Exhibit 10.9
JOINT VENTURE AGREEMENT
This Agreement is made as of the day of
, 199 , by and among COVENTRY CORPORATION, a
Kansas corporation ("SGH-SUB") and a subsidiary of SGH, and
STERLING HOUSE CORPORATION, a Kansas corporation ("SGH")
and ELDERLY LIVING, LIMITED PARTNERSHIP, a Florida
limited partnership/corporation ("JOINT VENTURE PARTNER").
R E C I T A L S:
A. SGH-SUB and JOINT VENTURE PARTNER have
agreed to form a joint venture for the purpose of developing, constructing
and operating one (1) or more STERLING HOUSE residences; and
B. The parties are entering into this Agreement to set forth
their mutual understanding and agreements with respect to the terms and
conditions of such joint venture.
NOW, THEREFORE, in consideration of the mutual covenants
and promises set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
In addition to the other definitions contained herein, the following
definitions shall apply for purposes of this Agreement:
1.1 Affiliate. "Affiliate," when such term is used with respect
to another Person which is a legal entity, means (a) any Person who
(together with Family Members) directly or indirectly Controls, is
Controlled by or is under common Control with such other Person, (b)
any Person who is a director or officer of a privately-owned company,
member in or trustee of, or who serves in a similar capacity with respect
to, such other Person, or (c) any Person who directly or indirectly is the
beneficial owner of 20% or more of such other Person. When the term
"Affiliate" is used with respect to another Person who is an individual, it
means (i) any Family Member of such Person, or (ii) any corporation,
partnership, limited liability company, trust or other entity of which such
other Person serves as an officer, director, general partner, manager,
trustee or in a similar capacity.
1.2 SGH Affiliate. "SGH Affiliate" means any Affiliate of SGH, including BCI.
1.3 SGH-SUB Ancillary Agreements. "SGH-SUB Ancillary
Agreements" means any Ancillary Agreement to which SGH-SUB is a
party.
1.4 Ancillary Agreements. "Ancillary Agreements" means all
of the agreements executed and delivered by SGH-SUB or SGH and/or
JOINT VENTURE PARTNER (or any JOINT VENTURE PARTNER
Affiliate), pursuant to this Agreement or in connection with the
transactions contemplated by this Agreement.
1.5 Business. "Business" means the business of developing or
acquiring, and owning, operating and financing, the Facilities, and
activities related or incidental thereto.
1.6 Call Option Price. "Call Option Price" means the
purchase price payable upon SGH's exercise of the Call Option as set
forth on the attached Schedule 3.8(B).
1.7 Closing. "Closing" means the closing of the transactions
provided for in this Agreement, which shall take place on the Closing
Date at the offices of SGH in Wichita, Kansas or such other place as the
parties may agree upon.
1.8 Closing Date. "Closing Date" means the date on which a
Closing occurs.
1.9 Control. "Control" as applied to a Person means the direct
or indirect ownership of more than 50% of the voting common stock (in
the case of a corporation) or other voting interests (in the case of a legal
entity which is not a corporation);
1.10 Initial Closing Date. "Initial Closing Date" means the
date on which the first Closing takes place.
1.11 Licensing Date. "Licensing Date" means the date when a
license to operate a Facility as an adult congregate living and/or extended
congregate care facility or an equivalent license is issued for the Facility
by the applicable state agency.
1.12 JOINT VENTURE PARTNER's Responsibilities
Schedule. "JOINT VENTURE PARTNER's Responsibilities Schedule"
means the schedule attached as Exhibit 3.4(B).
1.13 JOINT VENTURE PARTNER Affiliate. "JOINT
VENTURE PARTNER Affiliate" means any Affiliate of JOINT
VENTURE PARTNER.
1.14 JOINT VENTURE PARTNER Ancillary Agreement.
"JOINT VENTURE PARTNER Ancillary Agreements" means any
Ancillary Agreement to which JOINT VENTURE PARTNER or any
Affiliate of JOINT VENTURE PARTNER is a party.
1.15 Development Term. "Development Term" means the five
(5) year period commencing on the date of execution of this Agreement.
However, either party may terminate this Agreement during the
Development Term immediately upon written notice if no contract has
been entered into for the acquisition of a Facility or site for a Facility (or
an option to acquire a Facility or a site for a Facility) during any
consecutive twelve (12) month period commencing after the date of this
Agreement. Providing such termination shall not affect the obligations of
JOINT VENTURE PARTNER and SGH-SUB to complete any Facilities
then under development.
1.16 Facility. "Facility" means the land and improvements
constituting an assisted living residence facility which is developed
pursuant to or as contemplated by this Agreement.
1.17 Family Member. "Family Member" means, with respect
to any individual, (a) the spouse of such individual, (b) any child of such
individual, or any parent, grandparent, brother or sister living in the same
house as such individual, or the spouse of any of the foregoing
individuals described in this clause (b), (c) a custodian, guardian or
personal representative of an individual described in clause (a) or (b); or
(d) a trust for the exclusive benefit of one or more of the individuals
described in clause (a) or (b).
1.18 Capital Investment Schedule. "Capital Investment
Schedule" means the schedule attached as Exhibit 3.2.
1.19 License Agreement. "License Agreement" means a
License Agreement is substantially the form of the License Agreement
together with changes to properly reflect the identity and location of the
Facility being licensed, attached as Exhibit 3.6(A)
1.20 Management Agreement. "Management Agreement"
means a Management Agreement in substantially the form of the
Management Agreement, together with changes to properly reflect the
identity and location of the Facility being managed, substantially in the
form attached as Exhibit 3.5.
1.21 Limited Partnership Agreement. "Limited Partnership
Agreement" means a Limited Partnership Agreement in substantially the
form of the Limited Partnership Agreement, together with changes to
properly reflect the identity and location of the Facility being managed,
substantially in the form attached as Exhibit 3.1.
1.22 Percentage Interest. "Percentage Interest" means, as
applied to any Project Entity, the ownership interest of SGH-SUB or
JOINT VENTURE PARTNER in such Entity.
1.23 Person. "Person" means a natural person, corporation,
trust, partnership, limited liability company, governmental entity (or
agency, branch or department thereof) or any other legal entity.
1.24 Project Agreements. The agreements entered into by SGH-SUB, JOINT
VENTURE PARTNER and/or their Affiliates in
connection with the formation of a Project Entity, including without
limitation any Limited Partnership Agreement or other organizational
documents.
1.25 Project Entity. "Project Entity" means any limited
partnership, limited liability company or other entity which, directly or
indirectly, owns a Facility.
1.26 SGH-SUB Responsibilities Schedule. "SGH-SUB
Responsibilities Schedule" means the schedule attached as Exhibit
3.4(A).
1.27 Territory. "Territory" means the geographic area
described on the attached Exhibit 1.27.
1.28 Third Party Developer. "Third Party Developer" means
any Partner who is not SGH-SUB, SGH, an SGH Affiliate, JOINT
VENTURE PARTNER, or a JOINT VENTURE Affiliate.
ARTICLE 2
PURPOSE OF JOINT VENTURE
The parties are entering into the joint venture contemplated by
this Agreement in order for SGH-SUB and JOINT VENTURE
PARTNER, through jointly owned limited partnerships, limited liability
companies or other entities agreed upon by the parties, to develop or
acquire, and own, operate and finance, the Facilities in targeted market
areas throughout the Territory. The number of Facilities that shall be
developed hereunder and the respective deadlines for commencing and
completing construction of the same are set forth on the attached Exhibit
2. Upon execution of this Agreement and in consideration of
development opportunities to be deferred or relinquished, JOINT
VENTURE PARTNER shall pay to SGH, in addition to any other sums
due hereunder, the sum of Not Applicable
Dollars ($ ).
ARTICLE 3
COVENANTS
3.1 Formation and Capitalization of Project Entities. At
each Closing, SGH-SUB and JOINT VENTURE PARTNER shall form
one of the Project Entities contemplated by this Agreement by entering
into a Limited Partnership Agreement. A Project Entity shall be formed
at least as soon as a site for a Facility has been identified by SGH.
Unless the parties agree otherwise, each Project Entity shall be a limited
partnership, and the parties shall enter into a Limited Partnership
Agreement with respect to each such site selected. To the extent that a
limited liability company is utilized, its organizational documents shall,
as practical, be drafted in a manner that is comparable to the terms and
conditions of the Limited Partnership Agreement. Capital contributions
shall be made by SGH-SUB and JOINT VENTURE PARTNER or a
JOINT VENTURE PARTNER Affiliate in such proportions, at such
times and in such amounts as the parties agree on, as more fully set forth
in the Capital Investment Schedule.
3.2 Capitalization of Project Entities. During the
Development Term, the parties shall make mandatory initial capital
contributions to each Project Entity as more fully set forth in the Limited
Partnership Agreement for such Project Entity. The mandatory initial
capital contributions for all Project Entities shall each be subject to a
contribution schedule which shall not exceed in the aggregate the
amounts shown in the Capital Investment Schedule, unless the parties
otherwise agree. Neither SGH-SUB nor JOINT VENTURE PARTNER
shall have any obligation to make any expenditure, provide capital or loan
funds to any Project Entity except as may specifically be required by this
Agreement, any Ancillary Agreement (including any Limited Partnership
Agreement), by applicable law, or as otherwise agreed by SGH-SUB and
JOINT VENTURE PARTNER from time to time.
3.3 Project Financing. The parties will use their best efforts
to cause each Project Entity to obtain the necessary construction and
permanent financing for the Facility owned by it. The parties will use
their best efforts to cause each Project Entity to obtain permanent
financing (i.e., mortgage financing or sale leaseback) when a Facility
reaches a level of 90% of full occupancy. SGH-SUB along with SGH
and the Project Entity shall be the guarantors of such construction and
permanent financing if a guaranty is required, but JOINT VENTURE
PARTNER shall not be required to personally guaranty any financing for
any such Facility, nor shall JOINT VENTURE PARTNER, in the event
that SGH-SUB, SGH or such Entity are called upon to pay such
obligations pursuant to their guaranties, be required to compensate or
otherwise reimburse SGH-SUB, SGH or such Entity, as the case may be,
for any loss or costs incurred by any of them under any such guaranty. It
is understood that SGH-SUB and SGH each reserve the right to secure
the repayment of any funds loaned to a Project Entity by the use of a first
mortgage or similar security device.
3.4 Responsibilities of the Parties.
A) SGH-SUB shall be responsible for the duties and activities
set forth on the SGH-SUB Responsibilities Schedule.
B) JOINT VENTURE PARTNER shall be responsible for the
duties and activities set forth on the JOINT VENTURE PARTNER's
Responsibilities Schedule. To the extent that JOINT VENTURE
PARTNER is to be reimbursed or compensated for such services, the
terms and conditions of same shall be set forth on the JOINT VENTURE
PARTNER Responsibilities Schedule.
C) All charges associated with the foregoing services
provided by SGH-SUB or JOINT VENTURE PARTNER or any
Affiliate including, without limitation, premarketing, pre-opening,
operating, pre-development, third party, overhead and aborted project
costs, shall be paid by the specific Project Entity benefiting from such
services or as agreed on by both parties in writing.
3.5 Construction. SGH-SUB reserves the right and option to
appoint BCI Construction, Inc. ("BCI"), an SGH Affiliate, to provide
development and construction supervision services to any Project Entity
which develops a Facility. A construction agreement shall be executed
by the applicable Project Entity and BCI or another construction
company selected by SGH-SUB, for such Facilities when the respective
Project Entity is formed. Such construction agreement shall provide that
such Project Entity will pay BCI a commercially reasonable construction
fee, if BCI is selected by SGH-SUB to be the Construction Manager,
and/or a development fee. The construction fee payable to BCI shall be
payable in accordance with the applicable construction agreement. SGH-SUB
reserves the right to appoint itself, SGH, any SGH Affiliate, any
JOINT VENTURE PARTNER affiliate, or a THIRD PARTY
DEVELOPER as the developer of record for any proposed Project
Facility.
3.6 Project Management. In addition to the provisions of
Section 3.4(A), SGH-SUB shall perform management services for each
Project Entity, as more fully set forth in the applicable Limited
Partnership Agreement. SGH-SUB shall enter into a Limited Partnership
Agreement for each Project Entity when it is formed. SGH-SUB shall be
entitled to charge a one-time compensation of up to $50,000 and as
manager of each Project Facility shall be entitled to receive a
management fee equal to seven percent (7%) of such entities gross
revenues in accordance with the terms of each Management Agreement;
such agreement shall be executed by SGH-SUB, or an Affiliate of SGH-SUB, and
the respective Project Entity upon the purchase of the real
estate to be developed for each Project Facility.
In addition, SGH-SUB shall be entitled to be reimbursed for all
costs and overhead expenses relating to the development, construction
and start-up activities of each Project Facility. SGH-SUB, or an Affiliate
of SGH-SUB, shall be entitled to charge a monthly fee of up to $500 per
month per Project Facility in return for providing accounting services to
each Project Facility. SGH and the respective Project Entity shall also
execute a License Agreement upon the purchase of the real estate to be
developed for each Project Facility.
3.7 Restrictions on Transferability of Interests. From and
after the Closing Date, neither SGH-SUB, JOINT VENTURE PARTNER
or any JOINT VENTURE PARTNER Affiliate shall transfer its
ownership interest in any Project Entity except to the other party;
provided, however, that SGH-SUB may transfer a portion of its interest to
an Affiliate prior to the exercise of a put or call option pursuant to Section
3.8 so as to preserve the existence of the Project Entity following such
purchase. A transfer means any disposition of an interest or any interest
therein, including, without limitation, any sale, gift, assignment, pledge
or encumbrance, whether such disposition occurs voluntarily, by
operation of law or otherwise. The organizational documents of JOINT
VENTURE PARTNER shall provide at all times that the beneficial
ownership interests of each beneficial owner shall be subject to a right of
first refusal in favor of JOINT VENTURE PARTNER, and to the extent
not exercised then to the other owners of JOINT VENTURE PARTNER,
and then to the extent not exercised to SGH-SUB. Further, at the time of
each Closing, JOINT VENTURE PARTNER shall obtain from each such
owner, written assurance in a form acceptable to SGH-SUB, that such
owner is not subject to any litigation, arbitration, proceeding,
governmental investigation, citation or action of any kind pending, or to
the knowledge of such Person, proposed or threatened against them
which could have a material adverse effect on the transactions
contemplated hereby.
3.8 Options to Sell or Purchase Ownership Interests.
A) SGH hereby grants to JOINT VENTURE PARTNER the
right ("put option") to sell JOINT VENTURE PARTNER's ownership
interest in any one or more Project Entities to SGH at the respective fair
market value (determined as set forth below) of such Project Entity or
Entities. The put option for each Project Entity shall be exercisable
commencing on the ten (10) month anniversary of the Licensing Date of
the last Facility developed and owned by such Project Entity and any
time thereafter prior to the tenth (10th) anniversary of such Licensing
Date. Such option shall be exercised by written notice from JOINT
VENTURE PARTNER to SGH prior to such tenth (10th) anniversary.
The exercise by JOINT VENTURE PARTNER of its put option for one
Project Entity shall not preclude JOINT VENTURE PARTNER from
later exercising one or more put options for additional Project Entities.
B) JOINT VENTURE PARTNER hereby grants to SGH the
right ("call option") to purchase JOINT VENTURE
PARTNER's ownership interest in each Project Entity at the Call Option
Price of such Project Entity or Entities. The call option for each Project
Entity shall be exercisable commencing on the six (6) month anniversary
of the Licensing Date of the first Facility developed and owned by such
Project Entity and any time thereafter prior to the tenth (10th) anniversary
of the Licensing Date of such Facility. Such option shall be exercised by
written notice from SGH to JOINT VENTURE PARTNER prior to such
tenth (10th) anniversary. The exercise by SGH of its call option for a
Project Entity shall not preclude SGH from later exercising one or more
call options for additional Project Entities.
C) The fair market value of JOINT VENTURE PARTNER's
ownership interest in each Project Entity shall be based upon the fair
market value of such Project Entity (including all of its assets and
liabilities), determined as of the end of the calendar month preceding the
date on which a put option is exercised. The fair market value of a
Project Entity shall be the fair market value of such Project Entity as
established by an appraiser agreed on by the parties. SGH and Joint
Venture Partner shall each give the other party notice of the name of an
acceptable appraiser 15 days after the giving of notice by JOINT
VENTURE PARTNER of its intent to exercise an option. The two
appraisers will then select a third appraiser within an additional 5 days.
Within 5 days after designation, each appraiser shall submit a resume to SGH
and Joint Venture Partner, setting forth such appraiser's
qualifications, including education and experience with similar
properties. A notice of objections to the qualifications of any appraiser
shall be given within 10 days after receipt of such resume. If either party
fails to timely object to the qualifications of an appraiser, then the
appraiser shall be conclusively deemed satisfactory. If a party gives a
timely notice of objection to the qualifications of an appraiser, then the
disqualified appraiser shall be replaced by an appraiser selected by the
qualified appraisers or, if all appraisers are disqualified, then by an
appraiser selected by a commercial arbitrator acceptable to SGH and Joint
Venture. The "fair market value" shall be determined by the appraisers
within 60 days thereafter as follows. Each of the appraisers shall be
instructed to prepare an appraisal of the Project Facility in accordance
with the following instructions:
The Project Facility is to be valued upon
the three conventional approaches to estimate value known as the
Income, Sales Comparison and Cost Approaches. Once the approaches
are completed, the appraiser correlates the individual approaches into a
final value conclusion.
The Three approaches to estimate value are summarized as
follows:
Income Approach: This valuation approach recognizes
that the value of the operating tangible and intangible asset can be
represented by the expected economic viability of the business giving
returns on and of the assets and shall use a management fee of 7%.
Sales Comparison Approach: This valuation approach is
based upon the principal of substitution. When a facility is replaceable in
the market, the market approach assumes that value tends to be set at the
price of acquiring an equally desirable substitute facility. Since health
care market conditions change and frequently are subject to regulatory
and financing environments, adjustments need to be considered. These
adjustments also consider the operating differences, such as services and
demographics.
Cost Approach: This valuation approach estimates the
value of the tangible assets only. Value is represented by the market
value of the land plus the depreciated reproduction cost of all
improvements and equipment.
In general, the Income and Sales Comparison Approaches
are to be considered the best representation of value, because they cover
both tangibles and intangible assets, consider the operating characteristics
of the business and have the most significant influence on attracting
potential investors.
The appraised values submitted by the three appraisers
shall be ranked from highest value to middle value to lowest value, the
appraised value (highest or lowest) which is furthest from the middle
appraised value shall be discarded, and the remaining two appraised
values shall be averaged to arrive at fair market value.
In determining the fair market value of a Project Entity,
the assumption shall be made that the Management Agreement will
continue indefinitely and that the percentage management fee would
continue to be charged to the applicable Project Entity. Each appraiser
selected hereunder shall be a reputable appraisal firm which has
substantial experience in appraising commercial real estate, which shall
mean that at a minimum the appraiser must be state certified, a member in
good standing with the American Institute of Real Estate Appraisers and
a member in good standing with the Appraisal Institute. All appraisers
shall have complete access to the relevant books and records of the
Project Entity they are appraising during the conduct of their appraisals.
If the fair market value of a Project Entity is finally determined in
accordance with this Section 3.8(C), and a put or call option is exercised
within four (4) months from the date of such final determination, then
such fair market value shall be used in connection with the purchase and
sale occurring as a result of such exercise.
D) SGH shall, at each closing of a purchase or sale pursuant
to this Section 3.8, pay the purchase price in cash or immediately
available funds.
E) The closing of a purchase and sale pursuant to this Section
3.8 shall take place within ninety (90) days following the exercise of a put
or call option hereunder, provided that such ninety (90) day period shall
be extended as reasonably necessary to permit completion of any
appraisal required by this Section 3.8. At such closing, (i) JOINT
VENTURE PARTNER shall deliver to SGH the interest in the Project
Entity being purchased, free and clear of all security interests, liens and
restrictions (other than restrictions imposed by this Agreement and the
Ancillary Agreements), together with such other documents as SGH may
reasonably request, and (ii) SGH shall deliver to JOINT VENTURE
PARTNER the purchase price together with such other documents as
JOINT VENTURE PARTNER may reasonably request. In the event that
at the time of the exercise of an option, JOINT VENTURE PARTNER
has guaranteed any financing of a Project Entity, SGH-SUB and SGH
will use their best efforts to obtain a release of JOINT VENTURE
PARTNER of such guaranty. If SGH-SUB and SGH are unable to obtain
such a release, and following the Closing there occurs a default in the
payment or performance of such financing, SGH-SUB and SGH will
jointly and severally indemnify JOINT VENTURE PARTNER for any
damages, costs and expenses (including reasonable attorneys' fees) which
JOINT VENTURE PARTNER incurs pursuant to its guaranty as
provided in Section 9.2(C).
F) Notwithstanding any provision contained in this Section
3.8 to the contrary:
i) if a put or call option is exercised, such purchase
may be made by an Affiliate of SGH so as to preserve the legal existence
of the Project Entity, but no such assignment shall relieve SGH from any
obligations to JOINT VENTURE PARTNER;
ii) any real estate transfer fee which arises in
connection with any purchase and sale hereunder shall be borne equally
by the parties; and
iii) JOINT VENTURE PARTNER shall not be entitled
to exercise its put option for a Project Entity if the Project Entity is in
default in the financing for any Facility owned by such Project Entity.
G) In the event that an Affiliate of JOINT VENTURE
PARTNER is designated by JOINT VENTURE PARTNER to own an
interest in a Project Entity, then as a condition thereto the Project Entity
shall execute in form and substance reasonably satisfactory to SGH-SUB
an agreement in which the JOINT VENTURE PARTNER Affiliate
agrees to be bound by the provisions of this Agreement applicable to such
JOINT VENTURE PARTNER Affiliate, including without limitation the
provisions of this Section 3.8.
3.9 Non-Competition.
A) During the Development Term, without the prior written
consent of SGH or SGH-SUB, neither JOINT VENTURE PARTNER
nor any JOIN VENTURE PARTNER Affiliate shall directly or indirectly
own, operate, develop, construct, manage or participate in the ownership,
development, construction, operation or management of an assisted
living, dementia or other specialty care facility for the elderly located in
the Territory. In addition, as long as (i) SGH-SUB, SGH. or their
Affiliate and (ii) JOINT VENTURE PARTNER or any JOINT
VENTURE PARTNER Affiliate jointly own equity interests in any
Project Entity, and for a period of one (1) year thereafter, neither JOINT
VENTURE PARTNER or JOINT VENTURE PARTNER Affiliate will,
without the prior written consent of SGH or SGH-SUB, directly or
indirectly own, operate, develop, construct, manage or participate in the
ownership, development, construction, operation or management of an
assisted living, dementia or other specialty care facility for the elderly
located within twenty-five (25) miles from any Facility owned by such
Project Entity.
B) The restrictions on JOINT VENTURE PARTNER set
forth in Section 3.9 (A) shall also apply to the shareholders of JOINT
VENTURE PARTNER and their Family Members, and any entities
directly or indirectly Controlled by any one or more of them.
C) The restrictions set forth in Section 3.9 (A) are subject to
the following exceptions:
i) such restrictions shall not be considered violated
by reason of JOINT VENTURE PARTNER or its members or
shareholders, their Family Members, or entities directly or indirectly
Controlled by any of them, developing, owning and/or constructing
skilled nursing home facilities located in the Territory which require a
certificate of need or the equivalent; and
ii) such restrictions shall not be considered violated
by reason of JOINT VENTURE PARTNER or any JOINT VENTURE
PARTNER Affiliate owning less than a five percent (5%) interest in a
legal entity that owns, develops, constructs, operates or manages any
assisted care or dementia or other special care facilities and whose shares
of stock are traded on a nationally recognized stock exchange or traded in
the over-the-counter market.
D) Each party hereby agrees that the restrictions set forth in
this Section 3.9 are founded on valuable consideration and are reasonable
in duration and geographic area in view of the circumstances under which
this Agreement is executed and that such restrictions are necessary to
protect the legitimate interests of the parties. In the event that any
provision of this Section 3.9 is determined to be invalid by any arbitrator
or court of competent jurisdiction, the provisions of this Section 3.9 shall
be deemed to have been amended and the parties agree to execute any
documents and take whatever action is necessary to evidence such
amendment, so as to eliminate or modify any such invalid provision and
to carry out the intent of this Section 3.9 to render the terms of this
Section 3.9 enforceable in all respects as so modified.
E) Each party acknowledges and agrees that irreparable injury
may result to the other party and/or a Project Entity if the other party
breaches any covenant contained in this Section 3.9 and that the remedy
at law for the breach of any such covenant will be inadequate. Therefore,
if any party shall engage in any act in violation of any of the provisions of
this Section 3.9, the other party and the affected Project Entity (or either
of them) shall be entitled, in addition to such other remedies and damages
as may be available to either or both of them at law or under this
Agreement, to injunctive relief to enforce the provisions of this Section 3.9.
3.10 Confidentiality. The parties will at all times hold and
cause their consultants and advisors to hold in confidence the information
contained in this Agreement. In addition, each party (the "receiving
party") will at all times hold and cause its advisors and representatives to
hold in strict confidence all documents, materials and other information
concerning the other parties (the "disclosing party"), which have been or
will be furnished by the disclosing party to the receiving parties or their
employees, advisors and representatives in connection with the
transactions contemplated by this Agreement and which are designated as
confidential. All such information shall be disclosed by a receiving party
only to its employees, advisors and representatives engaged in the
evaluation of such information. If the transactions contemplated by this
Agreement are not consummated, regardless of the reason therefor, such
confidence will be maintained by the receiving party, except to the extent
such information (a) was previously known to the receiving party prior to
disclosure by the disclosing party, (b) is in the public domain through no
fault of the receiving party, (c) is lawfully acquired by the receiving party
from a third party under no obligation of confidence to the disclosing
party, or (d) is required by any law or by any governmental or judicial
body to be disclosed. Such documents and information will not be used
to the detriment of the disclosing party or otherwise in any manner and all
documents, materials and other written information provided by the
disclosing party to the receiving party, including all copies and extracts
thereof, will be returned to the disclosing party immediately upon its
written request. Provided, neither SGH or SGH-SUB nor JOINT
VENTURE PARTNER shall have any liability hereunder for a breach of
this Section 3.10 by their respective employees, advisors, or
representatives unless such breach results from their (i.e., SGH's, SGH-SUB's
or JOINT VENTURE PARTNER's) negligence, bad faith or intentional bad act.
3.11 Further Assurances. Following each Closing, each party
shall execute such further documents and perform such further acts as
may be reasonably necessary to consummate the transactions
contemplated by this Agreement and the Ancillary Agreements in
accordance with the terms hereof and thereof and to more effectively
carry out the transactions contemplated hereby and thereby.
3.12 Liens and Encumbrances. Each of SGH-SUB and
JOINT VENTURE PARTNER, and any JOINT VENTURE PARTNER
Affiliate acquiring an interest in a Project Entity, agrees to keep its
ownership interest in each such entity free and clear from any and all
security interests, liens and restrictions in favor of third parties.
3.13 Public Statement. JOINT VENTURE PARTNER shall
consult with SGH prior to issuing any press release or making any other
public statement (including, direct communications with third parties or
family members) with respect to the transactions contemplated hereby,
and will not issue any such release or make any such statement without
the approval of SGH (which may be denied in the sole discretion of SGH),
except as required pursuant to any state or federal securities law or
by the rules and regulations of any relevant securities exchange or
quotation system upon which a party's securities are then traded. JOINT
VENTURE PARTNER acknowledges that its breach of the provisions of
this Section 3.13, may result in the assessment of fines, penalties and/or
civil liabilities by the Securities and Exchange Commission, state
securities commissions, and others.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES AND ADDITIONAL
COVENANTS OF SGH-SUB AND SGH
SGH-SUB and SGH, jointly and severally, hereby represents and
warrants to JOINT VENTURE PARTNER, as of the date of this
Agreement and each further covenants that SGH and SGH-SUB shall
hereafter represent and warrant to JOINT VENTURE PARTNER as of
each Closing Date that:
4.1 Organization. SGH-SUB is a corporation validly existing
and in good standing under the laws of the State of Kansas and has full
corporate power and corporate authority to conduct its business as
presently conducted and to become an owner of the Project Entities.
SGH-SUB is duly qualified to transact business as a foreign corporation
in the State of domicile of each Project Entity.
4.2 Authorization; Enforceability. The execution, delivery
and performance by SGH-SUB and SGH of this Agreement and the SGH-SUB Ancillary
Agreements are within the corporate power of SGH-SUB and SGH, respectively,
and have been duly authorized by all necessary corporate action by SGH-SUB
and SGH. This Agreement, and the SGH-SUB Ancillary Agreements when executed
and delivered by SGH-SUB, will be the valid and binding obligations of SGH-SUB,
enforceable against SGH-SUB in accordance with their respective terms.
4.3 No Violation or Conflict. The execution, delivery and
performance by SGH and SGH-SUB of this Agreement and by SGH-SUB of the SGH-SUB
Ancillary Agreements will not conflict with or violate any law, judgment,
order, or decree, the Articles of Incorporation or Bylaws of SGH-SUB or SGH,
or any contract or agreement to which either is a party or by which it is
respectively bound.
4.4 Brokers. Neither SGH-SUB or SGH nor any Affiliate of
SGH has incurred any brokers', finders' or any similar fee in connection
with the transactions contemplated by this Agreement or the SGH-SUB
Ancillary Agreements other than usual and customary fees and
commissions paid to third party brokers in connection with the
acquisition of real estate.
4.5 Litigation. There is no litigation, arbitration, proceeding,
governmental investigation, citation or action of any kind pending or, to
the knowledge of SGH-SUB or SGH, proposed or threatened, against
either SGH or SGH-SUB which could have a material adverse effect on
the transactions contemplated hereby. There is no action, suit or
proceeding against SGH or SGH-SUB by any person or entity which
questions the validity, legality or propriety of the transactions
contemplated by this Agreement or the SGH-SUB Ancillary Agreements.
4.6 Governmental Approvals. No permission, approval,
determination, consent or waiver by, or any declaration, filing or
registration with, any governmental or regulatory authority is required on
the part of SGH-SUB or SGH in connection with its execution and
delivery of this Agreement and the SGH-SUB Ancillary Agreements and
the consummation by it of the transactions contemplated hereby and
thereby.
4.7 Required Consents. There are no approvals or consents
which SGH-SUB or SGH are required to obtain from any third parties to
enter into this Agreement or the SGH-SUB Ancillary Agreements which
have not been obtained.
4.8 Representations and Warranties True and Correct at
Closing. Except as specifically disclosed by SGH-SUB and/or SGH to
JOINT VENTURE PARTNER in writing prior to or at the Initial Closing
Date with respect to matters arising after the date of this Agreement, the
representations and warranties of SGH-SUB and SGH set forth in this
Article 4 shall be true and correct as of each Closing.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES AND ADDITIONAL
COVENANTS OF JOINT VENTURE PARTNER
JOINT VENTURE PARTNER hereby represents and warrants to
SGH-SUB and SGH, respectively, as of the date of this Agreement and
further covenants that JOINT VENTURE PARTNER shall hereinafter
represent and warrant to SGH-SUB and SGH as of each Closing Date
that:
5.1 Organization. JOINT VENTURE PARTNER is a limited partnership, validly
existing and in good standing under the laws
of the State of Florida and has full power and authority to conduct its
business as presently conducted and to become an owner of the Project
Entities. Exhibit 5.1 contains a correct list of the current owners of
JOINT VENTURE PARTNER and also includes which Affiliates of
JOINT VENTURE PARTNER, if any, which are currently expected to be
a party to any Ancillary Agreement.
5.2 Authorization; Enforceability. The execution, delivery
and performance by JOINT VENTURE PARTNER of this Agreement
and the JOINT VENTURE PARTNER Ancillary Agreements are within
the power of JOINT VENTURE PARTNER (and will be within the
power of the JOINT VENTURE PARTNER Affiliate which is a party
thereto) and have been duly authorized by all necessary action by JOINT
VENTURE PARTNER (and will be duly authorized by any JOINT
VENTURE PARTNER Affiliate prior to the execution thereof). This
Agreement, and the JOINT VENTURE PARTNER Ancillary
Agreements when executed and delivered by JOINT VENTURE
PARTNER and its Affiliates, as applicable, will be the valid and binding
obligations of JOINT VENTURE PARTNER and/or its Affiliates,
enforceable against them in accordance with their respective terms.
5.3 No Violation or Conflict. The execution, delivery and
performance by JOINT VENTURE PARTNER of this Agreement and
the JOINT VENTURE PARTNER Ancillary Agreements will not
conflict with or violate any judgment, order or decree, the Certificate of
Limited Partnership or Limited Partnership Agreement of JOINT
VENTURE PARTNER, or any contract or agreement to which JOINT
VENTURE PARTNER is a party or by which JOINT VENTURE
PARTNER is bound.
5.4 No Broker. Neither JOINT VENTURE PARTNER nor
any Affiliate of JOINT VENTURE PARTNER has incurred any brokers',
finders' or any similar fee in connection with the transactions
contemplated by this Agreement or the JOINT VENTURE PARTNER
Ancillary Agreements other than usual and customary fees and
commissions paid to third party brokers in connection with the
acquisition of real estate.
5.5 No Litigation. There is no litigation, arbitration,
proceeding, governmental investigation, citation or action of any kind
pending or, to the knowledge of JOINT VENTURE PARTNER,
proposed or threatened, against JOINT VENTURE PARTNER which
could have a material adverse effect on the transactions contemplated
hereby. There is no action, suit or proceeding by any person or
governmental agency against JOINT VENTURE PARTNER or any
JOINT VENTURE PARTNER Affiliate which questions the legality,
validity or propriety of the transactions contemplated by this Agreement
or the JOINT VENTURE PARTNER Ancillary Agreements.
5.6 Governmental Approvals. No permission, approval,
determination, consent or waiver by, or any declaration, filing or
registration with, any governmental or regulatory authority is required on
the part of JOINT VENTURE PARTNER in connection with its
execution and delivery of this Agreement and the JOINT VENTURE
PARTNER Ancillary Agreements and the consummation by it of the
transactions contemplated hereby and thereby.
5.7 Required Consents. There are no approvals or consents
which JOINT VENTURE PARTNER is required to obtain from third
parties to enter into this Agreement or the JOINT VENTURE PARTNER
Ancillary Agreements which have not been obtained.
5.8 Representations and Warranties True and Correct at
Closing. Except as specifically disclosed by JOINT VENTURE
PARTNER to SGH-SUB and SGH in writing prior to or at the Initial
Closing Date with respect to matters arising after the date of this
Agreement, the representations and warranties of JOINT VENTURE
PARTNER set forth in this Article 5 shall be true and correct as of each
Closing.
ARTICLE 6
CONDITIONS PRECEDENT TO THE OBLIGATIONS
OF JOINT VENTURE PARTNER
Each and every obligation of JOINT VENTURE PARTNER to be
performed on any Closing Date shall be subject to the satisfaction prior to
or at each Closing of the following conditions:
6.1 Compliance with Agreement. SGH-SUB and SGH shall
each have respectively performed and complied with all of its obligations
under this Agreement which are to be performed or complied with by it
prior to or at such Closing.
6.2 Proceedings and Instruments Satisfactory. All
proceedings, corporate or otherwise, to be taken by SGH-SUB or SGH in
connection with the transactions contemplated by this Agreement, and all
documents incident thereto, shall be reasonably satisfactory in form and
substance to JOINT VENTURE PARTNER, and SGH-SUB and SGH
shall have made available to JOINT VENTURE PARTNER for
examination the originals or true and correct copies of all documents
which JOINT VENTURE PARTNER may reasonably request and SGH-SUB and SGH can
reasonably obtain in connection with the transactions
contemplated by this Agreement.
6.3 No Litigation. No investigation, suit, action or other
proceeding shall be threatened or pending before any court or
governmental agency that seeks restraint, prohibition, damages or other
relief in connection with this Agreement or the consummation of the
transactions contemplated hereby.
6.4 Representations and Warranties. The representations
and warranties made by SGH-SUB and SGH in this Agreement shall be
true and correct as of each Closing Date with the same force and effect as
though such representations and warranties had been made on each
Closing Date.
6.5 Deliveries at Closing. SGH-SUB and SGH, as the case
may be, shall have delivered or caused to be delivered to JOINT
VENTURE PARTNER the documents provided for in this Agreement,
together with such certificates and documents of officers of SGH-SUB
and/or SGH and of public officials as shall be reasonably requested by
JOINT VENTURE PARTNER's counsel to establish the existence and
status of SGH-SUB and SGH and the due authorization by SGH-SUB
and SGH of this Agreement, the Ancillary Agreements to which either is
a party and the consummation by SGH-SUB and/or SGH of the
transactions contemplated hereby and thereby.
ARTICLE 7
CONDITIONS PRECEDENT TO THE OBLIGATIONS
OF SGH-SUB AND SGH
Each and every respective obligation of SGH-SUB and SGH to
be performed on the Closing Date shall be subject to the satisfaction prior
to or at each Closing of the following conditions:
7.1 Compliance with Agreement. JOINT VENTURE
PARTNER and/or its Affiliates shall have performed and complied with
all of its obligations under this Agreement which are to be performed or
complied with by it prior to or at such Closing.
7.2 Proceedings and Instruments Satisfactory. All
proceedings to be taken by JOINT VENTURE PARTNER and/or its
Affiliates in connection with the transactions contemplated by this
Agreement, and all documents incident thereto, shall be reasonably
satisfactory in form and substance to SGH-SUB, and JOINT VENTURE
PARTNER and/or its Affiliates shall have made available to SGH-SUB
and SGH for examination the originals or true and correct copies of all
documents which SGH-SUB may reasonably request and JOINT
VENTURE PARTNER can reasonably obtain in connection with the
transactions contemplated by this Agreement.
7.3 No Litigation. No investigation, suit, action or other
proceeding shall be threatened or pending before any court or
governmental agency that seeks restraint, prohibition, damages or other
relief in connection with this Agreement or the consummation of the
transactions contemplated hereby.
7.4 Representations and Warranties. The representations
and warranties made by JOINT VENTURE PARTNER in this
Agreement shall be true and correct as of each Closing Date with the
same force and effect as though such representations and warranties had
been made on each Closing Date.
7.5 Deliveries at Closing. JOINT VENTURE PARTNER
and/or JOINT VENTURE PARTNER's Affiliates shall have delivered or
caused to be delivered to SGH-SUB or SGH, as the case may be, the
documents provided for in this Agreement, together with such certificates
and documents of officers of JOINT VENTURE PARTNER and/or
JOINT VENTURE PARTNER's Affiliates and of public officials as shall
be reasonably requested by either SGH's or SGH-SUB's counsel to
establish the existence and status of JOINT VENTURE PARTNER
and/or JOINT VENTURE PARTNER's Affiliates and the due
authorization by JOINT VENTURE PARTNER and/or JOINT
VENTURE PARTNER's Affiliates of this Agreement, the Ancillary
Agreement to which it is a party and the consummation by JOINT
VENTURE PARTNER and/or JOINT VENTURE PARTNER's Affiliates
of the transactions contemplated hereby or thereby.
ARTICLE 8
CLOSING; DELIVERIES AT CLOSING
8.1 Closing. Each Closing shall occur on such date as the
parties hereto may mutually agree upon in writing, but the first of the
same shall occur no later than the Initial Closing Date, at such place as
the parties hereto may mutually upon.
8.2 Actions at Closing. At the Closing, SGH-SUB, SGH
and/or JOINT VENTURE PARTNER or its Affiliates, as applicable,
shall take or cause to be taken the following actions:
A) Limited Partnership Agreement. SGH-SUB and JOINT
VENTURE PARTNER shall enter into the Limited Partnership
Agreement pursuant to which SGH-SUB and JOINT VENTURE
PARTNER or JOINT VENTURE PARTNER's Affiliate shall form a
Project Entity. In addition, at the Closing SGH-SUB and JOINT
VENTURE PARTNER or its Affiliate shall remit the capital
contributions to such Project Entity referred to in the Capital Investment
Schedule.
B) Other Actions and Deliveries. Each party shall have
deliver or cause to be delivered to the other party such other certificates
and documents as may be reasonably requested by such other party's
counsel to establish the existence and status of the first party, the due
authorization by the first party of this Agreement and the Ancillary
Agreements to which the first party is a party and the consummation by
the first party of the transactions contemplated hereby and thereby.
ARTICLE 9
INDEMNIFICATION
9.1 JOINT VENTURE PARTNER's Indemnity. JOINT
VENTURE PARTNER hereby agrees to indemnify SGH, SGH-SUB
and/or the SGH-Affiliates for and hold them harmless from and against
any and all losses, damages, costs, expenses, liabilities, obligations and
claims of any kind (including, without limitation, reasonable attorneys'
fees and other reasonable legal costs and expenses) which they may at
any time suffer or incur, or become subject to, as a result of or in
connection with:
A) any breach or inaccuracy of any of the representations and
warranties made by JOINT VENTURE PARTNER or any JOINT
VENTURE PARTNER Affiliate in this Agreement or in any Ancillary
Agreement;
B) any failure by JOINT VENTURE PARTNER or any
JOINT VENTURE PARTNER Affiliate to carry out, perform, satisfy or
discharge any of its covenants, agreements, undertakings, liabilities or
obligations under this Agreement or under any Ancillary Agreement;
C) any payments by SGH-SUB or SGH with respect to any
obligations of a Project Entity which is jointly owned by SGH-SUB and
JOINT VENTURE PARTNER or an Affiliate of JOINT VENTURE
PARTNER, which at the time of payment have been jointly guaranteed
by SGH-SUB and/or SGH and JOINT VENTURE PARTNER and/or
JOINT VENTURE PARTNER's Affiliates, to the extent such payments
by either or both of them exceed SGH-SUB's proportionate share of such
obligations, based on its Percentage Interest in such Project Entity; or
D) any suit, action or other proceeding brought by any Person
against SGH-SUB, SGH, any SGH Affiliate or the Company arising out
of, or in any way related to, any of the matters referred to in Section 9. 1
(A), 9. 1 (B) or 9. 1 (C) hereof.
9.2 SGH-SUB's and SGH's Indemnity. SGH-SUB and
SGH hereby agree to jointly and severally indemnify JOINT VENTURE
PARTNER, and/or JOINT VENTURE PARTNER's Affiliates for and
hold them harmless from and against any and all losses, damages, costs,
expenses, liabilities, obligations and claims of any kind (including
without limitation, reasonable attorneys' fees and other reasonable legal
costs and expenses) which they may at any time suffer or incur, or
become subject to, as a result of or in connection with:
A) any breach or inaccuracy of any of the representations and
warranties made by SGH-SUB or SGH in this Agreement or in any
Ancillary Agreement;
B) any failure by SGH-SUB or SGH to carry out, perform,
satisfy or discharge any of their covenants, agreements, undertakings,
liabilities or obligations under this Agreement or under any Ancillary
Agreement;
C) any payments by JOINT VENTURE PARTNER or any of
its Affiliates with respect to any obligations of Project Entity which have
been jointly guaranteed by JOINT VENTURE PARTNER or any of its
Affiliates and SGH-SUB, to the extent such payments exceed JOINT
VENTURE PARTNER's or such Affiliate's proportionate share of such
obligations, based on its Percentage Interest in such Project Entity (or
after JOINT VENTURE PARTNER or its Affiliate has sold its interest in
such Project Entity to SGH-SUB or SGH pursuant to Section 3.9, to the
extent of all such payments by JOINT VENTURE PARTNER or such
Affiliate); or
D) any suit, action or other proceeding brought by any Person
against JOINT VENTURE PARTNER, any JOINT VENTURE
PARTNER Affiliate or the Company arising out of, or in any way related
to, any of the matters referred to in Section 9.2(A), 9.2(B) or 9.2(C)
hereof.
9.3 Provisions Regarding Indemnities.
A) The indemnification obligations of JOINT VENTURE
PARTNER, JOINT VENTURE PARTNER's Affiliates, SGH-SUB and
SGH under Sections 9.1 and 9.2, respectively, shall survive for the
applicable statute of limitations. Delivery of any written demand for
indemnification by an indemnified party shall toll the survival period for
the subject of the particular demand and, once notice is given, the
indemnified party may pursue the particular claim to its conclusion to the
extent permitted by applicable law.
B) The indemnified party shall promptly notify the
indemnifying party in writing and in reasonable detail of any claim,
demand, action or proceeding for which indemnification will be sought
under Section 9.1 or Section 9.2 of this Agreement, and if such claim,
demand, action or proceeding is a third party claim, demand, action or
proceeding, the indemnifying party will have the right at its expense to
assume the defense thereof using counsel reasonably acceptable to the
indemnified party. The indemnified party shall have the right to
participate, at its own expense, with respect to any such third party claim,
demand, action or proceeding. In connection with any such third party
claim, demand, action or proceeding, the parties shall cooperate with each
other and provide each other with access to relevant books and records in
their possession. No such third party claim, demand, action or
proceeding shall be settled without the prior written consent of the
indemnified party, such consent not to be unreasonably withheld or
delayed.
ARTICLE 10
TERMINATION
10.1 Termination. The parties acknowledge that time is of the
essence hereof. In addition to the termination rights set forth in Section
1.15, this Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time hereafter as follows:
A) by mutual written agreement of SGH-SUB and JOINT
VENTURE PARTNER;
B) by JOINT VENTURE PARTNER if any of the conditions
set forth in Article 6 of this Agreement have not been timely fulfilled by
SGH-SUB;
C) by SGH-SUB if any of the conditions set forth in Article 7
of this Agreement have not been timely fulfilled by JOINT VENTURE
PARTNER; or
D) by SGH-SUB, at any time upon sixty (60) days' prior
written notice to JOINT VENTURE PARTNER if SGH determines in
good faith that (i) the intended accounting treatments cannot be
reasonably realized, (ii) the use of joint venture arrangements are not then
being positively received in the capital markets relevant to SGH, (iii) the
use of joint ventures is objected to or is deemed to be impractical by
SGH's financing sources, or (iv) continuation of this Agreement is
otherwise impractical.
In the event of termination by JOINT VENTURE PARTNER or
SGH-SUB pursuant to Section 10.1(B) or 10.1(C), respectively, as a
result of a breach by the other party of any of its representations,
warranties, agreements or obligations contained herein, the terminating
party shall be entitled to any remedies available to it at law or in equity.
ARTICLE 11
MISCELLANEOUS
11.1 Entire Agreement; Amendment. This Agreement and
the other agreements and documents executed in connection herewith,
constitute the entire agreement between the parties pertaining to the
subject matter of this Agreement, and supersedes all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or
representative of any party hereto. No amendment, supplement,
modification or waiver of this Agreement shall be binding unless
executed in writing by the party to be bound thereby.
11.2 Fees and Expenses. Whether or not the transactions
contemplated by this Agreement are consummated, and except as
expressly provided herein or in any Ancillary Agreement, each of the
parties hereto shall pay the fees and expenses of its respective counsel,
accountants, brokers, consultants, investment bankers and other experts
incident to the negotiation and preparation of this Agreement and the
consummation of the transactions contemplated by this Agreement.
11.3 Applicable Law. All questions concerning the
construction, validity, and interpretation of this Agreement and the
performance of the obligations imposed by this Agreement shall be
governed by the internal law, not the law of conflicts, of the State of
Florida.
11.4 Binding Effect; Assignment. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, but neither this
Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by any of the parties hereto without the prior written consent
of the other party, whether by operation of law or otherwise.
11.5 Notices. Each notice, request, demand or other
communication ("Notice") by either party to the other party pursuant to
this Agreement shall be in writing and shall be personally delivered or
sent by U.S. certified mail, return receipt requested, postage prepaid, or
by nationally recognized overnight commercial courier, charges prepaid,
or by facsimile transmission (but each such Notice sent by facsimile
transmission shall be confirmed by sending an original thereof to the
other party by U.S. mail or commercial courier as provided herein no
later than the following business day), addressed to the address of the
receiving party set forth below or to such other address as such party shall
have communicated to the other party in accordance with this Section.
Any Notice hereunder shall be deemed to have been given and received
on the date when personally delivered, on the date of sending when sent
by facsimile, on the third business day following the date of sending
when sent by mail or on the first business day following the date of
sending when sent by commercial courier.
If to JOINT VENTURE PARTNER: With copies to:
Xx. Xxxxxxx X. Xxxxxxx Xx. Xxxx Xxxxxxx
Suite 200E Xxxxx, Xxxxx & Xxxxxxx, P.A.
0 Xxxxxxxx Xxxxxxx Xxxxx 0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxx Xxxxx Xxxxx, Xxxxxxx 00000 Xxxx Xxxxxx Xxxxxx 00000
Xxxxxxxx, Xxxxxxx 00000-0000
Xx. Xxx X. Xxxxxxx
000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
If to SGH-SUB: Coventry Corporation
x/x XXXXXXXX XXXXX XXXXXXXXXXX
Xxxxx 000
000 Xxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
ATTN: Xx. Xxxxxxx Xxxxxxxx
Fax: (000) 000-0000
If to SGH: XXXXXXXX XXXXX XXXXXXXXXXX
Xxxxx 000
000 Xxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
ATTN: Xx. Xxxxxxx Xxxxxxxx
Fax: (000) 000-0000
11.6 Counterparts. This Agreement may be executed in
several counterparts, each of which shall be deemed an original, but such
counterparts shall together constitute but one and the same Agreement.
11.7 Headings. The Article and Section headings shall be
deemed an original, but such counterparts shall together constitute but
one and the same Agreement.
11.8 Construction. Common nouns shall be deemed to refer to
the masculine, feminine, neuter, singular and plural, as the identity of the
person may in the context require. References to Sections herein include
all subsections which are subsidiary to the Section referred to. No
provision of this Agreement shall be construed in favor of or against any
party hereto by reason of the extent to which any such party or its counsel
participated in the drafting thereof.
11.9 Severability. If any provision, clause or part of this
Agreement, or the application thereof under certain circumstances, is held
invalid, the remainder of this Agreement, or the application of such
provision, clause or part under other circumstances, shall not be affected
thereby unless such invalidity materially impairs the ability of the parties
to consummate the transactions contemplated by this Agreement.
11.10 Knowledge. Any representation, warranty, covenant or
statement which is made to the knowledge of any party to this Agreement
shall require that such party make reasonable investigation and inquiry
with respect thereto to ascertain the correctness and validity thereof.
11.11 Survival. All representations and warranties of the parties
contained in this Agreement or made pursuant to this Agreement shall
survive the Closing Date and the consummation of the transactions
contemplated by this Agreement for the applicable statute of limitations.
All obligations under this Agreement which expressly or implicitly by
their nature survive the expiration or termination of this Agreement shall
continue in full force and effect subsequent to and notwithstanding the
expiration or termination of this Agreement and until they are satisfied in
full or by their nature expire.
11.12 Waiver of Compliance. Any failure of SGH-SUB, SGH,
or JOINT VENTURE PARTNER or JOINT VENTURE PARTNER's
Affiliate, to comply with any obligation, covenant, agreement or
condition contained herein may be expressly waived in writing by
JOINT VENTURE PARTNER or JOINT VENTURE PARTNER's
Affiliate, or SGH-SUB or SGH, respectively, but such waiver or failure
to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure.
11.13 Third Parties. Except as specifically set forth or referred
to herein, nothing herein expressed or implied is intended or shall be
construed to confer upon or give to any Person other than the parties
hereto and their successors or assigns, any rights or remedies under or by
reason of this Agreement.
11.14 Additional Remedies. In addition to, and not in lieu of
any legal remedies to which SGH-SUB might otherwise be entitled, in
the event that JOINT VENTURE PARTNER or any affiliate of JOINT
VENTURE PARTNER fails to make any capital contribution required
under the terms of the Capital Investment Schedule, SGH-SUB shall be
entitled following thirty (30) days written notice to such defaulting entity,
absent receipt of full payment during such thirty (30) day period, to
cancel the partnership interest in any Project Entity of such defaulting
entity. By execution of this Agreement, JOINT VENTURE PARTNER
does hereby appoint SGH-SUB as it's attorney-in-fact to cause any
membership certificate that may have been issued to such defaulting party
to be canceled. Thereupon, such defaulting party shall no longer be
deemed to be a partner of, or to otherwise hold any beneficial interest in
such Project Entity (or its assets) and shall forfeit all claims to any
distributions to which such defaulting party may have otherwise been
entitled and to all capital contributions that may have been previously
remitted.
11.15 Costs of Litigation. In the event of any litigation arising
among the parties concerning this Agreement, the non-prevailing party
shall pay the reasonable attorney's fees and costs incurred by the
prevailing party (or parties) incurred as an incident to such litigation.
[The Remainder of this Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have caused this
Agreement to be duly executed as of the day and year first above written.
STERLING HOUSE CORPORATION
By
Xxxxxxx X. Xxxxxxxx, Chief Executive Officer
"SGH"
COVENTRY CORPORATION
By
Xxxxxx X. Xxxx, President
"SGH-SUB"
ELDERLY LIVING, LIMITED PARTNERSHIP
By: C.R. Development, Inc. General Partner
By
Xxxxxxx X. Xxxxxxx, President
"JOINT VENTURE PARTNER"
EXHIBIT 3.1
LIMITED PARTNERSHIP AGREEMENT
EXHIBIT 3.2
CAPITAL INVESTMENT SCHEDULE
A) As to each Project Facility:
1) $20,000 upon closing of the purchase of the real estate*;
2) up to an aggregate of $100,000 upon the issuance of the
Facility's Certificate of Occupancy upon the request of SGH-SUB*;
3) up to an aggregate of $150,000 within 90 days following
the issuance of Facility's Certificate of Occupancy upon the request of
SGH-SUB*; and
4) up to an aggregate of $200,000 within 180 days following
the issuance of the Facility's Certificate of Occupancy upon the Request
of SGH-SUB*.
* All payments shall be remitted within ten (10) business days of
receipt of notice from SGH-SUB.
EXHIBIT 3.6
MANAGEMENT AGREEMENT
EXHIBIT 3.6(A)
LICENSE AGREEMENT
EXHIBIT 3.4(A)
SGH-SUB RESPONSIBILITIES SCHEDULE
i) market research for purposes of obtaining debt and/or equity
capital for any Project Entity;
ii) preliminary site approval, and addressing and attempting to
resolve acquisition issues and zoning and use issues presented by Joint
Venture Partner;
iii) obtaining construction financing;
iv) approving of all necessary consultants for building design and
construction; and
v) sales, pre-marketing and ongoing marketing services for each
Project Entity or Facility;
vi) obtaining state (and, if applicable, federal) licensing for Project
Entities or Facilities, and thereafter maintaining state (and, if applicable,
federal) regulatory compliance for Project Entities or Facilities.
EXHIBIT 3.4(B)
JOINT VENTURE PARTNER'S RESPONSIBILITIES SCHEDULE
EXHIBIT 1.27
NON-EXCLUSIVE TERRITORY
The States of:
Florida
Ohio
Oklahoma
Texas,
or such other locations, in such other states, as the parties may agree.
EXHIBIT 2
FACILITIES DEVELOPMENT
The Project Entities and Facility locations shall be as follows:
Bridgeport Development, Limited, Troy, Ohio
an Ohio limited liability company Newark, Ohio
Newport Development, L.L.C., Georgetown, Texas
a Texas limited liability company
Waterford Development Company, L.L.C., Durant, Oklahoma
an Oklahoma limited liability company
Claremont Development, Limited Partnership, Ocala, Florida
a Florida limited partnership Port Orange, Florida
It is acknowledged that all of the Facilities are presently under
construction and are expected to be completed during 1997.
SCHEDULE 3.8(B)
CALL OPTION PRICE
For months one (1) through twelve (12) after Facility Licensing Date, an
amount equal to the lesser of:
A) 1.22 x Initial Capital Contribution of such member*; or
B) the amount necessary to provide such member with an
annualized Internal Rate of Return of 40% on their Initial Capital
Contribution*.
And for each cumulative full twelve (12) month period thereafter, an
amount equal to the lesser of:
A) 1.4 x Initial Capital Contribution of such member,
provided however that call option transactions that result in partial year
amounts will be prorated monthly*;
B) the amount necessary to provide such member with an
annualized Internal Rate of Return of 40% on their Initial Capital
Contribuion*.
Examples:
Assumptions: 1) Assumes six months to build facility;
2) $20,000 contributed during first month of
construction, $80,000 during sixth month of construction (i.e., the month
Facility opens), and $50,000 during third month following opening of the
Facility;
3) Assumes all funds are contributed by the member
on first day of the month.
$150,000 Months 1-12
A) $20,000 month 1 x 1.22 = $ 24,400
$80,000 month 6 x 1.22 = $ 97,600
$50,000 month 9 x 1.22 = $ 61,000
Call Option Price at End
of Month 12 $183,000
B) $20,000 month 1 x 40% = $ 8,000 = $ 28,000
$80,000 month 6 x 40% (for 6 Months) = $16,000 = $ 96,000
$50,000 month 9 x 40% (for 3 Months) = $ 5,000 = $ 55,000
Call Option Price at End
of Month 12 $179,000
$150,000 outstanding months 13-24 (Full Year)
1.4 x $150,000 = $210,000
Plus the lesser return due for 1 year
$210,000
($179,000 - $150,000) + $ 29,000
Total Call Option Price at end of year 2 $239,000
$150,000 outstanding months 25-36 (Full Year)
1.4 x $150,000 = $210,000
+ year 1 return $ 29,000
+ year 2 return $ 60,000 (i.e., $150,000 x .4)
Total Call Option Price at
End of Year 3 $299,000
If call option exercise at end of 18 months after Facility Licensing Date:
Call option price = to year 1 $179,000
Call option price + 1/2 of year
2 return $ 30,000
Call option price at end
of 18 months $209,000
* In all cases call option price shall be reduced by the amount of
preferred return already paid to member. The term "Initial Capital
Contribution" shall have the same definition as set forth in the applicable
Operating Agreement or Limited Partnership Agreement, as the case
may be, of the entity whose ownership interests are being purchased.
EXHIBIT 5.1
OWNERSHIP
Name Nature and Percentage of Ownership
