CONTRACT OF SALE BETWEEN THE ENTITIES LISTED ON EXHIBIT A HERETO AND THE ENTITIES LISTED ON EXHIBIT B HERETO DATED AS OF MAY 5, 2006
BETWEEN
THE
ENTITIES LISTED ON EXHIBIT A HERETO
AND
THE
ENTITIES LISTED ON EXHIBIT B HERETO
DATED
AS OF MAY 5, 2006
THIS
CONTRACT OF SALE
(this
"Agreement"), dated as of May 5, 2006, is between THE ENTITIES
LISTED ON EXHIBIT A HERETO
(collectively, "Sellers") and THE
ENTITIES LISTED
ON EXHIBIT B HERETO
(collectively, "Buyers").
1. Sale
and Purchase of Properties.
1.1. Subject
to the conditions and upon the terms of this Agreement, Sellers shall sell
and
transfer to Buyers, and Buyers shall purchase from Sellers, Sellers' rights,
title and interests in and to all of the Real Estate, Buildings and Personalty
constituting the Facilities described on Exhibit
C
hereto
(individually, a "Property" and, collectively, the "Properties").
1.2. For
purposes of this Agreement, the following capitalized terms have the following
meanings:
1.2.1. "Agreement"
as defined in the first paragraph hereof and including all Exhibits and
Schedules attached hereto and made a part hereof.
1.2.2. "Bills
of
Sale" means, collectively, the Bills of Sale, each dated as of the Closing
Date,
to be provided from Sellers to Buyers, transferring the Personalty from Sellers
to Buyers.
1.2.3. "Buildings"
as defined in Section 1.2.54 hereof.
1.2.4. "Buyers"
as defined in the first paragraph hereof.
1.2.5. "Buyers
Indemnified Parties" as defined in Section 15.1 hereof.
1.2.6. "Buyers'
Knowledge" means the actual knowledge of ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇.
1.2.7. "Buyers
Transaction Documents" means, collectively, this Agreement, the Bills of
Sale,
the Peak Assignment Agreement, the Peak Guaranty Assignment, the L/C Agreement,
and all other documents and agreements now or hereafter to be executed and
delivered by Buyers pursuant to this Agreement.
1.2.8. "Claims"
as defined in Section 15.1 hereof.
1.2.9. "Closing"
as defined in Section 9.1.1 hereof.
1.2.10. "Closing
Date" as defined in Section 9.1.1 hereof.
1.2.11. "Commitments"
as defined in Section 7.3.1 hereof.
1.2.12. "Deeds"
means, collectively, the special warranty deeds or the equivalent versions
of
special warranty deeds as may be utilized under applicable
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1.2.13. "Environmental
Claim" means the violation or alleged violation of an Environmental Law or
the
existence, presence or Release of any Hazardous Substances in connection
with or
based on any occurrence, event or condition at or relating to the use,
possession, operation or management of the Properties.
1.2.14. "Environmental
Laws" means the rules and regulations of the Environmental Protection Agency
and
all applicable rules and regulations of federal, state and local laws, including
statutes, regulations, ordinances, codes, rules, as amended, relating to
the
discharge of air pollutants, water pollutants or process waste water or
Hazardous Substances or toxic substances including, but not limited to, the
Federal Toxic Substances Act, the Federal Solid Waste Disposal Act, the Federal
Clean Air Act, the Federal Clean Water Act, the Federal Resource Conservation
and Recovery Act of 1976, the Federal Comprehensive Environmental Response,
Compensation and Liability Act of 1980, each as amended, regulations of the
Environmental Protection Agency, regulations of the Nuclear Regulatory Agency,
and regulations of any state department of natural resources or state
environmental protection agency in effect at the Closing.
1.2.15. "Facility"
or "Facilities" means the skilled nursing facilities and independent living
facility listed as Facilities on Exhibit
C
hereto.
1.2.16. "Government
Entity" means the United States of America or any state or other political
subdivision thereof, or any entity exercising executive, legislative, judicial,
regulatory or administrative functions of government.
1.2.17. "Guarantors"
means, collectively, each Guarantor as defined in the Member
Guarantees.
1.2.18. "Hazardous
Substances" means any wastes, substances, or materials (whether solids, liquids
or gases) that are deemed hazardous, toxic, pollutants or contaminants,
including without limitation, substances defined as "hazardous wastes,"
"hazardous substances," "toxic substances," "radioactive materials," or other
similar designations in, or otherwise subject to regulation under, any
Environmental Laws. "Hazardous Substances" includes polychlorinated biphenyls
(PCBs), asbestos, lead-based paints, infectious wastes, radioactive materials
and wastes and petroleum and petroleum products.
1.2.19. "HQM"
means Home Quality Management, Inc.
1.2.20. "HQM
Master Lease" means the Master Lease Agreement, dated as of October 31, 2002,
between LIC and the affiliate Tenants of HQM described as Tenant
therein.
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1.2.21. "HQM-Omega
Master Lease" means the Amended and Restated Master Lease, dated as of the
Closing Date, between NRS and the affiliate Tenants of HQM.
1.2.22. "HQM
Option Agreement" means the Purchase Option Agreement, dated as of October
31,
2002, between LIC and the affiliate Tenants of HQM described as Buyer
therein.
1.2.23. "HQM
Termination Agreement" means the Termination Agreement, dated as of the Closing
Date, between LIC and the affiliate Tenants of HQM.
1.2.24. "Inspection
Period" as defined in Section 8.1.3(a) hereof.
1.2.25. "Land"
as
defined in Section 1.2.54.
1.2.26. "L/C
Agreement" means the Letter of Credit Agreement, dated as of the Closing
Date,
between Sellers and Buyers.
1.2.27. "Letter
of Credit" means the Letter of Credit, as defined in the L/C Agreement, in
the
amount of Three Million Dollars ($3,000,000), caused to be provided by Sellers
to Buyers.
1.2.28. "LIC"
means Litchfield Investment Company, L.L.C.
1.2.29. "Litchfield
Master Leases" means, collectively, the Nexion Master Lease, the HQM Master
Lease and the Peak Master Lease.
1.2.30. "Material
Adverse Change" means any changes that materially and adversely impacts any
of
the businesses, operations or financial condition of the Tenants or the
Facilities, whether taken as a whole or as a group under the Nexion Master
Lease, the HQM Master Lease or the Peak Master Lease, which are directly
caused
by any Acts of God, acts of public enemies or terrorists, war, other military
conflicts, blockades, insurrections, riots, epidemics, quarantine restrictions,
landslides, lightning, earthquake, fires, conflagration, storms, floods,
washouts, civil disturbances, or any actions of any Governmental
Entity.
1.2.31. "▇▇▇▇▇"
means ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
1.2.32. "Nexion"
means Nexion Health, Inc.
1.2.33. "Nexion
Master Lease" means the Master Lease Agreement, dated as of November 1, 2002,
between the Sellers described as Landlord therein and the affiliate Tenants
of
Nexion described as Tenant therein.
1.2.34. "Nexion-Omega
Master Lease" means the Amended and Restated Master Lease, dated as of the
Closing Date, between OHI-LA and the affiliate Tenants of Nexion.
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1.2.35. "Nexion
Termination Agreement" means the Termination Agreement, dated as of the Closing
Date, between the applicable Sellers and the affiliate Tenants of
Nexion.
1.2.36. "NRS"
means NRS Ventures, L.L.C.
1.2.37. "OHI-CO"
means OHI Asset (CO), LLC.
1.2.38. "OHI-LA"
means OHI Asset (LA), LLC.
1.2.39. "Omega"
means Omega Healthcare Investors, Inc., a Maryland corporation.
1.2.40. "Omega
Master Leases" means, collectively, the Nexion-Omega Master Lease and the
HQM-Omega Master Lease.
1.2.41. "Peak
Assignment Agreement" means the Assignment and Assumption Agreement with
respect
to the Peak Master Lease, dated as of the Closing Date, between OHI-CO and
the
applicable Sellers.
1.2.42. "Peak
First Refusal Agreement" means the Right of First Refusal Agreement, dated
as of
October 31, 2002, between the applicable Sellers described as Seller therein
and
Peak No. 2.
1.2.43. "Peak
Guaranty" means the Guaranty, entered into as of October 31, 2002, by Peak
Medical for the benefit of the applicable Sellers described as Landlord
therein.
1.2.44. "Peak
Guaranty Assignment" means the Assignment Agreement with respect to the Peak
Guaranty, dated as of the Closing Date, between OHI-CO and the applicable
Sellers, with the written consent thereto from Peak Medical.
1.2.45. "Peak
Master Lease" means the Master Lease Agreement, dated as of October 31, 2002,
between the Sellers described as Landlord therein and Peak
No. 2.
1.2.46. "Peak
Medical" means Peak Medical Corporation.
1.2.47. "Peak
No.
2" means Peak Medical Colorado No. 2, Inc.
1.2.48. "Peak
Properties" as defined in Section 3 hereof.
1.2.49. "Permitted
Exceptions" as defined in Section 7.1 hereof.
1.2.50. "Personalty"
means, collectively, all fixtures, machinery, furniture, equipment, beds,
and
other tangible personal property owned by Sellers that is attached to, located
at or used in the physical occupancy or operation of the Facilities and the
Properties.
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1.2.51. "Property"
or "Properties" as defined in Section 1.1 hereof.
1.2.52. "Property
Licenses" as defined in Section 6.1.5 hereof.
1.2.53. "Purchase
Price" as defined in Section 5.1 hereof.
1.2.54. "Real
Estate" or "Premises" means, collectively, all of the land situated at the
addresses listed on Exhibit
C
hereto
and more particularly described in the legal descriptions attached hereto
as
Exhibit
D
(collectively, the "Land"), together with and including Sellers' rights,
title
and interests in and to all of the rights, privileges, easements, transferable
consents, authorizations, variances or waivers, licenses, permits and approvals,
hereditaments and other appurtenances relating to the Land, and together
with
Sellers' rights, title and interests in and to all of the buildings,
improvements and fixtures now or hereafter erected or located on the Land
(collectively, the "Buildings").
1.2.55. "Release"
means any release, spill, emission, leaking, pumping, injection, deposit,
disposal, discharge, dispersal, leaching, or migration into the environment,
including the movement of any Hazardous Substance or other substance through
or
in the air, soil, surface water, groundwater, or property.
1.2.56. "Relevant
Date" means, with respect to any Material Adverse Change impacting the business,
operations or financial condition of the Tenants or the Facilities, July
27,
2006.
1.2.57. "Remedial
Action" means any action required under any Environmental Laws to (a) clean
up,
remove, treat, or in any other way address any Hazardous Substance or other
substance in the environment, (b) prevent the Release or threat of Release,
or
minimize the further Release of any Hazardous Substance or other substance
so it
does not migrate or endanger or threaten to endanger public health or welfare
or
the environment, or (c) perform pre-remedial studies and investigations and
post-remedial monitoring and care.
1.2.58. "▇▇▇▇▇"
means ▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
1.2.59. "Sellers"
as defined in the first paragraph hereof.
1.2.60. "Sellers
Indemnified Parties" as defined in Section 15.3 hereof.
1.2.61. "Sellers
Transaction Documents" means, collectively, this Agreement, the Deeds, the
Bills
of Sale, the Peak Assignment Agreement, the Peak Guaranty Assignment, the
L/C
Agreement, and all other documents and agreements now or hereafter to be
executed and delivered by Sellers pursuant to this Agreement; provided,
however,
that
the HQM Termination Agreement and the Nexion Termination Agreement shall
not be
included as Sellers Transaction Documents.
1.2.62. "Sellers'
Office" means the notice address listed for Sellers in Section 14.17
hereof.
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1.2.63. "Sellers'
Knowledge" means the actual knowledge of ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇.
1.2.64. "Surveys"
means the existing land surveys with respect to the Properties.
1.2.65. "Survival
Termination Date" as defined in Section 17 hereof.
1.2.66. "Tenants"
means the affiliates of Nexion, the affiliates of HQM, and Peak, which are
listed as Tenants on Exhibit
C
hereto.
1.2.67. "Title
Company" as defined in Section 5.1 hereof.
1.2.68. "Transaction
Documents" means, collectively, the Buyers Transaction Documents and the
Sellers
Transaction Documents.
1.2.69. "▇▇▇▇▇▇▇▇▇"
means ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
2. Delivery
of Omega Master Leases, Nexion Termination Agreement, HQM Termination Agreement,
Peak Assignment Agreement, Peak Guaranty Assignment, L/C Agreement and Exhibits
and Schedules to this Agreement.
On or
before May 31, 2006, (a)
Buyers shall deliver to Sellers the fully executed Omega Master Leases, (b)
Sellers shall deliver to Buyers the fully executed HQM Termination Agreement
and
Nexion Termination Agreement, (c) the applicable Sellers and OHI-CO shall
execute and deliver the Peak Assignment Agreement, (d) the applicable Sellers,
OHI-CO and Peak Medical shall execute and deliver the Peak Guaranty Assignment,
and (e) Sellers and Buyers shall execute and deliver the L/C Agreement. On
or
before May 15, 2006, Sellers shall deliver to Buyers Exhibits
C
and
D
and
Schedules
6.1.2,
6.1.3,
6.1.6,
6.1.7
and
15.1(c)
hereto.
3. Peak
First Refusal Agreement.
On or
before May 25, 2006, the applicable Sellers shall provide written evidence
to
OHI-CO that they have complied with their obligations under the Peak First
Refusal Agreement, resulting in Peak No. 2 exercising or failing to exercise
its
right to acquire those Properties covered by the Peak First Refusal Agreement
(collectively, the "Peak Properties"). If Peak No. 2 exercises its right
under
the Peak First Refusal Agreement, then the Peak Properties shall be removed
from
being subject to sale and purchase under this Agreement and the Purchase
Price
shall be reduced by the amount associated with the Peak Properties on
Exhibit
C
hereto;
provided,
however,
if Peak
No. 2 does not consummate its acquisition of the Peak Properties at the
Closing, then the Closing shall be postponed and this Agreement shall be
automatically extended for up to thirty (30) days so that Buyers shall acquire
the Properties with the Peak Properties included and the Purchase Price shall
be
increased by the amount associated with the Peak Properties on Exhibit
C
hereto.
It is expressly understood by the parties hereto that at the Closing, Sellers
will sell all (and in no event some) of the Properties to Buyers and, if
applicable, Peak No. 2.
4. HQM
Option Agreement.
The HQM
Termination Agreement shall include provisions for the termination of the
HQM
Option Agreement.
5. Purchase
Price; Disbursement of Purchase Price and Closing Documents at
Closing.
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5.1. Purchase
Price.
The
total purchase price payable by Buyers to Sellers for the Properties shall
be
the sum of One Hundred Seventy Million Dollars ($170,000,000) (the "Purchase
Price"), which Purchase Price shall be allocated among the Properties in
accordance with Exhibit C
hereto.
At the Closing, an amount equal to the Purchase Price shall be deposited
by
Buyers with First American Title Insurance Company of New York (the "Title
Company") by wire transfer of same day funds.
5.2. Disbursement
of Purchase Price and Closing Documents at Closing.
Upon
written notice from Sellers and Buyers to the Title Company that all conditions
to Closing set forth in this Agreement have been satisfied or, as to any
condition not satisfied, waived in writing by the party intended to be benefited
thereby, on the Closing Date the Title Company shall distribute the following
documents and funds in the following manner:
5.2.1. cause
the
Deeds delivered by Sellers pursuant to Section 9.2.1 hereof to be recorded
in the official records of the applicable counties where the Properties are
located;
5.2.2. cause
the
mortgage discharges and UCC-3 Termination Statements delivered by Sellers
pursuant to Section 9.2.2 hereof to be recorded in the official records of
the
applicable counties and states where the Properties are located;
5.2.3. deliver
to Buyers all documents that are required to be delivered by Sellers to Buyers
pursuant to Section 9.2 hereof; and
5.2.4. deliver
to Sellers (a) all documents that are required to be delivered by Buyers
to
Sellers pursuant to Section 9.3 hereof and (b) the Purchase Price and such
other
funds, if any, as may be due to Sellers by reason of credits under this
Agreement, less the items chargeable to Sellers under this
Agreement.
6. Representations
and Warranties.
6.1. Representations
and Warranties by Sellers.
Sellers
each represent and warrant to Buyers as follows:
6.1.1. Organization.
Sellers
are each a limited liability company duly organized and validly existing
under
the laws of the state noted for each of Sellers on Exhibit
A
hereto.
6.1.2. Power
and Authority.
Except
as set forth on Schedule
6.1.2
hereto, Sellers have the right, power, and authority to execute and deliver
this
Agreement and the other Sellers Transaction Documents and to perform all
Sellers' obligations arising under this Agreement and under the other Sellers
Transaction Documents. Except as set forth on Schedule 6.1.2
hereto,
this Agreement and the other Sellers Transaction Documents do and will each
constitute legal, valid, and binding obligations of Sellers, enforceable
in
accordance with their respective provisions, except as enforceability may
be
limited by applicable bankruptcy, insolvency, reorganization, moratorium
or
similar laws affecting the enforcement of creditors' rights generally and
by
general principles of equity. Except as set forth on Schedule
6.1.2
8
6.1.3. No
Conflict.
Except
as set forth on Schedules
6.1.2
and
6.1.3
hereto,
Sellers' execution, delivery, and performance of this Agreement and the other
Sellers Transaction Documents do not and will not (a) contravene any provision
of any existing law or regulation, judgment, order, decree, or injunction,
or
other legal requirement, (b) result in a breach of or require consent pursuant
to any lease, indenture, mortgage, agreement, guaranty, or other document
by
which Sellers or the Premises is bound or otherwise affected, or (c) require
a
filing or registration with, or the consent or approval of, any Government
Entity other than with respect to any applicable state licensing
agencies.
6.1.4. Title
to the Properties.
To
Sellers' Knowledge, Sellers have not engaged in any act or omission to act
so as
to cause any encumbrances or restrictions to affect or relate to the Real
Estate
or the Properties other than the Permitted Exceptions and those mortgages,
liens, encumbrances and security interests to be released or satisfied in
accordance with Section 7 hereof; provided,
however,
that
issuance of the Title Insurance Policies by the Title Company to Buyers at
the
Closing, as described in Section 8.1.4 hereof, shall be deemed to satisfy
the
obligations of Sellers with respect to title to the Properties under Section
7.1
hereof and, as such, the representation in this Section 6.1.4 shall not survive
the Closing.
6.1.5. Licenses
and Accreditations.
To
Sellers' Knowledge, based solely on the lack of receipt of written notices
addressed to Sellers' Office to the contrary, there is not currently pending
or
threatened (a) any action or proceeding to revoke, withdraw or suspend any
of the Property Licenses or (b) any judicial or administrative agency judgment
or decision not to renew any of the Property Licenses. As used herein, the
term
"Property Licenses" shall mean all local, state and federal licenses and
Medicare and Medicaid accreditations necessary to operate the
Facilities.
6.1.6. Real
Estate.
Except
as set forth on Schedule
6.1.6
hereto,
to Sellers' Knowledge, Sellers have received no written notices that any
part of
the Real Estate is currently subject to condemnation proceedings and no such
condemnation or taking is threatened or contemplated. To Sellers' Knowledge,
Sellers have received no written notices of any public improvements which
may
result in special assessments against or otherwise affect the Real Estate.
Other
than Permitted Exceptions, the matters disclosed on the Surveys, and as set
forth on Schedule 6.1.6
hereto,
to Sellers' Knowledge, based solely upon the lack of receipt of written notice
addressed to Sellers' Office to the contrary, there are no facts that would
adversely affect the possession, use or occupancy of the Real
Estate.
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6.1.7. Litigation.
Except
as set forth on Schedule
6.1.7
hereto,
(a) Sellers are not currently (i) a party to any lawsuits, claims,
administrative proceedings or other pending proceedings, or (ii) bound by
any orders, judgments, injunctions, decrees or settlement agreements under
which
Sellers may have continuing obligations as of the date of this Agreement
or as
of the date of Closing, any or all of which under subsections (i) or (ii)
are
likely to restrict or affect in any material respect the ownership of the
Properties, (b) to Sellers' Knowledge, based solely on the lack of receipt
of written notices addressed to Sellers' Offices to the contrary, there
(i) exists no violation by Sellers or against the Real Estate of any law,
rule, regulation, ordinance or order of any court or governmental department,
commission, board, bureau, agency or instrumentality, or (ii) are no
lawsuits, claims, administrative proceedings or other proceedings now pending
or
threatened involving Sellers or the Properties, any or all of which under
subsections (i) or (ii) are likely to restrict or affect in any material
respect
the ownership of the Properties. To Sellers' Knowledge, the right or ability
of
Sellers to consummate the transactions contemplated by this Agreement has
not
been challenged by any Governmental Entity or any other person. Notwithstanding
anything contained in this Section 6.1.7, this section shall not be deemed
to
apply to, relate to, or involve any litigation, claim or proceeding (threatened
or pending) (1) to which any of the Tenants is a party and none of Sellers
is a party, or (2) that relates solely to the operations or leasing of the
Facilities on or after November 1, 2002.
6.1.8. Representations
and Warranties as of the Closing.
The
representations and warranties made by Sellers pursuant to this Section 6.1
shall be true and correct in all material respects on and as of the date
of the
Closing as though such representations and warranties had been made on and
as of
the date of the Closing.
6.2. Representations
and Warranties by Buyers.
Buyers
represent and warrant to Sellers as follows:
6.2.1. Organization.
Buyers
are each a limited liability company duly organized and validly existing
under
the laws of the state noted for each of Buyers on Exhibit
B
hereto.
6.2.2. Power
and Authority.
Buyers
have the right, power, and authority to execute and deliver this Agreement
and
the other Buyers Transaction Documents and to perform all Buyers' obligations
arising under this Agreement and under the Buyers Transaction Documents.
This
Agreement and the other Buyers Transaction Documents do and will each constitute
legal, valid, and binding obligations of Buyers, enforceable in accordance
with
their respective provisions, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws
affecting the enforcement of creditors' rights generally and by general
principles of equity. Buyers have duly and properly taken or obtained or
caused
to be taken or obtained all action necessary for Buyers (a) to enter into
and to
deliver this Agreement, the other Buyers Transaction Documents and any and
all
other documents and agreements executed by Buyers in connection herewith
and
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6.2.3. No
Conflict.
Buyers'
execution, delivery, and performance of this Agreement and the other Buyers
Transaction Documents do not and will not (a) contravene any provision of
any existing law or regulation, judgment, order, decree, injunction or other
legal requirement, (b) result in a breach of or require consent pursuant
to any
lease, indenture, mortgage, agreement, guaranty or other document by which
Buyers are bound or otherwise affected, or (c) require a filing or registration
with, or the consent or approval of, any Governmental Entity.
6.2.4. Solvency.
To
Buyers' Knowledge, Omega is not insolvent nor will Omega be rendered insolvent
by the consummation of the transactions contemplated by this
Agreement.
6.2.5. Governmental
Entity Challenges.
To
Buyers' Knowledge, the right or ability of Buyers to consummate the transactions
contemplated by this Agreement has not been challenged by any Governmental
Entity or any other person.
6.2.6. Representations
and Warranties as of the Closing.
The
representations and warranties made by Buyers pursuant to this Section 6.2
shall
be true and correct in all material respects on and as of the date of the
Closing as though such representations and warranties had been made on and
as of
the date of the Closing.
7. Title.
7.1. Permitted
Exceptions.
The
Properties are sold and are to be conveyed subject to the matters listed
on
Schedule
7.1
hereto
(collectively, the "Permitted Exceptions"). It is a condition precedent to
the
obligation of Buyers to consummate the transactions hereunder at the Closing
that Sellers shall convey good, indefeasible and insurable fee simple title
to
the Real Estate to Buyers at the Closing, free and clear of all liens, mortgages
and security interests and subject only to the Permitted Exceptions. The
Personalty shall be conveyed to Buyers at the Closing free and clear of all
liens and security interests, subject, however, to Tenants' compliance under
the
applicable terms of the Litchfield Master Leases.
7.2. Standard.
Sellers
shall give and Buyers shall accept such title as the Title Company shall
approve
and insure under the usual form of policy, at regular rates, subject to the
usual title-policy exclusions and exceptions and the Permitted
Exceptions.
7.3. Evidence
of Title; Surveys and Environmental Reports; Omega Board
Approval.
7.3.1. Title
Reports and Commitments.
After
delivery of all the documents described in Section 2 hereof, Buyers may order
title reports and commitments (collectively, the "Commitments"), including
appropriate UCC and litigation searches of Sellers and the Properties, zoning
letters, and also requesting
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7.3.2. Title
Insurance Policies.
The
premiums for the Title Insurance Policies to be issued to Buyers at the Closing
shall be paid by Sellers.
7.3.3. Surveys
and Environmental Reports.
After
execution of this Agreement, Sellers shall provide Buyers with copies of
all the
existing Surveys and environmental reports for the Properties in Sellers'
possession. After delivery of all the documents described in Section 2 hereof,
Buyers shall order new updated Surveys and new environmental reports (and
Buyers
shall cause such environmental reports to acknowledge that Sellers are deemed
to
be third party beneficiaries of such environmental reports). The cost to
update
the Surveys shall be paid by Sellers (provided,
however,
in the
event that the transactions contemplated by this Agreement are not consummated
as a result of Buyers terminating this Agreement for reasons other than under
subsection (i) of Section 10.1 hereof, then Buyers shall reimburse Sellers
for
the cost to update the Surveys) and the cost to update the environmental
reports
shall be paid by Buyers. Consistent with the terms of the Litchfield Master
Leases, Sellers shall cooperate with Buyers with respect to obtaining,
re-certifying or updating the Surveys and the environmental
reports.
7.4. Title
Matters and Updated Surveys.
Subject
to the terms of this Section 7.4 and Buyers' standard of conduct described
in Section 8.3 hereof, Buyers shall have until (a) July 17, 2006 to notify
Sellers of any objections that Buyers may have to matters described in those
Commitments and updated Surveys received by Buyers before July 10, 2006 and
(b)
the Closing to notify Sellers of any objections that Buyers may have to matters
described in (i) those Commitments and updated Surveys received by Buyers
on or after July 10, 2006, or (ii) any new matters described in any
amendments, supplements or modifications to those Commitments and updated
Surveys received before July 10, 2006, and not previously disclosed to Buyers.
Any title encumbrances or exceptions which are set forth in the marked up
Commitments delivered by the Title Company at the Closing and in the final
updated Surveys shall be included as Permitted Exceptions. In the event that,
within the time period described above, Buyers object to any matters described
in the Commitments and the updated Surveys, then Sellers shall have until
the
Closing in which to satisfy Buyers' objections; provided,
however,
that
Sellers may elect to extend the date of Closing for up to fifteen (15) days
in
order to satisfy those objections from Buyers covered by subsection (b) above.
In the event that Sellers shall be unable or unwilling (it being acknowledged
that Sellers only obligation is to comply with the standard of conduct described
in Section 8.3 hereof; provided,
however,
Sellers
shall have no obligation to expend any monies to cure any objections) to
satisfy
Buyers' objections, then Buyers shall have the option to either (i) waive
Buyers' objections and purchase the Properties at the Closing, in which case
the
waived objections shall become Permitted Exceptions or (ii) elect to
terminate this Agreement. Upon election to terminate this Agreement, this
Agreement shall be deemed canceled and neither party shall have any further
obligations to
12
7.5. Removal
of Mortgages, Liens and Other Encumbrances.
If at
the Closing there are any mortgages, liens or other encumbrances that Sellers
are obligated to pay and discharge, then Sellers shall use a portion of the
Purchase Price to satisfy the same and shall concurrently deliver to Buyers
at
the Closing instruments in recordable form sufficient to satisfy such mortgages,
liens and encumbrances of record (and sufficient for the Title Company to
omit
the same from Buyers' Title Insurance Policies), together with the cost of
recording or filing those instruments. The existence of any such mortgages,
liens and other encumbrances shall not be considered objections to title
if
Sellers shall have complied with the foregoing requirements.
7.6. Payment
of Purchase Price.
Buyers
shall provide all funds to be paid at the Closing pursuant to Section 5 hereof
through wire transfer of immediately available funds to the Title
Company.
7.7. Omega
Board of Directors Resolutions.
Within
forty-five (45) days after execution of this Agreement by Sellers and Buyers,
Buyers shall provide Sellers with a copy of the resolutions of the Board
of
Directors of Omega approving the transactions contemplated by this
Agreement.
8. Conditions
Precedent.
8.1. For
Buyers.
The
obligations of Buyers under this Agreement are subject to the satisfaction
on or
prior to the Closing Date of the following conditions, any one or more of
which
may be waived in writing by Buyers to the extent permitted by applicable
law:
8.1.1. Representations
and Warranties.
The
representations and warranties of Sellers set forth in this Agreement and
the
other Sellers Transaction Documents shall be true and correct in all material
respects on and as of the date of the Closing as though made on and as of
the
date of the Closing, except to the extent any such representation or warranty
expressly is made as of an earlier date or with respect to a particular period,
in which case such representation or warranty shall have been true and correct
in all material respects as of such date or with respect to such
period.
8.1.2. Performance.
Sellers
shall have performed or complied in all material respects with all covenants
and
agreements required by this Agreement and the other Sellers Transaction
Documents to be performed or complied with by Sellers on or prior to the
date of
the Closing.
8.1.3. Due
Diligence.
Buyers
shall be satisfied in their sole discretion with the results of all due
diligence with respect to the Properties, including the financial condition
and
operating history of the Tenants and the Facilities, the state of title for
the
Properties and the environmental and physical condition of the
Properties.
13
(a) Buyers
shall have the period from the date this Agreement is signed by Sellers and
Buyers until July 27, 2006 (the "Inspection Period"), in which to conduct
due
diligence with respect to the financial condition and operating history of
Tenants and the Properties, the environmental and physical condition of the
Properties, determine the appraised value of the Properties, and review other
matters affecting Tenants and the Properties, including, but not limited
to, the
following: (i) obtain access to and review all books and records of Tenants
and
the Properties in the custody or control of Sellers and Tenants as may be
reasonably required by Buyers, (ii) order new environmental reports (Phase
I
and, if required, Phase IIs) for the Properties, (iii) order new property
condition assessments and engineering reports for the Properties, (iv) obtain
copies of Tenants' current insurance policies and certificates, (v) order
new
MAI appraisals of the Properties, (vi) confirm the licensure, certificate
of
need and Medicare/Medicaid reimbursement status of Tenants and the Facilities,
(vii) confirm any licensure or certificate of need change of ownership
issues in Colorado, Florida, Idaho, Louisiana or Texas resulting from the
sale
of the Properties and the execution of the Omega Master Leases and the Peak
Assignment Agreement, and (viii) such other due diligence activities materials
and information as Buyers may conduct, obtain or otherwise reasonably request
from Sellers and/or Tenants.
(b) During
the Inspection Period, and thereafter until the Closing hereof, so long as
this
Agreement has not been terminated, Sellers shall provide (or cause Tenants
to
provide, consistent with the terms of the Litchfield Master Leases) Buyers,
their officers, employees, members, agents, contractors, engineers, consultants,
licensees and assignees (i) access to all the books, contracts, and other
records of Sellers (as they relate to the Tenants, the Facilities and the
Properties), the Tenants, the Facilities and the Properties as Buyers may
reasonably request and require in connection with the due diligence activities
described in subsection (a) above and (ii) access to the Properties for the
purpose of making any and all examinations and investigations of the Properties
as Buyers may reasonably request and require in connection with the due
diligence activities described in subsection (a) above; provided,
however,
that
access to the Properties by Buyers must be approved, in advance, by the
applicable Tenant of such Property being accessed, which approvals Sellers
shall
obtain for Buyers, consistent with the terms of the Litchfield Master Leases.
Buyers covenant that the due diligence activities shall be undertaken in
a
manner as to not interfere in any material respect with the operations of
the
Properties.
(c) Buyers
shall not suffer or permit the filing of any mechanic's liens as a result
of
Buyers' due diligence activities under this Section 8.1.3 (and to the extent
such mechanic's liens are or may be filed as a result of such due diligence
activities, such mechanic's liens, or the right to file such liens, shall
be
deemed Permitted Exceptions). In the event Buyers fail to close the transactions
contemplated by this Agreement, Buyers shall be liable to Sellers for the
repair
of any damage to the Properties occurring as a result of any such due diligence
activities.
14
8.1.4. Title
Insurance Policies.
The
Title Company shall have issued the Title Insurance Policies to Buyers with
respect to the Properties in the form of the marked up Commitments signed
and
delivered at the Closing.
8.1.5. Delivery
of Sellers Closing Items.
Sellers
shall have delivered or caused to be delivered at the Closing the items
described in Section 9.2 hereof.
8.2. For
Sellers.
The
obligations of Sellers under this Agreement are subject to the satisfaction
on
or prior to the Closing Date of the following conditions, any one or more
of
which may be waived in writing by Sellers to the extent permitted by applicable
law:
8.2.1. Representations
and Warranties.
The
representations and warranties of Buyers set forth in this Agreement and
the
other Buyers Transaction Documents shall be true and correct in all material
respects on and as of the date of the Closing as though made on and as of
the
date of the Closing, except to the extent any such representation or warranty
expressly is made as of an earlier date or with respect to a particular period,
in which case such representation or warranty shall have been true and correct
in all material respects as of such date or with respect to such
period.
8.2.2. Performance.
Buyers
shall have performed or complied in all material respects with all covenants
and
agreements required by this Agreement and the other Buyers Transaction Documents
to be performed or complied with by Buyers on or prior to the date of the
Closing.
8.2.3. Delivery
of Buyers Closing Items.
Buyers
shall have delivered or caused to be delivered at the Closing the items
described in Section 9.3 hereof.
8.3. Buyers'
and Sellers' Due Diligence and Commercially Reasonable Efforts in Satisfying
Conditions Precedent.
Buyers
must use due diligence and commercially reasonable efforts in seeking to
satisfy
all the conditions precedent set forth in Section 8.1 hereof. In addition,
except as otherwise specifically set forth in Section 7.4, Sellers must use
due
diligence and commercially reasonable efforts in seeking to satisfy all the
conditions precedent set forth in Section 8.2 hereof.
9. The
Closing.
9.1. Closing
and Closing Date.
9.1.1. The
closing of the transaction under this Agreement (the "Closing"), shall take
place on a date mutually agreed upon by Sellers and Buyers in accordance
with
the procedure described in Section 5.2 hereof, by delivery of the appropriate
Closing documents and funds to the Title Company, but in no event shall the
Closing occur later than August 1, 2006, unless
such date is extended by mutual agreement of Sellers and Buyers. Upon
consummation of the transactions contemplated by this Agreement, the Closing
shall be deemed to be effective and the transfer of the Property shall be
deemed
to have occurred as of 12:01 a.m. local time on the actual Closing date agreed
to by Sellers and Buyers (the "Closing Date").
15
9.2. Sellers'
Deliveries.
At the
Closing, Sellers shall deliver or cause to be delivered in accordance with
Section 5.2 hereof to Buyers the following, all in form and substance reasonably
acceptable to Sellers and Buyers:
9.2.1. The
Deeds
for the Real Estate, duly executed and acknowledged by Sellers and in proper
form for recording, so as to convey to Buyers fee simple title to the Real
Estate, free of all encumbrances other than the Permitted
Exceptions;
9.2.2. Mortgage
discharges and UCC-3 Termination Statements in respect of all mortgages,
liens
or other encumbrances on the Properties in proper form for
recording;
9.2.3. The
Bills
of Sale, duly executed and acknowledged by Sellers, transferring to Buyers
all
of the Personalty;
9.2.4. The
Letter of Credit, in the amount of Three Million Dollars ($3,000,000), for
the
benefit of Buyers;
9.2.5. A
legal
opinion from counsel to Sellers regarding the matters described in Sections
6.1.1, 6.1.2 and 6.1.3 hereof;
9.2.6. Such
affidavits as the Title Company shall reasonably require in order to omit
from
its Title Insurance Policies all exceptions, except for standard exceptions,
judgments, bankruptcies or other returns against persons or entities whose
names
are the same as or similar to Sellers' name;
9.2.7. A
certification of non-foreign status, in form required by the Internal Revenue
Code Section 1445 and the regulations issued thereunder, duly executed by
Sellers under penalty of perjury. Sellers understand that such certification
will be retained by Buyers and will be made available to the Internal Revenue
Service on request;
9.2.8. A
certificate of Sellers to the effect that the representations and warranties of
Sellers set forth in this Agreement and the other Sellers Transaction Documents,
are true and correct in all material respects as of the date of
Closing;
9.2.9. The
original certificates of title to any motor vehicles included within the
Personalty relating to the Properties;
9.2.10. A
copy of
the written notice of the Peak Assignment Agreement provided by the applicable
Sellers to Peak No. 2; and
9.2.11. Such
other documents as Buyers may reasonably request in order to further the
purposes of this Agreement, duly executed and, where appropriate, acknowledged,
and in recordable form.
16
9.3. Buyers'
Deliveries.
At the
Closing, Buyers shall deliver to Sellers the following or cause to be delivered
in accordance with Section 5.2 hereof to Sellers the following, all in form
and
substance reasonably acceptable to Sellers and Buyers:
9.3.1. The
Purchase Price;
9.3.2. A
certificate of Buyers to the effect that the representations and warranties
of
Buyers set forth in this Agreement and the other Buyers Transaction Documents,
are true and correct as of the date of Closing;
9.3.3. Such
other documents as Sellers may reasonably request in order to further the
purposes of this Agreement, duly executed and, where appropriate, acknowledged,
and in recordable form; and
9.3.4. A
legal
opinion from counsel to Buyers regarding the matters described in Sections
6.2.1, 6.2.2 and 6.2.3 hereof.
9.4. Possession.
At the
Closing, Sellers shall deliver to Buyers possession of the Properties, free
and
clear of all leases, purchase options, rights of first refusal, tenancies,
and/or other rights of occupancy or acquisition of any kind (other than the
Omega Master Leases, the Peak Master Lease and any resident leases), and
otherwise in the condition required by this Agreement, together with all
of the
Personalty located at the Properties. Sellers covenant that they will not
remove
any Personalty from the Properties after the date of this Agreement and through
the Closing Date, except items replaced or upgraded with items of equal or
greater value.
9.5. Transfer
Costs; Tax and Information Returns.
9.5.1. All
real
property transfer taxes, sales taxes, and any other similar taxes with respect
to the transfer of the Properties and the Personalty shall be paid for at
the
Closing by Sellers.
9.5.2. Sellers
and Buyers shall duly execute, acknowledge where appropriate, and deliver
all
tax returns and information returns necessary and proper in connection with
this
transaction.
9.5.3. The
provisions of this Section 9.5 shall survive the Closing.
9.6. Concurrent
Conditions.
All
deliveries, exchanges, and other actions to be taken at the Closing shall
be
deemed to occur simultaneously, and the performance of all such actions shall
be
concurrent conditions to all other such actions.
10. Remedies.
10.1. Right
to Terminate this Agreement.
In
addition to the termination right set forth in Section 7.4 hereof, this
Agreement and the transactions contemplated hereby may be terminated by written
notice given in accordance with Section 14.17 hereof, as
follows:
17
(a) by
the
mutual written agreement of Buyers and Sellers at any time prior to the
Closing;
(b) by
either
Buyers or Sellers if the requirements in the first sentence of Section 2
hereof
are not satisfied on or before May 31, 2006 or by Buyers if the requirements
in
the second sentence of Section 2 hereof are not satisfied on or before May
15,
2006;
(c) by
Buyers
if the requirements under Section 3 hereof are not satisfied on or before
May
25, 2006; provided,
however,
in no
event may Buyers terminate this Agreement under this subsection (c) as a
result
of Peak No. 2 exercising its rights to acquire the Peak Properties under
the Peak First Refusal Agreement;
(d) by
Buyers
if the requirements under Section 4 hereof are not satisfied;
(e) by
either
Sellers or Buyers if the Closing shall not have occurred at or before 11:59
p.m.
EDT on August 1, 2006, unless such date is extended by mutual agreement of
Sellers and Buyers;
(f) by
Buyers
if a Material Adverse Change occurs or is found to have occurred after the
Relevant Date;
(g) by
Buyers
or Sellers if the Board of Directors of Omega fails to approve the transactions
contemplated by this Agreement and in the timeframe set forth in
Section 7.7 hereof;
(h) by
Buyers
prior to 11:59 p.m. EDT on July 27, 2006 as
a
result of the examinations and investigations of Tenants and the Properties
described in Section 8.1.3(a) hereof and conducted during the Inspection
Period;
(i) by
Buyers, by reason of the breach, inaccuracy or non-fulfillment of any
representation, warranty, covenant, obligation or agreement by Sellers under
this Agreement; or
(j) by
Sellers, by reason of the breach, inaccuracy or non-fulfillment of any
representation, warranty, covenant, obligation or agreement by Buyers under
this
Agreement.
10.2. Liability
for Agreement Termination.
If the
parties terminate this Agreement pursuant to subsections (a) through (h)
of
Section 10.1 hereof, then neither party shall have any further obligations
to
the other under this Agreement, except those specifically stated to survive
the
termination of this Agreement. Notwithstanding the foregoing, in the event
that
this Agreement is terminated under subsections (i) or (j) of Section 10.1
hereof, then the terminating party, if successful in proving its right to
terminate under the applicable subsection, may recover its actual damages
(but
in no event consequential (e.g., profits alleged to have been realized had
the
transactions contemplated
18
11. Closing
Date Prorations.
11.1. Items
to be Prorated at Closing.
If the
Closing Date occurs on any date other than the first day of a calendar month,
then all Rent as defined in and with respect to the Peak Master Lease shall
be
prorated between the applicable Sellers and OHI-CO as of the Closing Date,
with
appropriate credits or charges made at the Closing in accordance with Section
5.2.4 hereof.
11.2. Errors.
Any
errors in calculations, apportionments or payments of Rent as defined in
and
with respect to the Peak Master Lease shall be corrected, adjusted and paid
as
soon as practicable after discovery, whether before or after the Closing
Date.
This Section 11.2 shall survive the Closing and any payments made by Sellers
or
OHI-CO under this Section 11 shall not be included in calculating the
limitations on damages under Sections 16.3 or 16.7 hereof, as
applicable.
12. Further
Assurances.
The
parties shall do such other and further acts and things, and to execute and
deliver such instruments and documents, as either may reasonably request
from
time to time, whether at or after the Closing, in furtherance of the purposes
of
this Agreement and the other Transaction Documents. The obligation under
this
Section 12 shall survive the Closing.
13. Brokers.
Sellers
and Buyers represent and warrant to each other that each has dealt with no
broker or finder in connection with this Agreement or any of the transactions
contemplated hereby, and knows of no broker or finder entitled to or claiming
a
fee, commission, or other similar compensation in connection with this Agreement
or any of the transactions contemplated hereby. Sellers and Buyers shall
indemnify and hold harmless each other and any affiliates or representatives
of
the other from and against liabilities, damages, and costs (including reasonable
attorneys' fees) arising out of any claim for commissions or other compensation
made by any broker or finder who shall claim to have dealt with the indemnifying
party in connection with this Agreement or any of the transactions contemplated
hereby. The provisions of this Section 13 shall survive the Closing or any
termination of this Agreement.
14. Miscellaneous.
14.1. Complete
Agreement; No Other Representations, Warranties or Covenants.
This
Agreement and the other Transaction Documents constitute the entire agreement
between the parties with respect to the transactions contemplated hereunder
and
shall supersede all prior oral or written agreements and all contemporaneous
oral negotiations, commitments and understandings. Neither Buyers nor Sellers
shall be deemed to have made to the other any representations or warranties
that
are not expressly set forth in this Agreement or the other Transaction
Documents.
14.2. No
Reliance.
Each
party hereto expressly disclaims reliance upon any facts, promises, undertakings
or representations made by any other party, or its agents, representatives
or
attorneys prior to the execution of this Agreement.
19
14.3. Amendment.
This
Agreement may not be amended, waived, superseded, renewed, extended or
terminated orally, but only by an agreement in writing signed by each party
or,
in the case of a waiver, by the party waiving compliance.
14.4. Captions.
The
captions or headings contained in this Agreement are for convenience and
reference only and shall not affect the interpretation of this
Agreement.
14.5. Governing
Law; Jurisdiction.
THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE
GOVERNED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE DOMESTIC SUBSTANTIVE
LAWS OF THE STATE OF MARYLAND, WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICTS
OF LAW PROVISION OR RULE THAT WOULD CAUSE THE APPLICATION OF THE DOMESTIC
SUBSTANTIVE LAWS OF ANY OTHER JURISDICTION. SELLERS AND BUYERS HEREBY ABSOLUTELY
AND IRREVOCABLY CONSENT AND SUBMIT TO THE JURISDICTION OF THE STATE COURTS
OF
BALTIMORE COUNTY, MARYLAND AND/OR, IF APPLICABLE, ANY FEDERAL COURT LOCATED
IN
SUCH COUNTY IN THE STATE OF MARYLAND, IN CONNECTION WITH ANY ACTIONS OR
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT. IN SUCH ACTION
OR
PROCEEDING, SELLERS AND BUYERS HEREBY ABSOLUTELY AND IRREVOCABLY WAIVE ANY
OBJECTION TO VENUE.
14.6. Certain
Definitions.
14.6.1. The
words
"hereof," "herein," and "hereunder," and words of similar import, shall be
construed to refer to this Agreement as a whole, and not to any particular
Section or provision, unless otherwise expressly provided.
14.6.2. The
word
"person" when used in this Agreement shall mean any natural person, partnership,
limited liability company, trust, corporation, or other form of business
or
legal entity.
14.6.3. The
word
"mortgage" shall be deemed to mean either a mortgage or deed of
trust.
14.6.4. The
word
"including" shall be construed as being followed by the words "but not limited
to" or "without limitation."
14.7. Number/Gender.
All
words or terms used in this Agreement, regardless of the number or gender
in
which they are used, shall be deemed to include any other number and any
other
gender as the context may require.
14.8. Successors
and Assigns.
This
Agreement shall be binding upon and shall inure to the benefit of Sellers
and
Buyers and their respective successors and permitted assigns. Neither this
Agreement, nor any rights, interests or obligations hereunder, may be assigned
or transferred, in whole or in part, by operation of law or otherwise by
Buyers
or Sellers without the prior written consent of the other party and any such
assignment that is not consented to shall be null and void.
20
14.9. Counterparts.
This
Agreement may be executed in multiple counterparts, each of which when so
executed and delivered shall be an original, but all of which shall evidence
a
single agreement.
14.10. Exhibits
and Schedules.
All
Exhibits and Schedules referred to in this Agreement are incorporated into
this
Agreement by reference and shall be deemed part of this Agreement for all
purposes as if set forth at length in this Agreement.
14.11. No
Joint Venture, Partnership, Agency, Etc.
This
Agreement shall not be construed as in any way establishing a partnership,
joint
venture, express or implied agency, or employer-employee relationship between
Sellers and Buyers.
14.12. No
Third-Party Beneficiaries.
This
Agreement is for the sole benefit of Sellers and Buyers and their respective
successors and permitted assigns, and no other person or entity shall be
entitled to rely upon , enforce, or receive any legal or equitable right,
remedy
or claim under or in respect of this Agreement or any provision
hereof.
14.13. No
Waiver.
No
delay on the part of any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any waiver on the
part of
any party of any right, power or privilege, nor any single or partial exercise
of any such right, power or privilege, preclude any further exercise thereof
or
the exercise of any other such right, power or privilege.
14.14. Remedies.
Subject
to the terms and conditions of Section 16 hereof, all of the rights and
remedies of either party under this Agreement and the other Transaction
Documents are intended to be distinct, separate, and cumulative, and no such
right or remedy herein or therein mentioned is intended to be in exclusion
of or
a waiver of any other rights or remedies that either party may otherwise
have at
law or in equity.
14.15. No
Presumption.
This
Agreement is the result of extensive negotiations between the parties, which
were all represented by counsel. The parties acknowledge and agree that in
the
event that any dispute arises regarding the interpretation or construction
of
this Agreement, this Agreement shall not be strictly construed against any
party
hereto by reason of the rule of construction that a document is to be construed
more strictly against the party which drafted the agreement.
14.16. Invalidity.
If any
term, provision, covenant or restriction of this Agreement or the application
thereof to any person or circumstance shall, to any extent, be held by a
court
of competent jurisdiction to be invalid, void or unenforceable, Sellers and
Buyers shall direct that such court interpret and apply the remainder of
this
Agreement in the manner that it determines most closely effectuates their
intent
in entering into this Agreement, and in doing so particularly take into account
the relative importance of the term, provision, covenant or restriction being
held invalid, void or unenforceable.
14.17. Notices.
All
notices, requests, demands, waivers and other communications required or
to be
permitted to be given under this Agreement shall be in writing and shall
be
deemed to have been duly given: (a) if delivered personally or sent by facsimile
or e-mail, on the date
21
If
to
Sellers: Litchfield
Investment Company, L.L.C.
▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone:
▇▇▇-▇▇▇-▇▇▇▇
E-mail:
▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
With
a copy
to: ▇▇▇▇▇,
▇▇▇▇▇ & ▇▇▇▇▇, L.L.P.
▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇
▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telephone:
▇▇▇-▇▇▇-▇▇▇▇
E-mail:
▇▇▇▇▇▇@▇▇▇-▇▇▇.▇▇▇
If
to
Buyers: c/o
Omega
Healthcare Investors, Inc.
▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone:
▇▇▇-▇▇▇-▇▇▇▇
E-mail:
▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
With
a copy
to: LeBoeuf,
Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq.
Telephone:
▇▇▇-▇▇▇-▇▇▇▇
E-mail:
▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
or
to
such other person and/or address as shall have been specified by either party
in
a notice given to the other; provided,
that
such notice shall be effective only upon receipt.
14.18. No
Recordation of this Agreement.
Neither
Buyers nor Sellers shall record this Agreement or a memorandum of this
Agreement.
14.19. Time
Periods.
If the
time period by which any acts or payments required hereunder must be performed
or paid expires on a Saturday, Sunday or legal holiday, then such time period
shall be automatically extended to the close of business on the next regularly
scheduled business day.
14.20. Legal
and Transaction Costs.
Without
regard to whether (a) the transaction closes or (b) if the transaction
does not close, the reason why it does not close, the responsibility for
transaction costs and expenses, as between Sellers and Buyers shall be as
follows: Sellers and Buyers shall pay for their own legal counsel fees and
expenses, Sellers shall pay the premium costs for the title insurance to
be
issued to Buyers and the costs and expenses to update the Surveys, and Buyers
shall pay all other due diligence
22
14.21. Prevailing
Party.
In the
event of a dispute between Sellers and Buyers with respect to the
interpretation, enforcement, construction or operation of the terms and
conditions of this Agreement and the other Transaction Documents, the prevailing
party in connection with the resolution of such dispute, whether in a court
proceeding, arbitration or otherwise, shall be entitled to collect from the
other party its reasonable attorneys' fees, costs and expenses, including
its
costs, fees and expenses in connection with any appeals or enforcement of
an
attorney's fee award.
14.22. Confidentiality.
From
the date of this Agreement, Sellers and Buyers agree to keep the contents
of
this Agreement and any discussions between the parties relating to this matter
confidential and not to disclose the contents of this Agreement or such
discussions to any third-party (except Sellers' lender, the Tenants, the
attorneys, accountants or consultants hired by Sellers and Buyers and except
for
required SEC or other governmental agency disclosures) without the prior
written
consent of Sellers or Buyers, as applicable, except as may be required to
enforce a party's rights hereunder or as a party may be legally required.
Either
Buyers' or Sellers' breach of the provisions of this Section 14.22 shall
entitle the other to seek judicial or equitable remedies, including, but
not
limited to, injunctive relief.
14.23. Exclusivity.
Sellers, on behalf of themselves and their respective affiliates, agree not
to
enter into discussions or negotiations with, or furnish any information to,
any
party regarding a transaction relating to the sale, financing, managing or
leasing of the Properties, unless this Agreement is terminated.
15. Sellers'
and Buyers' Indemnifications.
15.1. Sellers'
Indemnification.
Subject
to the limitations on liability and damages set forth in Section 16 hereof,
Sellers shall jointly and severally indemnify and hold harmless Buyers and
their
respective affiliates, officers, members, directors, shareholders, employees,
agents and assigns (collectively, the "Buyers Indemnified Parties") from
and
against any and all damages, losses, liabilities, obligations, claims, actions,
suits, proceedings, investigations, demands, assessments, judgments, penalties,
sanctions, costs, expenses, and disbursements (including, without limitation,
reasonable attorneys' and consultants' fees and expenses), whether or not
subject to litigation (collectively, "Claims") of any kind or character imposed
upon, arising out of, in connection with, incurred or in any way attributed
to
or relating to (a) the breach or failure of any representation, warranty,
covenant or obligation of Sellers that is contained in this Agreement or
any
other Sellers Transaction Documents, (b) the use, operation, ownership or
management of the Properties covered by the HQM Master Lease and the Nexion
23
15.2. Sellers'
Indemnification Procedure.
If the
Buyers Indemnified Parties assert that Sellers are subject to a Claim for
indemnification pursuant to Section 15.1, the Buyers Indemnified Parties
shall
promptly notify Sellers in writing of the Claim and shall describe in such
notice the Claim in sufficient detail in order to permit Sellers to evaluate
the
nature and cause of the Claim. Sellers covenant and agree to defend, through
counsel retained by Sellers, which retention shall be reasonably approved
by
Buyers, the Buyers Indemnified Parties on account of any of said Claims and
to
pay any judgment against the Buyers Indemnified Parties, or any other amount
that is indicated in Section 15.1, along with all reasonable costs and expenses
relative to any Claims, including attorneys' fees and expenses; provided,
that
the Buyers Indemnified Parties shall, nevertheless, have the right, if they
so
elect and at their sole cost and expense, to participate (with counsel of
their
choosing, which counsel must be approved by Sellers, which approval may not
be
unreasonably withheld) in the defense of any such Claims in which they may
be a
party without relieving Sellers of the obligation to defend same. To the
extent
applicable, the Buyers Indemnified Parties covenant not to settle or compromise
any Claims without the prior written consent of Sellers, which consent may
not
be unreasonably withheld. Failure to comply with the preceding covenant shall
be
deemed a complete waiver of any rights
24
15.3. Buyers'
Indemnification.
Subject
to the limitations on liability and damages set forth in Section 16 hereof,
Buyers shall jointly and severally indemnify and hold harmless Sellers and
their
respective affiliates, officers, members, directors, shareholders, employees,
agents and assigns (collectively, the "Sellers Indemnified Parties") from
and
against any and all Claims of any kind or character imposed upon, arising
out
of, in connection with, incurred or in any way attributed to or relating
to (a)
the breach or failure of any representation, warranty, covenant or obligation
of
Buyers that is contained in this Agreement or any other Buyers Transaction
Documents, (b) any activities conducted at or upon the Properties involving
due
diligence activities by or for Buyers under this Agreement, except if such
Claims are caused by the gross negligence or willful misconduct of Tenants
and
(c) any indemnification obligations of OHI-CO as Landlord under Section 15.10
of
the Peak Master Lease accruing or arising on or after the date of
Closing.
15.4. Buyers'
Indemnification Procedure.
If the
Sellers Indemnified Parties assert that Buyers are subject to a Claim for
indemnification pursuant to Section 15.3, the Sellers Indemnified Parties
shall
promptly notify Buyers in writing of the Claim and shall describe in such
notice
the Claim in sufficient detail in order to permit Buyers to evaluate the
nature
and cause of the Claim. Buyers covenant and agree to defend, through counsel
retained by Buyers which retention shall be reasonably approved by Sellers,
the
Sellers Indemnified Parties on account of any of said Claims and to pay any
judgment against the Sellers Indemnified Parties, or any other amount that
is
indicated in Section 15.3, along with all reasonable costs and expenses
relative to any Claims, including attorneys' fees and expenses; provided,
that
the Sellers Indemnified Parties shall, nevertheless, have the right, if they
so
elect and at their sole cost and expense, to participate (with counsel of
their
choosing, which counsel must be approved by Buyers, which approval may not
be
unreasonably withheld) in the defense of any such Claims in which they may
be a
party without relieving Buyers of the obligation to defend same. To the extent
applicable, the Sellers Indemnified Parties covenant not to settle or compromise
any Claims without the prior written consent of Buyers, which consent may
not be
unreasonably withheld. Failure to comply with the preceding covenant shall
be
deemed a complete waiver of any rights that the Sellers Indemnified Parties
have
or may have under Sections 15.3 and 15.4. Any required indemnification payment
shall be made within fifteen (15) days after liability for and the amount
of the
indemnification payment is finally determined.
16. Limitations
on Liability and Payment Obligations.
16.1. Sellers'
Limitation on Liability.
Under
no circumstances whatsoever shall Sellers be liable for any loss of profits,
loss of revenue, loss of business or other incidental, consequential, indirect,
special, exemplary or punitive damages of any kind, arising out of or in
connection with any and all Claims under Section 15.1 hereof, any and all
other
liabilities under this Agreement and the other Transaction Documents, and/or
any
of the transactions contemplated by this Agreement and the other Transaction
Documents.
25
16.2. No
Personal Liability of Sellers' Members.
All
representations, warranties, covenants, duties, obligations and liabilities
of
Sellers shall be the sole responsibility of Sellers and shall be recourse
solely
to Sellers and their assets; provided,
that
Buyers' sole recourse is the Letter of Credit with respect to those Claims
under
Section 15.1 hereof and those breaches under this Agreement and the other
Transaction Documents for which Sellers' liability for damages is limited
under
Section 16.3 hereof. Under no circumstances whatsoever shall any member,
manager, officer, director, shareholder, employee or representative of Sellers
be deemed personally liable, in contract, tort or otherwise, for any such
representations, warranties, covenants, duties, obligations and liabilities
arising out of or under this Agreement or the other Transaction Documents.
16.3. Limitation
on Sellers' Liability for Damages.
EXCEPT
FOR ANY BREACH OF THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTIONS
6.1.1, 6.1.2, 6.1.3 AND 6.1.7 HEREOF AND CLAIMS UNDER SECTIONS 15.1(b), 15.1(c),
15.1(d) AND 15.1(e) HEREOF, SELLERS' MAXIMUM AGGREGATE LIABILITY FOR DAMAGES
WITH RESPECT TO CLAIMS UNDER SECTION 15.1 HEREOF AND ANY BREACH OF A
REPRESENTATION, WARRANTY, COVENANT, OBLIGATION, TERM OR CONDITION UNDER THIS
AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS IS EXPRESSLY LIMITED TO THE
SUM OF
THREE MILLION DOLLARS ($3,000,000) IN THE EVENT THE CLOSING TAKES PLACE.
EXCEPT
FOR ANY BREACH OF THE RERESENTATIONS AND WARRANTIES SET FORTH IN SECTIONS
6.1.1,
6.1.2, 6.1.3 AND 6.1.7 HEREOF AND CLAIMS UNDER SECTIONS 15.1(b), 15.1(c),
15.1(d) AND 15.1(e) HEREOF, IT IS HEREBY AGREED TO BY SELLERS AND BUYERS
THAT
THIS SECTION 16.3 IS, AND SHALL SERVE AS, A LIMITATION ON SELLERS' LIABILITY
FOR
DAMAGES IN RESPECT OF CLAIMS UNDER SECTION 15.1 HEREOF AND ANY OTHER BREACHES
DESCRIBED IN THIS SECTION 16.3.
16.3.1. Buyers'
Recourse Against Letter of Credit.
As set
forth in this Section 16.3.1 and in the L/C Agreement, it is hereby agreed
to by
the parties that the Letter of Credit shall be the sole recourse for any
obligation or liability owed by Sellers (or any one of them) to Buyers (or
any
one of them) with respect to those Claims under Section 15.1 hereof and those
breaches of any representation, warranty, covenant, obligation, term or
condition under this Agreement and the other Transaction Documents for which
Sellers' liability for damages is limited under Section 16.3 hereof, and
no
other assets of Sellers (and Sellers' members) can be utilized or executed
upon
to satisfy or pay any liability or obligation owed by Sellers to Buyers with
respect to those Claims under Section 15.1 hereof and those breaches under
this
Agreement and the other Transaction Documents for which Sellers' liability
for
damages is limited under Section 16.3 hereof.
16.4. Intentionally
Deleted.
16.5. Buyers'
Limitation on Liability.
Under
no circumstances whatsoever shall Buyers be liable for any loss of profits,
loss
of revenue, loss of business, or other incidental, consequential, indirect,
special, exemplary or punitive damages of any kind, arising out of or in
connection with all Claims under Section 15.3 hereof, all other
26
16.6. No
Personal Liability of Buyers' Officers.
All
representations, warranties, covenants, duties, obligations and liabilities
of
Buyers shall be the sole responsibility of Buyers and shall be recourse solely
to Buyers and their assets. Under no circumstances whatsoever shall any member,
manager, officer, director, shareholder, employee or representative of Buyers
be
deemed personally liable, in contract, tort or otherwise, for any such
representations, warranties, covenants, duties, obligations and liabilities
arising out of or under this Agreement or the other Transaction
Documents.
16.7. Limitation
on Buyers' Liability for Damages.
EXCEPT
AS OTHERWISE PROVIDED IN SECTION 16.8 HEREOF, BUYERS' MAXIMUM AGGREGATE
LIABILITY FOR DAMAGES WITH RESPECT TO CLAIMS UNDER SECTION 15.3 HEREOF AND
ANY
BREACH OF A REPRESENTATION, WARRANTY, COVENANT, OBLIGATION, TERM OR CONDITION
UNDER THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS IS EXPRESSLY LIMITED
TO
THE SUM OF THREE MILLION DOLLARS ($3,000,000) IN THE EVENT THE CLOSING TAKES
PLACE. EXCEPT AS OTHERWISE PROVIDED IN SECTION 16.8 HEREOF, IT IS HEREBY
AGREED
TO BY SELLERS AND BUYERS THAT THIS SECTION 16.7 IS, AND SHALL SERVE AS, A
LIMITATION ON BUYERS' LIABILITY FOR DAMAGES IN RESPECT OF CLAIMS UNDER SECTION
15.3 HEREOF AND ANY OTHER BREACHES DESCRIBED IN THIS SECTION 16.7.
16.8. Exceptions
to Limitation on Buyers' Liability for Damages.
BUYERS'
MAXIMUM AGGREGATE LIABILITY FOR DAMAGES WITH RESPECT TO ANY BREACH OF THE
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTIONS 6.2.1, 6.2.2, 6.2.3
AND
6.2.4 HEREOF IS EXPRESSLY LIMITED TO THE SUM OF THE PURCHASE PRICE; PROVIDED,
HOWEVER,
THAT IN
ANY SUCH ACTIONS INITIATED BY SELLERS AGAINST BUYERS, SELLERS WILL NOT OBJECT
TO
BUYERS' INSTITUTION OF A THIRD-PARTY ACTION.
17. Survival
of Indemnifications, Obligations, Representations and Warranties.
Except
as otherwise provided in Section 6.1.4 hereof, the indemnifications,
obligations, representations and warranties contained in this Agreement and
the
other Transaction Documents shall survive the Closing and remain operative
and
in full force for a period of two (2) years from the date of Closing
(the "Survival Termination Date"); provided,
however,
that
any Claim, demand, lawsuit or other action must be made or asserted in writing
to Sellers or Buyers, as the case may be, prior to the Survival Termination
Date
for such indemnifications and other liabilities and obligations of Sellers
and
Buyers, as the case may be, to survive the Survival Termination Date. Then,
in
such event, such Claim, demand, lawsuit or other action shall survive the
Survival Termination Date until finally resolved.
SIGNATURE
PAGE FOLLOWS
27
IN
WITNESS WHEREOF,
the
parties have duly executed and delivered this Contract of Sale as of the
date
first above written.
SELLERS:
LARAMIE
ASSOCIATES, LLC
CASPER
ASSOCIATES, LLC
NORTH
▇▇▇▇
▇▇▇▇▇▇ ASSOCIATES, LLC
NORTH
UNION BOULEVARD ASSOCIATES, LLC
▇▇▇▇▇
AVENUE ASSOCIATES, LLC
LITCHFIELD
INVESTMENT COMPANY, L.L.C.
▇▇▇▇▇▇
ROAD ASSOCIATES, LLC
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ASSOCIATES, LLC
NORTH
THIRD STREET ASSOCIATES, LLC
MIDWESTERN
PARKWAY ASSOCIATES, LLC
NORTH
▇▇▇▇▇▇▇ STREET ASSOCIATES, LLC
WEST
▇▇▇▇ STREET ASSOCIATES, LLC
By: /s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Title: Vice
President and Member
BUYERS:
OHI
ASSET (LA), LLC
NRS
VENTURES, L.L.C.
OHI
ASSET (CO), LLC
|
By:
|
Omega
Healthcare Investors, Inc., as the Sole Member of each of the
companies
|
By: /s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇
Title: Chief
Operating Officer
28
SCHEDULES
AND EXHIBITS
|
Exhibit
A
|
Sellers
|
|
Exhibit
B
|
Buyers
|
|
Exhibit
C
|
Descriptions
of Facilities
|
|
Exhibit
D
|
Legal
Descriptions of Land
|
|
Schedule
6.1.2
|
Power
and Authority
|
|
Schedule
6.1.3
|
No
Conflict
|
|
Schedule
6.1.6
|
Real
Estate
|
|
Schedule
6.1.7
|
Litigation
|
|
Schedule
7.1
|
Permitted
Exceptions
|
|
Schedule
15.1(c)
|
Environmental
Matters
|
EXHIBIT
A
SELLERS
|
SELLERS
|
STATE
OF ORGANIZATION
|
|
Laramie
Associates, LLC
|
Colorado
|
|
Casper
Associates, LLC
|
▇▇▇▇▇▇▇▇
|
|
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ Associates, LLC
|
Colorado
|
|
North
Union Boulevard Associates, LLC
|
Colorado
|
|
▇▇▇▇▇
Avenue Associates, LLC
|
Colorado
|
|
Litchfield
Investment Company, L.L.C.
|
Connecticut
|
|
▇▇▇▇▇▇
Road Associates, LLC
|
Idaho
|
|
West
24th
Street Associates, LLC
|
Texas
|
|
North
Third Street Associates, LLC
|
Texas
|
|
Midwestern
Parkway Associates, LLC
|
Texas
|
|
North
▇▇▇▇▇▇▇ Street Associates, LLC
|
Texas
|
|
West
▇▇▇▇ Street Associates, LLC
|
Texas
|
EXHIBIT
B
BUYERS
|
BUYERS
|
STATE
OF ORGANIZATION
|
|
OHI
Asset (LA), LLC
|
Delaware
|
|
NRS
Ventures, L.L.C.
|
Kentucky
|
|
OHI
Asset (CO), LLC
|
Delaware
|
EXHIBIT
C
DESCRIPTIONS
OF PROPERTIES/FACILITIES
|
PROPERTIES/
FACILITIES
|
SELLERS
|
TENANTS
|
BUYERS
|
PROPERTY/FACILITY
ADDRESSES
|
PURCHASE
PRICE
|
|
Cheyenne
Mountain Care Center
|
Laramie
Associates, LLC
|
Peak
Medical Colorado No. 2, Inc.
|
OHI
Asset (CO), LLC
|
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
719-576-
▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$9,622,000
|
|
Cheyenne
Place Retirement Center
|
Casper
Associates, LLC
|
Peak
Medical Colorado No. 2, Inc.
|
OHI
Asset (CO), LLC
|
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$5,880,000
|
|
Mesa
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
|
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ Associates, LLC
|
Peak
Medical Colorado No. 2, Inc.
|
OHI
Asset (CO), LLC
|
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$5,239,000
|
|
Pikes
Peak Care Center
|
North
Union Boulevard Associates, LLC
|
Peak
Medical Colorado No. 2, Inc.
|
OHI
Asset (CO), LLC
|
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$11,225,000
|
|
Pueblo
Extended Care Center
|
▇▇▇▇▇
Avenue Associates, LLC
|
Peak
Medical Colorado No. 2, Inc.
|
OHI
Asset (CO), LLC
|
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$9,034,000
|
|
Fort
▇▇▇▇▇ Care & Rehabilitation Center
|
Litchfield
Investment Company, L.L.C.
|
HQM
of Ft. ▇▇▇▇▇, LLC
|
NRS
Ventures, L.L.C.
|
▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$7,021,000
|
|
Heritage
Park Care & Rehabilitation Center
|
Litchfield
Investment Company, L.L.C.
|
HQM
of Bradenton, LLC
|
NRS
Ventures, L.L.C.
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$7,874,000
|
|
HQM
of Orange Park
|
Litchfield
Investment Company, L.L.C.
|
HQM
of Orange Park, LLC
|
NRS
Ventures, L.L.C.
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$6,889,000
|
|
HQM
of Palm Bay
|
Litchfield
Investment Company, L.L.C.
|
HQM
of Palm Bay, LLC
|
NRS
Ventures, L.L.C.
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$7,874,000
|
|
HQM
of Port ▇▇▇▇▇▇▇▇▇
|
▇▇▇▇▇▇▇▇▇▇
Investment Company, L.L.C.
|
HQM
of Port Charlotte, LLC
|
NRS
Ventures, L.L.C.
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$10,760,000
|
|
Kenilworth
Care & Rehabilitation Center
|
Litchfield
Investment Company, L.L.C.
|
HQM
of Sebring, LLC
|
NRS
Ventures, L.L.C.
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$6,824,000
|
|
Winter
Park Care & Rehabilitation Center
|
Litchfield
Investment Company, L.L.C.
|
HQM
of Winter Park, LLC
|
NRS
Ventures, L.L.C.
|
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$6,758,000
|
|
Capitol
Care Center
|
▇▇▇▇▇▇
Road Associates, LLC
|
Peak
Medical Colorado No. 2, Inc.
|
OHI
Asset (CO), LLC
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$5,000,000
|
|
Gonzales
Healthcare Center
|
Litchfield
Investment Company, L.L.C.
|
Nexion
Health at Gonzales, Inc.
|
OHI
Asset (LA), LLC
|
▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$3,720,000
|
|
▇▇▇▇▇▇
Healthcare Center
|
Litchfield
Investment Company, L.L.C.
|
Nexion
Health at Kaplan, Inc.
|
OHI
Asset (LA), LLC
|
▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$3,600,000
|
|
Lafayette
Healthcare Center
|
Litchfield
Investment Company, L.L.C.
|
Nexion
Health at Lafayette, Inc.
|
OHI
Asset (LA), LLC
|
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$1,800,000
|
|
Many
Healthcare North
|
Litchfield
Investment Company, L.L.C.
|
Nexion
Health at Many North, Inc.
|
OHI
Asset (LA), LLC
|
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇
▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$3,840,000
|
|
Many
Healthcare South
|
Litchfield
Investment Company, L.L.C.
|
Nexion
Health at Many South, Inc.
|
OHI
Asset (LA), LLC
|
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$1,800,000
|
|
▇▇▇▇▇▇▇
Healthcare Center
|
Litchfield
Investment Company, L.L.C.
|
Nexion
Health at Marrero, Inc.
|
OHI
Asset (LA), LLC
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$4,020,000
|
|
Meadowview
Healthcare Center
|
Litchfield
Investment Company, L.L.C.
|
Nexion
Health at Minden, Inc.
|
OHI
Asset (LA), LLC
|
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$6,900,000
|
|
New
Iberia Manor North
|
Litchfield
Investment Company, L.L.C.
|
Nexion
Health at New Iberia North, Inc.
|
OHI
Asset (LA), LLC
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$3,630,000
|
|
New
Iberia Manor South
|
Litchfield
Investment Company, L.L.C.
|
Nexion
Health at New Iberia South, Inc.
|
OHI
Asset (LA), LLC
|
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$2,400,000
|
|
Claiborne
Healthcare Center
|
Litchfield
Investment Company, L.L.C.
|
Nexion
Health at Claiborne, Inc.
|
OHI
Asset (LA), LLC
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$2,580,000
|
|
Thibodaux
Healthcare Center
|
Litchfield
Investment Company, L.L.C.
|
Nexion
Health at Thibodaux, Inc.
|
OHI
Asset (LA), LLC
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$1,740,000
|
|
▇▇▇▇▇▇
Healthcare Center
|
Litchfield
Investment Company, L.L.C.
|
Nexion
Health at Vivian, Inc.
|
OHI
Asset (LA), LLC
|
▇▇▇
▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$2,400,000
|
|
Pierremont
Healthcare Center
|
Litchfield
Investment Company, L.L.C.
|
Nexion
Health at Pierremont, Inc.
|
OHI
Asset (LA), LLC
|
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$5,880,000
|
|
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇ Associates, LLC
|
Nexion
Health at Plainview, Inc.
|
OHI
Asset (LA), LLC
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$5,293,000
|
|
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Associates, LLC
|
Nexion
Health at Iowa Park, Inc.
|
OHI
Asset (LA), LLC
|
▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$3,739,000
|
|
Midwestern
Healthcare Center
|
Midwestern
Parkway Associates, LLC
|
Nexion
Health at Wichita Falls, Inc.
|
OHI
Asset (LA), LLC
|
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$5,828,000
|
|
▇▇▇▇▇▇▇
▇▇▇▇▇
|
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Associates, LLC
|
Nexion
Health at ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc.
|
OHI
Asset (LA), LLC
|
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$4,565,000
|
|
Terrell
Healthcare Center
|
West
▇▇▇▇ Street Associates, LLC
|
Nexion
Health at Terrell, Inc.
|
OHI
Asset (LA), LLC
|
▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
(fax)
|
$6,265,000
|
EXHIBIT
D
LEGAL
DESCRIPTIONS OF LAND
SEE
ATTACHED
SCHEDULE
6.1.2
POWER
AND AUTHORITY
SEE
ATTACHED
SCHEDULE
6.1.3
NO
CONFLICT
SEE
ATTACHED
SCHEDULE
6.1.6
REAL
ESTATE
SEE
ATTACHED
SCHEDULE
6.1.7
LITIGATION
SEE
ATTACHED
SCHEDULE
7.1
PERMITTED
EXCEPTIONS
Zoning,
use, and building laws, codes, regulations, and ordinances, and all other
similar legal requirements, applicable to the Properties.
The
state of facts the final updated Surveys and personal inspections of the
Properties would show and are not objected to by Buyers under Section 7.4
hereof.
Real
estate taxes, water charges, and sewer rents that become due and payable
after
the date of the Closing (which shall be subject to the apportionment provided
for in this Agreement).
Unpaid
installments of assessments that become due and payable after the date of
the
Closing.
All
covenants, conditions, restrictions, and easements of record applicable to
the
Properties and not objected to by Buyers under Section 7.4
hereof.
Rights
of utility companies to lay, maintain, install, and repair pipes, poles,
conduits, cable boxes and similar and related utility facilities and equipment
on, over, and under the Properties.
Rights,
if any, of third-parties with respect to any portion of the Properties lying
within the boundaries of a public or private road (subject to amendment or
deletion upon approval of the final updated Surveys).
All
matters described in the Commitments and the updated Surveys that are not
objected to by Buyers in accordance with Section 7.4 hereof or are waived
or are
deemed waived by Buyers as a result of the purchase of the Properties at
the
Closing.
SCHEDULE
15.1(C)
ENVIRONMENTAL
MATTERS
SEE
ATTACHED