN, SELL AND DELIVER, unto the said
Grantee all of Grantor's rights, titles, and interests in and to the following
described personal property in ▇▇▇▇▇▇▇▇▇▇ County (collectively, the "Personal
Property"), to wit:
(a) any and all buildings, improvements, structures, and tenements (the
"Improvements" now or hereafter attached to or placed, erected, constructed, or
developed on the real property described in more detail on Exhibit "A" attached
hereto (the "Real Property");
(b) all equipment, fixtures, furnishings, inventory, building
materials, and articles of personal property (the "Personalty") attached to or
used in or about the Improvements;
(c) all water and water rights, timber, crops, and mineral interests
pertaining or allocable to the Real Property;
(d) all plans and specifications for the Improvements;
(e) all rights under any documents, contracts, contract rights,
accounts, commitments, construction contracts (and all payment and performance
bonds, statutory or otherwise, issued by any surety in connection with any such
construction contracts, and the proceeds of such bonds), architectural
contracts, engineering contracts, and general intangibles arising from or by
virtue of any transactions related to the Real Property, the Improvements, or
the Personalty; and
(f) all other interests of every kind and character that Grantor now
has in and to the Real Property, Improvements and Personalty and all property
that is used or useful in connection therewith, including rights of ingress and
egress and all reversionary rights or interests of Grantor with respect to such
property.
This ▇▇▇▇ of Sale is made and accepted free of any liens and security
interests affecting the Personal Property.
TO HAVE AND TO HOLD the aforesaid Personal Property unto Grantee, its
successors and assigns forever, and Grantor does hereby bind itself, its
successors and assigns, to forever WARRANT and DEFEND the title to the Personal
Property unto the said Grantee, its successors and assigns, against any person
whomsoever lawfully claiming, or to claim the same, or any part thereof, by,
through or under Grantor, but not otherwise.
EXECUTED on December _____, 2001.
GRANTOR:
HEALTHCARE PROPERTIES, LP
By: Capital Realty Group Senior Housing,
Inc., its general partner
By:
------------------------------------
Printed Name:
--------------------------
Title:
---------------------------------
EXHIBIT "C"
FORM OF CLOSING CERTIFICATE
COMPLIANCE CERTIFICATE
THIS COMPLIANCE CERTIFICATE is made as of the _____ day of December,
2001, by Healthcare Properties, LP, a Delaware limited partnership, fka
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Healthcare Properties, LP ("Seller") to HHC Round Rock NC, LP, a
Texas limited partnership ("Buyer").
RECITALS
A. Seller and Buyer are parties to that certain Purchase and Sale
Agreement (the "Agreement"), dated as of the date hereof, pursuant to which and
subject to the terms and conditions therein set forth, Seller agrees to sell to
Buyer the 120-bed, long-term care nursing home located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, as more particularly defined and described in the Agreement.
B. Section 3.2(a)(v) of the Agreement requires the delivery of this
Closing Certificate.
NOW THEREFORE, pursuant to Section 3.2(a)(v) of the Agreement, Seller
does hereby represent and warrant to Buyer that each and all of the
representations and warranties of Seller contained in the Agreement, including
but not limited to those set forth in Section 5.1 of the Agreement, are true and
correct as of the date hereof as if made on and as of the date hereof.
FURTHER, Seller has performed and complied in all respects with all
covenants, agreements, obligations and conditions contained in the Agreement
that are required to be performed or complied with by it on or before the
Closing, except as may have been otherwise waived by Buyer.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
the day and year first written.
SELLER:
HEALTHCARE PROPERTIES, LP
By: Capital Realty Group Senior Housing,
Inc., its general partner
By:
-----------------------------------
Printed Name:
-------------------------
Title:
--------------------------------
EXHIBIT "D"
CLOSING PROCEDURE LETTER
Not included.
EXHIBIT "E"
FORM OF SPECIAL WARRANTY DEED
SPECIAL WARRANTY DEED
Healthcare Properties, LP, a Delaware limited partnership, fka
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Healthcare Properties, LP ("Grantor") for $10.00 and other
valuable consideration paid to Grantor for which no lien either express or
implied is retained, does Grant, Sell, and Convey unto HHC Round Rock NC, LP, a
Texas limited partnership ("Grantee") the following described real property,
together with all improvements thereon, situated in ▇▇▇▇▇▇▇▇▇▇ County, Texas
(the "Property"):
That certain tract of land in ▇▇▇▇▇▇▇▇▇▇ County, Texas and being more
particularly described in Exhibit "A" attached hereto and made a part hereof.
To Have And To Hold the Property, together with all and singular the
rights and appurtenances thereto in anywise belonging unto Grantee, Grantee's
successors and assigns, forever.
And Grantor does hereby bind Grantor, Grantor's successors and assigns,
to Warrant And Forever Defend, all and singular, the Property unto Grantee,
Grantee's successors and assigns, against every person whomsoever lawfully
claiming, or to claim the same, or any part thereof, by, through or under
Grantor, but not otherwise.
Grantee's Mailing Address: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Executed as of the _____ day of December, 2001.
GRANTOR:
HEALTHCARE PROPERTIES, LP
By: Capital Realty Group Senior Housing,
Inc., its general partner
By:
------------------------------------
Printed Name:
--------------------------
Title:
---------------------------------
ACCEPTED BY GRANTEE:
HHC ROUND ROCK NC, LP
By: CapWest- Texas, LLC, its general partner
By:
-------------------------------------
Printed Name:
---------------------------
Title:
----------------------------------
THE STATE OF TEXAS ss.
ss.
COUNTY OF ___________ ss.
This instrument was acknowledged before me on the _____ day of
____________, _____, by ________________, _______________ of Capital Realty
Group Senior Housing, Inc., the General Partner of Healthcare Properties, LP, on
behalf of said limited partnership.
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Notary Public - State of Texas
Print Name:
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My commission expires:
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THE STATE OF TEXAS ss.
ss.
COUNTY OF____________ ss.
This instrument was acknowledged before me on the _____ day of
____________, _____, by ________________, ________________ of CapWest - Texas,
LLC, the General Partner of HHC Round Rock NC, LP, on behalf of said limited
partnership.
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Notary Public - State of Texas
Print Name:
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My commission expires:
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EXHIBIT "F"
FORM OF ESTOPPEL CERTIFICATE
LEASE ESTOPPEL CERTIFICATE
THIS LEASE ESTOPPEL CERTIFICATE (this "Certificate") is made this _____
day of December, 2001, by Hearthstone Health Center, Inc., a Texas corporation
("Tenant"), to and for the benefit of Healthcare Properties, LP, a Delaware
limited partnership, fka ▇▇▇▇▇▇▇-▇▇▇▇▇▇ Healthcare Properties, LP ("Landlord"),
and may be relied upon by Landlord and by HHC Round Rock NC, LP, a Texas limited
partnership ("Buyer"), together with any and all lenders to Buyer and any and
all of the respective immediate and remote successors and/or assigns of any of
the foregoing (all of the foregoing, individually and/or collectively, the
"Addressees").
WITNESSETH:
WHEREAS, Tenant is the tenant under that certain lease, dated as of
January 31, 2001 (the "Lease"), covering certain premises designated as ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, as more particularly defined and described
in the Lease (the "Leased Premises"); and
WHEREAS, Landlord has requested that Tenant provide certain
certifications with respect to the Lease which may be relied upon by the
Addressees;
NOW, THEREFORE, Tenant hereby certifies as follows:
1. The Lease has not been modified, is in full force and effect and
represents the entire agreement between Landlord and Tenant as to Tenant's
interest in the Leased Premises. The Lease is guaranteed by ___________________
and such guaranty(s) is/are in full force and effect.
2. The fixed annual rent currently payable under the Lease (excluding
electricity charges) is $ ______ per month). With respect to additional rent
payable under the Lease for real estate taxes, the base tax year is ______and
Tenant's pro rata share is 100%; and for utility charges, the base year is N/A
and Tenant's pro rata share is 100%.
3. Fixed annual rent under the Lease has been paid to and including the
monthly installment due and payable on ___________________.
4. The commencement date for the Lease occurred on ___________________.
The scheduled expiration date for the Lease is ___________________, and there
are no renewal options other than ___________________. All free rent periods
under the Lease have expired and Tenant is not entitled to any future rent
concessions other than ___________________.
5. No part of the Leased Premises has been subleased, nor has the Lease
been assigned.
6. The total security originally posted by Tenant under the Lease,
whether in the form of cash or otherwise, was $______________.
7. Neither Landlord nor Tenant is in default of its obligations under
the Lease.
8. Tenant has taken possession of the Leased Premises, all work to be
performed by Landlord under the Lease, if any, has been completed in accordance
with the Lease and all contributions, reimbursements, rent concessions, work
credits and allowances due to Tenant under the Lease in connection with any work
have been paid in full.
9. No actions, whether voluntary or otherwise, are pending against
Tenant under the bankruptcy laws of the United States or any state and there are
no claims or actions pending against Tenant which if decided against Tenant
would materially and adversely affect Tenant's financial condition or ability to
perform Tenant's obligations under, or in respect of, the Lease.
10. This certificate has been duly authorized, executed and delivered
by Tenant.
Tenant acknowledges and agrees that this certificate may be relied upon
by, and shall inure to the benefit of the Addressees.
IN WITNESS WHEREOF, Tenant has executed this Certificate as of the date
above first written.
TENANT
HEARTHSTONE HEALTH CENTER, INC.
By:
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Printed Name:
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Title:
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EXHIBIT "G"
FORM OF SNDA
Subordination, Nondisturbance and Attornment Agreement
SUBORDINATION, NONDISTURBANCE
AND ATTORNMENT AGREEMENT
This Subordination, Nondisturbance and Attornment Agreement
("Agreement"), dated _________, 20_________, is between ________________ (the
"Tenant") and ________________ (the "Lender").
Recitals
A. Tenant has entered into a certain lease (the "Lease") of premises
(the "Premises") more particularly described in Schedule 1 hereof.
B. Tenant has been advised that Lender intends to make certain loans
(collectively, the "Loan") to the owner of the Premises ("Mortgagor"), subject
to the terms and conditions set forth in a mortgage (the "Mortgage") to be
granted by Mortgagor to Lender covering the Premises.
C. The term "Landlord" shall mean Mortgagor, or any other person (other
than Lender) who has been, is or becomes the owner of the Premises during-the
term of the Lease.
D. As a condition precedent to the disbursement of funds on the Loan,
Lender requires Mortgagor to obtain this Agreement from Tenant.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, Tenant and Lender
hereby agree as follows:
Section 1. Subordination. Tenant agrees that the Lease and all
of the terms, covenants and provisions thereof, and all rights, remedies and
options of Tenant thereunder are and shall at all times continue to be subject
and subordinate in all respects to the Mortgage, to the lien thereof, to all
modifications and extensions thereof, and to the Loan and all other sums secured
thereby.
Section 2. Nondisturbance. Lender agrees that if any action or
proceeding is commenced by Lender for the foreclosure of the Mortgage or for the
seizure and sale of the Premises, or if Lender acquires the Premises through
foreclosure, deed in lieu of foreclosure (or dation en paiement), Lender shall
maintain the Tenant in possession under the terms of the Lease, provided that at
all of such times the Lease shall be in full force and effect and shall not have
expired or been terminated, and Tenant shall not be in default under the terms,
covenants and conditions of the Lease or of this Agreement.
Section 3. Attornment. Tenant agrees that if the Lender shall
become the owner of the Premises by reason of the foreclosure of the Mortgage or
the acceptance of a deed in lieu of foreclosure (dation en paiement) or
otherwise, the Lease shall not be terminated or affected thereby, but shall
continue in full force and effect as a direct lease between Tenant and Lender
upon all the terms, covenants and conditions set forth in the Lease. In such
event, Tenant agrees to attorn to Lender, and Lender agrees to accept such
attornment provided, however, that Lender shall not be liable for any accrued
obligation of the Landlord or for any act or omission of the Landlord, whether
prior to or after such foreclosure or other acquisition, or be subject to any
offsets or counterclaims which shall have accrued to Tenant against the
Landlord, prior to the date upon which Lender acquires ownership of the Premises
through foreclosure, deed in lieu of foreclosure (dation en paiement) or
otherwise.
Section 4. Representations and Warranties. Tenant represents and
warrants in favor of Lender as follows: .
(i) The Lease described on Schedule 1 is the only Lease
Agreement between the Tenant and the Landlord covering the Premises; the Lease
has not been modified or amended except as set forth on Schedule 1 hereof, and
the Lease remains in full force and effect as of the date hereof.
(ii) There are no agreements with the Landlord or any other
person concerning free rent, partial rent, rebate of rental payments or any
other type of rental concession, except as set forth in the Lease.
(iii) There are no existing defaults under the Lease by the
Tenant or the Landlord, and no state of facts exist which, together with notice
to the Tenant or the Landlord (as the case may be) or the passage of time, or
both, would entitle the Tenant or the Landlord to terminate the Lease. The
foregoing representation, as it ▇▇▇▇▇▇▇.▇▇ defaults by the Landlord or any
person other than Tenant, shall apply only to the best of Tenant's knowledge,
information and belief.
(iv) As of the date hereof, the Tenant does not have any
existing defense or off set against the enforcement of the Lease by the Landlord
or any outstanding claims against the Landlord.
(v) The minimum rent required by the Lease is in effect; all
rent has been paid under the Lease through the date set forth on Schedule 1
hereof; and no rent has been prepaid more than one month.
Section 5 Covenants of Tenant. Tenant covenants and agrees as follows:
(i) Tenant shall faithfully perform all of the terms,
covenants and conditions imposed on Tenant under the Lease.
(ii) Tenant shall not alter, modify, amend or terminate or
accept a surrender of the Lease in any manner whatsoever, without the prior
written consent of Lender.
(iii) Tenant shall not pay any rentals accruing under the
Lease for more than one month in advance of the time when said rentals become
due under the terms of the Lease.
(iv) Tenant shall not assign, sublease, mortgage, pledge or
otherwise encumber the Lease without-the prior written consent of Lender.
(v) Tenant shall give prompt written notice to Lender of any
default by Landlord under any of the terms and provisions of the Lease.
(vi) Upon request of Lender, Tenant shall' promptly provide
Lender with a duly executed estoppel certificate in form reasonably required by
Lender.
Section 6. Disclaimer by Lender. Notwithstanding any of the provisions
hereof, Lender shall have no obligation in favor of Tenant to perform any term,
covenant or condition contained in the Lease, unless and until Lender acquires
ownership of the Premises through foreclosure, deed in lieu of foreclosure
(dation en paiement) or otherwise.
Section 7. Notices. Any notice or demand which, by provision of this
Agreement, is required or permitted to be given or served by the Lender to or on
the Tenant shall be deemed to have been sufficiently given and served for all
purposes (if mailed) three calendar days after being deposited, postage prepaid,
in the United States mail, registered or certified mail, or (if delivered by
express courier) one business day after being delivered to such courier, or (if
delivered in person) the same day as delivery, in each case addressed (until
another address or addresses is given in writing by Borrower to Lender) as
follows:
Any notice or demand which, by any provision of this Agreement, is
required or permitted to be given or served by Tenant to or on Lender shall be
deemed to have been sufficiently given and served for all purposes (if mailed)
three calendar days after being deposited, postage prepaid, in the United States
mail, registered or certified mail, or (if delivered by express courier) one
business day after being delivered to such courier, or (if delivered in person)
the same day as delivery, in each case addressed (until another address or
addresses are given in writing by Lender to Tenant) as follows:
Section 8. Amendment. Neither this Agreement nor any provisions hereof
may be changed, waived, discharged or terminated orally or in any manner other
than by an instrument in writing signed by the party against whom enforcement of
the change, waiver, discharge or termination is sought.
Section 9. Cumulative Rights. The rights and remedies of the Lender
under this Agreement shall be cumulative, and the exercise or partial exercise
of any such right or remedy shall not preclude the exercise of any other right
or remedy.
Section 10. Governing Law. This Agreement is, and the Note will be,
contracts made under and shall be construed in accordance with and governed by
the laws of the United States of America and the State of Louisiana.
Section 11. Counterparts. This Agreement may be executed in two or more
counterparts, and it shall not be necessary that the signatures of all parties
hereto be contained on any one counterpart hereof, each counterpart shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
THUS DONE AND SIGNED as of the date hereinabove first written.
TENANT:
LENDER: