EXHIBIT 10.1
TERMINATION, ASSIGNMENT AND RELEASE AGREEMENT
This TERMINATION, ASSIGNMENT AND RELEASE AGREEMENT ("Agreement") is
dated as of the 30th day of September, 2001 and is by and among (i) COUNSEL
NURSING PROPERTIES, INC., a Delaware corporation ("CNP") and COUNSEL CORPORATION
[US], a Delaware corporation ("CC[US]") and the successor by name change to
Diversicare Corporation of America ("DCA"), (ii) DIVERSICARE LEASING CORP., a
Tennessee corporation ("DLC") and ADVOCAT INC., a Delaware corporation
("Advocat"), and (iii) OMEGA HEALTHCARE INVESTORS, INC., a Maryland corporation
("Omega"), OHI SUNSHINE, INC., a Florida corporation ("OHI"), and STERLING
ACQUISITION CORP., a Kentucky corporation ("Sterling").
RECITALS:
A. Pursuant to that certain Master Lease dated as of August 14,
1992 between DCA and Omega (the "Master Lease") DCA leased from Omega nineteen
(19) licensed nursing facilities located in the states of Tennessee, Arkansas
and Alabama.
B. CNP is the owner of three (3) parcels of real property located
in the State of Florida in the counties of DeSoto, Xxxxxx and Lake,
respectively, and more particularly described in Exhibit "A" attached hereto and
incorporated herein by reference, each one of which has been improved with one
(1) or more buildings and related improvements for the operation of a licensed
nursing home facility or adult care center known, respectively, as DeSoto Manor
Nursing Center, Xxxxxx Manor Care Center and Leesburg Nursing Center (each such
property herein a "Mortgaged Facility" and collectively the "Mortgaged
Facilities").
C. Pursuant to that certain Florida Loan Agreement dated as of
August 14, 1992, as amended by that certain First Amendment to Florida Loan
Agreement dated as of August 17, 1993, and as further amended by that certain
Consent, Assignment and Amendment Agreement (the "Consent, Assignment and
Amendment Agreement") dated May 10, 1994 by and among DCA, CNP, Advocat, DLC,
and Omega (as so amended, the "Loan Agreement"), CNP obtained a first mortgage
loan in the amount of Seven Million Thirty-One Thousand Two Hundred Fifty and
No/100 Dollars ($7,031,250.00) (the "Mortgage Loan") from Omega.
D. The Mortgage Loan is evidenced by that certain Mortgage Note
dated as of August 14, 1992 made by CNP and payable to Omega, as amended and
restated by that certain Amended and Restated Mortgage Note dated as of August
14, 1993 (as so amended and restated, the "Mortgage Note").
E. The Mortgage Loan is guaranteed by CC[US], as the successor by
name change to DCA, pursuant to that certain Guaranty Agreement made by DCA in
favor of Omega and dated as of August 14, 1992 (the "CC[US] Guaranty") and is
secured by certain instruments, including, but not limited to, (i) that certain
Mortgage and Security Agreement and Fixture Filing made and executed by CNP in
favor of Omega on August 11, 1992 and recorded in each of DeSoto, Xxxxxx and
Lake County, Florida (the "Mortgage") and (ii) that certain Security Agreement
made by CNP in favor of Omega dated as of August 14, 1992 and related UCC-1
Financing Statements (together, the "CNP
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Security Instruments"), and (iii) the deposit requirements of that certain
Letter of Credit Agreement dated as of August 14, 1992 by and between Omega and
DCA (the "Letter of Credit Agreement").
F. CNP leased the Mortgaged Facilities to DLC pursuant to the
terms and conditions of that certain Florida Lease Agreement dated as of May 10,
1994 (the "Florida Lease"), which Florida Lease was made with the consent and
approval of Omega.
G. Pursuant to terms of the Florida Lease, and that certain
Assignment and Assumption Agreement dated as of May 10, 1994 (the " Assumption
Agreement"), DLC assumed the payment and performance of the debts, liabilities
and obligations of CNP under the Loan Agreement, the Mortgage Note, the
Mortgage, and the CNP Security Instruments and agreed to make rental payments
under the Florida Lease at such times and in such amounts as would satisfy the
payments due under the Mortgage Note. Simultaneously with the making of the
Florida Lease and the Assumption Agreement, Advocat executed and delivered a
Guaranty in favor of Omega dated May 10, 1994 (the "Advocat Guaranty") pursuant
to which Advocat guaranteed the payment and performance of the obligations of
DLC under the Florida Lease. DLC has further executed a certain UCC-3 Financing
Statement (the "DLC Financing Statement") for filing in the State of Florida to
evidence the assumption by DLC of the obligations of CNP under the CNP Security
Instruments and to reflect DLC as the assignee of the debtor on the related
UCC-1 Financing Statements that are a part of the CNP Security Instruments.
H. Pursuant to the terms of the Consent, Assignment and Amendment
Agreement, DCA assigned its interest in the Master Lease and certain related
documents listed in Exhibit "A" to the Consent, Assignment and Amendment
Agreement (collectively, the "Master Lease Documents") to CNP; CNP accepted such
assignment and immediately assigned all of its interest in the Master Lease
Documents to DLC. Pursuant to the terms of the Consent, Assignment and Amendment
Agreement, DLC accepted such assignment and assumed the obligations of DCA under
the Master Lease Documents. Such assignments were made without release of DCA.
Pursuant to the Consent, Assignment and Amendment Agreement, DCA remained
primarily liable for the payment and performance of all obligations under the
Master Lease Documents and DCA specifically confirmed and ratified (i) its
guaranties of each of the Florida Loan Obligations (as defined below); and (ii)
its liabilities under the Master Lease (the "Master Lease Obligations").
I. CNP and DLC have elected to terminate the Florida Lease as
between themselves, and, pursuant to Article 4 of the Florida Lease and Section
7 of the Mortgage Note, have elected to have CNP convey the Mortgaged Facilities
and all Personal Property (as defined in the Florida Lease) located at the
Mortgaged Facilities to OHI and Sterling, in full satisfaction of the Mortgage
Loan and, by this document, the parties wish to evidence the termination of the
Florida Lease between CNP and DLC and the release and discharge of CNP, CC[US],
Advocat, and DLC of their respective debts, obligations and liabilities in
respect to the Florida Loan and, except as hereinafter specifically provided
with respect to Leesburg Nursing Center, the Florida Lease, and the release and
discharge of CC[US] and DLC of their respective debts, obligations and
liabilities in respect of the Master Lease Documents.
NOW, THEREFORE, in consideration of the foregoing premises, the
conveyance of the Mortgaged Facilities and Personal Property to Omega, and for
other good and valuable
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consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. For purposes of this Agreement, except as
otherwise expressly provided or unless the context requires otherwise, (i) the
terms defined in this Article have the meanings assigned to them in this Article
and include the plural as well as the singular and (ii) all capitalized terms
used herein and not otherwise defined herein have the meanings assigned to them
in accordance with the Florida Loan Documents or the Florida Lease Documents, as
hereinafter defined.
"Advocat Guaranty" shall mean and refer to that certain Advocat, Inc.
Guaranty dated May 10, 1994 made by Advocat in favor of Omega, and any
modifications, renewals or extensions thereof or thereto.
"Assumption Agreement" shall mean and refer to that certain Assignment
and Assumption Agreement (Omega Financing) dated as of May 10, 1994 made by and
among Counsel Healthcare Assets, Inc., an Ontario corporation, CNP and DCA, as
Assignors, and DLC, as Assignee, and any modifications, renewals or extensions
thereof or thereto.
"CC[US] Guaranty" shall mean and refer to that certain Guaranty
Agreement dated as of August 14, 1992 made by DCA in favor of Omega, and any
modifications, renewals or extensions thereof or thereto.
"Collateral Assignment" shall mean and refer to that certain Collateral
Assignment of Warranties, Guarantees and Sureties dated August 14, 1992 made by
CNP and assigning to Omega as collateral security for the Mortgage Loan all of
CNP's rights in any warranties, guaranties or sureties relating to the Mortgaged
Facilities, and any extensions, renewals or modifications thereof or thereto.
"Consent, Assignment and Amendment Agreement" shall mean and refer to
that certain Consent, Assignment and Amendment Agreement dated May 14, 1994 by
and among DCA, CNP, Advocat, DLC and Omega, and any extensions, renewals or
modifications thereof or thereto.
"CNP Security Instruments" shall mean and refer to that certain
Security Agreement securing payments and performance of the Mortgage Loan made
by CNP in favor of Omega dated as of August 14, 1992 and related UCC-1 Financing
Statements, and any modifications, renewals and extensions thereof or thereto.
"DLC Financing Statement" shall mean and refer to the UCC-3 Financing
Statement filed in the State of Florida with respect to the Mortgaged Facilities
to evidence DLC as the assignee of CNP as the debtor there under, and any
modifications, renewals and extensions thereof or thereto.
"Florida Lease Documents" shall mean and refer to, collectively, the
Florida Lease and all documents, instruments, certificates and financing
statements required or permitted there under.
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"Florida Loan Documents" shall mean and refer to the Loan Agreement,
the Mortgage Note, the Mortgage, the CNP Security Instruments, the DLC Financing
Statement, the Collateral Assignment, the Letter of Credit Agreement and all
documents, instruments, certificates and financing statements required or
permitted there under.
"Florida Loan Obligations" shall mean and refer to the obligations of
CNP and DLC to Omega under the Florida Lease Loan Documents.
"Letter of Credit Agreement" shall mean and refer to that certain
Letter of Credit Agreement dated as of August 14, 1992 by and between Omega and
DCA with DCA providing for a letter of credit in full or partial satisfaction of
the performance deposit obligations of CNP under the Loan Agreement, and any
extensions, renewals or modifications thereof or thereto.
"Loan Agreement" shall mean and refer to that certain Florida Loan
Agreement dated as of August 14, 1992, as amended by that certain First
Amendment to Florida Loan Agreement dated as of August 17, 1993, and as further
amended by that certain Consent, Assignment and Amendment Agreement dated May
10, 1994 by and among DCA, CNP, Advocat, DLC, and Omega, pursuant to which CNP
obtained the Mortgage Loan from Omega.
"Master Lease" shall mean and refer to that certain Master Lease dated
August 14, 1992 between DCA and Omega, as assigned by DCA to CNP, and as further
assigned by CNP to DLC, such assignments having been made pursuant to the terms
of the Consent, Assignment and Amendment Agreement.
"Master Lease Documents" shall mean and refer to, collectively, the
Master Lease and those other documents enumerated in Exhibit "A" to the Consent,
Assignment and Amendment Agreement, namely, the Agreement of Acquisition and the
Lease by and among Omega and DCA, the Security Agreement made by DCA in favor of
Omega, the Letter of Credit Agreement and the Security Agreement made by DLC in
favor of Omega.
"Master Lease Obligations" shall mean and refer to, collectively, the
obligations of CC[US] and DLC under the Master Lease Documents.
"Mortgage" shall mean and refer to that certain Mortgage and Security
Agreement and Fixture Filing executed and delivered by CNP on August 11, 1992 in
favor of Omega to secure the Mortgage Loan and recorded as an encumbrance
against the Mortgaged Facilities in each of DeSoto, Xxxxxx and Lake County,
Florida, and any modifications, renewals and extensions thereof or thereto.
"Mortgage Loan" shall mean and refer to that certain mortgage loan in
the original principal amount of $7,031,250.00 made by Omega to CNP and
evidenced and secured by the Loan Documents, and any renewals or extensions
thereof.
"Mortgage Note" shall mean and refer to that certain Mortgage Note in
the original principal amount of Seven Million Thirty-One Thousand Two Hundred
Fifty and No/100 Dollars ($7,031,250.00) dated as of August 14, 1992 made by CNP
and payable to Omega, as amended and restated by that certain Amended and
Restated Mortgage Note dated as of August 14, 1993, and any modifications,
extensions and renewals thereof or thereto.
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"Mortgaged Facility" or "Mortgaged Facilities" shall mean and refer to,
individually or collectively, as the case may be, the nursing home or adult care
facilities owned by CNP and located in the counties of DeSoto, Xxxxxx and Lake,
respectively, in the State of Florida that are the subject of the Florida Lease
and the Mortgage Loan.
ARTICLE 2
TERMINATION AND ASSIGNMENT OF FLORIDA LEASE
2.1 Termination of Lease as to Certain Facilities. The Florida
Lease shall be and is hereby canceled and terminated, and all of its terms and
conditions shall be and are hereby deemed to be of no further force and effect,
with respect to each of the Mortgaged Facilities known as Xxxxxx Manor Care
Center (the "Xxxxxx Facility") and DeSoto Manor Nursing Center (the "DeSoto
Facility") as of the ____ day of September, 2001 (the "Lease Termination Date").
From and after the Lease Termination Date, each of the parcels of real property
located in the State of Florida in the counties of DeSoto and Xxxxxx and more
particularly described on Exhibit A attached hereto, and the nursing home
facilities located thereon, shall no longer be subject to the terms and
conditions of the Florida Lease. As of the Lease Termination Date, each of CNP
and DLC shall be and hereby is released in full from each and all of their
respective covenants, agreements, duties, responsibilities, liabilities and
obligations under the Florida Lease as to the Xxxxxx Facility and the DeSoto
Facility, and CNP and DLC each hereby releases and forever discharges the other
from any claims or demands that either of them now has or may have against the
other with respect to either of such Mortgaged Facilities under the Florida
Lease.
2.2 Memorandum of Termination. Concurrently herewith, CNP and DLC
shall execute and deliver to Omega, in recordable form, a memorandum of this
Agreement or other appropriate instrument evidencing the termination of the
Florida Lease as to each of the Xxxxxx Facility and the DeSoto Facility for
recording in the real estate records of the counties in which each of such
Mortgaged Facilities is located.
2.3 Assignment of Lease as to Leesburg Facility. The Florida Lease
shall remain in effect with respect to the Mortgaged Facility known as Leesburg
Nursing Center (the "Leesburg Facility") from and after the date hereof. By deed
and xxxx of sale made concurrently herewith, CNP has conveyed to OHI the real
property described on Exhibit A attached hereto located in Lake County, Florida
and the improvements and other assets comprising the Leesburg Facility.
Effective as of the date hereof, CNP hereby transfers, conveys, assigns, and
sets over to OHI all of the right, title and interest of CNP as Lessor in, to
and under the Florida Lease with respect to the Leesburg Facility. OHI does
hereby assume and agree to perform, keep and observe all of the duties and
obligations to be performed, kept, observed and discharged by the Lessor under
the Florida Lease with respect to the Leesburg Facility from and after the date
hereof. From and after the date hereof, all references to "Lessor" in the
Florida Lease shall be deemed to mean and refer to OHI. DLC does hereby attorn
to and recognize OHI as the Lessor under the Florida Lease with respect to the
Leesburg Facility from and after the date hereof. OHI does hereby recognize DLC
as the Lessee under the Florida Lease with respect to the Leesburg Facility and
acknowledges and agrees that, subject to the observance and performance of the
duties, responsibilities and obligations of the Lessee under the Florida Lease
with respect to the Leesburg Facility, DLC shall continue to have and enjoy all
the rights of the Lessee to hold, occupy, use and enjoy the Leesburg Facility
during the
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remainder of the term of the Florida Lease (subject to Sections 2.5 and 2.6.
hereof). Effective as of the date hereof, CNP shall be and hereby is released in
full from each and all of its respective covenants, agreements, duties,
responsibilities, liabilities and obligations under the Florida Lease with
respect to the Leesburg Facility and CNP and DLC each hereby releases and
forever discharges the other from any claims or demands that either of them now
has or may have against the other with respect to the Leesburg Facility under
the Florida Lease. OHI and DLC agree that in consideration of the satisfaction
of the Mortgage Note provided for herein, effective as of the date hereof
Section 2.3 of the Florida Lease shall be and hereby is amended to provide that
the Annual Rental due and payable by DLC under the Florida Lease is and shall
hereafter be the sum of One Dollar ($1.00) and that Paragraphs A through D of
Section 2.3 of the Florida Lease providing for certain adjustments to Annual
Rent are hereby deleted and declared to be of no further force and effect.
Annual Rent, as herein provided, shall be due and payable on January 1st of each
year during the remainder of the term of the Florida Lease.
2.4 Memorandum of Assignment. Concurrently herewith, CNP, OHI and
DLC shall execute and deliver, in recordable form, a memorandum of this
Agreement or other appropriate instrument evidencing the assignment of the
Florida Lease with respect to the Leesburg Facility for recording in the real
estate records of the county in which the Leesburg Facility is located.
2.5 Termination of Lease as to Leesburg. The Florida Lease shall
continue in effect with respect to the Leesburg Facility until the Commencement
Date of that certain Master Lease between OHI, as Lessor, and LandCastle
Diversified LLC, as Lessee (the "New Lease"), which Commencement Date is
conditioned upon the Florida Department of Human Services approving the change
of ownership application for the Leesburg Facility and the issuance of a license
to operate the Leesburg Facility in favor of Leesburg Health & Rehab L.L.C. (the
"New Operator"). The Florida Lease shall be terminated with respect to the
Leesburg facility and deemed to be of no further force and effect as of the
Commencement Date of the New Lease. As of the Commencement Date of the New
Lease, each of OHI and DLC shall be and hereby is released in full from each and
all of their respective covenants, agreements, duties, responsibilities,
liabilities, and obligations under the Florida Lease with respect to the
Leesburg Facility and OHI and DLC each hereby releases and forever discharges
the other from any claims or demands that either of them has or may have against
the other with respect to the Leesburg Facility under the Florida Lease. On the
Commencement Date of the New Lease, OHI and DLC shall execute and deliver, in
recordable form, a memorandum or other appropriate instrument evidencing the
termination of the Florida Lease with respect to the Leesburg Facility for
recording in the real estate records of the counties in which the Leesburg
Facility is located.
2.6 Closure of Leesburg Facility. In the event that the
Commencement Date of the New Lease and the transfer of operation of the Leesburg
Facility to the New Operator does not occur on or before January 31, 2002, then
Omega, OHI, DLC and Advocat agree that DLC shall have a period of ninety (90)
days after such date to attempt to sell the Leesburg Facility as an operating
nursing home. DLC shall promptly commence and actively pursue marketing the
Leesburg Facility during said ninety (90) day period. The parties will cooperate
with each other in good faith and use commercially reasonable efforts in
attempting to sell the Leesburg Facility as an operating nursing home. If DLC is
unable to accomplish such sale with in said ninety (90) day period, then Omega,
OHI, Advocat and DLC agree that the Florida Lease shall be terminated, the
Leesburg Facility shall
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be closed, and the real estate and other assets comprising the Leesburg Facility
sold as soon as reasonably practical thereafter. Advocat and DLC shall be
responsible for the cost and expense of the closing of the Leesburg Facility.
The proceeds of the sale of the Leesburg Facility as an operating nursing home
or the sale of the real estate and other assets comprising the Leesburg Facility
after its closure shall be shared in accordance with that certain Revenue
Sharing Agreement between Omega, OHI, Advocat and DLC made and executed
concurrently herewith.
2.7 Facilities Conveyed in As-Is Condition. By deed made and
delivered concurrently herewith, CNP has conveyed the real property and
improvements comprising the Xxxxxx Facility to Sterling and has conveyed the
real property and improvements comprising each of the DeSoto Facility and the
Leesburg Facility to OHI. CNP makes no representations or warranties of any
kind, express, implied, statutory or otherwise, with respect to the condition of
the real property and improvements comprising each of the Xxxxxx Facility, the
DeSoto Facility and the Leesburg Facility, including without limitation any
warranty of habitability, suitability or fitness for any particular use or
purpose or the environmental condition of the property. OHI and Sterling each
agree that the real property and improvements comprising each of the Xxxxxx
Facility, the DeSoto Facility and the Leesburg Facility are being conveyed by
CNP, and Sterling accepts the Xxxxxx Facility, and OHI accepts the DeSoto
Facility and the Leesburg Facility, in "as is" and "where is" condition. The
provisions of this Section 2.7 shall survive the conveyance of each of the
Xxxxxx Facility, the DeSoto Facility and the Leesburg Facility by CNP to
Sterling and OHI.
ARTICLE 3
SATISFACTION, RELEASE AND DISCHARGE OF LOAN OBLIGATIONS
3.1 Satisfaction of Mortgage Loan. Omega hereby accepts the
transfer and conveyance of the Mortgaged Facilities and the Personal Property
from CNP made concurrently herewith in full payment and satisfaction of the
Mortgage Loan and all amounts due under the Mortgage Note for principal,
interest, the Participation Factor described therein and all other sums due
there under.
3.2 Omega Release of CNP and CC[US]. Omega does hereby irrevocably
and unconditionally release and forever discharge each of CNP and CC[US], and
their respective directors, officers, successors and assigns (collectively, the
"Indemnified Persons") of and from any and all claims, demands, actions, causes
of action, rights, remedies or suits which Omega ever had, now has or might
hereafter have against either of CNP or CC[US], under, arising out of, relating
to or connected with (i) each and every one of the Florida Loan Documents and
any other documents or instruments evidencing, securing or otherwise relating to
the Mortgage Loan, (ii) CC[US]'s guarantee of the Florida Loan Obligations as
provided in the Consent, Assignment and Amendment Agreement, (iii) the CC[US]
Guaranty, (iv) the Master Lease Documents and (v) the Master Lease Obligations.
Omega agrees that, from and after the date hereof, neither CNP nor CC[US] shall
have any debts, liabilities or obligations to Omega under or in respect of any
of the Florida Loan Documents, the CC[US] Guaranty, the Master Lease Documents,
the Assignment and Assumption Agreement or the Consent, Assignment and Amendment
Agreement.
3.3 Omega Release of DLC and Advocat. Omega does hereby
irrevocably and unconditionally release and forever discharge each of DLC and
Advocat, and their respective directors, officers, successors and assigns
(collectively, the "Indemnified Persons"), of and from any and all claims,
demands, actions, causes of action, rights, remedies or suits which Omega ever
had,
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now has or might have against either of DLC or Advocat, under, arising out of,
relating to, or connected with (i) each and every one of the Florida Loan
Documents (except as specifically provided in Section 3.7 hereof with respect to
the DLC Financing Statement), the Florida Lease Documents (except as
specifically provided in Article 2 hereof with respect to the Leesburg
Facility), the Assumption Agreement and any other documents or instruments
evidencing securing or otherwise relating to the Mortgage Loan and the Florida
Lease, (ii) the Consent, Assignment and Amendment Agreement, (iii) the Master
Lease Documents and (iv) the Advocat Guaranty. Omega agrees that, from and after
the date hereof, neither DLC nor Advocat shall have any debts, liabilities or
obligations to Omega under or in respect of any of the Florida Loan Documents
(except as specifically provided in Section 3.7 hereof with respect to the DLC
Financing Statement), the Florida Lease Documents (except as specifically
provided in Article 2 hereof with respect to the Leesburg Facility), the
Assignment and Assumption Agreement, the Consent, Assignment and Amendment
Agreement, the Master Lease Documents or the Advocat Guaranty. Anything herein
to the contrary notwithstanding, it is understood and agreed that the release by
Omega of Advocat and DLC set forth in this Section 3.3 does not and shall not be
deemed to modify, amend, release or otherwise affect in any manner whatsoever
the liabilities and obligations of DLC and Advocat to Sterling under, arising
out of, relating to, or connected with the Consolidated Amended and Restated
Master Lease dated as of November 8, 2000 by and between Sterling and DLC (the
"Sterling Master Lease"), the Restated and Amended Security Agreement dated as
of November 8, 2000 by and between Sterling and DLC, the Guaranty of Advocat
dated as of November 8, 2000 made by Advocat in favor of Sterling, and any other
agreements, documents or instruments which evidence, secure or otherwise relate
to the liabilities and obligations of DLC or Advocat under or with respect to
the Sterling Master Lease (collectively, the "Sterling Transaction Documents"),
including without limitation the Subordinated Note dated as of November 3, 2000
made by Advocat in favor of Omega (the "Subordinated Note"). DLC and Advocat
each agree that their respective obligations and liabilities under or with
respect to the Sterling Master Lease and the other Sterling Transaction
Documents, including without limitation the Subordinated Note, are not released
or discharged by this Agreement and the same are and shall remain in full force
and effect in accordance with their respective terms.
3.4 CNP Release of DLC. CNP hereby irrevocably and unconditionally
releases and forever discharges DLC, and its directors, officers, successors and
assigns, of and from (a) any and all liabilities or obligations of DLC to CNP
and (b) any and all claims, demands, actions, causes of action, rights, remedies
or suits which CNP ever had, now has or might hereafter have against DLC, in the
case of each of (a) and (b), under, arising out of, relating to, or connected
with the Florida Loan Documents. CNP hereby agrees that from and after the date
hereof DLC shall not have any obligations to CNP under or in respect of the
Assumption Agreement, the Consent, Assignment and Amendment Agreement or the
Florida Lease in connection with any liabilities or obligations of, or
indebtedness owed by, CNP to Omega under or in respect of any of the Florida
Loan Documents, the Florida Lease Documents or the Master Lease Documents.
3.5 DLC Release of CNP. DLC hereby irrevocably and unconditionally
releases and forever discharges CNP and its directors, officers, successors and
assigns, of and from (a) any and all liabilities or obligations of CNP to DLC
and (b) any and all claims, demands, actions, causes of action, rights, remedies
or suits which DLC ever had, now has or might hereafter have against CNP, in the
case of each of (a) and (b), under, arising out of, relating to, or connected
with the Florida Loan Documents. DLC hereby agrees that from and after the date
hereof CNP shall not have any obligations to DLC under or in respect of the
Assumption Agreement, the Consent, Assignment and
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Amendment Agreement or the Florida Lease in connection with any liabilities or
obligations of, or indebtedness owed by DLC to Omega under or in respect of any
of the Florida Loan Documents, the Florida Lease Documents or the Master Lease
Documents.
3.6 Representations and Warranties. Each of the parties hereto
hereby represents and warrants to the other parties that it has full power,
authority and legal right to execute and deliver this Agreement and to keep,
observe and perform all the terms and provisions of this Agreement on its part
to be kept, observed or performed hereunder, and that this Agreement constitutes
the legal, valid and binding obligations of such party enforceable against such
party in accordance with its terms. Each of the parties hereto further hereby
represents and warrants to each of the other parties that it has not heretofore
assigned, transferred or attempted or purported to, and will not, assign or
transfer to any person, firm corporation or other entity any claims against the
other parties hereby released or discharged in this Agreement.
3.7 Release of Liens and Collateral Security. Omega hereby
releases and discharges in full all liens, mortgages, pledges, charges, security
interests and other encumbrances granted by CNP, DLC and CC[US] in favor of
Omega as security for (i) the obligations of CNP or DLC under the Florida Loan
Documents, (ii) the obligations of CNP or (except as specifically provided
herein) DLC under the Florida Lease Documents, (iii) the obligations of CC[US]
under the CC[US] Guaranty, or (iv) the obligations of CC[US] under the Master
Lease Documents, including without limitation the Mortgage, the CNP Security
Instruments and the DLC Financing Statements. The Collateral Assignment and the
Letter of Credit Agreement are each hereby terminated and declared to be of no
further force and effect. Anything herein to the contrary notwithstanding,
Omega, Advocat and DLC agree that the DLC Financing Statement shall be released
and terminated only as to the DeSoto Facility but shall remain in effect with
respect to the Leesburg Facility and the Xxxxxx Facility to evidence and
continue the perfection of the security interest in the collateral described in
and covered by the DLC Financing Statement located at, used in connection with,
or arising from or in connection with the operation and use by DLC of, the
Xxxxxx Facility and the Leesburg Facility (the "Collateral"). The DLC Financing
Statement shall be released and terminated with respect to the Leesburg Facility
upon termination of the Florida Lease or closure of the Leesburg Facility as
provided in Article 2 hereof. The Xxxxxx Facility has simultaneously herewith
been made a leased property under, and subjected to the terms and provisions of,
the Sterling Master Lease, and the Amended and Restated Security Agreement made
in connection therewith. The DLC Financing Statement shall remain in effect with
respect to the Xxxxxx Facility in accordance with the terms of such Amended and
Restated Security Agreement. DLC hereby acknowledges, confirms and ratifies the
security interest evidenced by the DLC Financing Statement and granted by DLC in
the Collateral as security for (i) with respect to the Xxxxxx Facility, the
Liabilities described in the Amended and Restated Security Agreement and (ii)
with respect to the Leesburg Facility, the continued performance by DLC of its
obligations under the Florida Lease on and after the date hereof. Omega, Advocat
and DLC each agree to prepare, execute, deliver and file any additional UCC-3
Financing Statements necessary or appropriate to reflect the continuation of the
security interest in the Collateral and to otherwise assure that the benefits of
the DLC Financing Statement as to the Xxxxxx Facility and the Leesburg Facility
continue to be realized.
3.8 Delivery of Documents. Concurrently herewith (i) CNP shall
execute and deliver to Omega appropriate warranty deeds to the Mortgaged
Facilities and bills of sale for the Personal Property located thereon; (ii)
Omega shall execute and deliver to CNP a full release of the lien
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evidenced by the Mortgage and shall execute and deliver to CNP and DLC a full
release and termination of the UCC-1 and UCC-3 Financing Statements relating to
the Mortgaged Facilities, the Florida Lease and the security interest of Omega
evidenced thereby; and (iii) Omega shall deliver to CC[US] the executed original
of the Mortgage Note and shall deliver to each of the CNP and Advocat,
respectively, the CNP Guaranty and the Advocat Guaranty. Omega shall clearly
xxxx each of the Mortgage Note, the CC[US] Guaranty and the Advocat Guaranty to
indicate the satisfaction of the indebtedness and obligations with respect to
the Mortgage Loan and the Florida Lease evidenced thereby and the release and
discharge of CNP, CC[US] and Advocat, respectively, from any further liability
or obligation with respect thereto. In the event that there still exists any
letter of credit outstanding under the Letter of Credit Agreement to satisfy the
Performance Deposit obligations of CNP under the Loan Agreement, Omega shall
return the original of such existing letter of credit to the issuer thereof for
cancellation.
3.9 Cooperation. At all times following the execution of this
Agreement, each party agrees to cooperate in good faith with the others to
execute and deliver, or cause to be executed and delivered, such documents, and
to do, or cause to be done, such other acts or things as might be necessary or
as might be reasonably requested by any other party to give effect the intent of
this Agreement and assure that the benefits of this Agreement are realized by
each of the parties hereto.
ARTICLE 4
MISCELLANEOUS PROVISIONS
4.1 Amendment; Modification. This Agreement may not be amended or
modified except by a written instrument executed by all of the parties hereto.
4.2 Notices. Any notice hereunder shall be given in writing and
shall be deemed to have been duly given either personally delivered or mailed,
registered or certified mail, postage prepaid, or by national overnight delivery
service (such as Federal Express or DHL) and properly addressed as follows:
If to CNP and/or CC[US]:
x/x Xxxxxxx Xxxxxxxxxxx
Xxxxxxxx Xxxxx, Xxxxx 0000
Two First Canadian Place
Toronto, Ontario M5X 1E3
Attention: Xxxxx X. Xxxxxx
with a copy to:
Stikeman Elliott
Suite 0000
Xxxxxxxx Xxxxx Xxxx
Xxxxxxx, XX X0X 0X0
Attention: Xxxxx Xxxxxx
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If to Advocat and/or DLC:
Suite 130
000 Xxxxxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxxx
with a copy to:
Xxxxxxx Xxxxxx Xxxx Xxxxxxx & Manner, P.C.
1800 First American Center
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Manner, Esq.
If to Omega, OHI and/or Sterling:
c/o Omega Healthcare Investors, Inc.
000 Xxxxxxx Xxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
with a copy to:
Xxxxxx Xxxxxxx, PLLC
00000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxx
or to such other address as any of the foregoing parties may designate. Notice
shall be deemed to have been given on the date of delivery if such delivery is
made on a business day, or, if not, on the first business day after delivery, or
if delivery is refused, on the date delivery was first attempted, provided that
a notice sent by facsimile transmission shall be deemed given upon confirmation
by the sender from recipient that such notice was received.
4.3 Governing Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of Florida.
4.4 Multiple Counterparts. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed to be
an original, but all of which together shall constitute one and the same
instrument.
4.5 Captions. The captions of sections and sub-sections of this
Agreement have been inserted solely for convenience and reference, and shall not
control or affect the meaning or construction of any provisions of this
Agreement.
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4.6 Integration; Waivers. This Agreement and all the Exhibits
hereto constitute the entire agreement between the parties pertaining to the
subject matter contained herein and therein and supersede all prior agreements,
representations and understandings of the parties performing to the subject
matter contained herein. No supplement, modification or amendment of this
Agreement shall be binding, unless expressed as such and executed in writing by
all of the parties hereto. No waiver of any provision of this Agreement shall be
deemed to be effective unless in writing and signed by the party to be bound.
4.7 Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of each of the parties hereto and their respective legal
representatives, successors and assigns.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties as of the date set forth on page 1 hereof.
COUNSEL CORPORATION [US] COUNSEL NURSING PROPERTIES, INC.
By: /s/ Xxxxxxx Xxxxxxxxx By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------- -------------------------------
Its: Vice President and Secretary Its: Vice President and Secretary
-------------------------------- -------------------------------
ADVOCAT INC. DIVERSICARE LEASING CORP.
By: /s/ Xxxxxxx X. Council III By: /s/ Xxxxxxx X. Council III
-------------------------------- -------------------------------
Its: Executive Vice President and Its: Executive Vice President and
Chief Financial Officer Chief Financial Officer
-------------------------------- -------------------------------
OMEGA HEALTHCARE INVESTORS, INC. OHI SUNSHINE, INC.
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxx Xxxxxxx
-------------------------------- -------------------------------
Its: Chief Operating Officer Its: Chief Operating Officer
-------------------------------- -------------------------------
STERLING ACQUISITION CORP.
By: /s/ Xxxxx Xxxxxxx
-------------------------------
Its: Chief Operating Officer
-------------------------------
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EXHIBIT "A"
MORTGAGED FACILITIES
I. DESOTO COUNTY
Name of Facility: DeSoto Manor Nursing Home
Facility Address: 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000
Legal Description:
Begin at the Southeast corner of Northeast 1/4 of Southwest 1/4 of Section 30,
Township 37 South, Range 25 East; thence North 00 degrees 02 minutes East along
the East line of said tract, 280.00 feet to Point of Beginning; thence continue
same line 400.00 feet; thence South 89 degrees 44 minutes 06 seconds West,
460.14 feet to the East Boundary of the Baptist Church Property; thence South 00
degrees 08 minutes East 400.00 feet to the North boundary of the DeSoto Hospital
property; thence North 89 degrees 44 minutes 06 seconds East 458.98 feet to the
Point of Beginning.
II. LAKE COUNTY
Name of Facility: Leesburg Nursing Center
Facility Address: 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000
Legal Description:
Parcel A:
A part of the Northwest 1/4 of the Southwest 1/4 of Section 25, Township 19
South, Range 24 East, Lake County, Florida, being more particularly described as
follows:
Begin at the intersection of the South right-of-way of Xxxxx Avenue and the West
right-of-way line of Lake Street; run thence Southerly along the said West
right-of-way of Lake Street a distance of 450.0 feet; thence Westerly parallel
with the South right-of-way of Xxxxx Avenue 200.0 feet; thence Northerly
parallel with the West right-of-way of Lake Street 450.0 feet to the South
right-of-way of Xxxxx Avenue; run thence Easterly along said South right-of-way
of Xxxxx Avenue 200.0 feet to the Point of Beginning.
Parcel B:
A part of the Northwest 1/4 of the Southwest 1/4 of Section 25, Township 19
South, Range 24 East, Lake County, Florida, being more particularly described as
follows:
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From the Northwest corner of the Southwest 1/4 of Section 25, run Southerly
along the West line of Section 25 a distance of 60.43 feet to the South
right-of-way line of Xxxxx Avenue; thence Easterly along the South right-of-way
of Xxxxx Avenue 1285.48 feet to the West right-of-way of Lake Street; thence
Southerly along the West right-of-way of Lake Street 450.0 feet to the Point of
Beginning; thence West parallel with said South right-of-way of Xxxxx Avenue
200.0 feet; thence South parallel with the right-of-way of Lake Street, 150.0
feet; thence East parallel with Xxxxx Avenue 200.0 feet to Lake Street; thence
North along right-of-way of Lake Street 150.0 feet to the Point of Beginning.
III. XXXXXX COUNTY
Name of Facility: Xxxxxx Manor Care Center
Facility Address: 000 Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000
Legal Description:
All of Blocks E and F of MOONLIGHT PARK SUBDIVISION, to the City of Wauchula, in
Xxxxxxx 0, Xxxxxxxx 00 Xxxxx, Xxxxx 25 East and in Plat Book 4, Page 9, public
records of Xxxxxx County, Florida.
Being the same property conveyed to Grantor herein by Warranty Deed recorded in
Book 244, Page 522, in the Office of the Circuit Court Clerk, Xxxxxx County,
Florida.
AND
That portion of Ninth Avenue lying between Orange Place and Grove Street and
between Blocks E and F of MOONLIGHT PARK SUBDIVISION to the City of Wauchula,
public records of Xxxxxx County, Florida.
Being the same property conveyed to Grantor herein by Warranty Deed recorded in
Book 257, Page 497, in the office of Circuit Court clerk, Xxxxxx County,
Florida.
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