EXHIBIT 10.46
RIGHT OF FIRST REFUSAL AGREEMENT
(River Oaks)
THIS RIGHT OF FIRST REFUSAL AGREEMENT (this "Agreement") is made and
entered into as of the 1st day of April, 1993, by and between INTERNATIONAL
HEALTH CARE PROPERTIES XX, 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 and Consolidated Resources Health Care Fund IV ("Fund IV")
have consummated the transactions contemplated by that certain Purchase and Sale
Agreement dated as of December 1, 1992, between American Health Care Associates,
Inc. ("American Health") and Fund IV, as assigned by American Health to IHCP
pursuant to that certain Assignment of Purchase and Sale Agreement dated as of
January 15, 1993 (the "Purchase Agreement"), pursuant to which IHCP agreed to
purchase from Fund IV and Fund IV agreed to sell to IHCP all of Fund IV's right,
title and interest in and to certain real property and personal property
comprising a nursing home facility known as River Oaks Nursing Center
"Facility");
WHEREAS, IHCP has engaged WelCare to manage the Facility pursuant to that
certain Management Agreement dated as of April 1, 1993, between IHCP and
WelCare;
WHEREAS, IHCP and WelCare desire to provide for WelCare to have the 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 Purchase Agreement.
2. Right of First Refusal.
2.1 IHCP shall not sell, transfer, convey or otherwise dispose of
the Real Property and the Personal Property (as defined in the Purchase
Agreement), including without limitation the real property on which the Facility
is located, as described on Exhibit "A" attached to the Purchase Agreement and
incorporated herein by reference, 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 hereof.
2.2 In the event IHCP (a) determines to sell the Property or any
part thereof, (b) receives from a third party a bona fide offer to purchase the
Property or any part thereof, which IHCP desires to accept, or (c) makes to a
third party a bona fide offer to sell the Property or any part thereof, which
such third party desires to accept, IHCP shall, prior to IHCP's sale of the
Property or such part thereof, give to WelCare written notice of IHCP's
intention to sell the Property or such part thereof, or of such offer, as
applicable (herein called a "Notice of Offer"), identifying and setting out
accurately and in detail the Property covered thereby (the "Notice Property"),
the price and all of the conditions and terms of the proposed sale, including
(in the event the Notice of Offer details an offer made by or to IHCP to or from
a third party purchaser) the proposed purchaser and such purchaser's intended
use of the Notice Property. In each event described above, IHCP agrees that
WelCare shall have the primary right, at its election, to purchase the Notice
Property for the price and on the terms specified in the Notice of Offer, which
option shall be exercised by WelCare's giving written notice of exercise thereof
to IHCP within thirty (30) days after WelCare's receipt of the Notice of Offer.
In the event WelCare shall exercise the right to purchase the Notice Property,
the sale and purchase of the Notice Property shall be closed within a reasonable
time after exercise of such right and, in any event, within ninety (90) days
after WelCare's notice to IHCP of its exercise of the right to purchase the
Notice Property. If, however, WelCare does not elect within the time and in the
manner above provided to exercise such option, then IHCP may, at any time within
ninety (90) days after expiration of such thirty (30) day offer period, sell the
Notice Property to any bona fide third party purchaser (in the event the Notice
of Offer was not premised on an offer to or from a particular third party
purchaser) or to the proposed purchaser identified in the Notice of Offer, if
applicable, for the price and on the terms specified in the Notice of Offer, but
any later sale, any sale of Property other than the Notice Property, any sale
for a different price, any sale on different terms, or, if the Notice of Offer
is premised on a third party offer, any sale to a different purchaser, must
again be submitted to WelCare in a Notice of Offer as required above. If the
Notice Property is sold by IHCP to a third party after WelCare has failed to
exercise its right of first refusal with respect to such sale as herein
provided, such third party purchaser shall take the Notice Property from IHCP
free and clear of the rights of WelCare set forth herein, and in such event,
WelCare agrees to execute such release or other instrument as may reasonably be
requested by IHCP, but any part of the Property or interest therein which is
retained or reserved by IHCP shall remain subject to the right of first refusal
of WelCare under this Agreement.
2.3 At the closing of such purchase of the Notice Property by
WelCare pursuant to the right of first refusal contained herein, IHCP shall
deliver to WelCare a properly executed and acknowledged general warranty deed
with respect to the Notice
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Property, subject only to such exceptions as may have been permitted in the
Notice of Offer.
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: WelCare International Management
Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
To IHCP: International Health Care
Properties XX, L.P.
c/o BNA Corporate Center
▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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).
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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.
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 XX, L.P., a Georgia
limited partnership
By: International Health Care
Associates XX, Inc., Its
General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇,
Executive Vice President
[ACKNOWLEDGMENTS ON NEXT PAGE]
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STATE OF GEORGIA ss.
ss.
COUNTY OF ▇▇▇▇▇▇ ▇▇.
The foregoing instrument was acknowledged before me on the 1st day of
April, 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:
July 30, 1995
STATE OF GEORGIA ss.
ss.
COUNTY OF ▇▇▇▇▇▇ ▇▇.
The foregoing instrument was acknowledged before me on the 1st day of
April, 1993, by ▇▇▇▇ ▇. ▇▇▇▇▇, Executive Vice President of International Health
Care Associates XX, Inc., the General Partner of INTERNATIONAL HEALTH CARE
PROPERTIES XX, L.P., a Georgia limited partnership, on behalf of said limited
partnership.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Notary Public
[NOTARY SEAL]
My Commission Expires:
July 30, 1995
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SCHEDULE 10.46
CHMC has entered into agreements substantially identical to Exhibit 10.46
as follows:
1. Right of First Refusal Agreement dated April 30, 1991 with
International Health Care Properties VII & VIII, L.P. for Red Boiling Springs,
Tennessee facility.
2. Right of First Refusal Agreement dated May 1, 1991 with International
Health Care Properties VII & VIII, L.P. for Clarkston, Washington facility.
3. Right of First Refusal Agreement dated August 22, 1991 with
International Health Care Properties VI, L.P. for Albuquerque, New Mexico
facility.
4. Right of First Refusal Agreement dated May 31, 1991 with International
Health Care Properties IX, L.P. for Roscommon, Michigan facility.
CHPC has entered into agreements substantially identical to Exhibit 10.46
as follows:
5. Right of First Refusal Agreement dated August 1, 1994 with
International Health Care Properties XXVII, L.P. for Olathe, Kansas facility.
6. Right of First Refusal Agreement dated as of January 1, 1997 with EBT
for Fort Worth, Texas facility.
7. Right of First Refusal Agreement dated as of January 1, 1997 with EBT
for Orofino, Idaho facility.
8. Right of First Refusal Agreement dated as of January 1, 1997 with EBT
for Pinewood, Idaho facility.
9. Right of First Refusal Agreement dated as of January 1, 1997 with EBT
for Libby, Montana facility.
10. Right of First Refusal Agreement dated as of January 1, 1997 with EBT
for Union, Mississippi facility.
11. Right of First Refusal Agreement dated as of January 1, 1997 with EBT
for Natchez, Mississippi facility.
12. Right of First Refusal Agreement dated as of January 1, 1997 with EBT
for Winona, Mississippi facility.
13. Right of First Refusal Agreement dated as of January 1, 1997 with EBT
for Starkville, Mississippi facility.
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14. Right of First Refusal Agreement dated as of January 1, 1997 with EBT
for McComb, Mississippi facility.
15. Right of First Refusal Agreement dated as of January 1, 1997 with EBT
for Franklinton, Louisiana facility.
16. Right of First Refusal Agreement dated as of January 1, 1997 with EBT
for Bossier City, Louisiana facility.
17. Right of First Refusal Agreement dated as of January 1, 1997 with EBT
for Ferriday, Louisiana facility.
18. Right of First Refusal Agreement dated as of January 1, 1997 with EBT
for Hiawatha, Kansas facility.
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