EXHIBIT 10.47
SUBORDINATION OF
RIGHT OF FIRST REFUSAL AGREEMENT
(Red Boiling Springs)
THIS SUBORDINATION OF RIGHT OF FIRST REFUSAL AGREEMENT (this "Agreement")
is made and entered into as of the 1st day of August, 1993, by and between
INTERNATIONAL HEALTH CARE PROPERTIES VII & VIII, L.P., a Georgia limited
partnership ("IHCP"), and WELCARE INTERNATIONAL MANAGEMENT CORPORATION, a
Georgia corporation ("WelCare").
W I T N E S S E T H:
WHEREAS, IHCP purchased certain real property and personal property
comprising a nursing home facility known as Heritage Manor of Red Boiling
Springs (the "Facility");
WHEREAS, IHCP engaged WelCare to manage the Facility pursuant to a
Management Agreement between IHCP and WelCare (the "Management Agreement");
WHEREAS, IHCP and WelCare provided for WelCare to have the right of first
refusal to purchase the Facility, subject to the terms and conditions set forth
in a Right of First Refusal Agreement between IHCP and WelCare (the "Right of
First Refusal Agreement"); and
WHEREAS, IHCP and WelCare desire to provide for WelCare to subordinate its
right of first refusal to purchase the Facility, subject to the terms and
conditions set forth herein.
NOW, THEREFORE, for and in consideration of TEN AND NO/100 DOLLARS
($10.00) cash in hand and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, IHCP and WelCare hereby agree as
follows:
1. Definitions. Except as defined in this Agreement, capitalized terms
shall have the meanings ascribed to such terms in the Right of First Refusal
Agreement.
2. Subordination of Right of First Refusal.
2.1 Approved Sale. IHCP shall have the right to sell, transfer,
convey or otherwise dispose of the real property and the personal property
comprising the Facility, including without limitation the real property on which
the Facility is located, and all other real, personal and intangible property
located at the Facility or used in the business operated on the Facility
(collectively, the "Property"), or any part thereof, without first offering the
same to WelCare in accordance with the terms and provisions of the Right of
First Refusal Agreement only if IHCP (i) sells, transfers, conveys or otherwise
disposes of the Property
to ▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇") and ▇▇▇▇▇ Suzuki ("Suzuki"), an entity of which ▇▇▇▇▇
and Suzuki are the sole shareholders or an entity of which ▇▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇▇▇ Suzuki are the sole shareholders (collectively, the "Purchaser"), and
(ii) complies with the provisions of Sections 2.2 and 2.3 below (the "Approved
Sale").
2.2 Release From Liabilities. In the event that IHCP determines to
sell, transfer, convey or otherwise dispose of the Property pursuant to the
Approved Sale, IHCP agrees that WelCare and its affiliates will be released from
all liability for any indebtedness with respect to the Property (the
"Indebtedness"). IHCP and the Purchaser shall jointly and severally indemnify
and hold harmless WelCare and its affiliates, to the fullest extent permitted by
law, from all losses, damages, expenses, liabilities, charges, costs, claims,
demands, and fees (including, without limitation, amounts paid in satisfaction
of judgments, as fines or penalties, attorneys' fees and costs of litigation)
sustained or incurred WelCare or its affiliates in connection with the
Indebtedness.
2.3 Management and Right of First Refusal Agreements. At the closing
of the Approved Sale, the Purchaser shall deliver to WelCare a properly executed
and acknowledged management agreement and right of first refusal agreement with
respect to the Property, containing like terms and provisions as the Management
Agreement and the Right of First Refusal Agreement.
3. Binding; Assignability. This Agreement shall constitute a covenant
running with the land, and the terms and provisions of this Agreement shall be
binding upon and shall inure to the benefit of IHCP, WelCare and their
respective successors and assigns; provided, however, that WelCare may not
assign this Agreement without the prior written consent of IHCP except to a
subsidiary or affiliate of WelCare which is controlled by or under common
control with WelCare.
4. Notices. All notices required or permitted to be given under the terms
of this Agreement shall be in writing and shall be deemed given when delivered
personally, telecopied (transmission confirmed), or, if mailed (by first class
mail with postage prepaid, return receipt requested), when received, addressed
or telecopied, as the case may be, to the appropriate address or telecopier
number set forth below:
To WelCare: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To IHCP and
the Purchaser: c/o BNA Corporate Center
▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Either party may change its address by giving notice to the other party as
aforesaid.
5. Entire Agreement; Amendments. This Agreement contains the entire
agreement between the parties hereto, and no prior oral or written, and no
contemporaneous oral representations or agreements between the parties with
respect to the subject matter of this Agreement shall be of any force and
effect. Any additional amendments or modifications to this Agreement shall be of
no force or effect unless in writing and signed by both WelCare and IHCP.
6. Governing Law. This Agreement and all the terms and provisions and the
rights and obligations of the parties hereto shall be governed by, and construed
and enforced in accordance with, the laws of the State of Georgia to the extent
allowable (without regard to its rules of conflicts of laws).
7. Captions and Headings. The captions and headings throughout this
Agreement are for convenience and reference only, and the words contained
therein shall in no way be held or deemed to define, limit, describe, explain,
modify, amplify or add to the interpretation, construction or meaning of any
provision of or the scope or intent of this Agreement nor in any way affect this
Agreement.
8. Counterparts. This Agreement may be executed in counterparts, each of
which shall be an original, and together shall constitute one and the same
document.
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IN WITNESS WHEREOF, the parties hereto have executed, sealed and delivered
this Agreement through their duly authorized representatives, as of the date
first above written.
"WELCARE":
WELCARE INTERNATIONAL MANAGEMENT
CORPORATION, a Georgia corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇, Vice President
"IHCP":
INTERNATIONAL HEALTH CARE
PROPERTIES VII & VIII, L.P., a
Georgia limited partnership
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇,
General Partner
"▇▇▇▇▇":
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇ (SEAL)
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
"SUZUKI":
/s/ Seigi Suzuki (SEAL)
-------------------------------------
Seiji Suzuki
[ACKNOWLEDGMENTS ON NEXT PAGE]
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STATE OF GEORGIA ss.
ss.
COUNTY OF ▇▇▇▇▇▇ ▇▇.
The foregoing instrument was acknowledged before me on the 4th day of
October, 1993, by ▇▇▇▇ ▇. ▇▇▇▇, Vice President of WELCARE INTERNATIONAL
MANAGEMENT CORPORATION, a Georgia corporation, on behalf of said corporation.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Notary Public
[NOTARY SEAL]
My Commission Expires:
March 25, 1995
STATE OF GEORGIA ss.
ss.
COUNTY OF ▇▇▇▇▇▇ ▇▇.
The foregoing instrument was acknowledged before me on the 4th day of
October, 1993, by ▇▇▇▇ ▇. ▇▇▇▇▇, the General Partner of INTERNATIONAL HEALTH
CARE PROPERTIES VII & VIII, L.P., a Georgia limited partnership, on behalf of
said limited partnership.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Notary Public
[NOTARY SEAL]
My Commission Expires:
March 25, 1995
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SCHEDULE 10.47
CHMC has entered into agreements substantially identical to Exhibit 10.47
as follows:
1. Subordination of Right of First Refusal Agreement dated August 1, 1993
with International Health Care Properties VII & VIII, L.P. for Clarkston,
Washington facility.
2. Subordination of Right of First Refusal Agreement dated August 1, 1993
with International Health Care Properties IX, L.P. for Roscommon, Michigan
facility.
3. Subordination of Right of First Refusal Agreement dated August 1, 1993
with International Health Care Properties VI, L.P. for Albuquerque, New Mexico
facility.
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