Exhibit 10.2.1
AGREEMENT FOR SALE OF REAL ESTATE
AND MASTER LEASE AMENDMENTS
BETWEEN
VENTAS REALTY, LIMITED PARTNERSHIP
AND
KINDRED HEALTHCARE, INC.
AND
KINDRED HEALTHCARE OPERATING, INC.
May 14, 2003
AGREEMENT FOR SALE OF REAL ESTATE
AND MASTER LEASE AMENDMENTS
This AGREEMENT FOR SALE OF REAL ESTATE AND MASTER LEASE AMENDMENTS
("Agreement") is made on May 14, 2003 between VENTAS REALTY, LIMITED
PARTNERSHIP, a Delaware limited partnership ("Seller") and KINDRED HEALTHCARE
OPERATING, INC., a Delaware corporation ("Kindred") and KINDRED HEALTHCARE,
INC., a Delaware corporation (together with Kindred, collectively, "Purchaser").
1. Purchase and Sale; Master Lease Amendments. Seller agrees to sell and
assign, as applicable, to Purchaser, and Purchaser agrees to purchase and
assume, as applicable, from Seller, the Property, as hereinafter defined, for
the Purchase Price, as hereinafter defined, and subject to the terms and
conditions set forth in this Agreement, and Seller and Purchaser further agree
to amend certain master leases (herein, the "Master Leases") as provided in the
Master Lease Amendments, as hereinafter defined, subject to the terms and
conditions set forth in this Agreement.
2. Purchase Price.
(a) The purchase price (the "Purchase Price") for the Property shall
be Fifty Nine Million Six Hundred Seventy Eight Thousand Eight Hundred Ninety
and No/100 Dollars ($59,678,890.00).
(b) Each individual property listed on Exhibit A shall be allocated
such portion of the Purchase Price as is set forth opposite the common name of
such property on Exhibit B.
3. Property. "Property" means all of Seller's right, title and interest,
if any, in (a) the land described on Exhibit A (the "Land"); (b) all easements
and other related rights appurtenant to the Land (collectively,
"Appurtenances"); and (c) all of the buildings, structures, fixtures and other
improvements located on the Land (collectively, "Improvements").
4. Xxxxxxx Money Deposit. Contemporaneously with the execution and
delivery of this Agreement by Purchaser and Seller, Purchaser shall deposit Five
Million and No/100 Dollars ($5,000,000.00) (the "Xxxxxxx Money") with Seller by
federally insured wire transfer pursuant to wire transfer instructions provided
to Purchaser by Seller. The Xxxxxxx Money may be commingled with other funds of
Seller, and Seller shall not be obligated to hold the Xxxxxxx Money in an
interest bearing account. The Xxxxxxx Money shall be non-refundable for any
reason other than as expressly provided in, and subject to the terms of, Section
11(b)(i)(x) below.
5. Certain Covenants and Conditions.
(a) Seller and Purchaser acknowledge that a portion of the Property
that is commonly known as Casa Xxxx Rehab & Extended Care, Bradenton, Florida
("Casa Xxxx") is
ground leased by Seller pursuant to that certain Ninety-Nine Year Lease dated
June 1, 1982 between Alpha-Medical Land Corporation, as landlord, and Bradenton
Care Center, Limited, as tenant, as amended by Amendment to Lease Agreement
dated October 18, 1982, Consent and Estoppel Certificate dated June 1, 2000 and
Estoppel Certificate dated July 25, 2001 (collectively, the "Ground Lease"), and
that, pursuant to the terms of such Ground Lease, the ground lessor's consent
(the "Ground Lessor Consent") to the Assignment and Assumption Agreement, as
hereinafter defined, is required. Accordingly, each of Seller and Purchaser
agrees to use reasonable efforts to obtain the Ground Lessor Consent prior to
the Closing, as hereinafter defined, and that all costs and expenses incurred by
Seller or Purchaser in obtaining or attempting to obtain the Ground Lessor
Consent, whether incurred before or after Closing, shall be borne and paid by
Purchaser. Seller and Purchaser further agree that, if the Ground Lessor Consent
is not obtained on or prior to the Closing, then, notwithstanding anything to
the contrary contained in this Agreement:
(i) The Closing shall nevertheless occur without any abatement
of the Purchase Price and without any abatement of the amounts payable to Seller
at the Closing by the terms of the Termination Agreements, as hereinafter
defined;
(ii) The Assignment and Assumption Agreement and the Deed, as
hereinafter defined, relating to the Casa Xxxx property shall not be executed or
delivered at the Closing;
(iii) Instead of terminating at the Closing the master lease
between Seller and Purchaser as it relates to the Casa Xxxx property, such
master lease shall remain in effect as it relates to such Casa Xxxx property,
the other closing documents hereunder shall, as appropriate, be amended or not
delivered to reflect the continuation, rather than termination, of such master
lease relative to the Casa Xxxx property, and Seller and Purchaser shall amend
such master lease to reflect the following:
(A) The Base Rent and Current Rent attributable to the Casa
Xxxx property shall equal zero, but with Purchaser to continue to be responsible
to pay or perform all Additional Charges owing under such master lease relative
to the Casa Xxxx property, including, without limitation, all ground rent and
other sums or performance owing from the ground lessee to the ground lessor
under the Ground Lease;
(B) Subject to, and provided that Purchaser complies with,
the terms and conditions of the Ground Lease, nothing contained in the master
lease between Seller and Purchaser relating to the Casa Xxxx property shall
prevent or limit the sublease by Purchaser of, or creation by Purchaser of any
other encumbrance upon, the leasehold interest or subleasehold interest of
Purchaser in the Casa Xxxx property, and
(C) Upon the occurrence of an Event of Default under such
master lease, Seller shall have no right to exercise any remedies against
Purchaser's interests in the Casa Xxxx property with respect to such Event of
Default; provided, however, that (x) the amendment to such master lease made
pursuant to this subsection (C) shall not eliminate or limit
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Purchaser's obligations and liabilities under Section 24.1 of such master lease
as they relate to the Casa Xxxx property and (y) such limitation on Seller's
remedies for an Event of Default shall not apply to any Facility Default with
respect to the Casa Xxxx property resulting from the breach by Purchaser of any
of its obligations and liabilities under Section 24.1 of such master lease that
relate to the Casa Xxxx property;
(iv) After the Closing and until Purchaser delivers the
Acquisition Demand (as hereinafter defined), Seller and Purchaser shall continue
their aforesaid reasonable efforts to obtain the Ground Lessor Consent;
(v) At any time after the Closing and prior to obtaining the
Ground Lessor Consent, Seller shall, promptly upon receipt by Seller of written
demand from Purchaser therefor (the "Acquisition Demand"), exercise Seller's
right, pursuant to the terms of the Ground Lease, to acquire title to the ground
leased portion of the Casa Xxxx property in Seller's name, and promptly
thereafter convey such title to Kindred (or, if the ground lessor consents, and
such acquisition is occurring simultaneously with the completion of the Casa
Xxxx transactions contemplated hereby, as provided in subsection (vii) below,
acquire title to the ground leased portion of the Casa Xxxx property in the name
of Kindred or, at the written request of Purchaser, in the name of an affiliate
of Kindred or one of the SHM Entities as specified by Purchaser in such
request); provided, however, that the obligations of Seller contained in this
subsection (v) are expressly conditioned upon the performance by Purchaser of
the following obligations:
(A) Simultaneously with Purchaser's delivery of the
Acquisition Demand, Purchaser shall deposit in escrow with an escrow agent
mutually acceptable to Purchaser and Seller, pursuant to an escrow agreement
mutually acceptable to Purchaser and Seller, the full amount of the purchase
price of the ground leased portion of the Casa Xxxx property as determined
pursuant to the terms of the Ground Lease, or, if unavailable, by Seller's good
faith estimate, subject to Purchaser's reasonable approval;
(B) All costs of the acquisition (and subsequent
conveyance, if applicable) of the ground leased portion of the Casa Xxxx
property shall be borne by Purchaser and any such costs paid by Seller shall be
promptly reimbursed to Seller by Purchaser upon written demand by Seller
therefor; and
(C) Purchaser shall cooperate with Seller and take all
reasonable and appropriate steps requested by Seller to facilitate such
acquisition;
(vi) Purchaser hereby acknowledges and agrees that,
notwithstanding the assignment of the Ground Lease or the acquisition and/or
conveyance of the ground leased portion of the Casa Xxxx property as
contemplated by this Section 5(a), Purchaser's obligations and liabilities under
the terms of Section 24.1 of the master lease affecting the Casa Xxxx property
shall indefinitely survive; and
(vii) As soon as practicable after the earlier of (x) the date
the Ground Lessor Consent is obtained or (y) the date the acquisition referenced
in subsection (v) above is
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consummated, Seller and Purchaser shall complete the transactions contemplated
in this Agreement as they relate to the Casa Xxxx property in accordance with
the terms of this Agreement, including, without limitation, (1)(A) if subsection
(vii)(x) above is applicable, delivery of the Deed relative to the Casa Xxxx
property and exchange of the executed Assignment and Assumption Agreement or (B)
if subsection (vii)(y) above is applicable, delivery of such Deed (including
title to the Casa Xxxx land) and, in lieu of such exchange, Seller and Purchaser
shall take such steps as are reasonable and appropriate, at Purchaser's cost and
expense, to cause the Ground Lease to cease to exist and be terminated
simultaneously with the completion of the aforesaid acquisition relative to the
Casa Xxxx property, and (2) exchange of a Termination Agreement, and a MOL
Termination, each as hereinafter defined, and delivery of a Xxxx of Sale and
Assignment (as described in Section 8(a)(viii) below), relative to the Casa Xxxx
property.
(b) Purchaser agrees that a breach by Kindred (or any affiliate
designated by Purchaser to be the assignee of the Ground Lease) of the
assignee's obligations under the Assignment and Assumption Agreement and/or, if
applicable, by Purchaser of its obligations under any joinder related thereto
shall, for all purposes of the Amended and Restated Master Lease Agreement No. 2
dated April 20, 2001 between Seller and Purchaser, be deemed to constitute, and
be treated the same as, a breach by Purchaser of the Indemnity Agreement, as
defined in such master lease, and, upon expiration of the applicable cure period
referenced in Section 16.1(a) of such master lease, shall constitute an "Event
of Default", as defined in such master lease.
(c) It shall be a condition precedent to Purchaser's obligation to
proceed to Closing hereunder that Purchaser shall have obtained the approval of
its lenders (the "Lenders", and such approval shall be called "Lender Approval")
to the transactions contemplated by this Agreement, including, without
limitation, the Master Lease Amendments (as hereinafter defined) and the
Termination Agreements (as hereinafter defined) (collectively, the
"Transactions"). If, as of June 25, 2003 (the "Approval Date"), Purchaser has
not received Lender Approval, Purchaser may terminate this Agreement by delivery
of written notice to Seller not later than 5:00 p.m. (Chicago time) on the
Approval Date, which notice shall state the grounds of such termination. Upon
timely delivery of such notice of termination by Purchaser, this Agreement shall
immediately terminate, the Xxxxxxx Money shall be retained by Seller, and
neither Purchaser nor Seller shall have any further obligations or liabilities
hereunder except for those obligations and liabilities that expressly survive
termination. In the event that Purchaser does not deliver to Seller a timely
notice of termination pursuant to the terms of this subsection (c), Purchaser
shall be deemed to have obtained Lender Approval and to have forever waived the
condition precedent described in this subsection (c), and Purchaser shall be
obligated to proceed to Closing hereunder. Purchaser covenants and agrees to
notify Seller in writing immediately following its receipt of Lender Approval
(the "Lender Approval Notice").
(d) Contemporaneously with the execution and delivery of this
Agreement, Seller and Purchaser shall execute in triplicate a letter (the "AHCA
Letter") to the Florida Agency for Health Care Administration ("AHCA") in the
form of Exhibit K attached hereto, and, Purchaser shall obtain the signatures of
Senior Health Management LLC ("SHM") and certain of its affiliates (collectively
with SHM, the "SHM Entities") on the AHCA Letter. After
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obtaining the signatures of SHM and the other SHM Entities on the AHCA Letter,
Purchaser shall provide Seller with a fully executed original of the AHCA Letter
and shall then submit another original of the AHCA Letter to Xx. Xxxxxxx XxXxxx
at AHCA. Seller and Purchaser agree that: (i) the AHCA Letter is being executed
by Seller and Purchaser in advance of the Closing in an effort to facilitate the
Closing and to settle Seller's and Purchaser's existing dispute under the Master
Leases relative to Purchaser's efforts to sublease the facilities within the
Property that are located in Florida to the SHM Entities, (ii) neither the
execution of the AHCA Letter, nor the submission thereof to AHCA, nor the
contents of the AHCA Letter shall be used as evidence against either Seller or
Purchaser, or otherwise prejudice the respective rights of Seller or Purchaser,
in connection with their aforesaid existing dispute, and (iii) in the event
that, on or prior to the earlier of June 30, 2003 or the Closing, Purchaser
allows any of the SHM Entities or any of their affiliates to use, occupy,
possess, manage, operate or become licensed to use, occupy or operate any of the
facilities within the Property that are located in Florida, such occurrence
shall constitute a default by Purchaser under this Agreement.
6. Certain Representations and Warranties by Seller. Seller hereby
represents and warrants to Purchaser that (a) this Agreement has been duly
authorized, executed and delivered by Seller and is the legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with its terms,
(b) the execution and delivery of this Agreement by Seller does not violate any
provision of any agreement or judicial order to which Seller is a party or to
which Seller or, to the best of Seller's knowledge, the Property is subject, (c)
all the documents to be delivered by Seller at Closing will, at Closing, be duly
authorized, executed and delivered by Seller (and/or, if applicable, its
affiliates), will be the legal, valid and binding obligations of Seller (and/or,
if applicable, its affiliates), and be enforceable against Seller (and/or, if
applicable, its affiliates) in accordance with their respective terms, and the
execution and delivery thereof will not violate any provision of any agreement
or judicial order to which Seller (and/or, if applicable, its affiliates) is a
party or, to the best of Seller's knowledge, to which the Property is subject,
(d) Seller has not entered into any agreement to sell all or any portion of the
Property (other than Purchaser, in certain limited circumstances as described in
the Master Leases), (e) to the best of Seller's knowledge, Seller is not
required to obtain the consent of any ground lessor, lender or other person or
entity to the Transactions hereby contemplated other than as described below,
(f) to the best of Seller's knowledge, the Ground Lease relative to the Casa
Xxxx property remains in full force and effect and a true and correct copy
thereof is attached hereto and made a part hereof as Exhibit L (and, in such
regard, Seller represents and warrants that, except as provided in the Consent
and Estoppel Certificate dated June 1, 2000 which is included in Exhibit L,
Seller has not entered in to any amendment of the Ground Lease since April 30,
1998), (g) Seller has not received any notice of default from the ground lessor
under the Ground Lease, (h) within the past 125 days, no lienable repair,
alteration, improvement, work, brokerage or service of any kind has been
performed or materials supplied for or to the Property at Seller's direction,
except for such lienable repairs, alterations improvements, work, brokerage or
services as have been paid for by Seller or for which, by the terms of the
Master Leases, Purchaser is obligated to reimburse Seller, and (i) there exists
no judgment against Seller that is a lien against the Property (other than any
such judgment as to which by the terms of the Master Leases or the 1998 Plan of
Reorganization referenced therein or documents executed pursuant to such plan,
Seller is entitled to be
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indemnified by Purchaser); provided, however, that, relative to, and in
limitation of, the foregoing representations and warranties, Purchaser
acknowledges that, as provided in Section 5(a) above, the consent of the ground
lessor under the Ground Lease is required and further that the Lender Approval
is required and that, as of the date hereof, neither such ground lessor consent
nor the Lender Approval has been obtained. All representations and warranties
made by Seller in this Section 6 shall be true and correct on the date made and
their continued validity as to any material fact as of the Closing Date shall be
a condition precedent to Purchaser's obligation to close the Transactions hereby
contemplated, and at the Closing Seller shall execute and deliver to Purchaser a
certification that its representations and warranties contained in this Section
6 remain true and correct in all material respects as of the Closing Date,
except insofar as any such representation or warranty is no longer true or
correct due to the acts or omissions of Purchaser or to the obtaining, after the
date hereof, of knowledge not known to Seller as of the date hereof.
7. Certain Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to Seller as follows:
(a) (i) This Agreement has been duly authorized, executed and
delivered by Purchaser and is the legal, valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms, (ii) the
execution and delivery of this Agreement by Purchaser does not violate any
provision of any agreement or judicial order to which Purchaser is a party or to
which Purchaser or, to the best of Purchaser's knowledge, the Property is
subject, (iii) all the documents to be delivered by Purchaser at closing will,
at closing, be duly authorized, executed and delivered by Purchaser (and/or, if
applicable, its affiliates), will be the legal, valid and binding obligations of
Purchaser (and/or, if applicable, its affiliates), and be enforceable against
Purchaser (and/or, if applicable, its affiliates) in accordance with their
respective terms, and the execution and delivery thereof will not violate any
provision of any agreement or judicial order to which Purchaser (and/or, if
applicable, its affiliates) is a party or, to the best of Purchaser's knowledge,
to which the Property is subject, (iv) to the best of Purchaser's knowledge,
Purchaser is not required to obtain the consent of any ground lessor, lender or
other person or entity to the Transactions hereby contemplated other than as
described below, (v) to the best of Purchaser's knowledge, the Ground Lease
relative to the Casa Xxxx property remains in full force and effect and a true
and correct copy thereof is attached hereto and made a part hereof as Exhibit L,
and (vi) Purchaser has not received any notice of default from the ground lessor
under the Ground Lease; provided, however, that, relative to, and in limitation
of, the foregoing representations and warranties, Seller acknowledges that, as
provided in Section 5(a) above, the consent of the ground lessor under the
Ground Lease is required and further that the Lender Approval is required and
that, as of the date hereof, neither such ground lessor consent nor the Lender
Approval has been obtained.
(b) Upon Closing of the Transactions, Purchaser intends to hold the
nursing centers comprising the Property for the purpose of disposing of them,
and only until they are disposed of, in one or more sale transactions, in a
manner consistent with the letter sent on behalf of Purchaser to the Federal
Trade Commission relative to the Transactions. During the interim
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period prior to completion of such disposition(s), Purchaser will (i) continue
to operate such nursing centers and/or (ii) lease such nursing centers to a
third party that will operate them.
All representations and warranties made by Purchaser in this Section 7
shall be true and correct on the date made and their continued validity as to
any material fact as of the Closing Date shall be a condition precedent to
Seller's obligation to close the Transactions hereby contemplated, and at the
Closing Purchaser shall execute and deliver to Seller a certification that its
representations and warranties contained in this Section 7 remain true and
correct in all material respects as of the Closing Date, except insofar as any
such representation or warranty is no longer true or correct due to the acts or
omissions of Seller or to the obtaining, after the date hereof, of knowledge not
known to Purchaser as of the date hereof.
8. Closing. The closing of the sale of the Property and the amendment of
the Master Leases pursuant to the Master Lease Amendments ("Closing") shall take
place at 10:00 a.m. (New York time) at the office of Xxxxxx Xxxxxxxx Xxxxx &
Xxxxxxxx at Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx or at another place mutually
agreed upon by the parties, on a date ("Closing Date") not later than June 30,
2003, provided, however, that, notwithstanding the foregoing or anything to the
contrary contained in this Agreement, in the event the Closing has not occurred
by June 30, 2003, Seller or Purchaser may, at its option, provided and on the
condition that the failure of such Closing to occur by such date is not due to a
default by it in the performance of its obligations under this Agreement, elect
to terminate this Agreement by delivery of written notice of termination to the
other party, upon which delivery, this Agreement shall immediately terminate,
the Xxxxxxx Money shall be retained by Seller (unless the failure of the Closing
to occur by June 30, 2003 is due to a default by Seller in the performance of
its obligations under this Agreement, in which event the Xxxxxxx Money shall be
returned to Purchaser), and neither Purchaser nor Seller shall have any further
obligations or liabilities hereunder except for those obligations and
liabilities that expressly survive termination. Notwithstanding the foregoing,
the parties need not attend the Closing in person and shall have the right to
close the transaction contemplated by this Agreement pursuant to written closing
escrow instructions, so long as such instructions are consistent with the terms
hereof.
(a) Seller Closing Documents. At the Closing, Seller shall, subject to
the terms of Sections 5(a) and 5(b) above, execute and deliver, or cause to be
executed and delivered, to Purchaser the following documents:
(i) With respect to each of the properties described on Exhibit A
that is located in Florida, a deed in the form of Exhibit C (the "Florida
Deeds") in favor of Kindred or, at the written request of Purchaser, in favor of
one or more affiliates of Kindred, and/or one or more of the SHM Entities,
designated in writing by Purchaser;
(ii) With respect to the property described on Exhibit A that is
located in Texas, a deed in the form of Exhibit D (the "Texas Deed", and
together with the Florida Deeds, collectively, the "Deeds") in favor of Kindred
or, at the written request of Purchaser, in favor of an affiliate of Kindred
designated in writing by Purchaser;
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(iii) With respect to that portion of the Property that is
commonly known as Casa Xxxx Rehab & Extended Care, Bradenton, Florida and that
is ground leased by Seller, an Assignment and Assumption of Ground Lease in the
form of Exhibit E, executed in counterpart by Seller (the "Assignment and
Assumption Agreement") and in favor of Kindred or, at the request of Purchaser,
an affiliate of Kindred, or one of the SHM Entities, designated in writing by
Purchaser (in such latter case of an assignment to an affiliate of Kindred or
one of the SHM Entities, Purchaser shall, by a written joinder, agree to
guaranty to Seller the assignee's indemnity and other obligations under such
Assignment and Assumption Agreement);
(iv) A certification of non-foreign status in the form of
Exhibit F;
(v) Partial Lease Termination Agreements in the form of
Exhibits G-1, G-2, G-3 and G-4 (collectively, the "Termination Agreements"),
executed in counterpart by Seller;
(vi) A Termination of Memorandum of Lease with respect to each
of the properties listed on Exhibit A, in substantially the form of Exhibit H
(collectively, the "MOL Terminations"), executed in counterpart by Seller;
(vii) Amendments to each of the Master Leases referred to in the
Termination Agreements, and to the Master Lease Agreement dated December 12,
2001 between Seller and Purchaser, in the form of Exhibits I-1, I-2, I-3, I-4
and I-5 (collectively, the "Master Lease Amendments"), executed in counterpart
by Seller or, in the case of the aforesaid Master Lease Agreement dated December
12, 2001, by Ventas Finance I, LLC;
(viii) With respect to each of the properties described on
Exhibit A, a Xxxx of Sale and Assignment in the form of Exhibit J, in favor of
Kindred, or, at the written request of Purchaser, in favor of one or more
affiliates of Kindred, and/or one or more of the SHM Entities, designated in
writing by Purchaser and, if and to the extent Seller owns and possesses any of
the "Personal Property" referenced therein, Seller shall deliver the same to
Purchaser; and
(ix) A legal opinion executed by Seller's internal counsel, in
form and substance reasonably acceptable to Purchaser, opining that this
Agreement and the documents executed and delivered by Seller and, if applicable,
its affiliates pursuant to the terms of this Agreement have been duly
authorized, executed and delivered by, and are legal, valid and binding
obligations of, such signatory(ies).
(b) Purchaser Closing Documents. At the Closing, Purchaser shall,
subject to the terms of Sections 5(a) and 5(b) above, execute and deliver, or
cause to be executed and delivered, to Seller the following documents:
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(i) the Assignment and Assumption Agreement, executed in
counterpart by Kindred (or, if Purchaser designates one of its affiliates as
assignee, Kindred's affiliate designee, as assignee, and Purchaser, as joinder
party);
(ii) the Termination Agreements, executed in counterpart by
Purchaser and consented to, in counterpart, by each of Purchaser's Lenders;
(iii) the MOL Terminations, executed in counterpart by Purchaser;
(iv) the Master Lease Amendments, executed in counterpart by
Purchaser and consented to, in counterpart, by each of Purchaser's Lenders; and
(v) a legal opinion executed by Purchaser's internal counsel, in
form and substance reasonably acceptable to Seller, opining that this Agreement
and the documents executed and delivered by Purchaser and, if applicable, its
affiliates pursuant to the terms of this Agreement have been duly authorized,
executed and delivered by, and are legal, valid and binding obligations of, such
signatory(ies).
(c) Amounts to be Paid at Closing. At the Closing, Purchaser shall pay
to Seller, by federally insured wire transfer, the total amount of the Purchase
Price minus the amount of the Xxxxxxx Money, which Xxxxxxx Money shall be
credited against the Purchase Price and retained by Seller. In addition to the
Purchase Price, and as a condition to Seller's obligation to close, Purchaser
shall pay to Seller all amounts required to be paid by Purchaser pursuant to the
terms of the Termination Agreements.
(d) Further Assurances. Seller and Purchaser shall, at the Closing,
and from time to time thereafter, upon request, execute such additional
documents as are reasonably necessary in order to convey, assign and transfer
the Property pursuant to this Agreement and otherwise complete the Transactions
contemplated by this Agreement, provided that such documents are consistent with
the terms of this Agreement, and do not increase Seller's or Purchaser's
obligations hereunder or subject Seller or Purchaser to additional liability not
otherwise contemplated by this Agreement. Additionally, if this Agreement is
terminated, either party may request from time to time thereafter confirmation
of such termination from the other party, upon which request, the non-requesting
party shall promptly confirm to the requesting party in writing (by a recordable
instrument if requested by the requesting party) that this Agreement has been
terminated.
(e) Cooperation. Purchaser has informed Seller that, at or after the
Closing, Purchaser intends to attempt to sell or lease the Property to one or
more of the SHM Entities or another third party or parties (each of the SHM
Entities or any such third party, a "Subsequent Purchaser/Lessee"). Seller
agrees to provide reasonable cooperation to Purchaser with respect to the
foregoing transactions, provided and on the conditions that any such cooperation
shall (i) be at no cost or expense to Seller, (ii) not expand or increase
Seller's covenants, representations, warranties, indemnities, obligations,
duties or liabilities under this Agreement or any document delivered hereunder,
(iii) not subject Seller to additional liability, covenants,
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representations, warranties, indemnities, obligations or duties not otherwise
contemplated hereby, (iv) not require Seller to make any representation,
warranty, covenant, agreement or indemnity that is inconsistent with, or broader
in scope than, the representations, warranties, covenants, agreements and
indemnities contained in this Agreement or the exhibits hereto, (v) not delay
the Closing Date, and (vi) be subject to the understanding and agreement of
Purchaser, which understanding and agreement is hereby acknowledged by
Purchaser, that Seller's cooperation (x) shall not prejudice any rights Seller
or Purchaser may have under the Master Leases, including, without limitation, in
the case of Seller, any rights Seller may have under the Master Leases to
disapprove of, or take other steps to oppose or prevent the consummation of, any
sublease transaction(s) that Purchaser may desire to enter into with any of the
SHM Entities or any other person or entity, (y) shall not be used by Purchaser
as evidence in any dispute between Seller and Purchaser involving any proposed
sublease transaction(s) with any of the SHM Entities or any other person or
entity, and (z) is being provided by Seller in an effort to settle existing
disputes between Seller and Purchaser involving such proposed sublease
transaction(s). Any instrument or document that Seller may be asked to execute
and/or deliver under this subsection (e) shall be in such form as Seller shall
deem appropriate, in its sole and absolute discretion.
9. Prorations and Adjustments.
Purchaser and Seller hereby acknowledge and agree that there shall be no
prorations or adjustments at Closing to the Purchase Price or to any amounts
required to be paid at the Closing pursuant to the Termination Agreements.
10. Closing Costs.
(a) Seller shall be responsible for the payment of the fees and costs
of Seller's counsel and investment advisors representing it in connection with
the Transactions.
(b) Purchaser shall be responsible for the payment of (i) the fees and
costs of Purchaser's counsel and investment advisors representing it in
connection with the Transactions, and (ii) subject to subsection (a) above, all
recording fees, transfer taxes, intangible taxes, documentary stamp taxes and
title insurance costs, and all other fees, costs and expenses, incurred by
either Seller or Purchaser in connection with the Transactions. At Seller's
request, Purchaser shall pay at Closing all of the fees, taxes, costs and
expenses referenced in subsection (b)(ii) hereof.
11. Remedies.
(a) Purchaser Default.
(i) If Purchaser fails to perform any of its obligations under
this Agreement which are required to be performed at or prior to the Closing
(including, without limitation, the payment of the balance of the Purchase Price
and the payment of any amounts required to be paid by the terms of the
Termination Agreements) ("Purchaser Default"), then Seller shall have the right,
as its sole and exclusive remedy for such failure, to terminate this
10
Agreement by delivering written notice thereof to Purchaser, in which event (x)
subject to subsection (y) below, the Xxxxxxx Money shall be retained by Seller
as liquidated damages or (y) in the event the Purchaser Default is due to a
default by Purchaser under Section 5(d)(iii) hereof, the Xxxxxxx Money shall be
retained by Seller and Purchaser shall be obligated immediately to pay to Seller
an additional Five Million Dollars ($5,000,000.00) as liquidated damages. SELLER
AND PURCHASER AGREE THAT SELLER'S ACTUAL DAMAGES IN THE EVENT OF A PURCHASER
DEFAULT ARE UNCERTAIN AND DIFFICULT TO ASCERTAIN, AND THAT THE XXXXXXX MONEY (OR
THE XXXXXXX MONEY PLUS $5,000,000.00, IF SUBSECTION (y) ABOVE IS APPLICABLE) IS
A REASONABLE ESTIMATE OF SELLER'S DAMAGES.
SELLER'S INITIALS: /s/ TRR PURCHASER'S INITIALS: /s/ RAL
--------------- --------------
(ii) Notwithstanding the foregoing, in the event the Closing
hereunder occurs and Purchaser fails to perform an obligation under this
Agreement (arising either before or after the Closing) and such obligation
expressly survives the Closing pursuant to the terms hereof, then Seller shall
have all rights and remedies at law, in equity or under this Agreement,
including, without limitation, the right to xxx for damages (excluding, however,
special, punitive or consequential damages).
(b) Seller Default.
(i) If Seller fails to perform any of its obligations under this
Agreement which are required to be performed at or prior to the Closing
(including, without limitation, subject to Sections 5(a) and 5(b) hereof, the
delivery of the Deeds and the Assignment and Assumption Agreement), then
Purchaser shall have the right, as its sole and exclusive remedy for such
failure, to either (x) terminate this Agreement by delivering written notice
thereof to Seller, in which event the Xxxxxxx Money shall be promptly returned
to Purchaser and neither party shall have any further obligations or liabilities
hereunder except for those liabilities and obligations that expressly survive
termination, or (y) specifically enforce the terms of this Agreement.
(ii) Notwithstanding the foregoing, in the event the Closing
hereunder occurs and Seller fails to perform an obligation under this Agreement
(arising either before or after the Closing) and such obligation expressly
survives the Closing pursuant to the terms hereof, then Purchaser shall have all
rights and remedies available at law, in equity or under this Agreement,
including, without limitation, the right to xxx for damages (excluding, however,
special, punitive or consequential damages).
(c) Collection Costs. If any legal action, arbitration or other
similar proceeding is commenced to enforce or interpret any provision of this
Agreement, the prevailing party shall be entitled to an award of its attorneys'
fees and expenses. The phrase "prevailing party" shall include a party who
receives substantially the relief desired whether by dismissal, summary
judgment, judgment or otherwise. In the event that Seller is entitled to an
award of its attorneys' fees and expenses pursuant to the terms of this Section
11(c), such award shall be in
11
addition to the liquidated damages to which Seller may be entitled pursuant to
the terms of Section 11(a) above.
(d) Survival.
(i) Closing. None of the terms and conditions of this Agreement
shall survive the Closing, except Sections 2(b), 4, 5(a), 5(b), 5(d), 6, 7,
8(d), 8(e), 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18.
(ii) Termination. None of the terms and conditions of this
Agreement shall survive the termination of this Agreement, except Sections 4,
5(a) (as it relates to Purchaser's responsibility for costs and expenses), the
third sentence of 5(c), 5(d) (except that 5(d)(iii) shall survive only through
June 30, 2003), 6, 7, 8(d), 8(e), 10, 11, 12, 14(b), 15, 16, 17 and 18.
(e) Relation to Master Leases. Without limitation of Section 14 below,
Seller and Purchaser agree that the remedies described in this Agreement,
including, without limitation, the liquidated damages remedies referenced above,
(i) constitute remedies of the parties under this Agreement only in their
respective capacities as Seller and Purchaser hereunder, (ii) shall not
constitute, or be deemed to constitute, remedies under any of the Master Leases,
(iii) shall not preclude any party to any of the Master Leases from exercising
any right or remedy available to it under any of the Master Leases (even if
remedies are enforced or collected upon under this Agreement), and (iv) shall
not limit the damage remedies or other rights or remedies of any party to any of
the Master Leases under any of the Master Leases (even if remedies are enforced
or collected upon under this Agreement) and that the determination by Seller or
Purchaser of whether or not, based upon the occurrence of certain events or the
existence of certain circumstances, a default by the other party has occurred
under this Agreement shall be made independently of, and have no bearing or
impact upon, the determination by a party to one of the Master Leases of whether
or not, based upon the same events or circumstances, a default by another party
to such Master Lease has occurred under such Master Lease.
12. Brokers. Each of Seller and Purchaser represents to the other that it
has not engaged or dealt with any broker, finder or investment advisor in
connection with the sale of the Property or the other Transactions contemplated
by this Agreement other than investment advisor(s) retained by it and covenants
to pay any fees or other amounts owing to its investment advisor(s) on account
of this Agreement or the Transactions. Seller and Purchaser shall indemnify,
hold harmless and defend the other, its affiliates, and its and their officers,
directors, affiliates, agents and employees, against and from all claims,
demands, causes of action, judgments, and liabilities (including, without
limitation, reasonable attorneys' fees and costs) which arise from a breach of
such parties' respective representations and covenants set forth in this Section
12.
13. Casualty and Condemnation. If, prior to Closing, any of the
Improvements are damaged or destroyed, or a condemnation proceeding is commenced
against any part of the Property ("Casualty or Condemnation"), then at the
Closing, Seller shall pay to Purchaser all
12
insurance proceeds and condemnation awards, if any, paid to Seller in connection
with such Casualty or Condemnation which have not been used to restore the
Property, and Seller shall assign to Purchaser all of Seller's right, title and
interest in any insurance proceeds or condemnation awards to be paid to Seller
in connection with the Casualty or Condemnation.
14. Certain Warranties; Disclaimer and Release.
(a) Notwithstanding anything to the contrary contained in this Section
14, the purchase, sale and conveyance of the Property shall be made with the
limited warranties from Seller to Purchaser contained in the Deeds and the
Assignment and Assumption Agreement.
(b) Disclaimer. Purchaser agrees that Purchaser is purchasing the
Property in "AS IS", "WHERE IS", "WITH ALL FAULTS" condition, and, subject to
Section 6 above and to subsection (a) above, without any warranties,
representations or guarantees, either express or implied, of any kind, nature,
or type whatsoever from, or on behalf of, Seller. Without in any way limiting
the generality of the immediately preceding sentence, Purchaser further
acknowledges and agrees that, in entering into this Agreement and closing the
Transactions hereunder, subject to Section 6 above and to subsection (a) above:
(i) Each of Seller and its affiliates, and its and their
officers, directors, employees and agents, expressly disclaims, has not made,
will not, and does not, make, any warranties or representations, express or
implied, with respect to the Property or any portion thereof, the physical
condition or repair or disrepair thereof, the value, profitability or
marketability thereof or the title thereto, or of any of the appurtenances,
facilities or equipment thereon;
(ii) Each of Seller and its affiliates, and its and their
officers, directors, employees and agents, expressly disclaims, has not made,
will not, and does not, make, any warranties, express or implied, of
merchantability, habitability or fitness for a particular use;
(iii) As the tenant (or subtenant, as applicable) at the
Property, Purchaser has had complete and sole possession of the Property since,
at the latest, May 1, 1998, and has accordingly had the opportunity to perform a
full investigation of the Property prior to the date hereof, and Purchaser is
fully satisfied with its opportunity to investigate the Property prior to the
date hereof;
(iv) Purchaser has not relied upon any statement or
representation by or on behalf of Seller unless such statement or representation
is specifically set forth in this Agreement; and
(v) As of the date hereof, Purchaser has made such legal,
factual and other inquiries and investigations as Purchaser has deemed
necessary, desirable or appropriate with respect to the Property and the value
and marketability thereof and of the appurtenances, facilities and equipment
thereof. Such inquiries and investigations of Purchaser are hereby deemed to
include, without limitation, the physical components of all portions of the
13
Improvements, the condition of repair of the Property or any portion thereof,
such state of facts as a current title report and/or an accurate survey would
show or disclose, and the present and future zoning, ordinances, resolutions and
regulations of the city, county and state where the Improvements are located.
(c) Release. Without in any way limiting the generality of the
preceding subsection (b), Purchaser specifically acknowledges and agrees that it
hereby waives, releases and discharges any claim it has, might have had, or may
have, against each of Seller and its affiliates, and its and their officers,
directors, employees and agents, relating to, arising out of or with respect to
(i) the condition of the Property, either patent or latent, (ii) Purchaser's
ability, or inability, to obtain or maintain temporary or final certificates of
occupancy or other licenses for the use or operation of the Improvements, and/or
certificates of compliance for the Improvements, (iii) the actual or potential
income, or profits, to be derived from the Property, (iv) the real estate, or
other, taxes or special assessments, now or hereafter payable on account of, or
with respect to, the Property, (v) Purchaser's ability or inability to demolish
the Improvements or otherwise develop the Property, (vi) the environmental
condition of the Property, (vii) any default or alleged default by Seller or its
affiliates with respect to the Property under any of the leases pursuant to
which Seller leased the Property to Purchaser, including without limitation, any
default or alleged default regarding the granting or withholding of Seller's
consent to any proposed sublease(s) with respect to all or any portion of the
Property or the obtaining of any required governmental licenses, permits or
approvals in connection with any such proposed sublease(s), or (viii) any other
matter relating to the Property.
15. General Provisions.
(a) Entire Agreement. This Agreement and exhibits hereto constitute
the entire agreement of Seller and Purchaser with respect to sale of the
Property and amendment of the master leases pursuant to the Master Lease
Amendments and supersede all prior or contemporaneous written or oral
agreements, whether express or implied, related to the subject matter hereof.
(b) Amendments. This Agreement may be amended only by a written
agreement executed and delivered by Seller and Purchaser.
(c) Waivers. No waiver of any provision or condition of, or default
under, this Agreement by any party shall be valid unless in writing signed by
such party. No such waiver shall be taken as a waiver of any other or similar
provision or of any future event, act, or default.
(d) Time. Time is of the essence of this Agreement. In the computation
of any period of time provided for in this Agreement or by law, the day of the
act or event from which the period of time runs shall be excluded, and the last
day of such period shall be included, unless it is not a Business Day, in which
case it shall run to the next day which is a Business Day. For the purpose of
this Agreement, the term "Business Day" means any day other than (i) Saturday,
14
(ii) Sunday, or (iii) any other day when federally insured banks in Chicago,
Illinois or New York, New York are required or authorized to be closed.
(e) Unenforceability. In the event that any provision of this
Agreement shall be unenforceable in whole or in part, such provision shall be
limited to the extent necessary to render the same valid, or shall be excised
from this Agreement, as circumstances require, and this Agreement shall be
construed as if said provision had been incorporated herein as so limited, or as
if said provision has not been included herein, as the case may be.
(f) Assignment. This Agreement may not be assigned by Purchaser or
Seller without the prior express written consent of the other party, which
consent may be given or withheld in such party's sole and absolute discretion.
(g) Notices. Any notices or other communications permitted or required
to be given hereunder shall be in writing, shall be delivered personally, by
reputable overnight delivery service, or by fax (provided a hard copy is
delivered on the next Business Day by personal delivery or reputable overnight
delivery service), and shall be addressed to the respective party as set forth
in this subsection (g). All notices and communications shall be deemed given and
effective upon receipt thereof.
To Seller: Ventas Realty, Limited Partnership
c/o Ventas, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: T. Xxxxxxx Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
With copies to: Ventas Realty, Limited Partnership
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
and
Barack Xxxxxxxxxx Xxxxxxxxxx
Xxxxxxx & Xxxxxxxxx LLC
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Page, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
15
To Purchaser: Kindred Healthcare, Inc. and
Kindred Healthcare Operating, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
With copies to: Kindred Healthcare, Inc. and
Kindred Healthcare Operating, Inc.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx Xxxxxxxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
and
Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
(h) Governing Law. This Agreement shall be governed in all respects by
the internal laws of the State of Florida without regard to the laws regarding
conflicts of laws.
(i) Counterparts. This Agreement may be executed in any number of
identical counterparts, any or all of which may contain the signatures of less
than all of the parties, and all of which shall be construed together as a
single instrument.
(j) Construction. Seller and Purchaser agree that each party and its
counsel have reviewed and approved this Agreement, and that any rules of
construction that provide that ambiguities be resolved against the drafting
party shall not be used in the interpretation of this Agreement or any
amendments or exhibits hereto. The words "include", "including", "includes" and
any other derivation of "include" means "including, but not limited to" unless
specifically set forth to the contrary. As used in this Agreement, the neuter
shall include the feminine and masculine, the singular shall include the plural,
and the plural shall include the singular, except where expressly provided to
the contrary. The words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section, subsection or other subdivision. Headings of sections herein are for
convenience of reference only, and shall not be construed as a part of this
Agreement. Except to the extent
16
expressly provided otherwise in this Agreement, references to "sections" or
"subsections" in this Agreement shall refer to sections and subsections of this
Agreement, and references to "exhibits" in this Agreement shall mean exhibits
attached to this Agreement.
(k) No Recording. Purchaser shall not, and shall not cause or permit
any other person to, record this Agreement or any memorandum or other evidence
thereof in any public records. If Purchaser violates the terms of this
subsection (k), then this Agreement shall be deemed ipso facto terminated and
the Xxxxxxx Money shall be retained by Seller.
(l) Obligations Joint and Several. Purchaser acknowledges that each
entity constituting Purchaser shall be jointly and severally liable for any and
all obligations of Purchaser hereunder or under any instrument executed by
Purchaser pursuant hereto.
(m) Public Announcement. Seller and Purchaser agree to cooperate with
each other to make joint and/or coordinated public announcements disclosing this
Agreement and the Transactions contemplated hereby.
16. DTPA WAIVER. TO THE EXTENT PERMITTED BY LAW, PURCHASER HEREBY WAIVES
ANY CLAIMS AND CAUSES OF ACTION ARISING PURSUANT TO THE PROVISIONS OF THE TEXAS
DECEPTIVE TRADE PRACTICES AND CONSUMER PROTECTION ACT, CHAPTER 17, SUBCHAPTER E,
SECTIONS 17.41 THROUGH 17.63, INCLUSIVE, TEXAS BUSINESS AND COMMERCE CODE.
PURCHASER HEREBY REPRESENTS AND WARRANTS TO SELLER THAT: (I) PURCHASER IS NOT IN
A SIGNIFICANTLY DISPARATE BARGAINING POSITION IN RELATION TO SELLER, (II)
PURCHASER IS REPRESENTED BY LEGAL COUNSEL IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, AND (III) PURCHASER IS PURCHASING THE PROPERTY
FOR BUSINESS, COMMERCIAL, INVESTMENT OR OTHER SIMILAR PURPOSES AND NOT FOR USE
AS PURCHASER'S RESIDENCE.
17. RELA ADMONITION. PURCHASER ACKNOWLEDGES THAT, AT THE TIME OF THE
EXECUTION OF THIS AGREEMENT, SELLER ADVISES PURCHASER BY THIS WRITING THAT
PURCHASER SHOULD HAVE AN ABSTRACT COVERING THE PROPERTY THAT IS THE SUBJECT OF
THIS AGREEMENT EXAMINED BY AN ATTORNEY OF PURCHASER'S OWN SELECTION, OR THAT
PURCHASER SHOULD BE FURNISHED WITH OR OBTAIN AN OWNER'S POLICY OF TITLE
INSURANCE.
18. Radon. Radon is a naturally occurring radioactive gas that, when it
has accumulated in a building in sufficient quantities, may present health risks
to persons who are exposed to it over time. Levels of radon that exceed federal
and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from public health
units of each of the counties in Florida in which the Property is located.
17
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
18
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
PURCHASER:
KINDRED HEALTHCARE, INC., a
Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Its: Senior Vice President,
Chief Financial Officer
and Treasurer
KINDRED HEALTHCARE
OPERATING, INC., a Delaware
corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Its: Senior Vice President,
Chief Financial Officer
and Treasurer
SELLER:
VENTAS REALTY, LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Ventas, Inc.
Its: Sole General Partner
By: /s/ T. Xxxxxxx Xxxxx
------------------------
Name: T. Xxxxxxx Xxxxx
Its: Executive Vice
President
S-1
EXHIBIT B
PURCHASE PRICE ALLOCATION
Property commonly known as: Allocated portion of the Purchase Price:
-------------------------- ---------------------------------------
1. Xxxxxxxxx Xxxxx (#000-XX0) $ 4,094,496
2. Healthcare & Rehab Center of Xxxxxxx (#124-ML3) $ 2,262,099
3. Titusville Rehab & Nursing Center (#125-ML2) $ 2,799,719
4. Bay Pointe Nursing Pavilion (#245-ML2) $ 3,981,563
5. Xxxxxxx Court (#268-ML4) $ 5,142,469
6. Carrollwood Care Center (#372-ML3) $ 2,942,085
7. Evergreen Xxxxx Health & Rehab (#637-ML4) $ 2,461,777
8. Rehab & Healthcare Center of Tampa (#836-ML2) $ 6,483,615
9. Rehab & Healthcare Center of Cape Coral (#837-ML2) $ 3,534,614
10. Windsor Xxxxx Convalescent Center (#922/181-ML3) $ 2,921,974
11. Casa Xxxx Rehab & Extended Care (#1217-ML2) $ 5,686,260
12. North Broward Rehab & Nursing Center (#1218-ML4) $ 7,041,939
13. Highland Pines Rehab Center (#1220-ML3) $ 2,111,376
14. Pompano Rehab & Nursing Center (#1232-ML4) $ 3,671,403
15. The Abbey Rehab & Nursing Center (#1233-ML4) $ 2,787,993
16. San Xxxxx Xxxxx (#1234-ML4) $ 1,755,508
-----------
TOTAL $59,678,890
-----------
B-1
