EXHIBIT 2.6
MASTER TRANSACTION AGREEMENT
THIS MASTER TRANSACTION AGREEMENT (this "Agreement") is made
and entered into as of the 27th day of October, 2003, by and among:
MARINER HEALTH CARE, INC., a Delaware corporation ("Mariner"),
formerly known as Mariner Post-Acute Network, Inc. ("MPAN") and successor by
merger to Mariner Health Group, Inc., a Delaware corporation ("MHG"),
individually and on behalf of each of its subsidiaries and affiliates identified
on Exhibit A attached hereto and made a part hereof (individually, a "Mariner
Entity") and collectively, the ("Mariner Entities"); and
BELLEAIR EAST MEDICAL INVESTORS, LTD. (L.P.) ("Belleair
East"), DALLAS MEDICAL INVESTORS, LTD. (L.P.) ("Dallas Medical"), DENVER MEDICAL
INVESTORS, LTD. (L.P.) ("Denver Medical"), FT. BEND MEDICAL INVESTORS, LTD.
(L.P.) ("Ft. Bend Medical"), HOUSTON-NORTHWEST MEDICAL INVESTORS, LTD. (L.P.)
("Houston-Northwest Medical"), MELBOURNE HEALTHCARE ASSOCIATES, LTD. ("Melbourne
Healthcare"), NORTHWEST HEALTHCARE, L.P. ("Northwest Healthcare"), ORANGE
HEALTHCARE, LTD. (L.P.) ("Orange Healthcare"), PINELLAS III HEALTHCARE, LTD.
(L.P.) ("Pinellas III Healthcare"), POLK HEALTHCARE, L.P. (LTD.) ("Polk
Healthcare"), PT. CHARLOTTE HEALTHCARE, LTD. (L.P.) ("Pt. Charlotte
Healthcare"), SOUTH DENVER HEALTHCARE ASSOCIATES, LTD. (L.P.) ("South Denver
Healthcare"), and TALLAHASSEE HEALTHCARE ASSOCIATES, LTD. (L.P.) ("Tallahassee
Healthcare"), (Belleair East, Dallas Medical, Denver Medical, Ft. Bend Medical,
Houston-Northwest Medical, Melbourne Healthcare, Northwest Healthcare, Orange
Healthcare, Pinellas III Healthcare, Polk Healthcare, Pt. Charlotte Healthcare,
South Denver Healthcare, and Tallahassee Healthcare being collectively referred
to herein as the "Landlords"); and
BELLEAIR EAST HCC, LLC ("Belleair Lessee"), MELBOURNE TERRACE
RCC, LLC ("Melbourne Lessee"), SPRING LAKE NC, LLC ("Spring Lake Lessee"),
XXXXXX LAKES NC, LLC ("Xxxxxx Lakes Lessee"), DEEP CREEK RNC, LLC ("Deep Creek
Lessee"), EAST BAY NC, LLC ("East Bay Lessee"), (Belleair Lessee, Melbourne
Lessee, Spring Lake Lessee, Xxxxxx Lakes Lessee, Deep Creek Lessee and East Bay
Lessee being collectively referred to herein as the "Lessee Affiliates"); and
XXXXXX X. XXXXXXX ("Xxx Xxxxxxx"), SBK LLC ("SBK-LLC") and SBK
CAPITAL, LLC ("SBK Capital") (Xxx Xxxxxxx, SBK-LLC and SBK Capital together with
the Landlords and the Lessee Affiliates, being collectively referred to herein
as the "Xxxxxxx Entities").
WITNESSETH
WHEREAS, the Mariner Entities and the Xxxxxxx Entities are
parties to that certain Settlement Agreement dated as of January 25, 2002 (the
"Original Settlement Agreement"), pursuant to which they settled certain claims
between various Mariner Entities, on the one hand, and various Xxxxxxx Entities,
on the other, all as more particularly set forth therein; and
WHEREAS, MHC/CSI Florida, Inc., a Delaware corporation and a
wholly owned subsidiary of Mariner (the "Florida Tenant"), as successor in
interest to Mariner Health Care of Nashville, Inc., a Delaware corporation and
also a wholly owned subsidiary of Mariner ("MHCN"), currently leases the skilled
nursing facilities located in the State of Florida and identified on Exhibit B
attached hereto (the "Florida Facilities"), from the respective Landlords
indicated opposite the name of each of the respective Florida Facilities (the
"Florida Landlords") under the applicable leases identified in Exhibit C to the
Original Settlement Agreement (the "Florida Leases"); and
WHEREAS, in connection with Mariner's strategic decision to
divest its Florida operations, the Florida Tenant would like to terminate the
Florida Leases on the Florida Facilities prior to the expiration dates stated in
the respective Florida Leases (the "Florida Lease Terminations"); and
WHEREAS, the Florida Landlords are willing to terminate the
Florida Leases upon the terms, and subject to the conditions, set forth herein;
and
WHEREAS, concurrent with the effectiveness of the Florida
Lease Terminations, the Florida Landlords, other than Tallahassee Healthcare,
will lease the facilities subject to the Florida Lease Terminations identified
on Exhibit C hereto as Sovereign Managed Facilities (the "Sovereign Managed
Facilities") to the Lessee Affiliates pursuant to a new lease agreement between
such Florida Landlords and such affiliates (the "New Lease Agreements"); and
WHEREAS, upon entering into the New Lease Agreements the
Lessee Affiliates will enter into a management agreement (the "Sovereign
Management Agreement") for the management of the Sovereign Managed Facilities
with Southern Healthcare Management, LLC, a Delaware limited liability company
("Sovereign"); and
WHEREAS, Sovereign will in turn engage an affiliate of Mariner
(in such capacity, the "Services Provider") to provide routine "back office"
services to Sovereign in support of its obligations under the Sovereign
Management Agreement pursuant to the terms of an Administrative Services
Agreement in substantially the form attached as Exhibit D hereto (the
"Administrative Services Agreement"); and
WHEREAS, in connection with the Florida Lease Terminations,
the Florida Tenant is willing to convey certain personal property used in, or
arising from, the operation of Sovereign Managed Facilities, excluding accounts
receivable, cash and certain other excluded
assets (the "Transferred Assets"), to the Lessee Affiliates pursuant to an asset
purchase agreement in substantially the form attached as Exhibit E-1 hereto (the
"Sovereign Facilities Asset Purchase Agreement") to be entered into separately
with each of the Lessee Affiliates, whereupon such Lessee Affiliates will assume
certain liabilities of the Florida Tenant with respect to the Sovereign Managed
Facilities, it being understood and agreed that the agreement of the Florida
Landlords and Lessee Affiliates contained in the Sovereign Facilities Asset
Purchase Agreement to guaranty the performance of certain obligations of
Sovereign under the Administrative Services Agreement is a material inducement
to Florida Tenant to convey the Transferred Assets to the Lessee Affiliates; and
WHEREAS, the parties to this Agreement wish to provide for the
orderly transition of the possession of the Sovereign Managed Facilities from
Florida Tenant to such Lessee Affiliates pursuant to operations transfer
agreements in substantially the form attached hereto as Exhibit F-1 hereto (the
"Sovereign Facility Operations Transfer Agreement"), to be entered into
separately with each of such Lessee Affiliates; and
WHEREAS, subsequent to the effective date of the Original
Settlement Agreement, Dallas Medical requested that MHCN, as the tenant at the
North Dallas Facility, exercise its option to extend the lease on the North
Dallas Facility (as amended, the "North Dallas Lease") from May 2, 2004, to May
2, 2009, substantially prior to the deadline for exercising of such option
provided in the North Dallas Lease, which lease extension was a condition
precedent to the refinancing by First Citizens Bank of the prior mortgage loan
from Coast Federal Bank to Dallas Medical, which had matured in June, 2003, and
MHCN did so; and
WHEREAS, concurrent with the effectiveness of the Florida
Lease Terminations, the Tallahassee Landlord will lease the facility known as
Mariner Health of Tallahassee (the Non-Sovereign Managed Facility") to Centre
Pointe HRC, LLC (the "Tallahassee Lessee Affiliate") pursuant to a new lease
agreement between the Tallahassee Landlord and the Tallahassee Lessee Affiliate
(the "New Tallahassee Lease Agreement"); and
WHEREAS, the Non-Sovereign Managed Facility will not be
managed by Sovereign, nor will Mariner be providing "back office" services to
the manager of the Non-Sovereign Managed Facility; and
WHEREAS, in connection with the Florida Lease Termination
pertaining to the Non-Sovereign Managed Facility, the Florida Tenant is willing
to convey certain personal property used in the operation of the Non-Sovereign
Managed Facility, excluding accounts receivable, cash and certain other excluded
assets (the "Tallahassee Transferred Assets"), to the Tallahassee Lessee
Affiliate, pursuant to, and for a purchase price more particularly set forth in,
an asset purchase agreement in substantially the form attached as Exhibit E-2
hereto (the "Non-Sovereign Facility Asset Purchase Agreement") to be entered
into with the Tallahassee Lessee Affiliate, whereupon the Tallahassee Lessee
Affiliate will assume certain liabilities of the Florida Tenant with respect to
the Non-Sovereign Managed Facility; and
WHEREAS, the parties to this Agreement wish to provide for the
orderly transition of the possession of the Non-Sovereign Managed Facility from
Florida Tenant to the
Tallahassee Lessee Affiliate pursuant to operations transfer agreements in
substantially the form attached hereto as Exhibit F-2 hereto (the "Non-Sovereign
Facility Operations Transfer Agreement"), to be entered into with the
Tallahassee Lessee Affiliate; and
NOW, THEREFORE, for and in consideration of the foregoing
premises and 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 agree as follows:
1. DEFINITIONS. All capitalized terms used in this
Agreement but not defined herein shall have the meanings ascribed to such terms
in the Original Settlement Agreement.
2. TERMINATION OF FLORIDA LEASES. The Florida Landlords
hereby agree to terminate the Florida Leases to which they are respectively a
party in accordance with the terms and conditions set forth in a separate lease
termination agreement which shall cover all of the Florida Leases (the "Lease
Termination Agreement"), to be executed and delivered by the Florida Tenant and
the respective Florida Landlords on the Closing Date (as hereinafter defined).
The Lease Termination Agreement shall be in substantially the form attached as
Exhibit G hereto. At the Closing (as hereinafter defined), the Mariner Entities
that are the tenants or lessees of the skilled nursing facilities located in
jurisdictions other than the State of Florida, as more particularly identified
on Exhibit H attached hereto (such Mariner Entities being herein referred to as
the "Non-Florida Tenants," and such skilled nursing facilities being herein
referred to as the "Non-Florida Facilities"), under the leases described in
Exhibit C to the Original Settlement Agreement relating to the Non-Florida
Facilities (the "Non-Florida Leases") between such Non-Florida Tenants and the
Landlords named therein (the "Non-Florida Landlords"), shall amend the
Non-Florida Leases with respect to the Non-Florida Facilities to correspond with
Exhibit I attached hereto.
3. CONVEYANCE OF PERSONAL PROPERTY OF FLORIDA
FACILITIES. The Florida Tenant hereby agrees to convey to the respective Lessee
Affiliates (other than the Tallahassee Lessee Affiliate), at Closing, its right,
title and interest in and to the Transferred Assets located at the Sovereign
Managed Facilities once all of the conditions precedent set forth in the
Sovereign Facilities Asset Purchase Agreement have been satisfied. To that end,
contemporaneously with the execution and delivery of this Agreement, Mariner,
the Florida Tenant, each Lessee Affiliate (other than the Tallahassee Lessee
Affiliate) and each applicable Florida Landlord shall enter into a separate
Sovereign Facilities Asset Purchase Agreement (collectively, the "Sovereign
Facilities Asset Purchase Agreements"). In order to provide for the orderly
transition of the possession and operation of the Sovereign Facilities to the
respective Lessee Affiliates, the Florida Tenant and the Lessee Affiliates
(other than the Tallahassee Lessee Affiliate) agree to enter into the Sovereign
Facilities Operations Transfer Agreement at Closing. The Florida Tenant hereby
further agrees to convey to the Tallahassee Lessee Affiliate, at Closing, its
right title and interest in and to the Tallahassee Transferred Assets, once all
the conditions precedent set forth in the Non-Sovereign Facility Asset Purchase
Agreement have been satisfied. To that end, contemporaneously with the execution
and delivery of this Agreement, Mariner, the Florida Tenant, and the Tallahassee
Lessee Affiliate shall enter into the Non-Sovereign Facility Asset Purchase
Agreement (together with the Sovereign Facilities Asset Purchase Agreements, the
"Asset Purchase Agreements"). In order to provide for the orderly transition of
the possession
and operation of the Non-Sovereign Facility to the Tallahassee Lessee Affiliate,
the Florida Tenant and the Tallahassee Lessee Affiliate agree to enter into the
Non-Sovereign Facility Operations Transfer Agreement at Closing.
4. INTENTIONALLY OMITTED.
5. INTENTIONALLY OMITTED.
6. AMENDMENTS TO NON-FLORIDA LEASES; REFINANCING OF
LOANS ON NON-FLORIDA FACILITIES. At Closing, each of the Non-Florida Leases
shall be amended pursuant to an amendment in the form of Exhibit I attached
hereto. In addition, each of the Xxxxxxx Entities agrees that in no event shall
any mortgage loan on the Non-Florida Facilities, or any of them, be refinanced
in a manner that would cause the amount outstanding on any mortgage loan
pertaining to such facilities, as of the time indicated in the immediately
following sentence, to exceed the corresponding purchase price to be paid by the
applicable Non-Florida Tenant upon exercise of the Option (as defined in the
Option Agreement hereinafter defined) to purchase its Non-Florida Facility
pursuant to the applicable Non-Florida Lease and the Option Agreement, less the
amount of the Option Deposit (as defined in the Option Agreement) previously
paid to such Non-Florida Landlord under the terms of the Option Agreement. It is
understood and agreed that for the purposes of the immediately prior sentence,
the amount outstanding on any mortgage loan pertaining to any of the Non-Florida
Facilities shall be determined as of the date the Option pertaining to a given
Non-Florida Facility first becomes exercisable. As used herein, the term "Option
Agreement," shall mean that certain Amended and Restated Option Agreement dated
as of May 24, 1995 (as heretofore amended, the "Option Agreement"), by and among
Mariner (as successor-by-merger to Mariner Health Group, Inc.), MHCN (as
successor by merger to Blue Corporation and Convalescent Services, Inc.), Xxxxxx
Xxxxxxx, Xxx Xxxxxxx, the Landlords and Creek Forest.
7. INTENTIONALLY OMITTED.
8. GUARANTY OF LIQUIDATED DAMAGES UNDER ADMINISTRATIVE
SERVICES AGREEMENTS. As a material inducement to enter into this Agreement, each
of the Florida Landlords for the Sovereign Managed Facilities, the Lessee
Affiliates, Xxx Xxxxxxx and SBK-LLC (for purposes of this Section 8,
collectively, the "Guarantors") hereby absolutely, unconditionally, jointly and
severally guarantees the payment and performance by Sovereign or any successor
to or permitted assignee of Sovereign of its obligations with respect to the
Early Termination Fee (as defined in Section 3 of the Sovereign Facilities
Administrative Services Agreement) under Section 3 of each of the Sovereign
Facilities Administrative Services Agreements to pay the Services Provider the
Early Termination Fee under the circumstances set forth in Section 3 of such
Administrative Services Agreements. Each of the Guarantors agrees that if
Sovereign or its successors or permitted assigns, as the case may be, fails to
make any payment in connection with the Early Termination Fee required under
such Section 3 in a timely manner as required by any of the Sovereign Facilities
Administrative Services Agreements, then Mariner or the Services Provider may
demand payment of all or any unpaid balance of any amounts owed in connection
with the Early Termination Fee to the Services Provider under Section 3 of such
agreements directly from any or all of the Guarantors, and the Guarantors shall
be obligated to pay such amount by wire transfer of immediately available funds
to an account
designated in writing by Mariner or the Services Provider within two (2)
business days following receipt by the Guarantors, as the case may be, of such
request. This covenant by the Guarantors is a guarantee of payment and not of
collection, and neither Mariner nor the Services Provider shall have to first
exhaust or pursue its remedies against Sovereign or its successors or permitted
assigns, as the case may be, in order to enforce its rights hereunder against
the Guarantors, or any of them. The obligations of the Guarantors under this
paragraph shall survive the Closing.
8.a AGGREGATE NET WORKING CAPITAL PAYMENT. In partial
consideration of the agreement of the Xxxxxxx Entities hereunder, the Mariner
Entities agree to pay the Lessee Affiliates an amount equal to the Aggregate Net
Working Capital (as defined below) of the Sovereign Managed Facilities as shown
on the monthly balance sheets produced by the applicable Mariner Entities in the
ordinary course of business with respect to each of the Sovereign Managed
Facilities (individually each such balance sheet is referred to herein as a
"Sovereign Managed Facility Balance Sheet" and collectively all of such balance
sheets are referred to herein as the "Sovereign Managed Facilities Balance
Sheets"). The payment required by the previous sentence is referred to herein as
the "Consent Fee". The "Aggregate Net Working Capital" of the Sovereign Managed
Facilities shall be determined by use of the following calculation, which shall
be performed using a summary balance sheet which shall present the relevant
information from the Sovereign Managed Facilities Balance Sheets dated as of the
last day of the month prior to the month in which the Closing Date (as defined
below) occurs (all items referred to in the formula below are line items taken
from the Sovereign Managed Facilities Balance Sheets):
(Total Current Assets minus Total Cash and Cash Equivalents)
minus
(Total Current Liabilities minus Receivable/(Payable) to Affiliates)
equals
Aggregate Net Working Capital
Provided, however, that notwithstanding the formula set forth
above, under no circumstances will the amount of the Consent Fee be less than
Two Million Dollars ($2,000,000) or more than Five Million Dollars ($5,000,000).
For purposes of clarity, reference is made to the Sovereign Managed Facility
Balance Sheet for the Melbourne facility dated August 31, 2003, attached as
Exhibit J hereto, which shall be used for the purpose of demonstrating the
application of the formula set forth above with respect to such facility only:
(1,481,076 (Total Current Assets) minus 78,381 (Total Cash and Cash
Equivalents))
minus
(2,610,114 (Total Current Liabilities) minus 1,896,544 (Receivable/(Payable) to
Affiliates))
equals
689,125 (Example Result)
If the Example Result appearing above was the actual result of
the Aggregate Net Working Capital calculation (which shall be performed using a
summary balance sheet which shall present the relevant information from the
Sovereign Managed Facilities Balance Sheets as described above) then the Consent
Fee to be paid to the Lessee Affiliates would be Two Million Dollars
($2,000,000) since the Example Result is below the Two Million Dollar
($2,000,000)
floor provided for above. The payments associated with the Consent Fee shall be
made in accordance with the provisions set forth below. The parties acknowledge
that the actual amount of the Consent Fee will not be determinable on the
Closing Date. Accordingly, the parties to this Agreement wish to provide for an
Estimated Consent Fee Payment (as defined below), which shall be adjusted to
reflect the actual amount of the Consent Fee to be paid to the Lessee
Affiliates. As a result, on the Closing Date the Estimated Consent Fee Payment
from the Mariner Entities to the Lessee Affiliates shall be made by wire
transfer of immediately available funds to an account designated in writing by
the Lessee Affiliates (the "Designated Xxxxxxx Account") and to an escrow
account in accordance with the following provisions: Two Million Dollars
($2,000,000) shall be paid into the Designated Xxxxxxx Account and One Million
Five Hundred Thousand Dollars ($1,500,000) shall be paid into an escrow account
to be established by the Mariner Entities and Lessee Affiliates pursuant to a
mutually satisfactory form of escrow agreement to be entered into by the Mariner
Entities and the Lessee Affiliates prior to the Closing Date (it being
understood that such escrow agreement will contain terms and conditions
consistent with the terms set forth in the remainder of this paragraph) (the
"Escrowed Consent Fee" which together with the amount paid into the Designated
Xxxxxxx Account is referred to herein as the "Estimated Consent Fee Payment").
No later than the twentieth (20th) day of the month in which the Closing occurs,
representatives of the Mariner Entities and Lessee Affiliates shall meet for the
purpose of determining the actual amount of Consent Fee to be paid to the Lessee
Affiliates. To the extent the actual amount of the Consent Fee to be paid to the
Lessee Affiliates in accordance with the previous sentence exceeds the Estimated
Consent Fee Payment then the Mariner Entities shall pay the difference between
the Estimated Consent Fee Payment and the actual amount of Consent Fee owed to
the Lessee Affiliates by wire transfer of immediately funds to the Designated
Xxxxxxx Account, and the Lessee Affiliates shall be entitled to receive the full
amount of the Escrowed Consent Fee together with any interest accruing in
respect of such amount. To the extent the actual amount of Consent Fee owed to
the Lessee Affiliates is less than the Estimated Consent Fee Payment, the Lessee
Affiliates shall return to the Mariner Entities the difference between the
Estimated Consent Fee Payment and the actual amount of the Consent Fee owed to
the Lessee Affiliates as follows: the amount to be returned to the Mariner
Entities shall be transferred from the Escrowed Consent Fee by wire transfer of
such amount to an account designated in writing by the Mariner Entities,
together with the appropriate pro rata portion of any interest accruing with
respect to such amount, with the remainder, if any, of the Escrowed Consent Fee
being paid by wire transfer into the Designated Xxxxxxx Account together with
the pro rata portion of any interest accruing with respect to the remainder;
provided, that if the amount to be returned to the Mariner Entities equals or
exceeds the total amount of the Escrowed Consent Fee, then the entire amount of
the Escrowed Consent Fee shall be returned to the Mariner Entities together with
any interest accruing in respect to such amount.
9. CLOSING. The transactions contemplated in Sections 2
through 8(a), and the provisions of Section 10, of this Agreement shall be
effective upon, and only upon, the consummation of the "Closings" as such term
is defined under the Asset Purchase Agreements, and at the effective time
specified therein. The date on which the Closings occur shall be the "Closing
Date," as that term is used in this Agreement. In the event the Closings shall
not have occurred on or before December 31, 2003 (or such later date as the
parties hereto shall have agreed in writing), then and in such event the
provisions of Sections 2 through 8(a), and of Section 10, hereof shall be deemed
to have been null and void, and of no force or effect, to the
same extent as if this Agreement had never been executed and delivered. Nothing
contained herein, however, shall diminish or impair the rights or remedies of
any party to the Asset Purchase Agreement in the event of a failure of the
Closings, or any of them, to occur.
10. MUTUAL RELEASE. Effective upon consummation of the
Closings (and only upon the consummation of the Closings), the parties hereto
hereby further agree as follows:
(a) Except as expressly provided to the contrary
herein below, Mariner, individually and on behalf of each of the other
Mariner Entities, hereby releases, acquits, and forever discharges each
of the Xxxxxxx Entities, and their present officers and directors, from
any and all Claims and any and all claims, losses, demands, complaints,
objections, controversies, liabilities, charges, expenses, damages and
costs that may not be discharged or released pursuant to the original
Settlement Agreement, whether known or unknown, contingent or fixed,
which Mariner or any of the other Mariner Entities may have or claim to
have now against any of the Xxxxxxx Entities, or which may hereafter
arise out of, relate to or be connected with any act of commission or
omission of any of the Xxxxxxx Entities existing or occurring prior to
the Closing Date, but only with respect to (and solely with respect to)
the Florida Facilities and the Florida Leases. Nothing contained herein
shall constitute any release of the Xxxxxxx Entities or their present
officers or directors with respect to the Non-Florida Facilities or the
Non-Florida Leases, or with respect to any matters arising under or in
connection with this Agreement, the Asset Purchase Agreements or any of
the documents, instruments and agreements executed and delivered in
connection with the Asset Purchase Agreements and this Agreement.
(b) Except as expressly provided to the contrary
herein below, each of the Xxxxxxx Entities hereby releases, acquits and
forever discharges Mariner and each of the other Mariner Entities, and
each of their present officers and directors, from any and all Claims,
and any and all claims, losses, demands, complaints, objections,
controversies, liabilities, charges, expenses, damages and costs that
may not be discharged or released pursuant to the Original Settlement
Agreement whether known or unknown, contingent or fixed, which any of
the Xxxxxxx Entities may have or claim to have now against Mariner or
any of the other Mariner Entities or their respective officers and
directors, existing or occurring prior to the Closing Date, with
respect to (and solely with respect to) the Florida Facilities and the
Florida Leases. Nothing contained herein shall constitute a release by
the Xxxxxxx Entities of any claims against Mariner or any of the other
Mariner Entities with respect to the Non-Florida Facilities or the
Non-Florida Leases, or with respect to any claims arising under or in
connection with this Agreement, the Asset Purchase Agreements, and any
other documents, instruments or agreements executed and delivered in
connection with the Asset Purchase Agreements and this Agreement.
(c) The parties hereby mutually covenant that
they will not xxx, xxx further, or otherwise prosecute in any way any
person or entity hereinabove released with respect to any and every
claim released in this Agreement.
(d) Each party hereto hereby mutually represent
and warrant that there has been no assignment, sale or other transfer
or disposition by it of any interest in any of the claims released and
forever discharged by this Agreement. The parties hereto hereby further
mutually represent and warrant that, pending the Closing, they will not
assign, sell or otherwise transfer or dispose of any interest in any of
the claims herein before released and forever discharged.
11. DUE AUTHORIZATION. The Xxxxxxx Entities hereby
represent and warrant that (a) such entities are duly authorized to enter into
this Agreement; and (b) the person purporting to execute this Agreement on
behalf of each of the Xxxxxxx Entities has been duly authorized to execute and
deliver this Agreement, including all exhibits thereto, on behalf of and so as
to bind each such party. Each of the Mariner Entities covenants to use
commercially reasonable efforts to obtain the ratification from each of their
respective Boards of Directors of the execution and delivery of this Agreement
by the Person executing this Agreement on behalf of each such entity so that
this Agreement becomes the binding obligations of each such entity.
12. ASSIGNMENT, PREDECESSORS, SUCCESSORS, AND ASSIGNS.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their legal representatives, successors, and assigns.
13. NO LIABILITY. The parties to this Agreement each deny
liability to the other with regard to the various claims that are released under
this Agreement, and nothing contemplated hereby or provided for herein shall in
any way or manner be construed as an admission of any allegation, fact or
liability or any act of wrongdoing.
14. CONSTRUCTION. The parties hereto hereby mutually
acknowledge and represent that they have been fully advised by their respective
legal counsel of their rights and responsibilities under this Agreement, that
they have read, know and understand completely the contents hereof, and that
they have voluntarily executed and delivered the same. The parties hereto
further hereby mutually acknowledge that they have had input into the drafting
of this Agreement and that, accordingly, in any construction to be made of this
Agreement, it shall not be construed for or against any party, but rather shall
be given a fair and reasonable interpretation, based on the plain language of
this Agreement and the expressed intent of the parties.
15. ENTIRE AGREEMENT. This Agreement, together with the
Asset Purchase Agreements and the other agreements which are exhibits hereto
(collectively, the "Xxxxxxx-Xxxxxxx Agreements"), constitutes the entire
understanding among the parties with respect to the subject matter hereof,
superseding all negotiations, all prior discussions, preliminary agreements,
representations, warranties, and understandings of the parties, whether oral,
written or implied, as to the subject matter hereof, other than the Amended and
Restated Change of Ownership Advancement Agreement dated October __, 2003
between certain parties to this Agreement. No supplement, modification, or
amendment of any of the Xxxxxxx-Xxxxxxx Agreements shall be binding unless
executed in writing by all parties affected thereby. No waiver of any term,
provision or condition of any of the Xxxxxxx-Xxxxxxx Agreements, in any one or
more instances, shall be deemed to be or be construed as a further or continuing
waiver of any such term, provision or condition or as a waiver of any other
term, provision or condition of this Agreement.
No failure to act shall be construed as a waiver of any term, provision,
condition or rights granted hereunder.
16. COUNTERPARTS. This Agreement may be executed in
several counterparts, each of which shall be an original, so that all of which
taken together shall constitute one and the same instrument.
17. SEVERABILITY. In the event that any part of this
Agreement shall be found to be illegal or in violation of public policy, or for
any reason unenforceable at law, such finding shall not invalidate any other
part hereof
18. CHOICE OF LAW. This Agreement shall be interpreted
under, and construed in accordance with, the laws of the State of Georgia,
without taking into account the conflict of laws principles thereof.
19. INTENTIONALLY OMITTED.
20. THIRD PARTY BENEFICIARIES. Except as expressly
provided in Section 10 hereof, no provision contained in this Agreement is
intended to confer any rights or remedies under or by reason of this Agreement
on any person or entity other than the parties hereto.
21. NO REPRESENTATIONS AND WARRANTIES. Except as
expressly set forth in this Agreement, none of the parties hereto makes any
representation or warranty, written or oral, express or implied.
22. PAYMENT OF EXPENSES. Each party hereto shall bear its
own legal, accounting, due diligence and other expenses incurred in connection
with the preparation and negotiation of this Agreement and the consummation of
the transactions contemplated hereby, whether or not the Closing occurs.
23. ATTORNEYS' FEES. In the event of any dispute or
controversy arising out of this Agreement, including in connection with the
interpretation of any term or condition of this Agreement, damages for breach of
any provision thereof, or in the situation where any provision of this
Agreement, is validly asserted as a defense, the prevailing party shall be
entitled to recover costs of suit, including reasonable attorneys' fees actually
incurred, from the other party in addition to any other available remedy.
24. CONSENT TO JURISDICTION AND VENUE. This Agreement
shall be governed by and construed in accordance with the domestic laws of the
State of Georgia without giving effect to any choice or conflict of law
provision or rule (whether of the State of Georgia or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than the
State of Georgia. The Mariner Entities and the Xxxxxxx Entities irrevocably
submit and consent to the jurisdiction of any Georgia state court sitting in
DeKalb County, Georgia or Federal court sitting in Atlanta, Georgia over any
action or proceeding arising out of or relating to this Agreement, and the
Parties hereby irrevocably agree that all claims in respect of any such action
or proceeding may be heard and determined in such Georgia state or Federal
court.
25. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION BROUGHT ON OR WITH
RESPECT TO THIS AGREEMENT, INCLUDING TO ENFORCE OR DEFEND ANY RIGHT HEREUNDER,
AND AGREES THAT ANY SUCH ACTION SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY.
26. NOTICES. All notices, requests, demands, claims, and
other communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given if (and then
five (5) business days after) it is sent by registered or certified mail, return
receipt requested, postage prepaid, and addressed to the intended recipient as
set forth below:
If to the Mariner
Entities, or any of them: c/o Mariner Health Care, Inc.
Xxx Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: C. Xxxxxxxxx Xxxxxx
President and Chief
Executive Officer
With copies to: Mariner Health Care, Inc.
Xxx Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Carolina Den Xxxx-Xxxxx,
Esq. Vice President of
Real Estate and
Associate General
Counsel; and
Powell, Goldstein, Xxxxxx & Xxxxxx
LLP
000 Xxxxxxxxx Xxxxxx, X. X.
00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
If to the Xxxxxxx
Entities, or any of them: c/o SBK Capital, LLC
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Title: Sole Member
With a copy to: Smith, Bassett, Xxxxxxx & Xxxxxx
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Any party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, facsimile, telex, ordinary mail, or electronic mail). Any Party may
change the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other Parties notice
in the manner herein set forth.
27. HEADINGS. The descriptive headings of the several
paragraphs of this Agreement are inserted for convenience of reference only and
do not constitute a part of this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed and
delivered by authorized officers of each of the Mariner Entities and by each of
the Xxxxxxx Entities, or by authorized signatories thereof, as of the day and
year first above written.
[SIGNATURE BLOCKS TO BE PROVIDED]
MARINER HEALTH CARE, INC.
------------------------------
By:
---------------------------
Its:
---------------------------
BELLEAIR EAST MEDICAL INVESTORS, LTD. (L.P.),
DALLAS MEDICAL INVESTORS, LTD. (L.P.),
DENVER MEDICAL INVESTORS, LTD. (L.P.),
FT. BEND MEDICAL INVESTORS, LTD. (L.P.),
HOUSTON-NORTHWEST MEDICAL INVESTORS, LTD. (L.P.),
MELBOURNE HEALTH CARE ASSOCIATES, LTD.,
NORTHWEST HEALTHCARE, L.P.,
ORANGE HEALTHCARE, LTD. (L.P.),
PINELLAS III HEALTHCARE, LTD. (L.P.),
POLK HEALTHCARE, L.P. (LTD.),
PT. CHARLOTTE HEALTHCARE, LTD. (L.P.),
SOUTH DENVER HEALTHCARE ASSOCIATES, LTD. (L.P.),
TALLAHASSEE HEALTHCARE ASSOCIATES, LTD. (L.P.)
-------------------------------------
By: Xxxxxx X. Xxxxxxx
Sole Member of SBK, L.L.C., General Partner
BELLEAIR EAST HCC, LLC
MELBOURNE TERRACE RCC, LLC
SPRING LAKE NC, LLC
XXXXXX LAKES NC, LLC
DEEP CREEK RNC, LLC
EAST BAY NC, LLC
-------------------------------------
By: Xxxxxx X. Xxxxxxx
Sole Member of SBK Capital, L.L.C.,
Sole Member
------------------------------
XXXXXX X. XXXXXXX
SBK LLC
------------------------------
By:
-----------------------------
Its:
-----------------------------
SBK CAPITAL, LLC
------------------------------
By:
-----------------------------
Its:
-----------------------------
EXHIBIT 10.26
EXHIBIT A
LIST OF MARINER SUBSIDIARIES
Corporation State of Incorporation
American Medical Insurance Billing Services, Inc. GA
Amerra Properties, Inc. DE
APS Pharmacy Management, Inc. TX
Beechwood Heritage Retirement Community, Inc. MD
Xxxxx Center Nursing Care/Austell, Inc. GA
Bride Brook Nursing & Rehabilitation Center, Inc. CT
Cambridge Bedford, Inc. MI
Cambridge East, Inc. MI
Cambridge North, Inc. MI
Cambridge South, Inc. MI
Clintonaire Nursing Home, Inc. MI
Compass Pharmacy Services of Texas, Inc. DE
Compass Pharmacy Services, Inc. MA
Cornerstone Health Management Company DE
Devcon Holding Company DE
EH Acquisition Corp. III GA
GCI Health Care Centers, Inc. DE
GCI Rehab, Inc. CA
GCI-Wisconsin Properties, Inc. WI
GranCare Home Health Services, Inc. CA
GranCare of Michigan, Inc. MI
GranCare South Carolina, Inc. SC
GranCare, LLC DE
Heritage Nursing Home, Inc. MI
Heritage of Louisiana, Inc. LA
IHS Rehab Partnership, Ltd. TX
LCR, Inc. DE
Living Centers LTCP Development Company DE
Living Centers of Texas, Inc. DE
Living Centers-East, Inc. DE
Living Centers-Rocky Mountain, Inc. NV
Living Centers-Southeast, Inc. NC
Long Ridge Nursing and Rehabilitation Center, Inc. CT
Longwood Rehabilitation Center, Inc. MA
Mariner Health at Bonifay, Inc. DE
Mariner Health Care Management Company DE
Mariner Health Care of Atlantic Shores, Inc. DE
Mariner Health Care of Deland, Inc. DE
Mariner Health Care of Greater Laurel, Inc. MA
Mariner Health Care of Inverness, Inc. DE
Mariner Health Care of Lake Worth, Inc. DE
Mariner Health Care of MacClenny, Inc. DE
Mariner Health Care of Metrowest, Inc. DE
Mariner Health Care of Nashville, Inc. DE
Mariner Health Care of North Hills, Inc. DE
Mariner Health Care of Orange City, Inc. DE
Mariner Health Care of Palm City, Inc. DE
Mariner Health Care of Pinellas Point, Inc. DE
Mariner Health Care of Port Orange, Inc. DE
Mariner Health Care of Southern Connecticut, Inc. CT
Mariner Health Care of Toledo, Inc. DE
Mariner Health Care of Tuskawilla, Inc. DE
Mariner Health Care of West Hills, Inc. DE
Mariner Health Massachusetts Shelf Corporation DE
Mariner Health Central, Inc. DE
Mariner Health of Florida, Inc. DE
Mariner Health of Jacksonville, Inc. DE
Mariner Health of Maryland, Inc. DE
Mariner Health of Orlando, Inc. DE
Mariner Health of Palmetto, Inc. DE
Mariner Health of Tampa, Inc. DE
Mariner Health Properties IV, Ltd. FL
Mariner Medical Supply, Inc. DE
MarinerSelect Staffing Solutions, Inc. DE
MedRehab of Louisiana, Inc. LA
Merrimack Valley Nursing & Rehabilitation Center, Inc. MA
Methuen Nursing & Rehabilitation Center, Inc. MA
MHC Consolidating Corporation GA
MHC Florida Holding Company DE
MHC Gulf Coast Holding Company DE
MHC Holding Company DE
MHC Illinois, Inc. DE
MHC MidAmerica Holding Company DE
MHC MidAtlantic Holding Company DE
MHC Northeast Holding Company DE
MHC Recruiting Company DE
MHC Rocky Mountain Holding Company DE
MHC Texas Holding Company, LLC DE
MHC West Holding Company DE
MHC/CSI Florida, Inc. DE
MHC/LCA Florida, Inc. DE
Mystic Nursing and Rehabilitation, Inc. MA
Xxx-Xxx Corp. FL
National Health Strategies, Inc. MA
National Heritage Realty, Inc. XX
Xxxxxxxxxxx East Nursing Center, Inc. MI
Xxxxxxxxx Nursing & Rehabilitation Center, Inc. CT
Pinnacle Care Corporation of Huntington TN
Pinnacle Care Corporation of Nashville TN
Pinnacle Care Corporation of Xxxxxxxx Bay TN
Pinnacle Care Corporation of Wilmington TN
Pinnacle Pharmaceutical Services, Inc. TN
Prism Care Centers, Inc. MA
Prism Health Group, Inc. MA
Prism Home Care, Inc. MA
Prism Home Care Company, Inc. MA
Prism Home Health Services, Inc. MA
Prism Hospital Ventures, Inc. TX
Prism Rehab Systems, Inc. MA
Professional Rx Systems, Inc. FL
Rehability Health Services, Inc. TX
Renaissance Mental Health Center, Inc. WI
Sassaquin Nursing & Rehabilitation, Inc. MA
Seventeenth Street Associates Limited Partnership WV
Summit Hospital of Southeast Arizona, Inc. GA
Summit Hospital of Southwest Louisiana, Inc. GA
Summit Institute for Pulmonary Medicine and Rehabilitation, Inc. GA
Summit Institute of Austin, Inc. GA
Summit Medical Holdings, Ltd. DE
Summit Medical Management, Inc. GA
Tampa Medical Associates, Inc. FL
Tri-State Health Care, Inc. WV
Westbury Associates, L.P. GA
Windward Health Care, Inc. MA
EXHIBIT B
LIST OF FLORIDA FACILITIES
Facility City and County Xxxxxxx Landlord
Mariner Health of Belleair Clearwater, Pinellas Co. Belleair East Medical Investors, Ltd. (L.P.)
Mariner Health of Clearwater Clearwater, Pinellas Co. Pinellas III Healthcare, Ltd. (L.P.)
Mariner Health of Xxxxxx Lakes Orlando, Orange Co. Orange Healthcare, Ltd. (L.P.)
Mariner Health of Melbourne Melbourne, Brevard Co. Melbourne Healthcare Associates, Ltd. (L.P.)
Mariner Health of Port Charlotte Port Charlotte, Charlotte Co. Port Charlotte Healthcare Associates, Ltd. (L.P.)
Mariner Health of Tallahassee Tallahassee, Xxxx Co. Tallahassee Healthcare Associates, Ltd. (L.P.)
Mariner Health of Winter Haven Winter Haven, Polk Co. Polk Healthcare, Ltd. (L.P.)
EXHIBIT C
LIST OF SOVEREIGN - MANAGED FACILITIES
Facility City and County Xxxxxxx Affiliate
Mariner Health of Belleair Clearwater, Pinellas Co. Belleair East HCC, LLC
Mariner Health of Clearwater Clearwater, Pinellas Co. East Bay NC, LLC
Mariner Health of Xxxxxx Lakes Orlando, Orange Co. Xxxxxx Lakes NC, LLC
Mariner Health of Melbourne Melbourne, Brevard Co. Melbourne Terrace RCC, LLC
Mariner Health of Port Charlotte Port Charlotte, Charlotte Co. Deep Creek RNC, LLC
Mariner Health of Winter Haven Winter Haven, Polk Co. Spring Lake NC, LLC
EXHIBIT D
FORM OF ADMINISTRATIVE SERVICES AGREEMENT
EXHIBIT E-1
FORM OF SOVEREIGN FACILITIES
ASSET PURCHASE AGREEMENT
EXHIBIT E-2
FORM OF NON-SOVEREIGN FACILITY
ASSET PURCHASE AGREEMENT
EXHIBIT F-1
FORM OF SOVEREIGN FACILITIES
OPERATIONS TRANSFER AGREEMENT
EXHIBIT F-2
FORM OF NON-SOVEREIGN FACILITY
OPERATIONS TRANSFER AGREEMENT
EXHIBIT G
FORM OF LEASE TERMINATION AGREEMENT
EXHIBIT H
LIST OF NON-FLORIDA FACILITIES
Facility City, County and State Xxxxxxx Landlord
Mariner Health of Greenwood Village Littleton, Arapahoe Co., CO South Denver Healthcare Associates, Ltd. (L.P.)
Mariner Health of Denver Denver, Denver Co., CO Denver Medical Investors, Ltd. (L.P.)
Mariner Health of North Dallas Dallas, Dallas Co., TX Dallas Medical Investors, Ltd. (L.P.)
North Dallas Rehab Hospital Dallas, Dallas Co., TX Dallas Medical Investors, Ltd. (L.P.)
Mariner Health of First Colony Missouri City, Ft. Bend Co., TX Ft. Bend Medical Investors, Ltd. (L.P.)
Mariner Health of Northwest Houston Houston, Xxxxxx Co., TX Houston-Northwest Medical Investors, Ltd. (L.P.)
Mariner Health of Woodwind Lakes Houston, Xxxxxx Co., TX Northwest Healthcare, L.P.
EXHIBIT I
FORM OF NON-FLORIDA FACILITIES
LEASE AMENDMENTS
