Exhibit 10.16
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") dated this 1st day
of December, 2000 is made and entered into between Sierra Health Services, Inc.,
a Nevada corporation ("Sierra"), Health Plan of Nevada, Inc. ("HPN"), Sierra
Health and Life Insurance Company, Inc. ("Sierra Health"), 0000 Xxxxx Xxxxxx Xxx
Limited Partnership ("Tenaya Partnership" and together with Sierra, HPN, Sierra
Health, "Sellers"), and CB Xxxxxxx Xxxxx Corporate Partners, LLC, a Delaware
limited liability company ("Buyer").
A. Sellers own certain real property described in Exhibit 1
attached hereto.
B. This Agreement provides for the sale by Sellers and the purchase by
Buyer of the real property identified in Paragraph A above. Buyer and Sellers
further agree that concurrently with such sale Sellers, or wholly-owned
subsidiaries of Sierra, as the case may be, shall leaseback such properties from
Buyer.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements hereinafter set forth, the parties agree as follows:
ARTICLE 1
Defined Terms
1.1 Definitions. As used herein, the following terms shall have the
meanings given:
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"Appraisal" shall have the meaning given in Section 5.1.
"Business Day" means a calendar day on which banks in Las Vegas, Nevada
shall be open to transact business.
"Buyer's Conditions Precedent" shall have the meaning given in Section
8.1.
"Close of Escrow" means the date on which the Deeds are recorded.
"Closing Date" means the date on which the Close of Escrow occurs.
"Cure Period" shall have the meaning given in Section 4.3.
"Deposit" shall have the meaning given in Section 3.1(a).
"Due Diligence Period" shall mean the period ending December 8, 2000.
Provided, however, the Due Diligence Period may be extended for up to 10
business days from Buyer's receipt of the items set forth in Subsection 5.1
provided that such extension does not extend beyond December 18, 2000 (the
"Extended Review Period").
"Engineering Report" shall have the meaning given in Section 5.1.
"Environmental Report" shall have the meaning given in Section 5.1.
"Escrow" means the escrow opened with Escrow Holder for the
consummation of the transaction described in this Agreement.
"Escrow Holder" means Land America Title Insurance Company, National
Accounts, Los Angeles.
"Governmental Regulations" means any laws, statutes, ordinances, rules
and regulations (including, without limitation, those relating to land use,
subdivision, zoning, environmental, toxic or hazardous waste, occupational
health and safety, earthquake hazard reduction, building and fire codes) of any
governmental authority bearing on the construction, maintenance, use, operation,
management or ownership of the Properties.
"Hazardous Materials" means and includes petroleum, asbestos,
polychlorinated biphenyls, urea formaldehyde, and any flammable explosives,
radioactive materials or hazardous, toxic or dangerous wastes, substances or
related materials or any other chemicals, materials or substances, exposure to
which is prohibited, limited or regulated by any federal, state, county,
regional or local authority, including, but not limited to, substances defined
as such in (or for purposes of) the Comprehensive Environmental Response,
Compensation, and Liability Act, as amended (42 U.S.C. Section 9601, et seq.;
the Hazardous Materials Transportation Act (49 U.S.C. Section 1801, et seq); the
Resource Conservation and Recovery Act (42 U.S.C. Section 6901, et seq.); and
any so-called "Superfund" or "Superlien" law, or any other federal, state or
local statute, law, ordinance, code, rule, regulation, order or decree
regulating, relating to or imposing liability or standards of conduct concerning
any hazardous, toxic or dangerous waste, substance or material.
"Improvements" means those certain buildings, installations, paving and
landscaping presently situated on each parcel of Land, but not including
Sellers' and Tenants' furniture and office equipment, except that as to the Land
located at 2716 North Tenaya, "Improvements" shall include the Personal
Property.
"Intangibles" shall mean both of the following to the extent
assignable: (a) the Licenses and Permits and (b) all building names (if any)
used or useful in connection with each parcel of Land and the Improvements
thereon, but only to the extent that the same are not trademarks or trade names
of the Sellers or their affiliated companies, together with the Sellers'
interest (if any) in and to any service and maintenance contracts, guarantees,
books, records, studies, audits, appraisals, plans and specifications, surveys
and warranties relating to each parcel of Land and the Improvements thereon.
"Land" means those certain parcels of land more particularly described
in Exhibit 1 attached hereto, together with all right, title and interest of the
Sellers in and to all streets, alleys, easements and rights-of-way in, on,
across, in front of, abutting or adjoining said land.
"Lease" refers to a bond net lease covering a Property as more fully
described in Section 2.2.
"Lease Guaranty" refers to an unconditional guaranty of the Tenant's
performance of its obligations under a Lease as more fully described in Section
2.2.2.
"Lender" refers to the entity making the Loan to Buyer.
"Lender's Title Policy" shall have the meaning set forth in Section
8.1(a).
"Licenses and Permits" means all licenses, permits, certificates
(including, without limitation, certificates of occupancy), reports,
authorizations and approvals issued or granted by any governmental authority in
connection with each parcel of Land and the Improvements thereon.
"Loan" shall have the meaning given in Section 8.1(c).
"Material Adverse Condition" shall mean an environmental or structural
condition affecting any Property, the remediation of which would cost in excess
of five percent (5%) of the allocated price for such Property as set forth on
Exhibit 5.
"Memorandum of Lease" refers to a customary, recordable form of
memorandum of lease setting forth a description of the leased premises, the
parties and the term of the Lease.
"Opening of Escrow" means the date on which a fully executed copy of
this Agreement is delivered to Escrow Holder by Buyer and Sellers.
"Opinion of Sellers' Counsel" means an opinion letter executed by
counsel for Sellers and Tenants that the Deeds, Bills of Sale, this Agreement,
the Leases, Lease Guaranties and Subordination, Non-Disturbance and Attornment
Agreements have been duly executed by Sellers (or Tenants, if applicable) and
are enforceable in accordance with their terms subject to the effect of
bankruptcy, insolvency, reorganization, anti-deficiency and other similar laws
now or hereafter in effect relating to or affecting the enforcement of
creditors' rights generally.
"Other Contract" refers to the Purchase and Sale Agreement between
Buyer and the owners of the Other Properties.
"Other Properties" are listed on Exhibit 2 attached hereto.
"Owner's Title Policy" shall have the meaning given in Section 8.1(a).
"Permitted Exceptions" as to a Property means those Title Exceptions
set forth in the applicable Title Commitment or reflected in the applicable
Survey, and any other exceptions or conditions that affect or may affect a
Sellers' title to or use of such Property, that are approved or deemed to be
approved by Buyer in accordance with Section 4.2 and Section 4.3.
"Personal Property" refers to the portable personal property, including
without limitation the desks, chairs, cabinetry, audio and video equipment,
screens and other furniture, located in the President's Auditorium, the
Chairman's Auditorium and the cafeteria at the 0000 Xxxxx Xxxxxx Xxx Property,
which Personal Property shall be conveyed to Buyer as provided herein. At the
end of the 15th year of the Lease covering the 0000 Xxxxx Xxxxxx Xxx Property,
so long as Tenant is not then in default under such Lease, the Personal Property
shall be reconveyed to Sellers. In no event shall Sellers be required to replace
any of the Personal Property, but Sellers may, in their sole and absolute
discretion, repair and/or replace the Personal Property as reasonably necessary,
and any such replacement items shall be deemed Personal Property.
"Property" refers to one of the parcels of Land together with the
Improvements thereon and the Intangibles related thereto. "Properties" refers to
all of the Land, Improvements and Intangibles.
"Purchase Price" shall have meaning given in Section 3.1.
"Sellers' Certificate" shall have the meaning set forth in Section
10.2.1.
"Sellers' Conditions Precedent" shall have meaning given in Section
8.2.
"Subordination, Non-Disturbance and Attornment Agreement" shall have
the meaning specified in Section 10.2.1(h).
"Survey" shall have the meaning specified in Section 4.1.
"Tenant" means the tenant under a lease.
"Title Report" shall have the meaning given in Section 4.1.
"Title Company" shall mean Land America Title Insurance Company,
National Accounts, Los Angeles office.
"Title Exception" means any lien, deed of trust, security, interest,
encumbrance, pledge, assignment, claim, charge, lease (surface, space, mineral,
or otherwise), condition, restriction, restrictive covenant, exception, easement
(temporary or permanent), right- of way, encroachment, overlap, or other
outstanding claim, interest, estate, or equity of any nature that affects a
Property.
ARTICLE 2
Purchase Leaseback
2.1 Purchase Agreement. Sellers agree to sell and convey the Properties
to Buyer and Buyer agrees to purchase the Properties from Sellers, upon the
terms and conditions herein set forth.
2.2 Lease.
2.2.1 Bond Net Lease. For each Property being sold to Buyer hereunder,
Buyer and each Tenant, as applicable, agree to execute a separate bond net lease
(individually, a "Lease", collectively, the "Leases") under which such Tenant
will leaseback such Property from Buyer. Each Lease shall commence on the Close
of Escrow and shall have a primary term of 15 years each. Tenant shall have five
5-year renewal options. Rent shall be payable monthly in advance. The annual
base rent for the primary term of each Lease is set forth on Exhibit 3 attached
hereto. The annual base rent for the 16th year of the Lease term shall be equal
to the greater of (a) 101.5% of the annual base rent for the preceding year and
(b) the fair market rent for such Property as of the commencement of the 16th
year of the Lease term. The annual base rent for the 17th through the 40th year
of the Lease term shall be adjusted upward 101.5% annually.
Tenant's obligation under each Lease to pay taxes, insurance
premiums, utilities, environmental costs and otherwise to maintain the
applicable Property during the term of the Lease will be absolute and
unconditional. The Lease shall not permit abatement or cessation of rent or
lease termination by Tenant during the lease term for any reason, including
casualty loss. Following a casualty loss, Tenant shall promptly restore the
Property. Each Lease shall be cross-defaulted with every other Lease (as well as
the leases covering the Other Properties) except that in the event of a resale
of one or more Properties or Other Properties, each Lease shall be
cross-defaulted only with Leases covering Properties and Other Properties owned
by the same entity or its affiliate.
2.2.2 Lease Guaranty. Sierra and Buyer shall reasonably
cooperate in good faith to designate either Sierra or one or more of its
subsidiaries to be Tenants under one or more of the Leases. Sierra shall execute
and deliver to Escrow Holder before the Closing Date a Lease Guaranty
unconditionally guaranteeing Tenant's performance of its obligations under each
Lease in which Sierra is not the Tenant.
2.2.3 Form of Lease and Lease Guaranty. As soon as
practicable, the parties shall negotiate a form of Lease and Lease Guaranty
consistent with the provisions of this Section 2.2. In the event the parties
have not negotiated a mutually acceptable form of Lease and Lease Guaranty by
December 8, 2000, either Sellers or Buyer may elect to terminate this Agreement
by written notice to the other party(ies) and to Escrow Holder. In such an
event, (a) Sellers shall reimburse Buyer for one half of all Loan fees forfeited
by Buyer as a result of the termination of this transaction, which Loan fees
(including those under the Other Contract) are expected to total $175,000 and
(b) except as set forth in the preceding subsection (a) and in Sections 5.2 and
10.1, neither party shall have any further rights or obligations hereunder.
2.2.4 Letter of Credit/Deposit A. Prior to Close of Escrow, the Tenants
shall provide an irrevocable standby letter of credit (the "Letter of Credit")
or security deposit ("Security Deposit A") in the amount of $5.6 million in
favor of Landlord, but which Landlord may assign to Lender. The Letter of Credit
shall be issued by a financial institution, and be in a form, reasonably
acceptable to Lender. The Letter of Credit and Deposit A may be drawn only in
the event of Tenant's monetary default, Tenant insolvency or Lease termination
due to Tenant default under a Lease. The Letter of Credit may be drawn by
Landlord (or Lender as assignee) as follows:
(a) If there have occurred four rental defaults, one month's
rent under the Leases will be drawn.
(b) If there have occurred four rental defaults, at least
two of which have occurred during the previous twelve
(12) months, the full amount of the Letter of Credit
will be drawn.
(c) If there have occurred five rental defaults, the full
amount of the Letter of Credit will be drawn.
(d) If a Lease is terminated due to a Tenant default or if a Tenant
insolvency occurs, the full amount of the Letter of Credit will be drawn.
"Tenant insolvency" means the filing by a Tenant or Sierra of any petition to
take advantage of any state or federal bankruptcy law, insolvency law or other
law for the protection of debtors or if any such petition is filed against
Tenant or Sierra with its consent or acquiescence or if any such petition is
filed against the Tenant or Sierra without its consent or acquiescence and is
not dismissed within 45 days.
The amount of the Letter of Credit (or Security Deposit A if
applicable) will be reduced as follows: (a) upon the partial release of any
collateral for the Loan and payment of the specified release price for the
released asset, the Letter of Credit will be reduced, pro rata, in proportion to
the amount of the Loan that is repaid and (b) the amount of the Letter of Credit
will be reduced, pro rata, in proportion to the amount of principal amortization
that has been paid on the Loan. The Letter of Credit (or Security Deposit A if
applicable) will be released upon the first to occur of the following:
(a) The loan to value ratio (without taking into account
the value of the Letter of Credit and based upon the
approved appraised values of the Properties as of
closing) is reduced to 65% as a result of a
prepayment of the Loan, the partial release of
collateral and/or scheduled amortization of the Loan;
(b) Sierra achieves a BBB rating or better from Fitch; or
(c) The Loan is repaid in full.
2.2.5 Security Deposit B. Prior to Close of Escrow, Tenants shall
provide a cash Security Deposit ("Security Deposit B") in the amount of 60 days
rent under the Leases. Security Deposit B shall be held in escrow in an interest
bearing account for the benefit of the Landlord under the Leases. Security
Deposit B and any accrued interest may be drawn by Landlord (upon written notice
to escrow and Tenant) under the same circumstances outlined above for the Letter
of Credit. In the event of such a draw down, Tenant shall be in default under
the Lease until Security Deposit B is replenished. Security Deposit B and any
accrued interest thereunder will be released to Tenant upon Sierra achieving a
BBB rating by Fitch or upon payoff of the Loan. Upon sale of the 0000 X. Xxxxxx
Xxx Property, Security Deposit B shall be reduced pro rata with the pay down of
the Loan.
ARTICLE 3
Purchase Price
3.1 Purchase Price. The total purchase price for the Properties (the "Purchase
Price") and the allocation of the Purchase Price among each of the Properties is
set forth on Exhibit 5 attached hereto. Buyer shall pay the Purchase Price to
Sellers as follows:
(a) Within one Business Day following the Opening of Escrow, Buyer
shall deposit in Escrow with Escrow Holder an xxxxxxx money deposit in
immediately available funds in the amount of $125,000. These funds together with
any additional deposit made by Buyer pursuant to Section 5.3.2 (collectively,
the "Deposit") shall be held by Escrow Holder in an interest bearing account
insured by the federal government in an institution as directed by Buyer and
reasonably acceptable to Sellers. If the transaction contemplated by this
Agreement is consummated as contemplated hereunder, the Deposit plus all
interest accrued thereon shall be paid to Sellers and credited against the
Purchase Price. If the transaction contemplated by this Agreement is not
consummated because of the failure of any Buyer's Condition Precedent or any
other reason except for a default under this Agreement on the part of Buyer,
Buyer shall immediately recover the Deposit plus all interest accrued thereon.
If the transaction contemplated by this Agreement is not consummated because of
a default under this Agreement on the part of Buyer, the Deposit plus all
interest accrued thereon shall be paid to and retained by Sellers pursuant to
Section 13.1 below.
(b) The proceeds of the Loan (as described in Section 8.1(c)) shall be
deposited into Escrow in immediately available funds on or before the Closing
Date.
(c) Buyer shall pay the balance of the Purchase Price to Escrow Holder
by wire transfer of immediately available funds on or before the Closing Date,
net of all prorations or adjustments as provided herein.
(d) The funds deposited into Escrow pursuant to Section 3.1(a), (b) and
(c) shall be disbursed to Sellers (by wire transfer) as directed by Sellers and
in accordance with the provisions of Section 10.4.2.
ARTICLE 4
Title and Survey
4.1 Title Documents and Survey. Sellers, at their expense, have furnished Buyer
with preliminary title reports (collectively, the "Title Reports", individually,
a "Title Report") issued by Nevada Title Company for each Property, together
with copies of all documents referred to in the Title Reports. Nevada Title
shall share equally in the title premiums and escrow fees, but shall not issue
the Title Policies. Sellers have also furnished one print to Buyer and one print
to the Title Company of an ALTA survey of each Property (individually, a
"Survey", collectively, the "Surveys").
4.2 Buyer's Approvals. Buyer's obligations under this Agreement are conditioned
on Buyer's approval of the Surveys and status of title to each Property. Buyer
shall have until December 11, 2000 in which to review all matters reflected in
those documents. If Buyer has not notified Sellers in writing of its disapproval
of such matters within such period, it shall be deemed to have approved them.
4.3 Sellers' Option to Cure. If Buyer timely notifies Sellers in writing of its
disapproval of any of the title or survey items furnished to Buyer pursuant to
Section 4.1, then Sellers shall, within 10 days after Sellers' receipt of
Buyer's notice (such 10 day period referred to herein as the "Cure Period") have
the option to satisfy, correct or remove any such title or survey items, obtain
title insurance coverage therefor, or provide assurance that such items will be
otherwise satisfied, corrected or removed by the Close of Escrow, at Sellers'
expense and to Buyer's and Lender's reasonable satisfaction. If, within the Cure
Period, Sellers are unable or elect not to eliminate any such item, or provide
adequate assurance that it will be eliminated as of the Close of Escrow, Buyer
shall have the right to either (a) waive its disapproval of such item or (b)
terminate this Agreement. Any items not objected to by Buyer and any items
waived by Buyer shall be deemed Permitted Exceptions.
ARTICLE 5
Due Diligence Period
5.1 Sellers' Delivery of Specified Documents. Sellers, at their expense, shall
provide to or make available for inspection by Buyer or Buyer's agents,
representatives or designees, all of the following as they pertain to the
Properties, to the extent the same have not been previously provided or made
available:
(a) The latest property tax bills and assessor's statements of
current assessed value;
(b) Within one Business Day after being notified of the name of an
environmental consultant acceptable to Lender, Seller and Buyer shall order, or
approve Lender's order of, a current "Phase One" environmental assessment
("Environmental Report") of each Property meeting Lender's requirements,
conducted using ASTM standards by an independent environmental consultant
registered with the Lender and approved by Buyer, which assessment shall be
certified to Buyer and Lender;
(c) "As-built" plans and specifications of the Improvements including
the actual floor area measurements, CAD floor diagrams, detailed gross, rentable
and usable floor area calculations for each building, each floor and each
subtenant (if any), to the extent the same are in the possession, custody or
control of Sellers or their agents.
(d) Any soils reports and geological studies, to the extent
the same are in the possession, custody or control of
Sellers or their agents;
(e) Any covenants, conditions and restrictions, or easements,
of which Seller has knowledge and which have not been provided to Buyer by the
Title Company;
(f) Any written notices, reports, citations, orders, or decisions
relating to the Properties from any governmental authorities, to the extent the
same are in the possession, custody or control of Sellers or their agents;
(g) Copies of all documents relating to the presence or absence of any
endangered species, environmentally sensitive areas or environmental conditions
on the Properties, to the extent the same are in the possession, custody or
control of Sellers or their agents;
(h) True and correct copies of all Licenses and Permits;
(i) Within one Business Day after being notified of the name of an
appraiser acceptable to Lender, Seller and Buyer shall order, or approve
Lender's order of, an MAI appraisal (the "Appraisal") of each Property performed
by an appraiser approved by, and certified to, Buyer and Lender, setting forth
the fair market value of the Property;
(j) Within one Business Day after being notified of the name of an
engineering firm acceptable to Lender, Seller and Buyer shall order, or approve
Lender's order of, a written structural engineering report together with a PML
seismic study (collectively, "Engineering Report") as to each Property by an
engineering firm approved by, and certified to, Buyer and Lender;
(k) Subtenant estoppel certificates and copies of any leases and
subleases in form acceptable to Buyer and Lender as to any subtenants not on a
month-to-month sublease, rent rolls and an aged receivable report relating to
sublease income;
(l) A statement, certified by the applicable Seller, itemizing the real
estate operating expenses (taxes, utilities, maintenance, etc.) and rental
income for the last two years and for the most recent quarter, in the form
customarily prepared by Sellers;
(m) Statements of insurance coverage and premiums by policy type and copies
of insurance policies;
(n) The most recent title report, including copies of all listed
exceptions;
(o) Access to all warranty agreements and copies of those
warranty agreements covering property with an original cost of
greater than $10,000;
(p) Access to all operating, management and maintenance contracts, if
any, and any amendments and letter agreements relating thereto and a list of all
such agreements setting forth the name of the vendor, the service provided and
the vendor's monthly (or yearly) fee;
(q) A list of Personal Property to be conveyed.
5.2 Right of Access and Investigation. Before the Close of Escrow, upon
reasonable notice to Sellers and upon Sellers' consent, Buyer shall have the
right to conduct any investigations of the Properties as it desires, including
without limitation, soils conditions, engineering, and accessibility. Buyer
shall conduct all such investigations in a manner that shall minimize disruption
of the businesses being conducted on the subject Property. Buyer shall
indemnify, defend, and hold Sellers, Tenants and their employees and business
invitees harmless from all liabilities and expenses (including reasonable
attorneys' fees, but excluding any consequential or special damages) resulting
directly from Buyer's investigations of the Properties. Provided, however, that
any third-party consultants or experts selected by Buyer shall be required to
provide evidence of liability insurance in amounts and with coverage customary
in the industry, and reasonably acceptable to Sellers. This indemnity shall
survive the Close of Escrow and the termination of this Agreement. Buyer further
agrees that Sellers, Tenants and their employees and business invitees are
released from any and all liability relating to any claim for injury, death,
sickness or property damage arising from or in connection with investigation of
the Properties by Buyer, its managers, officers, employees and affiliates, or
others acting for the benefit of Buyer.
5.3 Buyer's Termination or Acceptance of Due Diligence.
5.3.1 At any time prior to December 8, 2000, Buyer may in its sole and
absolute discretion terminate this Agreement if Buyer is not satisfied with its
review of the matters specified in Section 5.1, or for any other reason, by
giving Sellers written notice of termination. Provided, however, that with
respect to items set forth in Section 5.1, the written notice of termination may
be sent during the Extended Review Period, but only in accordance with the
provisions of Section 5.3.2. If Buyer timely terminates this Agreement, Buyer
shall immediately recover the Deposit plus all interest accrued thereon.
5.3.2 If Buyer does not terminate this Agreement pursuant to Section
5.3.1, then:
(a) Within one Business Day after expiration of the Due
Diligence Period, Buyer shall wire transfer an additional $125,000 to Escrow
Holder which funds shall be part of the Deposit;
(b) (i) If Buyer has learned of a Material Adverse Condition
affecting any Property other than the 0000 Xxxxx Xxxxxx Xxx Property, then Buyer
may terminate this Agreement as to the affected Property or Properties by giving
the applicable Seller during the Due Diligence Period, or the Extended Review
Period, if applicable, a written notice of termination specifying the Material
Adverse Condition or Conditions and the affected Properties. However, if the
Material Adverse Condition is correctable, this Agreement shall remain in effect
as to the affected Property provided that within three Business Days of such
notice, the applicable Seller gives Buyer and Escrow Holder a Notice of Intent
to Correct Material Adverse Condition. The term "Notice of Intent to Correct
Material Adverse Condition" refers to a written notice signed by the applicable
Seller reflecting Seller's intent to correct the Material Adverse Condition and
instructing Escrow Holder that unless Seller has corrected the Material Adverse
Condition before Close of Escrow, Buyer shall receive a credit at Close of
Escrow for an amount equal to the cost of correction (as determined by Lender)
which amount shall be retained by Lender and disbursed to Seller after
correction of the Material Adverse Condition. If the applicable Seller fails to
give timely Notice of Intent to Correct Material Adverse Condition, then this
Agreement shall be terminated as to the affected Property or Properties, the
parties shall proceed with the sale of the remaining Properties and the Purchase
Price shall be reduced by the amount allocated to the applicable Properties in
Exhibit 5;
(ii) If Buyer learns of a Material Adverse Condition affecting the 0000
Xxxxx Xxxxxx Xxx Property, then Buyer may terminate this Agreement by giving the
0000 Xxxxx Xxxxxx Xxx Seller during the Due Diligence Period, or the Extended
Review Period, if applicable, a written notice of termination specifying the
Materially Adverse Condition or Conditions and the affected Property. However,
if the Material Adverse Condition is correctable, this Agreement shall remain in
effect provided that within three Business Days of such notice, the 0000 Xxxxx
Xxxxxx Xxx Seller gives Buyer and Escrow Holder a Notice of Intent to Correct
Material Adverse Condition. If the 0000 Xxxxx Xxxxxx Xxx Seller fails to give
timely Notice of Intent to Correct Material Adverse Condition, then this
Agreement shall terminate as to all Properties in which case Sellers shall pay
Lender's out of pocket costs that Buyer would otherwise be obligated to pay in
an amount not to exceed $75,000; and
(c) The only remaining contingencies to Buyer's obligation to
consummate the transaction contemplated herein (as to any Properties remaining
after application of this Section 5.3.2) shall be Buyer's Conditions Precedent
as set forth in Section 8.1 below.
ARTICLE 6
Representations, Warranties, and Covenants of Sellers
6.1 Representations and Warranties of Sellers. Sellers represent and warrant to
Buyer as provided below in this Article 6. The representations and warranties of
Sellers contained in this Agreement are made as of the date of this Agreement
and as of the Close of Escrow and shall survive the Close of Escrow for a period
of one year. For purposes of this Section 6.1, the term "Sellers' actual
knowledge" shall mean the actual knowledge of the following officers of Sellers
after due inquiry by each: Dr. Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxx, Xxxx Xxxxxx and
Xxxxx Xxxxxxx.
(a) There are no adverse or other parties in possession of the
Properties other than as shown in the inter-company occupancy agreements amongst
Sellers' affiliated entities, leases or subleases provided and/or disclosed to
Buyer pursuant to this Agreement.
(b) Each of the Sellers, as applicable, owns and shall convey to Buyer
fee simple title to each respective Property, free and clear of all liens,
encumbrances, charges, easements, interests or other rights, subject only to the
Permitted Exceptions approved by Buyer pursuant to this Agreement.
(c) Sellers have the full right, power, and authority to sell and
convey their respective interests in the Properties as provided in this
Agreement and to carry out Sellers' respective obligations hereunder and under
any other documents and instruments executed by Sellers pursuant hereto, and all
requisite action necessary to authorize Sellers to enter into this Agreement and
to carry out Sellers' respective obligations hereunder and under any other
documents and instruments executed by Sellers pursuant hereto has been, or on or
before the Closing Date, will have been, taken.
(d) All of the individuals executing this Agreement and any other
documents and instruments executed by Sellers pursuant hereto have the legal
power, right, and actual authority to bind the respective Seller to the terms
and conditions hereof and thereof.
(e) This Agreement is, and the Leases, the Lease Guaranties (if
applicable) and all documents required hereby to be executed by Sellers (or
Tenants) shall be, valid, legally binding obligations of and enforceable against
Sellers (or Tenants if applicable) in accordance with their terms, subject only
to applicable bankruptcy, insolvency, reorganization, moratorium laws or similar
laws or equitable principles affecting or limiting the rights of contracting
parties generally.
(f) Sellers and Tenants are in good standing in the State of Nevada and are
authorized to do business in the State of Nevada.
(g) Sellers have not received written notice from any governmental
authority requiring Sellers to correct any condition with respect to all or any
portion of any Property by reason of a violation of any Governmental Regulation
which has not been corrected; and Sellers have not received written notice of
any pending condemnation action with respect to all or any portion of any
Property. As of the Closing Date, the Properties will comply fully with all
Governmental Regulations.
(h) To the best of Sellers' actual knowledge, there are no pending
claims, suits, actions, or arbitrations or regulatory, legal or other
proceedings or investigations which affect the Properties or Sellers' rights and
obligations under this Agreement.
(i) To the best of Sellers' actual knowledge, each Property has access
to public streets and utilities necessary for the operation of the Property.
(j) To the best of Sellers' actual knowledge, except as shown on the
Surveys, there are no encroachments on the Land nor any encroachments by the
Improvements onto any easements, streets or adjoining property.
(k) Sellers have not received notice of, and have no actual knowledge
or information of, any pending change in any Governmental Regulations applicable
to any Property which would result in any material change in any physical
condition of any Property or in any way limit or impede in any material respect
the intended operations of any Property.
(l) The execution and delivery of this Agreement, the Leases and the
Lease Guaranties (if applicable), the consummation of the transactions
contemplated in this Agreement and in the Leases, and the compliance with the
terms of this Agreement, the Leases and the Lease Guaranties (if applicable)
will not conflict with or result in a violation of any applicable Governmental
Regulations or any judgment, order, or decree of any court having jurisdiction
over any Seller or any Property.
(m) None of the Sellers is a "foreign person" as that term is defined
in Section 1445 of the Internal Revenue Code of 1986, as amended, and any
applicable regulations promulgated thereunder.
(n) As of the Closing Date, there will not be any new agreements
entered into by Sellers or their respective predecessors-in-interest with
respect to any Property which would create a lien or encumbrance on any
Property, and Buyer will not be subject to any liabilities or obligations
arising from any such agreements. Provided, however, that in the event of a lien
or non-consensual encumbrance, Sellers shall not be in default of this provision
if they shall cause the same to be insured over by title insurance, or released
of record by filing a security bond, in any such case, at Sellers' sole expense.
(o) All operations or activities upon, or use or occupancy of the
Properties by Sellers, or to the best of Sellers' actual knowledge by any prior
or current owner, tenant or occupant of the Properties, has been in all material
respects in compliance with all Governmental Regulations governing or in any way
relating to the generation, handling, manufacturing, treatment, storage, use,
transportation, spillage, leakage, dumping, discharge or disposal (whether
accidental or intentional) of Hazardous Materials, and neither Sellers, nor to
the best of Sellers' actual knowledge any prior or current tenant, occupant or
prior owner of the Properties, has engaged in or permitted any dumping,
discharge, disposal, spillage or leakage (whether legal or illegal, accidental
or intentional) of such Hazardous Materials, at, on, in or about any Property.
To the best of Sellers' actual knowledge, and except as otherwise disclosed to
Buyer by Sellers, there is not present upon any Property, any Hazardous
Materials, or any structures, fixtures, equipment or other objects or materials
containing Hazardous Materials in violation of any Governmental Regulation.
Except as otherwise disclosed to Buyer by Sellers, there are no underground
storage tanks present on any Property. To the best of Sellers' actual knowledge,
there is no proceeding or inquiry by any governmental authority with respect to
the presence of Hazardous Materials on any Property or the migration thereof
from or to other property.
(p) To the best of Sellers' actual knowledge, all documents or copies
thereof delivered by Sellers to Buyer, including those delivered pursuant to
Section 5.1 above are true, complete and accurate and have not been amended or
modified except as disclosed in writing to Buyer.
(q) Exhibit 1 accurately reflects the actual square footage of the
applicable Improvements.
(r) As of the Close of Escrow, no Seller (including Sierra) shall be in
default under the terms of any of the loan documents relating to Sierra's line
of credit wherein Bank of America is acting as lead creditor("Credit Line").
The warranties in this Section 6.1 are subject to exceptions for the
matters (if any) referenced on the Disclosure List attached as Exhibit 6 to this
Agreement, which Disclosure List may be supplemented by Sellers at any time
prior to Closing. Provided, however, that should any such supplement reveal a
Material Adverse Condition not previously disclosed or known by Buyer, Buyer
shall have the right to immediately provide Sellers a written notice of
termination as provided in Section 5.3.2(b).
6.2 Additional Covenants and Agreements of Sellers. Sellers covenant
and agree with Buyer that from the date of this Agreement until the Closing Date
or earlier termination of this Agreement, Sellers shall (i) materially comply
with all Governmental Regulations affecting the Properties, (ii) advise Buyer
promptly of any litigation, arbitration or administrative hearing concerning any
Property, (iii) advise Buyer promptly of any material damage to or destruction
of any Property, (iv) advise Buyer promptly after Sellers' discovery of any fact
or circumstance which would make any of the warranties and representations of
Sellers herein contained inaccurate in any material respect, (v) not enter into
any new occupancy agreements, leases or subleases (not cancellable on 30 days'
notice) relating to any Property, without Buyer's prior written consent, that
will bind Buyer or affect any Property after the Close of Escrow, (vi) maintain
the Properties in good condition, (vii) keep all existing insurance policies
affecting the Properties in full force and effect, (viii) use due diligence and
its best efforts to keep in full force and effect and/or renew all Licenses and
Permits, (ix) not convey all or any portion of any Property, and, after the Due
Diligence Period, Sellers will not, without the prior written consent of Buyer,
which consent will not be unreasonably withheld or delayed, subject any Property
to any additional liens, encumbrances (unless Sellers bond around or insure
over), covenants, conditions, easements, rights of way or similar matters (it
being reasonable for Buyer to withhold consent to any of the same if the value
of the Property would be affected thereby) (x) not make any material alterations
to any Property and (xi) provide Buyer with (A) a weekly written update of the
status of Sellers' efforts to cure the default presently existing under the
Credit Line (B) 24 hour written notice of any material change in the status of
such efforts and (C) as soon as practicable, written evidence that the default
has been cured or will be cured upon consummation of this transaction.
ARTICLE 7
Representations and Warranties of Buyer
7.1 Buyer represents and warrants to Sellers as of the date of this
Agreement and as of the Close of Escrow:
(a) Buyer has the full right, power, and authority to purchase the
Properties from Sellers as provided in this Agreement and to carry out Buyer's
obligations hereunder and under any other documents and instruments executed by
Buyer pursuant hereto, and all requisite action necessary to authorize Buyer to
enter into this Agreement and to carry out Buyer's obligations hereunder and
under any other documents and instruments executed by Buyer pursuant hereto has
been, or on the Closing Date, will have been, taken;
(b) All of the individuals executing this Agreement and any other
documents and instruments executed by Buyer pursuant hereto have the legal
power, right, and actual authority to bind Buyer to the terms and conditions
hereof and thereof.
ARTICLE 8
Conditions Precedent to Buyer's and Sellers' Performance
8.1 Conditions to Buyer's Obligation. Buyer's obligation to purchase the
Properties under this Agreement is subject to the satisfaction of each of the
following conditions ("Buyer's Conditions Precedent") any of which may be waived
in whole or in part only in writing by Buyer at or prior to the Closing Date:
(a) The Title Company shall be ready, willing and able to issue as of
the Close of Escrow (i) ALTA extended coverage owners policies of title
insurance (including mechanics' lien coverage, Form B-1970)("Owner's Title
Policies") insuring fee ownership of each Property in the name of Buyer or its
assignee in the amount of the Purchase Price allocated to such Property in
Exhibit 5, subject only to the Permitted Exceptions and other items that have
been approved by Buyer pursuant hereto with endorsements confirming that: (A)
each Property is as shown on the applicable Survey (CLTA endorsement 116.1), (B)
each Survey shows the correct location and dimensions of the applicable Property
(CLTA endorsement 116), (C) each Property consists of one or more separate tax
parcels, (D) each Property is one contiguous parcel (CLTA Form 116.4), (E) each
Property is in compliance with all zoning laws (ALTA Form 3.1 and/or a zoning
letter from the appropriate local land use agency, as required by the Lender),
(F) each Property has road access (CLTA Endorsement 103.7) and, (G) such other
endorsements as Buyer may reasonably require and (ii) ALTA lender's policies of
title insurance ("Lender's Title Policies") in the original principal amount of
the Loan with the endorsements referred to in Subsections (i) (A)-(F) above and
the following endorsements: (A) covering loss from an environmental protection
lien (ALTA Form 8.1) and (B) covering losses relating to restrictions,
encroachments and minerals (ALTA Form 9). The Owner's and Lender's Title
Policies shall be reinsured in an amount, and by a company or companies,
acceptable to both Buyer and Lender.
(b) Sellers shall have delivered to Escrow Holder the items described in
Section 10.2.1.
(c) Buyer shall have obtained (and the proceeds thereof shall have been
deposited into Escrow) a nonrecourse loan (the "Loan") of not less than 75% of
the Purchase Price secured by first deeds of trust on each of the Properties,
which Loan (i) shall be amortized on a 15 year schedule and shall bear interest
at a rate not greater than LIBOR plus 225 basis points (ii) shall require the
holder of the Loan ("Lender") to release a Property or Properties from liens
securing such Loan upon payment to Lender of an amount equal to 115% of the Loan
balance allocated to such Property or Properties (iii) shall not contain any
yield maintenance premiums, bond deposit requirements, lockouts or any similar
limitations upon, or penalties for, Loan prepayment and (iv) shall have a term
of one year (plus such extensions as are set forth in the current Fleet Bank
term sheet). Buyer agrees to keep Sellers reasonably apprised of the status of
the Loan and shall within one (1) business day after receipt of notice from
Lender that one or more of the Properties will not be financed, send Sellers
notice thereof.
(d) There shall be no material breach of any of Sellers'
representations, warranties or covenants set forth in Sections 5.1, 5.2, 6.1,
and 6.2 as of the Close of Escrow.
(e) Buyer shall not have terminated this Agreement in accordance with
Sections 4.3, 5.3, 11.1 or 11.2 as to the Properties to be sold.
(f) All parties shall be ready, willing and able to close the
sale-leaseback described in, and in accordance with, the Other Contract.
8.2 Conditions to Sellers' Obligation. Sellers' obligation to sell the
Properties under this Agreement is subject to the satisfaction of each of the
following conditions ("Sellers' Conditions Precedent") any of which may be
waived in whole or in part only in writing by Sellers at or prior to the Closing
Date:
(a) There shall be no material breach of any of Buyer's representations and
warranties set forth in Article 7, as of the Close of Escrow.
(b) Buyer shall have delivered to Escrow Holder the items described in
Section 10.2.2.
(c) All parties shall be ready, willing and able to close the
sale-leaseback described in, and in accordance with, the Other Contract.
8.3 Failure of Sellers' or Buyer's Conditions Precedent. If any of Sellers' or
Buyer's Conditions Precedent are not satisfied or waived in writing by the
applicable party on or before the Closing Date, this Agreement shall terminate
in accordance with Section 10.1, subject to the provisions of Article 13.
8.4 Termination of Escrow. Upon termination of this Escrow as to all Properties,
Escrow Holder shall promptly return to Sellers and Buyer any funds and documents
deposited by them, respectively, into Escrow, except as otherwise provided
herein.
ARTICLE 9
Opening of Escrow
Buyer and Sellers shall, within one business day after the final
execution of this Agreement by all parties, cause the Opening of Escrow by
delivering a fully executed copy of this Agreement to Escrow Holder. The Escrow
Holder is authorized and instructed to act in accordance with this Agreement,
which shall constitute escrow instructions for this transaction. If the Escrow
Holder requires any additional instructions, Buyer and Seller shall execute and
deliver to Escrow Holder any such additional or supplementary instructions as
may be necessary or convenient to implement the terms of this Agreement and
close the transaction contemplated hereby, provided that they are not
inconsistent with the terms of this Agreement.
ARTICLE 10
Close of Escrow
10.1 Date and Place of Close of Escrow. Escrow shall close after all conditions
have been satisfied or waived on a date mutually agreed upon by the parties that
is no later than December 29, 2000. If Escrow does not close by December 29,
2000, unless mutually extended, upon written demand of either party the Escrow
Holder shall return to each party who has complied with all of its obligations
under this Agreement, all funds and documents deposited in Escrow by such party.
In addition, Buyer shall use its best efforts in requesting Lender to release to
Seller, or at Seller's option, assign all due diligence materials ordered and
processed or received, including but not limited to, materials and reports
obtained pursuant to Section 5.1(b), (i) and (j), to parties designated by
Seller. The Close of Escrow shall take place in the offices of Nevada Title
Company in Las Vegas, Nevada or such other place as is mutually acceptable to
Buyer and Sellers, although Buyer and Sellers need not be physically present at
the Close of Escrow.
10.2 Items to be Delivered at the Close of Escrow.
10.2.1 By Sellers. Sellers shall deliver or cause to be delivered to Escrow
Holder on or prior to the Closing Date the ----------- following
instruments and documents for the Properties:
(a) Deeds. A Grant, Bargain, Sale Deed for each Property
("Deed") duly executed and acknowledged in recordable form by the appropriate
Seller, conveying the Property to Buyer.
(b) Leases. The Leases duly executed by Tenants, each accompanied by a
Memorandum of Lease, in recordable form. -------
(c) Lease Guaranties. A Lease Guaranty duly executed by Sierra, as to any
Lease in which Sierra is not the Tenant.
(d) Sellers' Certificate. A certificate ("Sellers' Certificate") executed by
Sellers providing that Sellers' representations made in this Agreement are
correct as of the Close of Escrow.
(e) Non-Foreign Certification. A certification duly executed
by each Seller ("FIRPTA Certificate"), setting forth such Seller's address and
federal tax identification number and certifying that such Seller is a "United
States Person" and that such Seller is not a "foreign person" in accordance with
Sections 7701 and 1445 of the Internal Revenue Code of 1986, as amended, and any
regulations promulgated thereunder.
(f) Proof of Authority. Such proof of Sellers' (and Tenants')
authority and authorization to enter into this Agreement and consummate the
transactions contemplated hereby, and such proof of the power and authority of
the individual(s) executing and/or delivering any instruments, documents or
certificates on behalf of Sellers (or Tenants) to act for and bind Sellers (or
Tenants), as applicable, as may be reasonably required by the Title Company or
Buyer.
(g) Lien Affidavits. Any lien affidavits or mechanic's lien
indemnifications as may be reasonably requested by the Title Company in order to
issue the Owner's and Lender's Title Policies.
(h) Subordination, Non-Disturbance and Attornment Agreements.
Subordination, Non-Disturbance and Attornment Agreements, in forms reasonably
acceptable to Lender and Sellers, duly executed by Tenants, subordinating the
Leases to the deeds of trust securing repayment of the Loan.
(i) Opinion of Sellers' Counsel. The original duly executed Opinion of
Sellers' Counsel in form and substance reasonably satisfactory to Buyer and
Lender.
(j) REA. A Reciprocal Easement Agreement, an amendment to
existing Reciprocal Easement Agreements, or other documentation in form and
substance reasonably satisfactory to Buyer and Lender assuring adequate parking
to the Properties.
(k) Letter of Credit/Security Deposits. (A) Security Deposit B
and (B) the Letter of Credit or Security Deposit
A.
(l) Other Documents. Any other documents or instruments
required to consummate the transaction in accordance
with this Agreement.
10.2.2 By Buyer. Buyer shall deliver or cause to be delivered to Escrow
Holder on or prior to the Closing Date the following instruments and documents:
(a) Purchase Price. The Purchase Price and Buyer's share
of closing costs.
(b) Leases. The Leases duly executed by Buyer, each
accompanied by a Memorandum of Lease in recordable form.
-------
(c) Proof of Authority. Such proof of Buyer's authority and
authorization to enter into this Agreement and consummate the transactions
contemplated hereby, and such proof of the power and authority of the
individual(s) executing and/or delivering any instruments, documents or
certificates on behalf of Buyer to act for and bind Buyer as may be reasonably
required by the Title Company or Sellers.
(d) Other Documents. Any other documents or instruments required to consummate
the transaction in accordance with this Agreement.
10.3 Cost of Closing. Sellers shall pay the direct cost of the Owner's and
Lender's Title Policies and all other charges of the Title Company, Surveys,
Environmental Reports, Appraisals, Engineering Reports, 1/2 of all escrow fees,
all transfer taxes payable on recordation of the Deeds and the deeds of trust
securing the Loan, all recording fees and all sales, use and ad valorem taxes
connected with Close of Escrow. Buyer shall pay 1/2 of all escrow fees. Each
party shall bear the expense of its own counsel. This Section shall survive the
Close of Escrow for all purposes.
10.4 Disbursements and Other Actions by Escrow Holder. At the Close of
Escrow, Escrow Holder shall promptly:
10.4.1 Recording. With respect to each Property, cause first the REA,
then the Deed, then the deed of trust securing the Loan, then the Memorandum of
Lease, then the Subordination, Non-Disturbance and Attornment Agreement and then
any other documents which Buyer and Sellers may mutually direct, to be recorded
in the official records of the county in which the applicable Property is
located and obtain conformed copies thereof for distribution to Buyer and
Sellers.
10.4.2 Funds. Promptly following recordation of each of the documents
set forth in Section 10.4.1, disburse all funds deposited with Escrow Holder by
Buyer as follows:
(a) Deduct all items chargeable to the account of Sellers
pursuant this Agreement.
(b) Disburse the expenses payable by Buyer and Sellers
pursuant to this Agreement to the parties entitled
thereto.
(c) Disburse the balance of the Purchase Price to
Sellers.
(d) Disburse the remaining balance of the funds, if any,
to Buyer.
10.4.3 Title Policies. Direct the Title Company to issue the
Owner's Title Policies to Buyer and the Lender's Title Policies to Lender.
10.4.4 Delivery of Documents to Buyer. Deliver to Buyer the Sellers'
Certificate and Opinion of Sellers' Counsel, one executed counterpart copy of
each Lease, the FIRPTA Certificate, and any other documents (or copies thereof)
deposited into Escrow by Sellers pursuant hereto. The Deeds and REA shall be
delivered to Buyer after recordation. Deliver the Letter of Credit or Security
Deposit A (as applicable) to Lender and hold Security Deposit B in an interest
bearing account pursuant to the provisions of this Agreement.
10.4.5 Delivery of Documents to Sellers. Deliver to Sellers one
executed counterpart copy of each Lease and any other documents (or copies
thereof) deposited into Escrow by Buyer pursuant hereto. After recordation, the
Subordination, Non-Disturbance and Attornment Agreements shall be delivered to
Lender with a copy to Sellers and Buyer and the Lease Memoranda shall be
delivered to Buyer, with a copy to Sellers.
ARTICLE 11
Casualty or Condemnation
11.1 Eminent Domain or Taking. If, before the Close of Escrow, any material
portion of any Property is taken or if the access thereto or available parking
area therefor is reduced or restricted, by eminent domain (or is the subject of
a pending, threatened or contemplated taking which has not been consummated),
Sellers shall immediately notify Buyer of such fact. In such event, Buyer shall
have the option, in its sole and absolute discretion to (a) terminate this
Agreement as to the affected Property or Properties by notice to Sellers, or (b)
purchase the Properties without any reduction in the Purchase Price. Buyer's
election shall be made by written notice to Sellers given not later than Close
of Escrow. If Buyer does not exercise its option to terminate this Agreement, or
if there has been a nonmaterial taking by eminent domain, neither party shall
have the right to terminate this Agreement, but the Sellers shall assign and
turn over, and the Buyer shall be entitled to receive and keep that portion of
Sellers' condemnation award allocable to loss of use of the condemned Property
for the period of time beginning 15 years after the Closing Date and the parties
shall proceed to the Close of Escrow without modification of the terms of this
Agreement and without any reduction in the Purchase Price or in the base rent
payable under the applicable Lease. Unless or until this Agreement is terminated
as to a condemned Property, Sellers shall take no action with respect to any
eminent domain proceeding without the prior written consent of Buyer.
11.2 Casualty. If, before the Close of Escrow, any part of any Property is
damaged or destroyed by casualty, Sellers shall immediately notify Buyer of such
fact. If such damage or destruction is "material", Buyer shall have the option
in its sole and absolute discretion, either to (a) terminate this Agreement as
to the affected Property by notice to Sellers, or (b) purchase the Property
without reduction of the Purchase Price. Buyer's election shall be made by
written notice to the Sellers given not later than Close of Escrow. For purposes
of Article 11, "material" shall be deemed to be any damage or destruction where
the cost of repair or replacement of the affected Property is estimated to
exceed the lesser of $250,000 and 5% of the Purchase Price allocated to such
Property in Exhibit 5 or shall take more than six months to repair, in Buyer's
good faith judgment. If Buyer does not exercise its option to terminate this
Agreement or if the damage is not material, Sellers shall be entitled to receive
and keep all insurance proceeds payable to it with respect to such destruction
which shall then be reasonably repaired by Sellers and the parties shall proceed
to the Close of Escrow without modification of the terms of this Agreement and
without any reduction in the Purchase Price or in the base rent payable under
the applicable Lease, such repair by Sellers to be completed in accordance with
the provisions of the Lease.
ARTICLE 12
Indemnification
12.1 Brokers. Each party represents and warrants to the other party that they
have not dealt with any real estate broker, agent, finder, or any other party in
connection with this transaction, except CB Xxxxxxx Xxxxx, Inc. ("Broker") whose
commission will be paid by Sellers pursuant to a separate agreement between
Sierra and Broker. Each party shall indemnify and hold the other party harmless
from any loss, liability, damage, or expense (including, but not limited to,
reasonable attorney's fees) resulting to the other party from a breach of the
representation and warranty made by such party in this Section 12.1.
Notwithstanding anything to the contrary contained herein, the indemnities set
forth in this Article shall survive the Close of Escrow and the termination of
this Agreement.
12.2 Indemnification of Buyer. Sellers shall indemnify Buyer and its principals
and agents against, and shall hold Buyer and its principals and agents harmless
from, all claims, actions, losses, damages, expenses, reasonable attorneys'
fees, and other liabilities (including without limitation tenant improvement
costs or allowance and concessions including free rent, if any) incurred by
Buyer relating to the Properties which arise from events which (a) occurred
during Sellers' ownership of the Properties or (b) which constitute a violation
of one or more representations, warranties or covenants of Sellers hereunder,
and do not relate to obligations or liabilities expressly assumed by Buyer
hereunder.
ARTICLE 13
Default
13.1 Buyer's Default. IF THE SALE OF THE PROPERTIES DOES NOT CLOSE AS A RESULT
OF DEFAULT HEREUNDER BY BUYER, ESCROW HOLDER SHALL DELIVER THE DEPOSIT PLUS ALL
INTEREST ACCRUED THEREON TO SELLERS AS LIQUIDATED DAMAGES AS SELLERS' SOLE
REMEDY. THE PARTIES AGREE THAT SELLERS' ACTUAL DAMAGES IN THE EVENT OF A DEFAULT
BY BUYER WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO ASCERTAIN AND THE
DEPOSIT PLUS ACCRUED INTEREST REPRESENTS THE PARTIES' REASONABLE ESTIMATE OF
SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, THIS LIQUIDATED DAMAGES PROVISION
SHALL NOT LIMIT BUYER'S INDEMNITY OBLIGATIONS UNDER SECTIONS 5.2 AND 12.1.
SELLERS' INITIALS:_______ BUYER'S INITIALS:________
13.2 Sellers' Default. If the sale of the Properties to Buyer does not close
solely as a result of default hereunder by Sellers, Escrow Holder shall refund
the Deposit and all interest accrued thereon to Buyer and Buyer may obtain a
decree of specific performance or may recover compensatory damages not to exceed
the sum of $1,150,000 plus Buyer's actual out of pocket costs less any
compensatory damages recovered by Buyer under the Other Contract. Sellers waive
the right to assert the defense of lack of mutuality in any suit for specific
performance instituted by Buyer.
13.3 Survival. The provisions of this Article shall survive the Close of
Escrow.
---------
ARTICLE 14
Miscellaneous
14.1 Notices. All notices required or permitted hereunder shall be in
writing and shall be served on the parties at the following addresses:
If to Sellers: Sierra Health Services, Inc.
0000 Xxxxx Xxxxxx Xxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and
Sierra Health Services, Inc.
0000 Xxxxx Xxxxxx Xxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxxxx Xxxxxxxx Xxxxxxx
0000 Xxxx xx Xxxxxxx Xxxxx
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxx Xxxxx Xxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Buyer: CB Xxxxxxx Xxxxx Corporate Partners, LLC
c/o CB Xxxxxxx Xxxxx Investors L.L.C.
000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxxx & Xxxxxx
000 Xxxxx Xxxxxx Xxxx., Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Escrow Company: Commonwealth Land Title Insurance company
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxx
Telephone: (000) 000-0000, Ext. 106
Facsimile: (000) 000-0000
Title Company: Land America Title Insurance Company
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx Xxxxx
Telephone: (000) 000-0000, Ext. 102
Facsimile: (000) 000-0000
Any such notice shall be either (a) sent by certified mail, return receipt
requested, in which case notice shall be deemed delivered three Business Days
after deposit, postage prepaid, in the U.S. mail, (b) sent by overnight mail
delivery using a nationally recognized overnight courier, in which case it shall
be deemed delivered one Business Day after deposit with such courier, or (c)
sent by personal delivery. The above addresses may be changed by written notice
to the other parties.
14.2 Governing Law. This Agreement is being executed and delivered in the State
of Nevada and the laws of Nevada shall govern the validity, construction,
enforcement, and interpretation of this Agreement, unless otherwise specified
herein.
14.3 Entirety and Amendments. This Agreement embodies the entire agreement
between the parties and supersedes all prior agreements and understandings, if
any, relating to the Properties, and may be amended or supplemented only by an
instrument in writing executed by the party against whom enforcement is sought.
14.4 Further Acts. In addition to the acts and documents recited in this
Agreement and contemplated to be performed, executed, or delivered under this
Agreement, Sellers and Buyer agree to perform, execute and deliver or cause to
be performed, executed and delivered at the Close of Escrow or after the Close
of Escrow all further acts, documents and assurances reasonably necessary to
consummate the transactions contemplated hereby and shall use their good faith
efforts to accomplish the Close of Escrow in accordance with the provisions
hereof.
14.5 Multiple Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the
same contract and any of the parties to this Agreement may execute the
Agreement by signing any of the counterparts.
14.6 Exhibits. All attached exhibits are incorporated in, and made a part
of, this Agreement for all purposes.
14.7 Assignment. Buyer shall have the right to assign its rights and obligations
under this Agreement, by giving prior written notice to Sellers, to a single
purpose entity approved by the Lender, so long as such assignee expressly
assumes the obligations of Buyer hereunder. Buyer shall also have the right
(upon written notice to Sellers at least one Business Day before the Closing
Date) to nominate any single purpose entity approved by the Lender to be the
grantee under any Deed and to be named as Buyer (or Landlord) under the
applicable Lease, Lease Guarantee, Seller's Certificate and other documents to
be executed by Seller hereunder with respect to the applicable Property. Sellers
shall cooperate with Buyer and its assignee/nominees to effectuate the sale of
Buyer's interests hereunder with respect to any Property. Any assignee/nominee
shall succeed to all the rights of Buyer hereunder. Notwithstanding the
foregoing, no such assignment/nomination shall relieve Buyer from its liability
under this Agreement until the Close of Escrow, whereupon Buyer shall be fully
relieved from any further liability under this Agreement, except for its
indemnity obligations under Section 5.2. Sellers shall not have the right to
assign their rights under this Agreement to any person or entity without the
prior written consent of Buyer, which may be withheld in the sole discretion of
Buyer.
14.8 Severability. If any term or provision of this Agreement is held
invalid or unenforceable, the remainder of this Agreement shall not be
affected.
14.9 Waivers. No waiver of any breach of this Agreement shall be deemed a waiver
of any other breach. No extension of time for performance of any obligation or
act shall be deemed an extension of time for performance of any other obligation
or act.
14.10 Survival of Representations. The agreements, representations and
warranties made herein shall survive the Close of Escrow and shall not merge
into the Deeds and the recordation thereof.
14.11 Successors and Assigns. Subject to Section 14.7, this Agreement shall be
binding upon and shall inure to the benefit of the Buyer and Sellers and their
successors and assigns.
14.12 Attorneys' Fees. The prevailing party in any suit arising out of this
Agreement shall be entitled to recover from the losing party all costs of the
suit, including reasonable attorneys' fees.
14.13 No Third Party Beneficiary. This contract is not intended to give
or confer any benefits, rights, privileges, claims, actions or remedies to
any person or entity as a third party beneficiary.
14.14 Time. Time is of the essence in the performance of every provision
contained in this Agreement. If the date on which Buyer or Sellers are required
to take any action under the terms of this Agreement is not a Business Day, the
action shall be taken on the next succeeding Business Day.
14.15 Construction. The parties acknowledge that the parties and their counsel
have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any exhibits or amendments hereto.
14.16 Confidential Information. Buyer shall respect and observe the confidential
nature of financial, environmental and other reports and information supplied by
Sellers or obtained by Buyer concerning the Properties. If this transaction does
not close as to one or more Properties, Buyer shall return or deliver such
written reports as to such Properties (including any copies thereof) to Sellers.
Buyer will not disclose publicly (except as required by law) any confidential
information of Sellers. Sellers shall keep confidential the allocation of the
Purchase Price among the Properties except that Sellers may disclose such
information to their attorneys and accountants and as required by law.
14.17 Negation of Agency, Partnership. No provision of this Agreement or
subsequent conduct of the parties shall be construed as making either party an
agent, principal, partner or joint venturer with the other party, or as making
either party responsible for the payment or reimbursement of any costs incurred
by the other party in pursuing this transaction if this Agreement is terminated
for any reason (other than as otherwise expressly set forth in this Agreement
concerning responsibility for costs).
[SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, Buyer and Sellers have executed this Agreement.
SELLERS:
SIERRA HEALTH SERVICES, INC.,
a Nevada corporation
By: ____________________________
HEALTH PLAN OF NEVADA, INC.
By: ____________________________
0000 XXXXX XXXXXX XXX LIMITED PARTNERSHIP
By: SIERRA HEALTH SERVICES, INC.
Its: General Partner
By: ____________________________
BUYER:
CB XXXXXXX XXXXX CORPORATE PARTNERS, LLC,
a Delaware limited liability company
By: CB XXXXXXX XXXXX INVESTORS L.L.C.,
a Delaware Limited Liability Company
Its: Managing Member
By: ___________________________
Xxxxxx Xxxxx, Senior Director
By: ____________________________
Xxxxx Xxxxx, Vice President
EXHIBIT 1
Descriptions of the Properties
Property 3
The property commonly known as 000 Xxxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx and
consisting of 0.362 acres of land and including a two story building of
approximately 12,000 square feet and 8 total parking spaces and legally
described on Exhibit 1C.
Property 10
Parcel 1
The property commonly known as 0000 Xxxxx Xxxxxx Xxx, Xxx Xxxxx, Xxxxxx,
consisting of approximately 9.57 acres of land and including a six story
building of approximately 204,123 square feet and 909 total parking spaces and
legally described on the first page of Exhibit 1J.
Parcel A-3
Raw land consisting of approximately 1.596 acres, legally described on the
second page of Exhibit 1J and depicted on the third page of Exhibit 1J.
Before Close of Escrow, Seller shall cause Parcel A-3 to be a separate legal and
tax parcel.
Property 11
Parcel 1
The property commonly known as 0000 Xxxxx Xxxxxx Xxx, Xxx Xxxxx, Xxxxxx
consisting of approximately 1.27 acres of land and including a two story
building of approximately 43,480 square feet and 32 total parking spaces and
legally described on the first page of Exhibit 1K.
Parcel A-2
An uncovered parking lot consisting of approximately 146 parking spaces legally
described on the second page of Exhibit 1K and depicted on the third page of
Exhibit 1K.
Seller shall complete, before Close of Escrow, to Buyer's and Lender's
reasonable satisfaction, a lot split or boundary adjustment so that the property
commonly known as 0000 Xxxxx Xxxxxx Xxx includes Parcel A-2.
EXHIBIT 2
Other Properties
---------------------------------
000 X. Xxxxxx Xx.
---------------------------------
---------------------------------
000 X. Xxxxxx Xx.
---------------------------------
---------------------------------
0000 X. Xxxxxxxxxx Xxxx.
---------------------------------
---------------------------------
0000 X. Xxxxxxxxxx Xxxx.
--------------------------------
---------------------------------
0000 X. Xxxxxxxxxx Xxxx.
---------------------------------
---------------------------------
0000 X. Xxxxxx Xxx
---------------------------------
---------------------------------
0000 X. Xxxxxxx Xxx.
---------------------------------
---------------------------------
0000 X. Xxxxxxxx Xx.
---------------------------------
EXHIBIT 3
Base Rent
-------------------------------- ----------------------
Property Year 1
-------------------------------- ----------------------
-------------------------------- ----------------------
0000 X. Xxxxxx Xxx 4,490,705
-------------------------------- ----------------------
-------------------------------- ----------------------
0000 X. Xxxxxx Xxx 956,560
-------------------------------- ----------------------
-------------------------------- ----------------------
000 Xxxxx Xxxxxx 251,550
-------------------------------- ----------------------
-------------------------------- ----------------------
Totals: $
-------------------------------- ----------------------
Base rent for each of the remaining years of the primary term (years 2 through
15) of each Lease shall be adjusted upward 101.5% annually.
EXHIBIT 4
Omitted
EXHIBIT 5
Allocation of Purchase Price
-------------------------------- ----------------------
Property Price ($)
-------------------------------- ----------------------
-------------------------------- ----------------------
0000 X. Xxxxxx Xxx 41,500,363
-------------------------------- ----------------------
-------------------------------- ----------------------
0000 X. Xxxxxx Xxx 9,217,190
-------------------------------- ----------------------
-------------------------------- ----------------------
000 Xxxxx Xxxxxx Xxxxx 2,423,877
-------------------------------- ----------------------
-------------------------------- ----------------------
Totals: $
-------------------------------- ----------------------
This allocation may be modified by a writing signed by Buyer and
Sellers.
EXHIBIT 6
Disclosure List
FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This First Amendment to Purchase and Sale Agreement (the
"First Amendment"), dated as of December 8, 2000, is entered into by and between
Sierra Health Services, Inc., a Nevada corporation ("Sierra"), Health Plan of
Nevada, Inc. ("HPN"), Sierra Health and Life Insurance Company, Inc. ("Sierra
Health"), 0000 Xxxxx Xxxxxx Xxx Limited Partnership ("Tenaya Partnership" and
together with Sierra, HPN, Sierra Health, "Sellers"), and CB Xxxxxxx Xxxxx
Corporate Partners, LLC, a Delaware limited liability company ("Buyer").
R E C I T A L S
A. Sellers and Buyer are parties to that certain Purchase and Sale
Agreement dated as of December 1, 2000 (the "Agreement").
B. The Agreement provides that certain matters are to transpire on or
before December 8, 2000.
C. The parties wish to extend the December 8, 2000 deadline on the terms
and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements hereinafter set forth, the parties agree as follows:
1. The first sentence in the definition of "Due Diligence Period" in
Section 1.1 is hereby deleted and replaced with the following language:
"Due Diligence Period" shall mean the period ending on the
later of December 15, 2000 or the date on which Buyer receives
written approval from Sellers' bank for this transaction.
2. The second sentence of Section 2.2.3 of the Agreement is hereby deleted
and replaced with the following language:
In the event the parties have not negotiated a mutually
acceptable form of Lease and Lease Guaranty by midnight,
Pacific Standard Time, December 11, 2000, either Sellers or
Buyer may elect to terminate this Agreement by written notice
to the other party(ies) and to Escrow Holder.
3. All of the provisions of the Agreement shall remain in full force and
effect.
4. This First Amendment may be executed in counterparts and facsimile
signatures hereon shall have the same force and effect as originals.
Signature page follows
IN WITNESS WHEREOF, Buyer and Sellers have executed this Agreement.
SELLERS:
SIERRA HEALTH SERVICES, INC.,
a Nevada corporation
By: ____________________________
HEALTH PLAN OF NEVADA, INC.
By: ____________________________
0000 XXXXX XXXXXX XXX LIMITED PARTNERSHIP
By: SIERRA HEALTH SERVICES, INC.
Its: General Partner
By: ____________________________
SIERRA HEALTH & LIFE INSURANCE, INC.
By: _____________________________
BUYER:
CB XXXXXXX XXXXX CORPORATE PARTNERS, LLC, a Delaware
limited liability company
By: CB XXXXXXX XXXXX INVESTORS L.L.C., a Delaware
Limited Liability company
Its: Managing Member
By: ___________________________
Xxxxxx Xxxxx, Senior Director
By: ____________________________
Xxxxx Xxxxx, Vice President
SECOND AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This Second Amendment to Purchase and Sale Agreement (the
"Second Amendment"), dated as of December 11, 2000, is entered into by and
between Sierra Health Services, Inc., a Nevada corporation ("Sierra"), Health
Plan of Nevada, Inc. ("HPN"), Sierra Health and Life Insurance Company, Inc.
("Sierra Health"), 0000 Xxxxx Xxxxxx Xxx Limited Partnership ("Tenaya
Partnership" and together with Sierra, HPN, Sierra Health, "Sellers"), and CB
Xxxxxxx Xxxxx Corporate Partners, LLC, a Delaware limited liability company
("Buyer").
R E C I T A L S
A. Sellers and Buyer are parties to that certain Purchase and Sale
Agreement dated as of December 1, 2000, as amended (the "Agreement").
B. The Agreement provides that certain matters are to transpire on or
before December 11, 2000.
C. The parties wish to extend the December 11, 2000 deadline on the terms
and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements hereinafter set forth, the parties agree as follows:
1. The second sentence of Section 2.2.3 of the Agreement is hereby deleted
and replaced with the following language:
In the event the parties have not negotiated a mutually
acceptable form of Lease and Lease Guaranty by midnight,
Pacific Standard Time, December 14, 2000, either Sellers or
Buyer may elect to terminate this Agreement by written notice
to the other party(ies) and to Escrow Holder.
2. The second sentence of Section 4.2 is hereby deleted and replaced with
the following language:
Buyer shall have until December 14, 2000 in which to review
all maters reflected in those documents.
3. All of the provisions of the Agreement shall remain in full force and
effect.
4. This Second Amendment may be executed in counterparts and facsimile
signatures hereon shall have the same force and effect as originals.
Signature page follows
IN WITNESS WHEREOF, Buyer and Sellers have executed this Second
Amendment.
SELLERS:
SIERRA HEALTH SERVICES, INC.,
a Nevada corporation
By: ____________________________
HEALTH PLAN OF NEVADA, INC.
By: ____________________________
0000 XXXXX XXXXXX XXX LIMITED PARTNERSHIP
By: SIERRA HEALTH SERVICES, INC.
Its: General Partner
By: ____________________________
SIERRA HEALTH & LIFE INSURANCE, INC.
By: _____________________________
BUYER:
CB XXXXXXX XXXXX CORPORATE PARTNERS, LLC, a
Delaware limited liability company
By: CB XXXXXXX XXXXX INVESTORS L.L.C.,
a Delaware Limited Liability company
Its: Managing Member
By: ___________________________
Xxxxxx Xxxxx, Senior Director
By: ____________________________
Xxxxx Xxxxx, Vice President
THIRD AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This Third Amendment to Purchase and Sale Agreement (the
"Third Amendment"), dated as of December 14, 2000, is entered into by and
between Sierra Health Services, Inc., a Nevada corporation ("Sierra"), Health
Plan of Nevada, Inc. ("HPN"), Sierra Health and Life Insurance Company, Inc.
("Sierra Health"), 0000 Xxxxx Xxxxxx Xxx Limited Partnership ("Tenaya
Partnership" and together with Sierra, HPN, Sierra Health, "Sellers"), and CB
Xxxxxxx Xxxxx Corporate Partners, LLC, a Delaware limited liability company
("Buyer").
R E C I T A L S
A. Sellers and Buyer are parties to that certain Purchase and Sale
Agreement dated as of December 1, 2000, as amended (the "Agreement").
B. The Agreement provides that certain matters are to transpire on or
before December 14, 2000.
C. The parties wish to extend the December 14, 2000 deadline as to certain
matters on the terms and conditions set forth herein and acknowledge receipt of
certain items.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements hereinafter set forth, the parties agree as follows:
1. The second sentence of Section 2.2.3 of the Agreement is hereby deleted
and replaced with the following language:
In the event the parties have not negotiated a mutually
acceptable form of Lease and Lease Guaranty by midnight,
Pacific Standard Time, December 15, 2000, either Sellers or
Buyer may elect to terminate this Agreement by written notice
to the other party(ies) and to Escrow Holder.
2. The Sellers acknowledge receipt of objections to title and survey
set forth in the Memorandum from Xxxxx Xxxxx dated 12-13-00 sent via email to
Sellers on December 13, 2000. Such objections shall be deemed to have been given
on December 13, 2000 in compliance with the deadline and notice provisions of
the Agreement.
3. All of the provisions of the Agreement shall remain in full force and
effect.
4. This Third Amendment may be executed in counterparts and facsimile
signatures hereon shall have the same force and effect as originals.
Signature page follows
IN WITNESS WHEREOF, Buyer and Sellers have executed this Third
Amendment.
SELLERS:
SIERRA HEALTH SERVICES, INC.,
a Nevada corporation
By: ____________________________
HEALTH PLAN OF NEVADA, INC.
By: ____________________________
0000 XXXXX XXXXXX XXX LIMITED PARTNERSHIP
By: SIERRA HEALTH SERVICES, INC.
Its: General Partner
By: ____________________________
SIERRA HEALTH & LIFE INSURANCE, INC.
By: _____________________________
BUYER:
CB XXXXXXX XXXXX CORPORATE PARTNERS, LLC,
a Delaware limited liability company
By: CB XXXXXXX XXXXX INVESTORS L.L.C.,
a Delaware Limited Liability company
Its: Managing Member
By: ___________________________
Xxxxxx Xxxxx, Senior Director
By: ____________________________
Xxxxx Xxxxx, Vice President
FOURTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This Fourth Amendment to Purchase and Sale Agreement (the
"Fourth Amendment"), dated as of December 15, 2000, is entered into by and
between Sierra Health Services, Inc., a Nevada corporation ("Sierra"), Health
Plan of Nevada, Inc. ("HPN"), Sierra Health and Life Insurance Company, Inc.
("Sierra Health"), 0000 Xxxxx Xxxxxx Xxx Limited Partnership ("Tenaya
Partnership" and together with Sierra, HPN, Sierra Health, "Sellers"), CB
Xxxxxxx Xxxxx Corporate Partners, LLC, a Delaware limited liability company
("Assignor") and CPSIEO, LLC, a Delaware limited liability company ("Buyer").
R E C I T A L S
A. Sellers and Assignor are parties to that certain Purchase and Sale
Agreement dated as of December 1, 2000, as amended (the "Agreement").
B. The parties wish to extend certain deadlines as to certain matters on
the terms and conditions set forth herein and acknowledge receipt of certain
items.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements hereinafter set forth, the parties agree as follows:
1. The second sentence of Section 2.2.3 of the Agreement is hereby deleted
and replaced with the following language:
In the event the parties have not negotiated a mutually
acceptable form of Lease and Lease Guaranty by midnight,
Pacific Standard Time, December 18, 2000, either Sellers or
Buyer may elect to terminate this Agreement by written notice
to the other party(ies) and to Escrow Holder.
2. Assignor hereby notifies Sellers that pursuant to Section 14.7 of
the Agreement, it has assigned its rights and obligations under the Agreement to
Buyer effective December 15, 2000.
3. The "Extended Review Period" shall be extended to midnight, Pacific
Standard Time, December 19, 2000. All of the provisions of the Agreement as
amended hereby shall remain in full force and effect.
4. This Fourth Amendment may be executed in counterparts and facsimile
signatures hereon shall have the same force and effect as originals.
Signature page follows
IN WITNESS WHEREOF, the parties have executed this Fourth Amendment.
SELLERS:
SIERRA HEALTH SERVICES, INC.,
a Nevada corporation
By: ____________________________
HEALTH PLAN OF NEVADA, INC.
By: ____________________________
0000 XXXXX XXXXXX XXX LIMITED PARTNERSHIP
By: SIERRA HEALTH SERVICES, INC.
Its: General Partner
By: ____________________________
SIERRA HEALTH & LIFE INSURANCE, INC.
By: _____________________________
ASSIGNOR:
CB XXXXXXX XXXXX CORPORATE PARTNERS, LLC, a Delaware
limited liability company
By: CB XXXXXXX XXXXX INVESTORS L.L.C., a Delaware
Limited Liability company
Its: Managing Member
By: ___________________________
Xxxxxx Xxxxx, Senior Director
By: ____________________________
Xxxxx Xxxxx, Vice President
BUYER:
CPSIEO, LLC, a Delaware limited liability company
By: ___________________________
Xxxxxx Xxxxx, Manager
FIFTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This Fifth Amendment to Purchase and Sale Agreement (the "Fifth
Amendment"), dated as of December 18, 2000, is entered into by and between
Sierra Health Services, Inc., a Nevada corporation ("Sierra"), Health Plan of
Nevada, Inc. ("HPN"), Sierra Health and Life Insurance Company, Inc. ("Sierra
Health"), 0000 Xxxxx Xxxxxx Xxx Limited Partnership ("Tenaya Partnership" and
together with Sierra, HPN, Sierra Health, "Sellers"), and CPSIEO, LLC, a
Delaware limited liability company ("Buyer").
R E C I T A L S
A. Sellers and Assignor are parties to that certain Purchase and Sale
Agreement dated as of December 1, 2000, as amended (the "Agreement").
B. The parties wish to extend certain deadlines as to certain matters on
the terms and conditions set forth herein and acknowledge receipt of certain
items.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements hereinafter set forth, the parties agree as follows:
1. The second sentence of Section 2.2.3 of the Agreement is hereby deleted
and replaced with the following language:
In the event the parties have not negotiated a mutually
acceptable form of Lease and Lease Guaranty by midnight,
Pacific Standard Time, December 19, 2000, either Sellers or
Buyer may elect to terminate this Agreement by written notice
to the other party(ies) and to Escrow Holder.
2. This Fifth Amendment may be executed in counterparts and facsimile
signatures hereon shall have the same force and effect as originals.
Signature page follows
IN WITNESS WHEREOF, the parties have executed this Fifth Amendment.
SELLERS:
SIERRA HEALTH SERVICES, INC.,
a Nevada corporation
By: ____________________________
HEALTH PLAN OF NEVADA, INC.
By: ____________________________
0000 XXXXX XXXXXX XXX LIMITED PARTNERSHIP
By: SIERRA HEALTH SERVICES, INC.
Its: General Partner
By: ____________________________
SIERRA HEALTH & LIFE INSURANCE, INC.
By: _____________________________
BUYER:
CPSIEO, LLC, a Delaware limited liability company
By: ___________________________
Xxxxxx Xxxxx, Manager
SIXTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This Sixth Amendment to Purchase and Sale Agreement (the "Sixth
Amendment"), dated as of December 19, 2000, is entered into by and between
Sierra Health Services, Inc., a Nevada corporation ("Sierra"), Health Plan of
Nevada, Inc. ("HPN"), Sierra Health and Life Insurance Company, Inc. ("Sierra
Health"), 0000 Xxxxx Xxxxxx Xxx Limited Partnership ("Tenaya Partnership" and
together with Sierra, HPN, Sierra Health, "Sellers"), and CPSIEO, LLC, a
Delaware limited liability company ("Buyer").
R E C I T A L S
A. Sellers and Buyer are parties to that certain Purchase and Sale
Agreement dated as of December 1, 2000, as amended (the "Agreement").
B. The parties wish to extend certain deadlines as to certain matters on
the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements hereinafter set forth, the parties agree as follows:
1. The second sentence of Section 2.2.3 of the Agreement is hereby deleted
and replaced with the following language:
In the event the parties have not negotiated a mutually
acceptable form of Lease and Lease Guaranty by midnight,
Pacific Standard Time, December 20, 2000, either Sellers or
Buyer may elect to terminate this Agreement by written notice
to the other party(ies) and to Escrow Holder.
2. This Sixth Amendment may be executed in counterparts and facsimile
signatures hereon shall have the same force and effect as originals.
Signature page follows
IN WITNESS WHEREOF, the parties have executed this Sixth Amendment.
SELLERS:
SIERRA HEALTH SERVICES, INC.,
a Nevada corporation
By: ____________________________
HEALTH PLAN OF NEVADA, INC.
By: ____________________________
0000 XXXXX XXXXXX XXX LIMITED PARTNERSHIP
By: SIERRA HEALTH SERVICES, INC.
Its: General Partner
By: ____________________________
SIERRA HEALTH & LIFE INSURANCE, INC.
By: _____________________________
BUYER:
CPSIEO, LLC, a Delaware limited liability company
By: ___________________________
Xxxxxx Xxxxx, Manager
SEVENTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
This Seventh Amendment to Purchase and Sale Agreement (the "Seventh
Amendment"), dated as of December 20, 2000, is entered into by and between
Sierra Health Services, Inc., a Nevada corporation ("Sierra"), Health Plan of
Nevada, Inc. ("HPN"), Sierra Health and Life Insurance Company, Inc. ("Sierra
Health"), 0000 Xxxxx Xxxxxx Xxx Limited Partnership ("Tenaya Partnership" and
together with Sierra, HPN, Sierra Health, "Sellers"), and CPSIEO, LLC, a
Delaware limited liability company ("Buyer").
R E C I T A L S
A. Sellers and Buyer are parties to that certain Purchase and Sale
Agreement dated as of December 1, 2000, as amended (the "Agreement").
B. The parties wish to extend certain deadlines as to certain matters on
the terms and conditions set forth herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements hereinafter set forth, the parties agree as follows:
1. The second sentence of Section 2.2.3 of the Agreement is hereby deleted
and replaced with the following language:
In the event the parties have not negotiated a mutually
acceptable form of Lease and Lease Guaranty by midnight,
Pacific Standard Time, December 21, 2000, either Sellers or
Buyer may elect to terminate this Agreement by written notice
to the other party(ies) and to Escrow Holder.
2. This Seventh Amendment may be executed in counterparts and facsimile
signatures hereon shall have the same force and effect as originals.
Signature page follows
IN WITNESS WHEREOF, the parties have executed this Seventh Amendment.
SELLERS:
SIERRA HEALTH SERVICES, INC.,
a Nevada corporation
By: ____________________________
HEALTH PLAN OF NEVADA, INC.
By: ____________________________
0000 XXXXX XXXXXX XXX LIMITED PARTNERSHIP
By: SIERRA HEALTH SERVICES, INC.
Its: General Partner
By: ____________________________
SIERRA HEALTH & LIFE INSURANCE, INC.
By: _____________________________
BUYER:
CPSIEO, LLC, a Delaware limited liability company
By: ___________________________
Xxxxxx Xxxxx, Manager
