PURCHASE AND SALE AGREEMENT
THIS
PURCHASE AND SALE AGREEMENT
(this
“Agreement”)
is
made and entered into this 16th
day of
December, 2005 by and between CLEVELAND
SENIORCARE CORP.,
an
Indiana corporation (the “Seller”),
and
OHI
ASSET II (OH), LLC,
a
Delaware limited liability company (the “Buyer”).
RECITALS
WHEREAS,
Seller
is the owner of the eleven (11) healthcare facilities identified on Exhibit
A
attached
hereto and made a part hereof as the “Facilities”
(each
being referred to herein individually as a “Facility”);
and
WHEREAS,
Seller
desires to sell, transfer, convey and assign to Buyer, and Buyer desires
to
acquire, assume and accept from Seller, certain property and assets associated
with the Facilities (the “Property,”
as
further defined herein) on and subject to the terms and conditions contained
in
this Agreement; and
WHEREAS,
Buyer,
after it acquires the Property, intends to sell or lease, as the case may
be,
the Property and the Facilities to CSC
MSTR LSCO, L.L.C.,
an Ohio
limited liability Company (the “Tenant”),
with
any such lease to be pursuant to a master lease agreement (“Lease”),
which
shall contain such terms and conditions as the Buyer and Tenant shall agree,
provided that such transactions or Lease shall have no effect on, nor be
part of
this Agreement; and
WHEREAS,
simultaneous with the closing of the transactions contemplated by this Agreement
and in connection with Buyer’s selling or leasing the Property and the
Facilities to Tenant pursuant to the Lease, Seller and Tenant shall enter
into
and execute an Operations Transfer Agreement (“Transfer
Agreement”),
pursuant to which Seller shall transfer the operations of the Facilities
to
Tenant, and Tenant shall accept transfer of the operations of the
Facilities;
and
WHEREAS,
simultaneous with the closing of the transactions contemplated by this
Agreement, in connection with Buyer’s selling or leasing of the Property and the
Facilities to Tenant pursuant to the Lease, and in furtherance of the Transfer
Agreement, Seller and Bedrock Slate and Gravel Pit, LLC, an Ohio limited
liability company (“Wind
Down Agent”),
shall
enter into and execute an Assignment and Assumption Agreement (“Assignment
Agreement”),
pursuant to which Seller shall sell, transfer, convey, and assign to Tenant
and
Tenant shall purchase, acquire, assume, and accept from Seller those certain
assets and liabilities associated with the Facilities that are not otherwise
sold, transferred, conveyed, assumed, or assigned to Buyer under this Agreement
or to Tenant under the Transfer Agreement.
WHEREAS,
as a
condition to Seller entering into this Agreement, the Assignment Agreement,
and
the Transfer Agreement, and in connection with Buyer’s leasing the Property to
Tenant pursuant to the Lease, Tenant shall cause its affiliate, CommuniCare
Health Services, Inc. (“CHS”) to execute and deliver a Guaranty (the
“Guaranty”), pursuant to which CHS will guaranty the obligations of Wind Down
Agent under the Assignment Agreement.
NOW,
THEREFORE,
for
good and valuable consideration, the receipt and sufficiency of which are
acknowledged hereby, the parties hereto agree to incorporate the above recitals
into this Agreement as if fully rewritten herein and further agree as
follows:
1. Sale.
Seller
agrees to sell, convey, and assign to Buyer, and Buyer agrees to purchase
and
assume from Seller, for the Purchase Price (as hereinafter defined), and
on the
terms and conditions set forth in this Agreement, the Property (as hereinafter
defined). For purposes of this Agreement, the term “Property”
shall
be deemed to mean on a collective basis:
1.1. The
Land.
The
parcels of land legally described on Exhibit
E
attached
hereto and made a part hereof, together with all rights, easements and interests
appurtenant thereto including, but not limited to, any streets or other public
ways adjacent to the Land and any water or mineral rights owned by Seller
(collectively, the “Land”).
1.2. The
Improvements.
All
improvements located on the Land,
including, but not limited to, the Facilities, and all other structures,
systems, fixtures and utilities associated with, and utilized in, the ownership
and operation of the Facilities (all such improvements being collectively
referred to as the “Improvements”).
1.3. Personal
Property.
All
tangible personal property located
on or in the Land or Improvements or
used
in connection with the ownership, operation and
maintenance of the Facilities (the “Personal
Property”),
including, but not limited, to, all, if any, building materials, supplies,
hardware, and carpeting. The Personal Property does not include the
“Consumables”,
which
are hereby defined to be the inventory of food, dietary supplies, medical
supplies, floor stock, maintenance supplies, paper goods, linens, laundry
supplies and all other consumables, disposable items used in the operation
of
the Facilities, and other inventory maintained in connection with Seller’s
ownership of the Facilities (the “Inventory”).
It is
understood and agreed that an inventory of all Consumables shall be taken
effective as of the Closing Date and the value of the Consumables in excess
of
any state mandated requirement at the Seller’s cost, (the “Consumables
Value”)
shall
be incorporated at Closing into the APBS (as defined in the Assignment
Agreement) as an asset being acquired by the Wind Down Agent pursuant to
the
Assignment Agreement.
1.4. Intangible
Personal Property.
Each
and all of the following items of intangible property owned by Seller or
utilized in
connection with the ownership and operation of the Facilities (collectively,
the
“Intangibles”):
(i)
all
right, title and
interest in
the
identity or business of the Facilities as a going concern, including without
limitation, any names or trade names by which the Facilities or any one or
more
of them may be known; (ii) to the extent assignable or transferable,
all
right, title and
interest in
and to
each and every guaranty and warranty concerning the Improvements and the
Personal Property, including, without limitation, any roofing, air conditioning,
heating, elevator or other guaranty or warranty relating to the construction,
maintenance or replacement of the Improvements or any portion thereof;
(iii) all
right, title and
interest in
and to
all guaranties and warranties given to Seller that have not expired (either
on a
“claims made” or occurrence basis) in connection with the operation,
construction, improvement, alteration or repair of the Improvements; (iv)
to the
extent assignable or transferable,
all
right, title and
the
interest in,
to
and under all governmental permits, licenses, authorizations, operating rights
and approvals associated with the physical construction of the Improvements
(not
including any permits, licenses, authorizations or approvals associated with
the
operation of the Facilities as health care facilities or otherwise);
and
(v)
to
the extent assignable or transferable, all
right, title and
interest in,
to
and under any certificate of need, operating rights from a governmental
authority related to the construction and/or operation of any Facility or
any of
the Property for the use of a specified number of beds in a nursing facility,
MR/DD facility, assisted living facility and/or rehabilitation hospital,
and any
other activities carried on by the Seller in the Facilities and/or the Property,
or alteration of any such Facility or the Property or modification of services
provided at such Facility
or the
Property.
1.5. Business
Records.
To the
extent that the Seller has ownership and control, all of the following
maintained by, issued to or held by Seller: books and records relating to
the
Facilities or the operation thereof, including, without limitation, files,
invoices, forms, accounts, correspondence, patient records, technical,
accounting and procedural manuals, employment records, actuarial studies,
studies, reports or summaries relating to any environmental matters, and
other
books and records relating to the ownership, maintenance or operation of
any of
the Facilities or any of the Property, surveys, engineering or environmental
reports and other studies, investigations or depictions of the Facilities
or the
Property (collectively, the “Business
Records”)
to the
extent the Seller has the right under applicable law to convey or transfer
them.
Seller and Buyer acknowledge and agree that at the request and direction
of
Buyer, the Business Records shall be transferred, conveyed, and assigned
to
Tenant upon Closing in furtherance of Buyer’s selling or leasing of the Property
and the Facilities to Tenant pursuant to the Lease and in accordance with
the
Transfer Agreement; provided Tenant shall be required to fulfill the Seller’s
obligations thereunder.
1.6. For
purposes of this Agreement, the term “Provider Agreements” shall mean to the
extent they are assignable, any provider agreements held by or issued to
Seller
or any Facility under which the Facilities are eligible to receive payment
under
(i) Title XVIII (“Medicare”),
Title
XIX (“Medicaid”)
or any
other governmental or quasi-governmental third party payor programs, (ii)
any
private or quasi-private healthcare reimbursement or private payor programs
(including so-called “HMO” and “PPO” programs) (herein, “Third
Party Payor Programs”),
and
(iii) any other agreement, arrangement, program or understanding with any
federal, state or local governmental agency or organization or private
organization pursuant to which the Facilities qualify for payment or
reimbursement for medical or therapeutic care or other goods or services
rendered or supplied to any resident.
1.7. Excluded
Property.
The
Property shall not, however, include any of the following items (the
“Excluded
Property”)
or
proceeds therefrom, that may be paid or otherwise realized after Closing:
(i)
any and all cash
(including resident funds), bank deposits, escrows and other cash equivalents,
certificates of deposits, marketable securities, cash deposits made by the
Seller to secure contract obligations (except to the extent the Seller receives
a credit therefor under any other provision of this Agreement), and all accounts
receivable in connection with the Facilities accruing prior to the Closing
Date,
including, without limitation, any and all reimbursements which may be due
under
any Provider Agreements; (ii) any and all rights
in
and to claims or causes of action of the Seller against third parties
(including, without limitation, for indemnification) with respect to, or
which
are made under or pursuant to, other Excluded Property; (iii)
all
prepaid expenses (and rights arising therefrom or related thereto) except
to the
extent taken into account in determining the prorations provided for under
Section
12;
(iv)
any
employment agreements, the same to be assumed by Tenant in the Transfer
Agreement; (v)
except
as set forth in Section
14,
any and
all contracts of insurance, all coverages and proceeds thereunder and all
rights
in connection therewith, including, without limitation, rights arising from
any
refunds due with respect to insurance premium payments to the extent they
relate
to such insurance policies; and (v)
any
records relating to Excluded Property.
1.8. Excluded
Liabilities.
In
addition, notwithstanding anything to the contrary set forth in this Agreement,
Buyer hereby does not agree to assume, pay, perform, satisfy or discharge
any
liability or obligation of Seller (the “Excluded
Liabilities”).
The
term Excluded Liabilities shall include:
(i) any
liability or obligation of Seller accruing or arising prior to the Closing
for
breach of contract, personal injury or property damage (whether based on
negligence, breach of warranty, strict liability or any other theory) caused
by,
arising out of or resulting from, directly or indirectly, any alleged or
actual
acts or omissions; (ii) any liability or obligation of the Seller accruing
or
arising prior
to
the Closing for money borrowed;
(iii)
any
liability or obligation of Seller relating to that certain Promissory Note
dated
January 29, 1999 from Sycamore Holdings, LLC., a Delaware limited liability
company, as payor, to Xxxxxx X. Xxxxxxx and Xxxx X. Xxxxxxx, payees;
and
(iv)
any and all other liabilities and obligations of every kind of
Seller.
2. Purchase
Price.
2.1. Purchase
Price.
The
total purchase price for the Property (the “Purchase
Price”)
to be
paid to Seller by Buyer shall be equal to (A) the sum of (i) One Hundred
Fourteen Million Two Hundred Fifty Thousand and no/100 Dollars
($114,250,000.00), and (ii) the Closing Fee of Seven Hundred Fifty Thousand
and
no/100 ($750,000.00) (“Prime
Fee”) due
and
owing to Prime Care Management LLC (“Prime”)
pursuant to the terms of that certain letter agreement between ZC Specialty
Insurance Company (“Surety”)
and
Prime dated April 26, 2005,
which shall be paid by Buyer directly to Prime, less (B) an adjustment for
capital improvements and equipment lease buy-outs in the amount of $250,000,
to
be deducted from the cash portion of the Purchase Price and not from the
Prime
Fee.
The
Buyer will pay the Purchase Price at Closing by electronic wire transfer
of
immediately
available funds to the Escrow Agent for disbursement in accordance with this
Agreement.
2.2. Intentionally
deleted.
2.3. Intentionally
deleted.
2.4. Allocation
of the Purchase Price.
The
portion of the Purchase Price allocated to each Facility shall be mutually
determined by the parties prior to Closing (“Allocated
Purchase Price”).
3. Closing.
The
purchase and sale contemplated herein shall be consummated at the closing
(“Closing”)
as of
the date hereof (the “Closing
Date”).
For
the purposes of any pro-rations to be made pursuant to this Agreement, the
Closing shall be effective as of 12:01 A.M. on the Closing
Date.
3.1. BUYER
ACKNOWLEDGEMENT. BUYER
ACKNOWLEDGES AND AGREES THAT THE BUYER IS ACQUIRING THE PROPERTY ON AN “AS-IS
WHERE-IS” BASIS, WITHOUT REPRESENTATION, WARRANTY OR COVENANT (EXPRESS OR
IMPLIED OTHER THAN THE EXPRESS REPRESENTATIONS CONTAINED IN THIS AGREEMENT)
BY
SELLER AND IN EACH CASE SUBJECT ONLY TO PERMITTED ENCUMBRANCES. SELLER HAS
NOT
MADE NOR SHALL BE DEEMED TO HAVE MADE ANY REPRESENTATION, WARRANTY OR COVENANT
(EXPRESS OR IMPLIED) OR SHALL BE DEEMED TO HAVE ANY LIABILITY WHATSOEVER
AS TO
THE VALUE, HABITABILITY, USE, CONDITION, DESIGN, OPERATION, MERCHANTABILITY
OR
FITNESS FOR USE OF THE PROPERTY (OR ANY PART THEREOF), OR ANY OTHER
REPRESENTATION, WARRANTY OR COVENANT WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO THE PROPERTY (OR ANY PART THEREOF), ANY USE OF THE PROPERTY, ANY
BUSINESS OR BUSINESSES CONDUCTED THEREIN, THE VALUE OR FINANCIAL STATUS OF
THE
PROPERTY OR THE FACILITIES, AND SELLER SHALL NOT BE LIABLE FOR ANY LATENT,
HIDDEN, OR PATENT DEFECT THEREON OR THE FAILURE OF THE PROPERTY, OR ANY PART
THEREOF, TO COMPLY WITH ANY LEGAL REQUIREMENT. BUYER HAS OR PRIOR TO THE
DATE
HEREOF WILL HAVE BEEN AFFORDED FULL OPPORTUNITY TO INSPECT THE PROPERTY,
AND ANY
AND ALL BUSINESSES OR OPERATIONS CONDUCTED THEREIN. IT IS UNDERSTOOD AND
AGREED
THAT BUYER IS PURCHASING THE PROPERTY AS SPECIFICALLY SET FORTH IN THIS
AGREEMENT. SELLER HAS MADE NO REPRESENTATIONS AND WARRANTIES AND SHALL MAKE
NO
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO ANY OF THE BUSINESSES OR
OPERATIONS CONDUCTED IN THE PROPERTY. BUYER REPRESENTS AND WARRANTS TO THE
SELLER, WITHOUT ANY LIMITATION WHATSOEVER, THAT IT IS ENTERING INTO THIS
AGREEMENT SOLELY ON THE BASIS OF THE RESULTS OF THEIR OWN INSPECTIONS, AND
ALL
RISKS INCIDENT TO THE MATTERS DESCRIBED IN THE PRECEDING SENTENCE, AS BETWEEN
SELLER ON THE ONE HAND, AND BUYER, ON THE OTHER HAND, ARE TO BE BORNE BY
BUYER.
3.2. Execution
of the Transfer Agreement and Assignment Agreement.
A. On
or
before the Closing Date, and effective at the Closing, Seller shall execute
and
deliver, and Tenant and CALM OF CLEVELAND, LLC, an Ohio limited liability
company (“Manager”),
shall
execute and deliver the Transfer Agreement.
B. On
or
before the Closing Date, and effective at the Closing, Seller shall execute
and
deliver, and Wind Down Agent shall execute and deliver the Assignment
Agreement.
4. Intentionally
omitted.
4.1. Intentionally
omitted.
4.2. Intentionally
omitted.
4.3. Licensure.
A. Intentionally
omitted.
B. Tenant
has submitted appropriate licensure applications for a change of ownership
for
the Facilities with the Ohio Department of Health (“ODH”),
the
Ohio Department of Job and Family Services (“ODJFS”),
or
the Ohio Department of Mental Retardation and Developmental Disabilities
(“ODMR/DD”)
whatever the case may be. On December 14, 2005, Tenant provided to Seller
and
Buyer an affirmative acknowledgement from ODH in a telephone call with a
representative of ODH that ODH has approved Tenant or its designees licensure
applications and that the Tenant or its designees will be permitted to operate
the Facilities from and after the Closing Date. Seller and Buyer understand
that
the ODN and the ODMR/DD will not issue a license to Tenant until after the
Closing. Seller shall permit Tenant to utilize its licenses from the Closing
Date until Tenant obtains its own licenses from ODH and the ODMR/DD, provided,
that Tenant shall indemnify and hold the Seller harmless from any and all
liabilities, costs and expenses of any nature, kind and description arising
after the Closing Date, whether from the ownership of the Property and the
operation of any business or other activity in the Property, including providing
any services to any person. Tenant has named the Seller as an additional
insured
on any and all insurance policies or other insurance activities covering
the
Property and any and all operations therein until such time as Tenant shall
have
received its own licenses from ODH and ODMR/DD.
5. Seller’s
Representations and Warranties.
Seller
represents and warrants to the Buyer that the following matters are true
as of
the Closing Date:
5.1. Ownership.
The
Seller is the owner, in fee simple, of the Property, subject only to the
Permitted Encumbrances.
5.2. Status.
Seller
is a corporation duly organized, validly existing and in good standing under
the
laws of the State of Indiana. Seller is duly qualified to do business as
a
foreign corporation in the State of Ohio.
5.3. Authority.
The
execution and delivery of this Agreement and all documents to be executed
by it
pursuant to this Agreement by Seller, and the performance of this Agreement
and
all documents to be executed by it pursuant to this Agreement by Seller,
have
been duly authorized by Seller, and this Agreement is binding on Seller and
enforceable against Seller in accordance with its terms except as enforceability
may be restricted, limited or delayed by applicable bankruptcy or other laws
affecting creditors’ rights generally and except as enforceability may be
subject to general principles of equity. The execution of this Agreement
and the
consummation of the transactions contemplated in this Agreement do not and
will
not result in a breach of the terms and conditions of, nor constitute a default
under or violation of, Seller's articles of incorporation, bylaws or any
law,
regulation, court order, or any mortgage, note, bond, indenture, agreement,
license or other instrument or obligation to which Seller is now a party
or by
which any of portion of the Property may be bound or affected and that is
material to Seller’s business. The Seller represents and warrants to the Buyer
that (i) the holder of the debt evidenced by that certain Promissory Note
dated
as of January 29, 1999 in the original principal amount of $140,000,000 (the
“Defeased
Debt”)
has
consented to, and approved, Sellers request to permit the defeasance of the
Defeased Debt and (ii) as of the Closing (which is also the time at which
this
Agreement is being delivered by the parties), the Defeased Debt has been
defeased as required by the documents evidencing the Defeased Debt such that
all
liens and security interests encumbering any of the Property and securing
the
Defeased Debt have been released and discharged.
5.4. Notices
of Violations.
Buyer
acknowledges that Manager manages the Facilities on Seller’s behalf and that
Manager has been represented to Seller as being a wholly-owned affiliate
of
Tenant. Buyer further acknowledges and agrees that the knowledge of the Manager
with respect to any representations and warranties contained in this Agreement
or the Transfer Agreement will not be imputed to the Seller. To Seller’s
knowledge, Seller has received no written notices, orders, demands or other
directives from any governmental authorities pertaining to any uncured material
violations of any applicable laws, ordinances, rules, regulations, codes,
licenses, permits and authorizations pertaining to the operation of the
Facilities other than those, if any, which are identified on Exhibit
F,
attached hereto.
5.5. Litigation.
To the
Seller’s knowledge, and except as disclosed on Exhibit
G
attached
hereto and made a part hereof, there are no pending or threatened, judicial,
municipal or administrative proceedings affecting the Property which would
inhibit the Seller’s ability to transfer the Property as set forth in this
Agreement or in which Seller is a party by reason of Seller’s ownership of the
Property or any portion thereof in each case other than those that could
reasonably be expected to have a Material Adverse Effect.
5.6. Operator
Licenses and Provider Agreements.
To
Seller’s knowledge, Seller has been issued, and is in good standing with respect
to, any and all permits, licenses, regulatory approvals, approvals, certificates
of need, accreditations and comparable authorizations (collectively,
“Operator
Licenses”)
from
all applicable governmental and quasi-governmental authorities (including,
but
not limited to, ODH, ODJFS, “ODMR/DD”, any applicable county board of mental
retardation and developmental disabilities, the Center for Medicare and Medicaid
Services and the Ohio Department of Industrial Relations, Division of Factory
and Building Inspection, or any other governmental agency which has jurisdiction
over any aspect of the Facilities or over the operation thereof) necessary
for
the use, operation and maintenance of the applicable Facility and the conduct
of
Seller’s business therein other than those the failure to have obtained or
maintain could not reasonably be expected to have a Material Adverse Effect.
Seller has obtained and to Seller’s knowledge, is in good standing with respect
to any and all material Provider Agreements under which the Seller and/or
the
applicable Facility is entitled to receive payment or reimbursement under
Medicare, Medicaid or any Third Party Payor Programs.
5.7. No
Reimbursement Audits or Appeals.
To the
Seller’s knowledge, there are no current, pending or outstanding Medicaid,
Medicare or other Third Party Payor Programs’ audits or appeals pending at the
Facilities other than those, if any, identified on Exhibit
H,
attached hereto.
To the
extent there are any audits or recoveries, the Seller shall have no
responsibility or liability, the same to be assumed by the Tenant.
5.8. United
States Person.
The
Seller is a “United States Person” within the meaning of Section 1445(f)(3)
of the Internal Revenue Code of 1986, as amended.
5.9. Taxes
and Tax Returns.
Seller
has taken any and all actions pursuant to applicable federal and state tax
laws
relating to the timely filing of any and all federal, state, local and foreign
tax returns and have paid of any and all applicable tax liabilities, as
required, the nonpayment of which could result in a lien being placed against
the Property. Sellers have paid (or shall pay as required) all taxes imposed
against Seller with respect to which an Buyer, its nominee or Tenant could
be
held liable under applicable law, or the Property, or any part of it, could
be
subject to liens or claims, with respect to any period on or prior to the
Closing Date, under applicable law.
5.10. Material
Adverse Effect.
The
words “Material
Adverse Effect”
when
utilized in this Section
5
shall
mean only a material adverse effect with respect to the physical condition
of
the Facilities
that
is
caused
by conditions beyond Seller’s control including, but not limited to Acts of God,
wars, insurrections and/or any other cause beyond the reasonable control
of the
party whose performance is affected, taken as a whole, that exceeds Five
Million
Dollars ($5,000,000.00) in aggregate damage that is not covered by any
applicable insurance, exclusive of any applicable insurance deductible.
5.11. Indemnification.
Seller
hereby agrees and does indemnify and hold the Buyer and Tenant harmless from
and
against any and all losses, damages, claims, causes of action, judgments,
costs
and expenses (including, reasonable fees of attorneys) (collectively,
“Losses”)
that
may be suffered or incurred by or asserted or awarded against Buyer arising
out
of any breach by Seller of any representations and warranties of Seller
contained in this Agreement. The aggregate liability of the Seller to the
Buyer
or Tenant for indemnification under this Agreement shall be limited to an
amount
equal to $5,000,000 (the “Cap”).
The
Buyer shall take all reasonable steps to mitigate all liabilities and claims,
including availing itself as reasonably directed by Seller of any defenses,
limitations, rights of contribution, claims against third parties and other
rights at law, and shall provide such evidence and documentation of the nature
and extent of any liability as may be reasonably requested by the Seller.
The
Buyer and Tenant shall act in a commercially reasonable manner in addressing
any
liabilities that may provide the basis for an indemnifiable claim and shall
respond to such liability in the same manner that it would respond to such
liability in the absence of the indemnification provided for in this Agreement.
Any request for indemnification of specific costs shall include invoices
and
supporting documents containing reasonably detailed information about the
Losses
for which indemnification is being sought. All payments made pursuant to
this
Section
5.12
shall be
treated as adjustments to the Purchase Price for the Facilities for income
tax
purposes.
Notwithstanding
the foregoing, Buyer shall not be entitled to indemnification for any Losses
until the aggregate amount of all Losses exceeds One Hundred Thousand Dollars
($100,000), and then only to the extent such Losses exceed $100,000. Moreover,
a
claim for indemnification shall only valid to the extent delivered from Buyer
to
Seller within twelve (12) months of the Closing Date. Seller shall defend
any
claims for which Buyer might be entitled to indemnification under this Agreement
with counsel selected by Seller and reasonably acceptable to Buyer and any
out
of pocket expenses incurred by Seller in so defending shall be charged against
the Cap and will be deemed to be Losses for which Buyer has received indemnity.
Buyer will not settle any claim for which Buyer is or may be entitled to
indemnity hereunder, without Seller’s prior consent so long as the Seller
performs its indemnification and defense obligations with respect to such
claims. Seller has the right to settle any such claim in its sole discretion
so
long as such settlement imposes no burdens, limitations or obligations on
Buyer,
and Buyer agrees to reasonably cooperate and assist Seller with any such
defense
or settlement discussions or arrangements.
6. Buyer’s
Representations and Warranties.
Buyer
represents and warrants to Seller that the following matters are true as
of the
Closing Date:
6.1. Authority.
The
execution and delivery of this Agreement by Buyer, and the performance of
this
Agreement by Buyer, has been duly authorized by Buyer, and this Agreement
is
binding on the Buyer and enforceable against the Buyer in accordance with
its
terms except as enforceability may be restricted, limited or delayed by
applicable bankruptcy or other laws affecting creditors’ rights generally and
except as enforceability may be subject to general principles of equity.
6.2. Capacity.
Buyer
is a corporation duly organized, validly existing and in good standing under
the
laws of the State of Maryland. Buyer has the requisite power and authority
to
enter into this Agreement, perform its obligations hereunder and to conduct
its
business or operations as now being conducted.
6.3. Qualification.
Neither
Buyer nor any of its respective representatives, officers, directors, partners,
members, agents or employees has been disqualified from participating in
either
the Medicare or Medicaid programs or under any Third Party Payor Programs.
Without limitation of the foregoing, neither Buyer nor any of its respective
officers, directors or managing employees or other employees or agents, or
other
persons required to be identified (Medicare Form 855) has engaged in any
activities which are prohibited under criminal law, or are cause for civil
penalties or mandatory or permissive exclusion from Medicare, or any other
state
health care program.
7. Intentionally
omitted.
8. Intentionally
omitted.
9. Seller’s
Closing Deliveries.
At
Closing (or such other times as may be specified below), Seller shall deliver
or
cause to be delivered to Buyer or its designees the following, in form and
substance reasonably acceptable to Buyer:
9.1. Deed.
General
warranty deeds for each Facility for the Land and Improvements comprising
each
such Facility, executed by Seller, in recordable form, conveying the Land
and
Improvements to Buyer free and clear of all liens, claims and encumbrances
except for the Permitted Encumbrances. In this regard, the Seller will have
no
obligation to cure or otherwise remove or release any of the Permitted
Encumbrances. As used herein, the term “Permitted Encumbrances” shall mean
liens, encumbrances or right of others set forth on Schedule
9.1
to this
Agreement.
9.2. Xxxx
of Sale.
The
Xxxx of Sale, executed by Seller, assigning, conveying and warranting to
Buyer,
or the Buyer’s assignee, title to the Personal Property and Inventory, free and
clear of all liens, claims and encumbrances except Permitted
Encumbrances.
9.3. Transfer
Agreement.
The
Transfer Agreement, executed by Seller.
9.4. Assignment. The
Assignment Agreement executed by Seller.
9.5. Business
Records.
Copies
of all of the Business Records in Seller’s possession or reasonable control, to
the extent not already delivered to the Buyer or, at Buyer’s option,
Tenant.
9.6. Keys.
Keys to
all locks located in the Improvements, to the extent in Seller’s possession or
reasonable control.
9.7. ALTA
Statement.
If
required by the Escrow Agent in order to issue the title policies, an affidavit
of title, ALTA (or comparable) statements, executed by Seller and in form
and
substance acceptable to the Escrow Agent.
9.8. Closing
Statement.
A
closing statement conforming to the proration and other relevant provisions
of
this Agreement (the “Closing
Statement”).
9.9. Entity
Transfer Certificate.
Entity
Transfer Certification confirming that Seller is a “United States Person” within
the meaning of Section 1445 of the Internal Revenue Code of 1986,
as
amended.
9.10. Certified
Resolutions.
Certified resolutions of the Seller authorizing the transaction and incumbency
certificate.
9.11. Discharges
of Liens and Security Interests.
Such
discharges, releases and termination statements necessary to discharge, release
and terminate all liens and security interests attached to the
Property.
9.12. Possession
of the Facilities.
Seller
will deliver possession of the Property to Buyer, subject to the terms of
the
Lease.
9.13. Other.
Such
other documents and instruments as may reasonably be required by Buyer, Tenant
or the Title Insurer and that may reasonably be necessary or appropriate
to
consummate this transaction and to otherwise effect the agreements of the
parties pursuant to this Agreement.
For
a
period of six (6) months after Closing, the Seller shall execute and deliver
to
the Buyer, Tenant, the Wind Down Agent and/or the Title Company such further
documents and instruments as shall be reasonably requested to effect this
transaction and otherwise effect the agreements of the parties
hereto.
10. Buyer’s
Closing Deliveries.
At
Closing Buyer shall cause the following to be delivered to Seller in form
reasonably acceptable to Seller:
10.1. Purchase
Price.
The
Purchase Price, plus or minus prorations as agreed by the Buyer and Seller,
shall be delivered to the Title Company in escrow for disbursement to
Seller.
10.2. Closing
Statement.
A
closing statement conforming to the proration and other relevant provisions
of
this Agreement.
10.3. Certified
Resolutions.
Certified resolutions of the Buyer authorizing the transaction and an incumbency
certificate.
10.4. Other.
Such
other documents and instruments as may reasonably be required by Seller or
the
Title Insurer and that may reasonably be necessary or appropriate to consummate
this transaction and to otherwise effect the agreements of the parties pursuant
to this Agreement. The Buyer shall not withhold any funds from Closing
whatsoever.
For
a
period of six (6) months after Closing, the Buyer shall execute and deliver
to
the Seller and/or the Title Company such further documents and instruments
as
shall be reasonably requested to effect this transaction and otherwise effect
the agreements of the parties hereto.
11. Tenant’s
and Wind Down Agent’s Closing Deliveries.
At
Closing, Tenant and Wind Down Agent, as appropriate, shall cause the following
to be delivered to Seller:
11.1. Transfer
Agreement. The
Transfer Agreement, executed by Tenant and Manager.
11.2. Assignment
Agreement.
The
Assignment Agreement executed by the Wind Down Agent.
11.3. Certified
Resolutions.
Certified resolutions of the Tenant, the Manager and the Wind Down Agent,
authorizing the transaction and an incumbency certificate.
11.4. Other.
Such
other documents and instruments as may reasonably be required by Seller,
Buyer
or the Title Insurer and that may reasonably be necessary or appropriate
to
consummate this transaction and to otherwise effect the agreements of the
parties pursuant to this Agreement.
For
a
period of six (6) months after Closing, the Tenant and the Wind Down Agent
shall
execute and deliver to the Seller, the Buyer and/or the Title Company such
further documents and instruments as shall be reasonably requested to effect
this transaction and otherwise effect the agreements of the parties
hereto.
12. Prorations
And Adjustments.
The
parties to this Agreement have agreed that the Seller and the Wind Down Agent
will settle most, if not all, of the items to be pro-rated by the Buyer and
the
Seller to this Agreement pursuant to the Assignment Agreement; provided,
however, that the real estate taxes and assessments currently due and payable
for the Facilities in Cuyahoga County for the period of January 1, 2005 thru
June 30, 2005 shall be paid by the Seller at the Closing. To the extent that
the
Seller and the Wind Down Agent do not pro-rate or otherwise address such
items
pursuant to the Assignment Agreement, the
following shall be prorated and adjusted between Seller and the Buyer as
of the
Closing Date, except as otherwise specified:
12.1. Revenues
and Expenses.
Except
as
otherwise provided in the Assignment Agreement, all
revenues
(including, but
not
limited to, payments due from the residents of the Facilities or under the
Provider Agreements) and expenses related to the operation of the Facilities
shall be prorated as of the Closing Date, with Seller entitled to such revenues
and responsible for such expenses arising out of the operation of the Facilities
for periods prior to the Closing Date, and Tenant, as the case may be, shall
be
entitled to the revenues and responsible for the expenses arising out of
its
operation of the Facilities on and after the Closing Date.
12.2. Utilities.
Water,
electricity, sewer, gas, telephone and other utility charges not paid directly
by the Seller, if any, based, to the extent practicable, on final meter readings
and final invoices.
12.3. Taxes.
All
accrued general real estate, personal property and ad valorem taxes for the
current year (January 1, 2005 through December 31, 2005) applicable to the
Property shall be prorated on an accrual basis with the Seller responsible
for
each day of the year prior to Closing and with the Buyer responsible for
each
day of the year on and after Closing. As the tax bills for the current year
may
not be issued (in whole or in part, i.e. partial period tax bills may be
issued)
until 2006, such taxes shall be prorated for the Property for the period
of
January 1, 2004 through December 31, 2004. Prior to or at Closing, Seller
shall
pay or have paid all tax bills that are due and payable prior to or on the
Closing Date and shall furnish evidence of such payment to Buyer and the
Title
Company.
12.4. Assessments.
All
assessments, general or special, shall be prorated as of the Closing Date,
with
Seller being responsible for any installments of assessments which are due
prior
to the Closing Date and Buyer being responsible for any installments of
assessments which are due on or after the Closing Date.
12.5. Bed
Taxes.
All bed
taxes due under Ohio Revised Code §§ 3721.50 - 3721.99 or provider franchise
fees for the current year applicable to the Facilities shall be prorated
on an
accrual basis utilizing actual final tax bills, if available, with the Seller
responsible for each day of the year prior to the Closing and with the Buyer
responsible for each day of the year on and after the Closing. If such tax
bills
are not available, such taxes shall be prorated on the basis of the most
currently available tax bills for the Facilities. Prior to or at Closing,
Seller
have paid all such tax bills that are due or will pay any amount accrued
as of
that date to the Buyer, by means of a credit against the Purchase Price due
at
Closing.
12.6. General
Proration Provisions. For
purposes of calculating prorations, the Buyer at its direction and election
or
Tenant shall be deemed to be in title to the Property, and therefore entitled
to
the income therefrom and responsible for the expenses thereof, for the entire
day upon which the Closing occurs. All such prorations shall be made on the
basis of the actual number of days of the year and month that shall have
elapsed
as of the Closing Date. The amount of such prorations shall be adjusted in
cash
after Closing, as and when complete and accurate information becomes available.
Seller and the Buyer agree to cooperate and use their good faith and diligent
efforts to make such adjustments no later than thirty (30) days after the
Closing, or as soon as is reasonably practicable if and to the extent that
the
required final proration information is not available within such thirty
(30)
day period. Items of income and expense for the period prior to the Closing
Date
will be for the account of Seller and items of income and expense for the
period
on and after the Closing Date will be for the account of the Buyer or its
designee, all as determined by the accrual method of accounting. Bills received
after Closing that relate to expenses incurred, services performed or other
amounts allocable to the period prior to the Closing Date shall be paid by
Seller. The obligations of the parties pursuant to this Section
12
shall
survive the Closing and shall not merge into any documents of conveyance
delivered at Closing.
13.
Intentionally omitted.
14. Casualty
and Condemnation.
14.1. Casualty.
If
prior
to the Closing one or more of the Facilities shall be damaged by fire or
other
casualty, then Buyer shall take the Property as it is and Seller hereby assigns
all insurance proceeds (including casualty and business interruption insurance),
or the right to receive the same, and the rights to any other claims arising
as
a result of the damage.
14.2. Condemnation.
A. Intentionally
omitted.
B. If
prior
to the Closing (a) less than substantially all of a Facility shall be taken
by
condemnation or eminent domain, (b) there is any material taking of land
lying
in the bed of any street or highway, open or proposed, in front of or adjoining
all or any part of the Land, or (c) there is any change of grade or closing
of
any such street or highway abutting or adjacent to the Land, that in any
such
case would materially impair access to and from the Land or otherwise materially
interfere with its occupancy and use as a skilled nursing facility, then
the
Buyer shall
be
entitled to no abatement of the Purchase Price by reason of such taking,
change
of grade, or closing, and the proceeds of, or right to any proceeds of, any
award or payment in respect of such taking, change of grade, or closing are
hereby assigned to the Buyer at the Closing.
15. Closing
Expenses.
Seller
will pay at Closing, all closing costs and expenses, pertaining to the release
of the indebtedness described on Exhibit
I and
of
any mortgages, security interests or liens on the Property, including any
fees
or premiums of any nature, associated with prepayment of that indebtedness,
the
cost of an
owner’s
title
insurance policy to be issued to Buyer at Closing with respect to the Property
(excluding the cost of any endorsements thereto that may be requested by
Buyer),
the fees of Seller’s attorneys, and one-half (1/2) of any documentary and state,
county and municipal transfer taxes relating to the instruments of conveyance
contemplated herein and any escrows hereunder. In turn, the Buyer will be
responsible for, and will pay at or prior to Closing, all closing costs and
expenses related to its due diligence including, without limitation, the
cost of
any surveys or environmental site assessments procured by Buyer in connection
with its due diligence, the fees of Buyer’s attorneys, the cost of procuring any
endorsements to its owner’s
title
guaranty
insurance policy
, the
cost of any title insurance policy to be issued to any lender providing
financing for the Buyer’s acquisition of the Property, and all other costs and
expenses associated with procuring such financing and one-half (1/2) of any
documentary and state, county and municipal transfer taxes relating to the
instruments of conveyance contemplated herein and any escrows hereunder.
The
Buyer and Seller will each pay one-half (½) of any closing or escrow fee that
may be charged by the Escrow Agent.
16. Successors
and Assigns. The
terms, conditions and covenants of this Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective nominees,
successors, beneficiaries and assigns.
17. Survival.
Notwithstanding
any provision of this Agreement to the contrary, the obligations of the parties
under Sections
5,
6,
11, 12, 20,
22.8, and
22.9
shall
survive Closing and the delivery of any conveyance documentation for a period
of
one (1) year; and the provisions of Sections
4.1, 20 and 22.8
shall
survive any termination of this Agreement for a period of one (1) year. This
Agreement and the obligation to close contained herein shall not be terminated
except as expressly permitted herein.
18. Notices.
Any
notice, demand or request which may be permitted, required or desired to
be
given in connection therewith shall be given in writing and directed to Seller
and Buyer as follows:
if
to
Seller: Cleveland
SeniorCare Corp.
00000
Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx,
Xxxxxxx 00000
Attention:
Xxx X. Xxxxx
Facsimile:
(000) 000-0000
with
a
copy to: Bose
XxXxxxxx & Xxxxx LLP
000
Xxxx
00xx
Xxxxxx,
Xxxxx 000
Xxxxxxxxxxxx,
Xxxxxxx 00000
Attention:
Xxxxx X. Xxxxxxx
Facsimile:
(000) 000-0000
if
to
Buyer: OHI
Asset
II (OH), LLC
0000
Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxx X. Xxxxx
Facsimile:
(000) 000-0000
with
a
copy to: Xxxxx
Xxxxxx Xxxxxx & Xxxxxx, PLLC
000
Xxxxxx Xxx., X.X., Xxxxx 000
Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention:
Xxxx X. Derwent
Facsimile:
(000) 000-0000
if
to the
Tenant, Manager or Wind Down Agent:
CommuniCare
Family of Companies
0000
Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx,
Xxxx 00000
Attention:
Xxxxxxx X. Xxxxxx, Chief Financial Officer
Facsimile:
(000) 000-0000
With
a
copy to: Benesch,
Friedlander, Xxxxxx & Xxxxxxx LLP
0000
XX
Xxxxx
000
Xxxxxx Xxxxxx
Xxxxxxxxx,
Xxxx 00000
Attention:
Xxxxx X. Xxxxx
Facsimile:
(000) 000-0000
or
to
such other address as either party may hereunder designate in
writing.
Notices
shall be deemed properly delivered and received (i) the same day when personally
delivered; or (ii) one day after deposit with Federal Express or other
commercial overnight courier; or (iii) the same day when sent by confirmed
facsimile.
19. Benefit.
This
Agreement is for the benefit only of the parties hereto and their nominees,
successors, beneficiaries and assignees and no other person or entity shall
be
entitled to rely hereon, receive any benefit herefrom or enforce against
any
party hereto any provision hereof. There are no third party
beneficiaries.
20. Brokerage.
Each
party hereto represents and warrants to the other that it has dealt with
no
brokers or finders in connection with this transaction other than Marcus
&
Millichap (the “Broker”)
and
that the fee or commission which may be due to the Broker under this Agreement
shall be payable by the Seller. Seller hereby indemnifies, protects and defends
and holds Buyer harmless from and against any and all losses resulting from
the
claims of any other broker, finder, or other such party, claiming by, through
or
under the acts or agreements of Seller. Likewise, Buyer hereby indemnifies,
protects and defends and holds Seller harmless from and against any and all
losses resulting from the claims of any broker, finder or other such party,
claiming by, through or under the acts or agreements of Buyer. The obligations
of the parties pursuant to this Section
20
shall
survive the Closing.
21. Reasonable
Efforts.
Seller
and Buyer shall use their reasonable, diligent and good faith efforts, and
shall
cooperate with and assist each other in their efforts, to obtain such consents
and approvals of third parties (including, but not limited to, governmental
authorities), to the transaction contemplated hereby, and to otherwise perform
as may be necessary to effectuate transfer the Property to Buyer in accordance
with this Agreement.
22. Miscellaneous.
22.1. Entire
Agreement.
This
Agreement constitutes the entire understanding between the parties with respect
to the transaction contemplated herein, and all prior or contemporaneous
oral
agreements, understandings, representations and statements, and all prior
written agreements, understandings, letters of intent and proposals, in each
case with respect to the transaction contemplated herein, are hereby superseded
and rendered null and void and of no further force and effect and are merged
into this Agreement. Neither this Agreement nor any provisions hereof may
be
waived, modified, amended, discharged or terminated except by an instrument
in
writing signed by the party against which the enforcement of such waiver,
modification, amendment, discharge or termination is sought, and then only
to
the extent set forth in such instrument.
22.2. Legal
Holidays.
If any
date herein set forth for the performance of any obligations by Seller or
Buyer
or for the delivery of any instrument or notice as herein provided should
be on
a Saturday, Sunday or legal holiday, the compliance with such obligations
or
delivery shall be deemed acceptable on the next business day following such
Saturday, Sunday or legal holiday. As used herein, the term “legal
holiday”
means
any state or federal holiday for which financial institutions or post offices
are generally closed for observance thereof in the State of Ohio.
22.3. Construction.
This
Agreement shall not be construed more strictly against one party than against
the other merely by virtue of the fact that it may have been prepared by
counsel
for one of the parties, it being recognized that both Seller and Buyer have
contributed substantially and materially to the preparation of this Agreement.
The headings of various sections in this Agreement are for convenience only,
and
are not to be utilized in construing the content or meaning of the substantive
provisions hereof.
22.4. Knowledge.
The
parties acknowledge that the day to day operations of the Facilities have
not
been managed by Seller but by a management company under contract with Seller.
Whenever any statement herein is made “to Seller’s knowledge” or words of
similar intent or effect of any party or representative, such person shall
make
such statement only if such facts and other information which, as of the
date
the representation is given, are actually known to the party making such
statement, which with respect to Seller means the knowledge of the President
and
Treasurer, without any independent investigation.
22.5. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of Ohio.
22.6. Partial
Invalidity.
The
provisions hereof shall be deemed independent and severable, and the invalidity
or partial invalidity or enforceability of any one provision shall not affect
the validity of enforceability of any other provision hereof, provided that
the
intent and content of this Agreement are not substantially altered.
22.7. Conflict.
Notwithstanding there may have been a letter of interest executed by the
parties, the Buyer and Seller agree that the letter of interest and anything
contained therein shall have absolutely no effect upon or in any fashion
have
any influence on this Agreement, to the extent the parties have recognized
that
letter of interest has been incorporated into this Agreement and it is of
no
further use, effect or value whatsoever.
22.8. Confidential
Information.
The
parties acknowledge that the transaction described herein and any information
obtained by Buyer or its attorneys, partners, accountants, consultants, lenders
or investors (collectively, the "Permitted
Outside Parties")
in the
conduct of its due diligence is of a confidential nature and shall not be
disclosed except to Permitted Outside Parties or as required by law. In
connection with the negotiation of this Agreement and the preparation for
the
consummation of the transactions contemplated hereby, each party acknowledges
that it will have access to confidential information relating to the other
party. Each party shall treat such information as confidential, preserve
the
confidentiality thereof, and not duplicate or use such information, except
deliveries to Permitted Outside Parties in connection with the transactions
contemplated hereby. In the event of the termination of this Agreement for
any
reason whatsoever, Buyer shall return to Seller, all documents, work papers,
engineering and environmental studies and reports and all other materials
(including all copies thereof obtained from Seller or Broker in connection
with
the transactions contemplated hereby), and each party shall use its best
efforts, including instructing its employees and others who have had access
to
such information, to keep confidential and not to use any such information.
The
provisions of this Section
22.8 shall
survive the Closing. Notwithstanding the foregoing, the Seller acknowledges
that
the Buyer has informed the Seller that the Buyer is obligated under federal
securities laws to publicly announce the entry of the Buyer into this Agreement
and to file this Agreement, together with a description thereof, with the
Securities and Exchange Commission, and the Seller consents to such announcement
and filing.
22.9. Consent
to Jurisdiction.
The
parties hereto irrevocably agree that all actions or proceedings in any way,
manner or respect arising out of or from or related to this Agreement shall
be
litigated in Courts having situs within the State of Ohio. The parties hereby
consent and submit to the jurisdiction of any local, state or federal courts
located within Ohio and consent that all such service of process be made
by
certified mail directed to the party at the address stated herein and service
so
made shall be deemed to be completed upon actual receipt thereof. The parties
hereby waive any right they may have to transfer or change the venue of any
litigation brought in accordance herewith.
22.10. Waiver
of Trial by Jury.
The
parties hereto knowingly, voluntarily and intentionally waive (to the fullest
extent permitted by applicable law) any right they may have to a trial by
jury
of any dispute arising under or relating to this Agreement and agree that
any
such dispute shall be tried before a judge sitting without a jury.
22.11. Guaranty.
Simultaneously with the execution of this Agreement, CHS shall execute and
deliver the Guaranty.
22.12. Time
of Essence.
Time is
of the essence of this Agreement and each and all of its
provisions.
[Signature
Page to Follow]
IN
WITNESS WHEREOF,
the
parties hereto have executed this Purchase and Sale Agreement on the date
first
above written.
|
SELLER:
CLEVELAND
SENIORCARE CORP.
By:
/s/
Xxx X. Xxxxx
Name:
Xxx
X. Xxxxx
Its:
President
|
|
|
BUYER:
OHI
ASSET II (OH), LLC
By:
Omega Healthcare Investors, Inc., its sole member
By:
/s/Xxxxxx
X. Xxxxx
Name:
Xxxxxx
X. Xxxxx
Its:
COO
|
Signature
Page - of
2
Signature
Page to
Agreement
of Purchase and Sale
The
undersigned are joining in the execution of this Agreement for the express
purpose of agreeing to the terms, conditions and provisions of Sections 1.3,
3.2, 4.3B, 5.11, 11, 12, 18, 22.8, 22.9 and 22.11 and for no other purpose.
|
TENANT:
CSC
MSTR LSCO, LLC
By:
/s/
Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx
X. Xxxxxx
Its:
Chief
Financial Officer
|
|
|
MANAGER:
CALM
OF CLEVELAND, LLC
By:
/s/
Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx
X. Xxxxxx
Its:
Chief
Financial Officer
|
|
|
WIND
DOWN AGENT:
BEDROCK
SLATE AND GRAVEL PIT, LLC
By:
/s/
Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx
X. Xxxxxx
Its:
Chief
Financial Officer
|
Signature
Page - of
2
Signature Page toAgreement of Purchase
and
Sale
SCHEDULE
OF EXHIBITS
|
Exhibit
A
|
List
of the Facilities
|
|
Exhibit
B
|
Omitted
|
|
Exhibit
C
|
Omitted
|
|
Exhibit
D
|
Omitted
|
|
Exhibit
E
|
Legal
Descriptions of the Land
|
|
Exhibit
F
|
Pending
Legal Notices
|
|
Exhibit
G
|
Pending
Litigation
|
|
Exhibit
H
|
Reimbursement
Audits and Appeals
|
|
Exhibit
I
|
Indebtedness
to be Paid Off and Released at Closing
|
|
Schedule
9.1
|
Permitted
Encumbrances
|
Exhibit
A
List
of
Facilities
|
Facility
Name
|
Street
|
City
|
State
|
Zip
|
County
|
#
of Beds
|
|
|
1.
|
Aristocrat
Berea
|
000
Xxxxx Xxxxxx
|
Xxxxx
|
XX
|
00000
|
Cuyahoga
|
225
|
|
2.
|
Candlewood
Park
|
0000
Xxxxxxx Xxx
|
Xxxxxxxxx
|
XX
|
00000
|
Cuyahoga
|
134
|
|
3.
|
Falling
Water
|
00000
Xxxxxxx Xxxxx
|
Xxxxxxxxxxxx
|
XX
|
00000
|
Cuyahoga
|
139
|
|
4.
|
Grande
Pointe Health Care
|
0
Xxxxx Xxxxx
|
Xxxxxxxx
Xxxxxxx
|
XX
|
00000
|
Cuyahoga
|
166
|
|
5.
|
Greenbrier
|
0000
Xxxxx Xxxx
|
Xxxxx
Xxxxxxx
|
XX
|
00000
|
Cuyahoga
|
68
|
|
6.
|
Greenbrier
HCC
|
0000
Xxxxx Xxxx
|
Xxxxx
Xxxxxxx
|
XX
|
00000
|
Cuyahoga
|
196
|
|
7.
|
Ohio
Extended Care Facility
|
0000
Xxxxx Xxxx
|
Xxxxxx
|
XX
|
00000
|
Lorain
|
192
|
|
8.
|
Pebble
Creek
|
000
Xxxxxx Xxxx
|
Xxxxx
|
XX
|
00000
|
Summit
|
191
|
|
9.
|
Pine
Grove
|
0000
Xxxxx Xxxx
|
Xxxxx
|
XX
|
00000
|
Cuyahoga
|
22
|
|
10.
|
Pine
Valley Care Center
|
0000
Xxxxxxxxxxx Xxxx
|
Xxxxxxxxx
|
XX
|
00000
|
Summit
|
97
|
|
11.
|
Xxxxx
Xxxxx
|
000
Xxxxx Xxxx
|
Xxxxx
|
XX
|
00000
|
Summit
|
180
|
|
1,610
|
Exhibit
F
Pending
Legal Notices
None.
