November 18, 2005 Pearl Senior Care, Inc. 140 Pacific Avenue San Francisco, CA 94111 Geary Property Holdings LLC 140 Pacific Avenue San Francisco, CA 94111 Beverly Enterprises, Inc. Attention: Douglas J. Babb, Esq. One Thousand Beverly Way Ft. Smith,...
Exhibit 99.1
FILLMORE STRATEGIC INVESTORS, L.L.C.
000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000 Fax: (000) 000-0000
000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000 Fax: (000) 000-0000
November 18, 2005
Pearl Senior Care, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Geary Property Holdings LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Xxxxxxx Enterprises, Inc.
Attention: Xxxxxxx X. Xxxx, Esq.
One Thousand Xxxxxxx Xxx
Xx. Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Esq.
One Thousand Xxxxxxx Xxx
Xx. Xxxxx, XX 00000
Ladies and Gentlemen:
This letter agreement (this “Agreement”) sets forth the commitments of Fillmore
Strategic Investors, L.L.C. (the “Sponsor”), subject to the terms and conditions contained
herein, to purchase certain securities of Geary Investors, LLC (“Xxxxx”) and/or Xxxxx
Property Holdings LLC (“GPH”) in connection with the acquisition of Xxxxxxx Enterprises,
Inc. (the “Company”) by Pearl Senior Care, Inc. (“Parent”) (the
“Transaction”). The Transaction will occur pursuant to the Agreement and Plan of Merger by
and among SBEV Property Holdings, North American Senior Care, Inc., NASC Acquisition Corp., and
Xxxxxxx Enterprises, Inc. originally dated as of August 16, 2005, as amended by that certain First
Amendment thereto dated as of August 23, 2005, and as further amended by that certain Second
Amendment thereto dated as of September 22, 2005 and as further amended by that certain Third
Amendment thereto, by and among the previously stated parties as well as GPH, Parent, and PSC Sub,
Inc. (the “Merger Sub”), dated on or about the date hereof (the “Merger
Agreement”). Unless otherwise defined herein all capitalized terms used herein shall have the
meanings set forth in the Merger Agreement.
1. Commitment. The Sponsor hereby agrees, subject to the terms and conditions set
forth herein, to purchase, directly or indirectly, immediately prior to the consummation of the
Merger, common stock and preferred stock of Parent or LLC interests of GPH (the “Equity
Securities”) for aggregate consideration of $350 million (the “Commitment Amount”)
and to cause Parent and/or GPH, as the case may be, to make the proceeds of such purchase available
as consideration to be paid in the Merger. The Commitment Amount shall be reduced by the sum of
(i) the $10 million deposit made by Parent and/or Merger Sub under the Merger Agreement prior to
the date hereof and, (ii) any and all amounts drawn or drawable by the Company under the letter of
credit deposited by Parent and/or Merger Sub with the Company under the Merger Agreement
concurrently with the execution of this Agreement.
Pearl Senior Care, Inc.
Xxxxx Property Holdings LLC
Xxxxxxx Enterprises, Inc.
November 18, 2005
Xxxxx Property Holdings LLC
Xxxxxxx Enterprises, Inc.
November 18, 2005
2. Conditions. Subject to the foregoing, the Sponsor’s commitments hereunder to fund
the purchase of the Equity Securities shall be subject only to (i) the satisfaction of each of the
conditions to the obligations of Parent and Merger Sub to consummate the Merger pursuant to the
Merger Agreement and (ii) the consummation of the financing contemplated by the Debt Commitment
Letters.
3. Commercially Reasonable Efforts. The Sponsor will use its commercially reasonable
efforts to cause (i) the satisfaction of all conditions to the consummation of the Merger contained
in the Merger Agreement and (ii) the consummation of the financing contemplated by the Debt
Commitment Letters.
4. Termination. This Agreement will be effective on the date hereof and will expire,
unless otherwise expressly agreed to by Sponsor in its sole discretion, on the earlier of (i) the
termination of the Merger Agreement or (ii) the date that is one day after the consummation of
Merger contemplated by the Merger Agreement; provided that the termination of this
Agreement will not relieve the Sponsor from any liability in respect of any breach hereof prior to
such termination.
5. Sole Beneficiaries. The Sponsor’s commitments and covenants hereunder are provided
for the sole benefit of Parent, Merger Sub, Xxxxx, GPH and the Company and shall not benefit, or be
assumed to, any other person without the Sponsor’s prior written consent.
6. No Modification; Entire Agreement. No modification of this Agreement shall be
binding upon or enforceable against the Sponsor without its prior written approval. This Agreement
represents the entire agreement among us with respect to the matters set forth herein, and shall
replace and supersede any and all prior discussions and written communications regarding such
matters. This Agreement shall not be amended without the prior written consent of the Company,
Parent, Xxxxx and GPH.
7. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the Laws of the State of Delaware, without regard to conflict of law principles that would
result in the application of any law other than the law of the State of Delaware.
8. Injunctions; Consent to Jurisdiction. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is accordingly agreed
that the Company, Parent, Xxxxx and GPH shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and provisions of this
Agreement, in addition to any other remedy to which they are entitled at law or in equity. Any
legal action, suit or proceeding arising out of or relating to this Agreement or the transactions
provided for herein shall be brought solely in the Chancery Court of the State of Delaware;
provided, that if (and only after) such courts determine that they lack subject matter jurisdiction
over any such legal action, suit or proceeding, such legal action, suit or proceeding shall be
Pearl Senior Care, Inc.
Xxxxx Property Holdings LLC
Xxxxxxx Enterprises, Inc.
November 18, 2005
Xxxxx Property Holdings LLC
Xxxxxxx Enterprises, Inc.
November 18, 2005
brought in the Federal courts of the United States located in the State of Delaware; provided,
further, that if (and only after) both the Chancery Court of the State of Delaware and the Federal
courts of the United States located in the State of Delaware determine that they lack subject
matter jurisdiction over any such legal action, suit or proceeding, such legal action, suit or
proceeding shall be brought in the United States District Court for the Southern District of New
York. Each party to this Agreement hereby irrevocably submits to the exclusive jurisdiction of
such courts in respect of any legal action, suit or proceeding arising out of or relating to this
Agreement or the transactions provided for herein, and hereby waives, and agrees not to assert as a
defense in any such action, suit or proceeding, any claim that it is not subject personally to the
jurisdiction of such courts, that the action, suit or proceeding is brought in an inconvenient
forum, that the venue of the action, suit or proceeding is improper or that this Agreement or the
transactions provided for herein may not be enforced in or by such courts. In addition, each of
the parties waives any right to trial by jury with respect to any claim or proceeding related to or
arising out of this Agreement or any of the transactions provided for herein.
9. Notices. All notices and other communications hereunder shall be in writing and
shall be given by hand delivery, by telex, telccopier, overnight courier or by mail (registered or
certified mail, postage prepaid, return receipt requested) to the Sponsor as follows:
Fillmore Strategic Investors, L.L.C.
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
With a copy to (which shall not constitute notice to the Sponsor):
Dechert LLP
One Market
0 Xxxxxx Xxxxxx, Xxxxxxx Tower
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
One Market
0 Xxxxxx Xxxxxx, Xxxxxxx Tower
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
10. Confidentiality. None of Company, Parent, Geary, or GPH, or any of their
respective representatives or affiliates shall disclose to any third party the terms or existence
of this Agreement (other to their officers, directors, affiliates, advisors and other
representatives) without the prior written consent of the Sponsor, except as otherwise required by
law, including as may be required to be reported on a Current Report on Form 8-K filed by Company
with the SEC or in the Proxy Statement.
[Signature on the following page]
Pearl Senior Care, Inc.
Geary Property Holdings LLC
Xxxxxxx Enterprises, Inc.
November 18, 2005
Geary Property Holdings LLC
Xxxxxxx Enterprises, Inc.
November 18, 2005
Very truly yours, | ||||||
FILLMORE STRATEGIC INVESTORS, L.L.C. | ||||||
By: | Fillmore Strategic Management, LLC | |||||
By: | /s/ Xxxxxx X. Xxxxx | |||||
Name: Xxxxxx X. Xxxxx | ||||||
Title: Authorized Signatory |