PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made and entered into as of the 27th day of March, 2002
(the "Effective Date"), by and between ALCO XII, L.L.C., a Mississippi limited
liability company ("Seller") and Emeritus Corporation, a Washington corporation
("Purchaser").
RECITALS
A. Seller is the owner of that certain parcel of real property
described in Exhibit A attached hereto (the "Real Property") and the
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improvements thereon that constitute the 83 unit assisted living facility
commonly known as Loyalton of Hattiesburg located at 103 Fox Chase Street
Hattiesburg, Mississippi 39402 (the "Facility") and certain of the furniture,
fixtures and equipment therein. The Facility is currently leased to Purchaser
pursuant to that Lease dated June 10, 1998 by and between Seller and Purchaser,
as amended by that certain First Amendment to Lease dated as of March 1, 2001
(the lease, as amended, is hereinafter referred to as the "Lease").
B. Purchaser is interested in purchasing from Seller the Real Property
and Facility and furniture, fixtures and equipment therein which are owned by
Seller and Seller is willing to sell the same from Seller (the "Transaction").
C. Seller acknowledges and agrees that it has been advised by Purchaser
that it intends to finance the Transaction with the proceeds of a sale/leaseback
transaction with HCRI Mississippi Properties, Inc. ("HCRI") and Health Care
REIT, Inc. (the "HCRI Transaction").
D. Seller and Purchaser are interested in documenting the terms and
conditions of such sale and purchase.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants of the parties set forth herein, IT IS HEREBY AGREED AS FOLLOWS:
AGREEMENT
1. On the terms and conditions set forth herein, Seller shall sell to
Purchaser and Purchaser shall purchase from Seller the following:
(a) REAL PROPERTY AND FACILITY. All of Seller's right, title and
interest in and to the Real Property and the Facility together with all
tenements, hereditaments, rights, privileges, interests, easements and
appurtenances now or hereafter belonging or in any way pertaining to the Real
Property and/or the Facility.
(b) PERSONAL PROPERTY. All of Seller's right, title and interest in
and to any and all equipment, furniture, fixtures, appliances, tools,
instruments, and other tangible personal property owned by Seller as of the
Closing Date (as hereinafter defined) and located at and/or used in connection
with the operation of the Facility (the "Personal Property").
(c) BED RIGHTS. All of Seller's right, title and interest, if any, in
and to the 83 units which are currently operated at the Facility (the "Bed
Rights").
(d) MISCELLANEOUS PROPERTY. All of Seller's right, title and interest,
if any, in and to the following: all plans, drawings, surveys, applications to
governmental authorities regarding the Facility or any development thereof
(collectively, the "Plans"); all transferrable certificates of occupancy,
permits, licenses, authorization or approvals relating to the Facility
(collectively, the "Permits"); all leases and agreements, if any, to which
Seller is a party relating to the Facility (collectively, the "Leases"); all
general intangibles, intellectual property and other intangible property or
rights relating to the Facility, including without limitation the rights to all
telephone numbers, fictitious names, logos and trade marks used in connection
with the ownership or operations of the Facility (collectively, the "Intangible
Property"). The Plans, Permits, Leases and Intangible Property hereinafter
shall sometimes be referred to collectively as the "Miscellaneous Property."
Purchaser acknowledges and agrees that Seller is not the operator of the
Facility and accordingly that Seller is only conveying those rights, if any,
which Seller has in the Bed Rights and the Miscellaneous Property and that, in
fact, Seller may not have any rights in either the Bed Rights or the
Miscellaneous Property, and notwithstanding any provision herein to the
contrary, Seller makes no representation or warranty with respect to the
ownership of the Bed Rights or Miscellaneous Property
Hereinafter the Real Property, the Facility, the Personal Property,
Seller's rights, if any, in and to the Bed Rights and the Miscellaneous Property
shall sometimes be collectively referred to as "Seller's Assets."
Nothing herein shall be construed as imposing any liability on Purchaser
with respect to the ownership of the Seller's Assets prior to the Closing Date
(as hereinafter defined) except to the extent Purchaser has already assumed such
liability under the terms of the Lease.
2. PURCHASE PRICE.
The purchase price ("Purchase Price") payable by Purchaser for Seller's
Assets shall be Six Million Four Hundred Twenty Five Thousand and no/100 Dollars
($6,425,000.00) and shall be paid by wire transfer of immediately available
funds at Closing. The Purchase Price provided for herein assumes a pay-off
amount for the loan in favor of Medical Office Properties, Inc., as successor in
interest to Health Care Financial Partners, of $6,240,000.00 (the "Pay-Off
Amount"). The Purchase Price shall increase or decrease on a dollar for dollar
basis to the extent the actual Pay-Off Amount is greater than or less than
$6,240,000.00.
3. CLOSING.
(a) THE CLOSING DATE. Provided that all of the conditions to closing
set forth herein have been satisfied or waived, the Closing of the purchase and
sale under this Agreement (the "Closing") shall take place on March 29, 2002.
The date upon which the Closing actually occurs is referred to herein as the
Closing Date.
(b) THE CLOSING PROCESS. Closing shall occur through escrow and
accordingly, at or prior to the Closing Date, Purchaser and Seller shall deposit
in escrow with the Escrow Agent all documents and monies necessary to close this
transaction as herein provided. Closing of escrow shall also mean and include
the recording of the deed in the county where the Facility is located. Time is
of the essence of this Agreement. Closing shall occur in accordance with the
procedures and instructions given by Seller and Purchaser to the Escrow Agent
prior to Closing.
4. CONVEYANCES/DELIVERIES AT CLOSING.
(a) CONVEYANCES. At Closing, Seller shall deliver the Seller's Assets
to Purchaser free and clear of all liens and encumbrances other than those
described in Exhibit B (the "Permitted Encumbrances").
(b) SELLER'S CLOSING DELIVERIES. At Closing, Seller shall deliver the
following
documents to Escrow Agent for recording and/or delivery to Purchaser or HCRI the
following:
(i) A deed with respect to the Real Property and the Facility (the
"Deed"), in the form attached hereto as Exhibit C;
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(ii) Bills of Sale and Assignment Agreement with respect to the
Personal Property, the Bed Rights and the Miscellaneous Property, in the forms
attached hereto as Exhibit D;
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(iii) An affidavit executed by Seller under penalty of perjury, stating
Seller's United States taxpayer identification number and that Seller is not a
foreign person, in accordance with the Internal Revenue Code, Section
1445(b)(2), in the form attached hereto as Exhibit E;
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(v) A Lease Termination Agreement with respect to the Lease, in the
form attached hereto as Exhibit F (the "LTA").
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Seller acknowledges and agrees that it has been advised by Purchaser that
it intends to finance the Transaction with the proceeds of the HCRI Transaction.
Accordingly, Purchaser will have the right to designate HCRI to take title to
certain of the Seller's Assets and that certain of the documents described in
this Section 4(a) will run in favor of Purchaser and certain in favor of HCRI as
Purchaser's designee.
(b) PURCHASER'S DELIVERIES. At Closing Purchaser shall deliver or cause
to be delivered to Escrow Agent for recording and/or delivery to Seller:
(i) The cash due at Closing pursuant to Section 2;
(ii) The LTA.
5. CLOSING COSTS AND PRORATIONS.
At or prior to Closing, as appropriate, Seller and Purchaser shall be
responsible for the following costs and expenses of and prorations related to
the transaction:
(a) EXCISE TAXES; SALES TAX. Seller shall pay all state, county, local
and any other excise, documentary, transfer or any other such taxes due and
payable as a result of the conveyance of the Real Property and the Facility.
Purchaser shall pay any sales tax due and payable as a result of the sale of the
Personal Property.
(b) RECORDING FEES/ESCROW FEES. Seller shall pay the cost of recording
the Deed and any documents necessary to deliver title to Purchaser in accordance
with the terms of this Agreement. Purchaser shall pay all escrow fees due and
payable to Escrow Agent.
(c) TITLE INSURANCE. Purchaser shall pay the cost of the premium for an
extended coverage title insurance policy in the amount of the Purchase Price.
Purchaser shall pay for the cost of the survey required in order to secure such
extended coverage.
(d) PROPERTY TAXES. Purchaser shall pay all real and personal property
taxes due at Closing or thereafter coming due, whether the same relate to the
period prior to or after the Closing Date. In consideration therefor, Seller
shall deliver to Purchaser any tax escrow payments being held by Seller as of
the Closing Date.
(e) RENT AND OTHER PRORATIONS. Any rent due under the Lease which has
been paid by Purchaser prior to Closing for the month in which Closing occurs
shall be prorated as of the Closing Date. Purchaser acknowledges and agrees that
the Facility is currently leased to Purchaser under the terms of the Lease and
that, except for the rent payable to Seller under the Lease, Purchaser is and
will continue after Closing to be responsible for all costs and expenses and
entitled to all revenues associated with the ownership and operation of the
Facility and accordingly that as between Seller and Purchaser there shall be no
prorations at Closing for any such costs or expenses or revenues.
6. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller hereby warrants and represents to Purchaser that:
(a) AUTHORITY. Seller has full power and authority to execute and
deliver this Agreement and all related documents and to carry out the
transactions contemplated herein. This Agreement is valid, binding and
enforceable against Seller in accordance with its terms, except as such
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
and general principles of equity may limit enforceability. The execution of this
Agreement and the consummation of the transactions contemplated herein do not
result in a breach of the terms and conditions of nor constitute a default under
or violation of Seller's Operating Agreement or of any law, regulation, court
order, mortgage, note, bond, indenture, agreement, license (other than the
assisted living facility license in effect with respect to the Facility as to
which no representation or warranty is made by Seller), Permit or other
instrument or obligation to which Seller is now a party or by which Seller or
any of the assets of Seller may be bound or affected.
(b) NECESSARY ACTION. Prior to execution of this Agreement Seller has
obtained all consents and approvals necessary for it to lawfully enter into and
carry out the terms of this Agreement.
(c) LITIGATION. Seller has no knowledge that there are any actions,
suits, investigations or proceedings pending or threatened by or before any
court, administrative agency or other governmental authority or any arbitrator
against or relating to Seller with respect to its ownership of the Seller's
Assets. Seller has no knowledge that the transaction contemplated herein has
been challenged by any governmental agency or any other person, nor does Seller
know or have reasonable grounds to know, of any basis for any such actions,
suits or proceedings.
(d) STATUS OF SELLER. Seller is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Mississippi.
(E) SELLER'S COSTS. Seller represents and warrants that the Purchase Price
will be applied by Seller to pay the following costs incurred in connection with
Seller's ownership and development of the Seller's Assets:
Payoff of 1st mortgage held by Medical Office Properties, Inc. $6,240,000.00
Payoff of unsecured loan in the original principal amount of $125,000.00 in
favor of First Citizens Bank and to repay investors
$125,000.00
Legal Fees $50,000.00
Other Miscellaneous Costs and Expenses $10,000.00
7. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser hereby warrants and represents to Seller that:
(a) AUTHORITY. Purchaser has full power and authority to execute and
to deliver this Agreement and all related documents and to carry out the
transactions contemplated herein and the same do not result in a breach of the
terms and conditions of nor constitute a default under or violation of any law,
regulation, court order, mortgage, note, bond, indenture, agreement, license or
other instrument or obligation to which Purchaser is a party or by which
Purchaser or any of its assets may be bound or affected. This Agreement is
valid, binding and enforceable as against Purchaser in accordance with its
terms, except as such enforceability may be limited by applicable creditors
rights, laws or principles of equity.
(b) NECESSARY ACTION. Prior to the execution of this Agreement,
Purchaser has obtained all consents necessary for it to lawfully enter into and
carry out the terms of this Agreement.
(c) LITIGATION. There is no litigation, investigation or other
proceeding pending or threatened against or relating to Purchaser, its
properties or business which is material to this Agreement, or which would
prevent Purchaser from performing its obligations hereunder.
(d) LEASE. Purchaser has paid all Additional Charges, Impositions, and
other charges when and as they become due under the Lease.
(e) STATUS OF PURCHASER. Purchaser is a Washington corporation duly
organized, validly existing and in good standing under the laws of the State of
Mississippi.
8. CONDITIONS TO CLOSING.
(a) PURCHASER'S CONDITIONS TO CLOSING. Purchaser's obligation to
purchase Seller's Assets hereunder is subject to the following conditions, any
one or all of which may be waived by the Purchaser:
(i) TITLE INSURANCE. Land America Title Company (the "Title Company")
shall issue with respect to the Property as of the Closing Date, an owner's
policy of title insurance to HCRI in the full amount of the portion of the
purchase price being provided by HCRI under the terms of the HCRI Transaction
(the "Owner's Title Policy"), with extended coverage without survey exception
and subject to no exceptions other than the Permitted Exceptions.
(ii) SURVEY. Purchaser shall have received an ALTA survey of the
property showing no encroachments not acceptable to Purchaser and certified to
Purchaser, HCRI and the Title Company.
(iii) NO DEFAULT. Seller shall not be in default, where said default
cannot be cured by the Closing Date, under any mortgage, contract, lease or
other agreement affecting or relating to the Seller's assets.
(iv) SELLER'S PERFORMANCE. At Closing Seller shall have performed all of
its obligations under this Agreement that are to be performed prior to or at
Closing, including delivery of all of the documents and instruments described in
Section 4(a), to the extent the same have not been waived by Purchaser in
accordance with the terms hereof.
(v) SELLER'S REPRESENTATIONS AND WARRANTIES. At Closing Seller's
representations and warranties contained in this Agreement shall be true in all
material respects at and as of the date of Closing as though such
representations and warranties were then again made; provided, however, it shall
not be a failure of a condition to Purchaser's obligation to close if Seller's
representations and warranties are not true as a result of the acts or omissions
of Purchaser as Tenant under the Lease.
(vi) CLOSING OF THE HCRI TRANSACTION. The closing of the HCRI Transaction
shall have occurred or be prepared to occur concurrently with the Closing of the
Transaction.
(vii) RELEASE FROM SPAULDING. Seller shall have received a waiver and
release from Craig Spaulding in substantial conformance with the Confirmation
and Release attached hereto as Exhibit H, pursuant to which Spaulding waives and
releases any and all rights, claims, or actions against Seller, its managers,
members, and employees, in connection with or in any way related to the Facility
or the development thereof.
(b) SELLER'S CONDITIONS TO CLOSING. Seller's obligation to sell Seller's
Assets hereunder is subject to the fulfillment of each of the following
conditions, any one or all of which may be waived by Seller in writing:
(i) PURCHASER'S REPRESENTATIONS AND WARRANTIES. At Closing, Purchaser's
representations and warranties contained in this Agreement shall be true in all
material respects at and as of the date of Closing as though such
representations and warranties were then again made.
(ii) PURCHASER'S PERFORMANCE. At Closing, Purchaser shall have performed
its obligations under this Agreement that are to be performed prior to or at
Closing, including delivery of all of the documents and instruments described in
Section 4(b), to the extent the same have not been waived by Seller in
accordance with the terms hereof.
(iii) RELEASE FROM SPAULDING. Seller shall have received a waiver and
release from Craig Spaulding in substantial conformance with the Confirmation
and Release attached hereto as Exhibit H, pursuant to which Spaulding waives and
releases any and all rights, claims, or actions against Seller, its managers,
members, and employees, in connection with or in any way related to the Facility
or the development thereof.
9. INDEMNIFICATION
(a) BY SELLER. Subject to the limitations set forth in Section 12(j), but
as a covenant and obligation that shall survive Closing, Seller shall indemnify,
defend and hold Purchaser harmless from and against:
(i) BREACH OF REPRESENTATIONS AND WARRANTIES. Any and all damage, loss or
liability resulting from a material breach of any representation, warranty or
covenant of Seller in this Agreement or nonfulfillment of any agreement on the
part of Seller under this Agreement or from any material misrepresentation in or
material omission from any certificate furnished or to be furnished by Seller
hereunder; and
(ii) FEES AND EXPENSES. Any and all actions, suits, proceedings, demands,
assessments, judgements, costs and legal and other expenses, including, but not
limited to, any and all attorneys' fees incident to any of the foregoing.
(a) BY PURCHASER. Subject to the limitations set forth in Section 12(j),
but as a covenant and obligation that shall survive Closing, Purchaser shall
indemnify, defend and hold Seller harmless from and against:
(i) BREACH OF REPRESENTATIONS AND WARRANTIES. Any and all damage, loss or
liability resulting from a material breach of any representation, warranty or
covenant of Purchaser in this Agreement or nonfulfillment of any agreement on
the part of Purchaser under this Agreement or from any misrepresentation in or
omission from any certificate furnished or to be furnished by Purchaser
hereunder; and
(ii) FEES AND EXPENSES. Any and all actions, suits, proceedings, demands,
assessments, judgements, costs and legal and other expenses, including, but not
limited to, any and all attorneys' fees incident to any of the foregoing.
10. DEFAULT AND TERMINATION.
(a) GROUNDS FOR TERMINATION. This Agreement may be terminated and the
transaction contemplated herein abandoned at any time prior to Closing:
(i) By mutual written agreement of the parties;
(ii) By Seller, if any of the conditions set forth in Section 8(b) shall
have become incapable of fulfillment prior to the Closing Date, or such earlier
date as may be specifically provided for the performance thereof (as the same
may be extended) through no fault of Seller and the same shall not have been
waived by Seller;
(iii) By Purchaser, if any of the conditions set forth in Section 8(a) shall
have become incapable of fulfillment prior to the Closing Date, or such earlier
date as may be specifically provided for the performance thereof (as the same
may be extended) through no fault of Purchaser and the same shall not have been
waived by Purchaser; or
(iv) By either Seller or Purchaser in the event of a material breach by the
other party of its obligations hereunder.
(v) By Purchaser in the event that prior to the Closing Date a
material portion of the Seller's Assets shall have been damaged or destroyed by
fire or other casualty, or shall have been taken or condemned by any public or
quasi-public authority under the power of eminent domain; provided, however, in
the event Purchaser does not elect to terminate pursuant to this Section
10(a)(v), then Seller shall assign to Purchaser its interest in any insurance or
condemnation proceeds relating to the Seller's Assets.
(b) SELLER'S REMEDIES UPON TERMINATION. In the event of the termination of
this Agreement by Seller under Sections 10(a)(i) or 10(a)(ii), provided
Purchaser is not then in breach of its obligations under this Agreement, neither
party shall have any further rights or remedies hereunder. In the event of the
termination of this Agreement by Seller under Sections 10(a)(ii) or (iv) as a
result of a material breach by Purchaser of its obligations hereunder, Seller
shall have the following rights and remedies: (i) sue for damages, which
include, but are not limited to, lost profits and consequential damages or (ii)
seek specific performance of Purchaser's obligations hereunder; provided,
however, as set forth more fully in Section 8(a)(vi) hereof the closing of the
HCRI Transaction shall be a condition to Purchaser's obligations hereunder and
accordingly Purchaser shall not be in breach of its obligations hereunder in the
event of the failure of the closing of the HCRI Transaction for any reason
whatsoever.
(c) PURCHASER'S REMEDIES UPON TERMINATION. In the event of the termination
of this Agreement by Purchaser under Sections 10(a)(i) or 10(a)(iii) other than
as a result of a breach by Seller of its obligations under this Agreement or
under Section 10(a)(v), neither party shall have any further rights or remedies
hereunder. In the event of the termination of this Agreement under Sections
9(a)(iii) or (iv) as a result of a material breach by Seller of its obligations
hereunder, Purchaser shall have the right to seek specific performance of
Seller's obligations hereunder.
(d) EXPENSES. In the event the transaction contemplated hereby does not
close for any reason other than a breach by Seller or Purchaser, Purchaser shall
pay all escrow cancellation fees and title charges. In the event the
transaction contemplated hereby does not close as a result of a breach by either
party, the breaching part shall be responsible for all escrow cancellation fees
and title charges.
(e) LEASE. In the event the Transaction does not close for any reason
whatsoever, the rights and obligations of the Seller and the Purchaser under the
Lease remain unaffected.
11. BROKER.
Each party represents and warrants to the other that it has not retained
the services of any broker or finder in connection with the Transaction and each
agrees to pay any commission or finder's fee which may be due on account of this
Agreement to any other broker or finder allegedly employed by it and each party
agrees to indemnify the other party against any claim for any commission made by
any broker allegedly employed by it.
12. MISCELLANEOUS.
(a) Any notice, request or other communication to be given by any
party hereunder shall be in writing and shall be sent by registered or certified
mail, postage prepaid, by overnight courier guaranteeing overnight delivery or
by facsimile transmission (if confirmed verbally or in writing by mail as
aforesaid), to the following address:
To Seller: ALCO XII, L.L.C.,
46 3rd Street NW
Hickory, North Carolina
Attn: Charlie Treftzger
Telephone: 828-322-5535
Facsimile: 828-322-3897
with a copy to: Bell, Davis & Pitt, PA
Post Office Box 21029
Winston-Salem, NC 27120-1029
Attn: John Cocklereece
Telephone:336-722-3700
Facsimile: 335-722-6558
To Purchaser: Emeritus Corporation
3131 Elliott Avenue, Suite 500
Seattle, WA 98121
Attn: Raymond R. Brandstrom
Telephone: 206-301-4511
Facsimile: 206-301-4500
with a copy to: The Nathanson Group PLLC
1520 Fourth Avenue, Sixth Floor
Seattle, WA 98101
Attn: Randi S. Nathanson
Telephone: 206-623-6239
Facsimile: 206-623-1738
Notice shall be deemed given three (3) business days after deposit in the mail,
on the next day if sent by overnight courier and on receipt if sent by facsimile
(and confirmed verbally or by mail as aforesaid).
(b) This Agreement may not be amended or modified in any respect
whatsoever except by instrument in writing signed by the parties hereto. This
Agreement constitutes the entire agreement between the parties hereto with
respect to the purchase and sale of Seller's Assets and supersedes all prior
negotiations, discussions, writings and agreements between them with respect to
the purchase and sale of Seller's Assets.
(c) The captions of this Agreement are for convenience of reference
only and shall not define or limit any of the terms or provisions hereof.
(d) Time is of the essence of this Agreement and of all of the terms
and provisions of this Agreement.
(e) In the event of litigation or other proceedings involving the
parties to this Agreement to enforce any provision of this Agreement, to enforce
any remedy available upon default under this Agreement, or seeking a declaration
of the rights of either party under this Agreement, the prevailing party shall
be entitled to recover from the other any and all attorneys' fees and costs as
may be actually incurred, including its costs and fees on appeal.
(f) Should any one or more of the provisions of this Agreement be
determined to be invalid, unlawful or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions hereof shall
not in any way be affected or impaired thereby.
(g) This Agreement may be executed and delivered in any number of
counterparts and via facsimile which shall together constitute but one and the
same instrument.
(h) Each of the parties acknowledges and agrees that it has
participated in the drafting and negotiation of this Agreement. Accordingly, in
the event of a dispute between the parties hereto with respect to the
interpretation or enforcement of the terms hereof, no provision shall be
construed so as to favor or disfavor either party hereto.
(I) NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, PURCHASER
ACKNOWLEDGES THAT THE SELLER'S ASSETS ARE BEING SOLD IN THEIR AS IS WHERE IS
WITH ALL FAULTS CONDITION AND THAT EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT AND THE DEED, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED, WITH RESPECT TO (A) THE DESIGN, CONSTRUCTION, LOCATION,
SIZE, CHARACTER, PHYSICAL CONDITION OR STATE OF REPAIR OF THE SELLER'S ASSETS OR
ANY PORTION THEREOF; (B) THE TOPOGRAPHY, DRAINAGE OR CONDITION OF THE SURFACE
AND SUBSURFACE SOILS OF OR ON THE REAL PROPERTY, (C) THE PRESENCE OR ABSENCE OF
HAZARDOUS WASTE OR HAZARDOUS SUBSTANCES ON OR FROM THE REAL PROPERTY OR THE
FACILITY; (D) THE MERCHANTABILITY, HABITABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE OF THE SELLER'S ASSETS, (E) THE PAST OR FUTURE TAXES OR ASSESSMENTS OF
THE SELLER'S ASSETS, (F) THE CONDITION OF TITLE TO THE SELLER'S ASSETS OR (G)
THE COMPLIANCE OF THE SELLER'S ASSETS WITH ANY APPLICABLE GOVERNMENTAL
REQUIREMENT OR ANY OTHER REPRESENTATION OR WARRANTY NOT EXPRESSLY SET FORTH IN
THIS AGREEMENT. BY EXECUTION OF THIS AGREEMENT, PURCHASER REPRESENTS AND
WARRANTS TO SELLER THAT PURCHASER HAS MANAGED THE FACILITY AND HAS BEEN THE
TENANT UNDER THE LEASE AND IS AN EXPERIENCED, SOPHISTICATED PURCHASER OF
COMMERCIAL REAL ESTATE, WITH KNOWLEDGE AND EXPERIENCE SUFFICIENT TO ENABLE IT TO
EVALUATE THE MERITS AND RISKS OF THE SALE, AND THAT IT IS REPRESENTED BY
KNOWLEDGEABLE AND EXPERIENCED LEGAL COUNSEL OF ITS OWN CHOOSING AND AGREES THAT
NEITHER SELLER NOR ITS AGENTS OR REPRESENTATIVES HAS MADE AND THAT PURCHASER HAS
NOT RELIED UPON ANY REPRESENTATION OR WARRANTY OF ANY KIND WHICH IS NOT
EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE DEED IN CONNECTION WITH THE SALE
OF THE SELLER'S ASSETS OR PURCHASER'S ACTUAL PURCHASE THEREOF PURSUANT TO THE
TERMS OF THIS AGREEMENT, IT BEING UNDERSTOOD AND AGREED THAT ANY SUCH PURCHASE
WILL BE BASED SOLELY UPON PURCHASER'S OWN DUE DILIGENCE REVIEW AND THE
REPRESENTATIONS AND WARRANTIES SPECIFICALLY SET FORTH IN THIS AGREEMENT AND THE
DEED.
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PURCHASER'S INITIALS
(j) All covenants, indemnities, warranties and representations of
Seller and Purchaser set forth in this Purchase and Sale Agreement shall survive
the date of Closing for a period of one (1) year. All covenants, indemnities,
warranties and representations of Seller and Purchaser set forth in the
documents executed herewith shall survive for such period as stated therein.
(k) Each of Seller and Purchaser agrees upon the request of the other
party from time to time to execute and deliver such further documents and/or to
take such other action as may be reasonably requested to more effectively
consummate the Transaction, including executing such documents and taking such
action as Purchaser may reasonably request to put Purchaser in ownership,
possession and control of the Seller's Assets, provided that any such action
taken by either Seller or Purchaser at the request of the other party shall be
at no additional cost or expense to the non-requesting party.
IN WITNESS WHEREOF, the parties hereby execute this Agreement as of the
Effective Date.
SELLER: ALCO XII, L.L.C.,
a Mississippi limited liability company
By: /s/ Charlie Treftzger________
Charlie Treftzger
Its: _____________________
PURCHASER: EMERITUS CORPORATION,
a Washington corporation
By: /s/ Raymond R. Brandstrom__
Raymond R. Brandstrom
Its: _________________________
EXHIBIT A
LEGAL DESCRIPTION
Part of Block 1 of the Westphalia Subdivision; part of Lot 9 of the
Foote-McInnis Subdivision; and part of Blocks 1 and 2 and the vacated Washington
and Johnson Streets and Ellene Avenue of the A. Foote Subdivision; all of the
above property being a part of the Northwest Quarter of the Southwest Quarter of
Section 17, Township 4 North, Range 13 West, in the City of Hattiesburg, Forrest
County, Mississippi.
And all of the above property being more particularly described as
commencing at the Northeast Corner of Lot 1, Block 1 of the A. Foote Subdivision
and thence run South 89 degrees 48 minutes 12 seconds West along the South line
of McInnis Street for 380.00 feet to the Point of Beginning, thence run South
for 222.27 feet to the intersection with the North line of a proposed new street
(Fox Chase), thence run Southwesterly along the proposed North line of said
street and along an arc to the right whose radius is 61.00 feet and whose chord
bearing is South 67 degrees 20 minutes 53 seconds West and whose chord distance
is 46.99 feet for a distance of 48.23 feet, thence run Southwesterly along the
proposed North line of said street and along an arc to the left whose radius is
195.00 feet and whose chord bearing is South 59 degrees 56 minutes 45 seconds
West and whose chord distance is 102.58 feet for a distance of 103.80 feet,
thence run West and along the north line of said street for 290.35 feet to the
centerline of a small creek, thence run North 58 degrees 47 minutes 52 seconds
West along the centerline of said creek for 3.12 feet, thence run North 48
degrees 08 minutes 39 seconds West along the centerline of said creek for 128.12
feet, thence run North 51 degrees 24 minutes 34 seconds West along the
centerline of said creek for 92.26 feet, thence run North 23 degrees 36 minutes
20 seconds West along the centerline of said creek for 73.84 feet, thence run
North 51 degrees 49 minutes 23 seconds West along the centerline of said creek
for 32.23 feet, thence run North 25 degrees 13 minutes 50 seconds West along the
centerline of said creek for 63.22 feet to the intersection with the South line
of McInnis Street, thence run North 89 degrees 48 minutes 12 seconds East along
the South line of McInnis Street for 674.57 feet to the Point of Beginning, and
containing 3.69 acres, more or less; and to be known as all of Lot 2 of the
Hattiesburg Retirement Residences Subdivision.
EXHIBIT B
PERMITTED ENCUMBRANCES
1. 2002 ad valorem taxes for Forrest County, Mississippi, which became a
lien upon the above-described property on January 1, 2002, but are not yet due
and payable; and taxes, special assessments, and other governmental charges not
shown as existing liens by the public records.
2. Rights of parties in possession, deficiency in quantity of land,
discrepancies or encroachments, boundary line disputes, roadways, unrecorded
servitudes or easements, and any matters not of record, including lack of
access, which would be disclosed by an accurate survey and physical inspection
of the subject property.
3. Title to all minerals within and underlying the premises, together with
all mining rights and other rights, privileges and immunities relating thereto.
4. No insurance is afforded as to the amount of acreage described in
Schedule A.
EXHIBIT C
INDEX INSTRUCTIONS: Lot 2, Hattiesburg Retirement Residences Subdivision, also
- --------------------------------------------------------------------------------
index in NW SW , Section 17, T4N, R13W, Forrest County, MS
- ---------------------------------------------------------------------
FORM OF DEED
STATE OF MISSISSIPPI
- ----------------------
COUNTY OF FORREST
-------------------
WARRANTY DEED
--------------
For and in consideration of Ten and No/100 Dollars ($10.00) cash in
hand paid and other good and valuable considerations, the receipt and
sufficiency of which is hereby acknowledged, ALCO XII, L.L.C., a Mississippi
limited liability company, does hereby bargain, sell, convey, and warrant,
subject to the exceptions and reservations hereinafter set forth, unto HCRI
MISSISSIPPI PROPERTIES, INC., a Mississippi corporation, the real property lying
and being situated in the City of Hattiesburg, County of Forrest, State of
Mississippi, to-wit:
Part of Block 1 of the Westphalia Subdivision; part of Lot 9 of the
Foote-McInnis Subdivision; and part of Blocks 1 and 2 and the vacated Washington
and Johnson Streets and Ellene Avenue of the A. Foote Subdivision; all of the
above property being a part of the Northwest Quarter of the Southwest Quarter of
Section 17, Township 4 North, Range 13 West, in the City of Hattiesburg, Forrest
County, Mississippi.
And all of the above property being more particularly described as
commencing at the Northeast Corner of Lot 1, Block 1 of the A. Foote Subdivision
and thence run South 89 degrees 48 minutes 12 seconds West along the South line
of McInnis Street for 380.00 feet to the Point of Beginning, thence run South
for 222.27 feet to the intersection with the North line of a proposed new street
(Fox Chase), thence run Southwesterly along the proposed North line of said
street and along an arc to the right whose radius is 61.00 feet and whose chord
bearing is South 67 degrees 20 minutes 53 seconds West and whose chord distance
is 46.99 feet for a distance of 48.23 feet, thence run Southwesterly along the
proposed North line of said street and along an arc to the left whose radius is
195.00 feet and whose chord bearing is South 59 degrees 56 minutes 45 seconds
West and whose chord distance is 102.58 feet for a distance of 103.80 feet,
thence run West and along the north line of said street for 290.35 feet to the
centerline of a small creek, thence run North 58 degrees 47 minutes 52 seconds
West along the centerline of said creek for 3.12 feet, thence run North 48
degrees 08 minutes 39 seconds West along the centerline of said creek for 128.12
feet, thence run North 51 degrees 24 minutes 34 seconds West along the
centerline of said creek for 92.26 feet, thence run North 23 degrees 36 minutes
20 seconds West along the centerline of said creek for 73.84 feet, thence run
North 51 degrees 49 minutes 23 seconds West along the centerline of said creek
for 32.23 feet, thence run North 25 degrees 13 minutes 50 seconds West along the
centerline of said creek for 63.22 feet to the intersection with the South line
of McInnis Street, thence run North 89 degrees 48 minutes 12 seconds East along
the South line of McInnis Street for 674.57 feet to the Point of Beginning, and
containing 3.69 acres, more or less; and to be known as all of Lot 2 of the
Hattiesburg Retirement Residences Subdivision.
LESS AND EXCEPT all of the oil, gas, and other minerals of like kind and
character in, on, and under the above-described property.
This conveyance is also hereby made specifically subject to all valid
and subsisting oil, gas and mineral leases, as well as subject to all valid and
subsisting oil, gas, mineral and/or royalty conveyances, exceptions and/or
reservations now of record in Forrest County, Mississippi, affecting the
above-described lands, or any part or parcels thereof and the matters described
in Exhibit A hereto. [NOTE; INSTEAD OF ACCEPTING YOUR CHANGES HERE, WE WILL
JUST ATTACH EXHIBIT A AS THE PERMITTED EXCEPTIONS]
[GRAPHIC OMITED]
WITNESS MY SIGNATURE this the ______ day of _______________, 2002.
ALCO XII, L.L.C.,
a Mississippi limited liability company
By: _______________________
Its: _______________________
STATE OF ____________
COUNTY OF __________
Personally appeared before me, the undersigned authority in and for the
said county and state, on this ______ day of ______________, 2002, within my
jurisdiction, the within named, _____________________, the
______________________ of ALCO XII, L.L.C., a Mississippi limited liability
company, who acknowledged that he signed, executed, and delivered the above and
foregoing Warranty Deed on the day and year therein stated, for and on behalf of
said company, as its act and deed, after having been authorized so to do.
Given under my hand and official seal on this the ____ day of
________________, 2002.
Notary Public
GRANTEE'S ADDRESS: GRANTOR'S ADDRESS:
HCRI Mississippi Properties, Inc. ALCO XII, L.L.C.
One SeaGate, Suite 1500 46 Third Street NW
P.O. Box 1475 Hickory, North Carolina
Toledo, Ohio 43603-1475
PHONE: 419-247-2800 PHONE:
This deed prepared by: AFTER RECORDATION RETURN
ORIGINAL DEED TO:
Randi S. Nathanson, Esq. Oksana Ludd, Esq.
The Nathanson Group PLLC Shumaker, Loop & Kendrick, LLP
1520 Fourth Avenue 1000 Jackson Street
Sixth Floor Toledo, Ohio 43624
Seattle, WA 98101
EXHIBIT A
PERMITTED EXCEPTIONS
1. 2002 ad valorem taxes for Forrest County, Mississippi, which became a
lien upon the above-described property on January 1, 2002, but are not yet due
and payable; and taxes, special assessments, and other governmental charges not
shown as existing liens by the public records.
2. Rights of parties in possession, deficiency in quantity of land,
discrepancies or encroachments, boundary line disputes, roadways, unrecorded
servitudes or easements, and any matters not of record, including lack of
access, which would be disclosed by an accurate survey and physical inspection
of the subject property.
3. Title to all minerals within and underlying the premises, together with
all mining rights and other rights, privileges and immunities relating thereto.
4. No insurance is afforded as to the amount of acreage described in
Schedule A.
EXHIBIT D
FORM OF BILL OF SALE
In consideration of Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
ALCO XII, L.L.C., a Mississippi limited liability company (the "Seller") hereby
grants, bargains, sells, conveys and transfers to HCRI Mississippi Properties,
Inc. (the "Purchaser"), the following:
(a) PERSONAL PROPERTY. All of Seller's right, title and interest in
and to any and all equipment, furniture, fixtures, appliances, tools,
instruments, and other tangible personal property owned by Seller as of the
effective date and located at the assisted living facility commonly known as
Loyalton of Hattiesburg, 103 Fox Chase Street, Hattiesburg, Mississippi 39402
(the "Facility") (the "Personal Property").
(b) BED RIGHTS. All of Seller's right, title and interest, if any, in
and to the 83 units which are currently operated at the Facility (the "Bed
Rights").
(c) MISCELLANEOUS PROPERTY. All of Seller's right, title and interest,
if any, in and to the following: all plans, drawings, surveys, applications to
governmental authorities regarding the Facility or any development thereof
(collectively, the "Plans").
TO HAVE AND TO HOLD, all and singular, the above-described property hereby
sold, assigned, transferred and conveyed to Purchaser, its successors and
assigns, to and for its own use and benefit.
Seller hereby represents and warrants to Purchaser that Seller is the owner of
the above-described property, that Seller has full right, power and authority to
sell the same and to make this Bill of Sale, and that the above-described
property is free and clear of all liens and encumbrances
Dated this ___ day of March, 2002.
ALCO XII, L.L.C.,
a Mississippi limited liability company
By ___________________________
Name: ___________________________
Its: ___________________________
exhibit 10.65.2.doc
Exhibit A
Part of Block 1 of the Westphalia Subdivision; part of Lot 9 of the
Foote-McInnis Subdivision; and part of Blocks 1 and 2 and the vacated Washington
and Johnson Streets and Ellene Avenue of the A. Foote Subdivision; all of the
above property being a part of the Northwest Quarter of the Southwest Quarter of
Section 17, Township 4 North, Range 13 West, in the City of Hattiesburg, Forrest
County, Mississippi.
And all of the above property being more particularly described as commencing at
the Northeast Corner of Lot 1, Block 1 of the A. Foote Subdivision and thence
run South 89 degrees 48 minutes 12 seconds West along the South line of McInnis
Street for 380.00 feet to the Point of Beginning, thence run South for 222.27
feet to the intersection with the North line of a proposed new street (Fox
Chase), thence run Southwesterly along the proposed North line of said street
and along an arc to the right whose radius is 61.00 feet and whose chord bearing
is South 67 degrees 20 minutes 53 seconds West and whose chord distance is 46.99
feet for a distance of 48.23 feet, thence run Southwesterly along the proposed
North line of said street and along an arc to the left whose radius is 195.00
feet and whose chord bearing is South 59 degrees 56 minutes 45 seconds West and
whose chord distance is 102.58 feet for a distance of 103.80 feet, thence run
West and along the north line of said street for 290.35 feet to the centerline
of a small creek, thence run North 58 degrees 47 minutes 52 seconds West along
the centerline of said creek for 3.12 feet, thence run North 48 degrees 08
minutes 39 seconds West along the centerline of said creek for 128.12 feet,
thence run North 51 degrees 24 minutes 34 seconds West along the centerline of
said creek for 92.26 feet, thence run North 23 degrees 36 minutes 20 seconds
West along the centerline of said creek for 73.84 feet, thence run North 51
degrees 49 minutes 23 seconds West along the centerline of said creek for 32.23
feet, thence run North 25 degrees 13 minutes 50 seconds West along the
centerline of said creek for 63.22 feet to the intersection with the South line
of McInnis Street, thence run North 89 degrees 48 minutes 12 seconds East along
the South line of McInnis Street for 674.57 feet to the Point of Beginning, and
containing 3.69 acres, more or less; and to be known as all of Lot 2 of the
Hattiesburg Retirement Residences Subdivision.
FORM OF BILL OF SALE
In consideration of Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
ALCO XII, L.L.C., a Mississippi limited liability company (the "Seller") hereby
grants, bargains, sells, conveys and transfers to Emeritus Corporation
("Emeritus") all of Seller's right, title and interest, if any, in and to the
following: all transferrable certificates of occupancy, permits, licenses,
authorization or approvals relating to the Facility (collectively, the
"Permits"); all leases and agreements, if any, to which Seller is a party
relating to the Facility (collectively, the "Leases"); all general intangibles,
intellectual property and other intangible property or rights relating to the
Facility, including without limitation the rights to all telephone numbers,
fictitious names, logos and trade marks used in connection with the ownership or
operations of the Facility (collectively, the "Intangible Property").
TO HAVE AND TO HOLD, all and singular, the above-described property
hereby sold, assigned, transferred and conveyed to Emeritus, its successors and
assigns, to and for its own use and benefit.
Seller hereby represents and warrants to Emeritus that has full right,
power and authority to make this Bill of Sale, and that the above-described
property, to the extent owned by Seller, is free and clear of all liens and
encumbrances.
Dated this ___ day of March, 2002.
ALCO XII, L.L.C.,
a Mississippi limited liability company
By ___________________________
Name: ___________________________
Its: ___________________________
EXHIBIT A
Part of Block 1 of the Westphalia Subdivision; part of Lot 9 of the
Foote-McInnis Subdivision; and part of Blocks 1 and 2 and the vacated Washington
and Johnson Streets and Ellene Avenue of the A. Foote Subdivision; all of the
above property being a part of the Northwest Quarter of the Southwest Quarter of
Section 17, Township 4 North, Range 13 West, in the City of Hattiesburg, Forrest
County, Mississippi.
And all of the above property being more particularly described as commencing at
the Northeast Corner of Lot 1, Block 1 of the A. Foote Subdivision and thence
run South 89 degrees 48 minutes 12 seconds West along the South line of McInnis
Street for 380.00 feet to the Point of Beginning, thence run South for 222.27
feet to the intersection with the North line of a proposed new street (Fox
Chase), thence run Southwesterly along the proposed North line of said street
and along an arc to the right whose radius is 61.00 feet and whose chord bearing
is South 67 degrees 20 minutes 53 seconds West and whose chord distance is 46.99
feet for a distance of 48.23 feet, thence run Southwesterly along the proposed
North line of said street and along an arc to the left whose radius is 195.00
feet and whose chord bearing is South 59 degrees 56 minutes 45 seconds West and
whose chord distance is 102.58 feet for a distance of 103.80 feet, thence run
West and along the north line of said street for 290.35 feet to the centerline
of a small creek, thence run North 58 degrees 47 minutes 52 seconds West along
the centerline of said creek for 3.12 feet, thence run North 48 degrees 08
minutes 39 seconds West along the centerline of said creek for 128.12 feet,
thence run North 51 degrees 24 minutes 34 seconds West along the centerline of
said creek for 92.26 feet, thence run North 23 degrees 36 minutes 20 seconds
West along the centerline of said creek for 73.84 feet, thence run North 51
degrees 49 minutes 23 seconds West along the centerline of said creek for 32.23
feet, thence run North 25 degrees 13 minutes 50 seconds West along the
centerline of said creek for 63.22 feet to the intersection with the South line
of McInnis Street, thence run North 89 degrees 48 minutes 12 seconds East along
the South line of McInnis Street for 674.57 feet to the Point of Beginning, and
containing 3.69 acres, more or less; and to be known as all of Lot 2 of the
Hattiesburg Retirement Residences Subdivision.
EXHIBIT E
FORM OF AFFIDAVIT REGARDING NONFOREIGN STATUS
Section 1445 of the Internal Revenue Code of 1986 (the "Code") provides
that a transferee of a U.S. real property interest must withhold tax if the
transferor is a foreign person. The undersigned hereby makes this affidavit on
behalf of ALCO XII, L.L.C., a Mississippi limited liability company (the
"Transferor"), in connection with the transfer to HCRI Mississippi Properties,
Inc., a Mississippi corporation (the "Transferee"), of certain real property
located in Forrest County, Mississippi, as more particularly described in
Exhibit A attached hereto (the "Property").
----
1. Transferor is not a foreign corporation, foreign partnership, foreign
trust, or foreign estate, as those terms are defined in the Code and the Income
Tax Regulations promulgated thereunder;
2. Transferor's U.S. employer identification number is 56-2087401.
3. Transferor's address is ALCO XII, L.L.C.,
46 3rd Street NW
Hickory, North Carolina
Attn: Charlie Treftzger _______________________________.
4. Transferor understands that this Affidavit may be disclosed to the
Internal Revenue Service by Transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both; and
5. Transferor understands that Transferee is relying on this Affidavit in
determining whether withholding is or will be required in connection with its
purchase of the Property and may face liabilities if any statement in this
Affidavit is false.
Under penalty of perjury, the undersigned declares that he/she has examined this
Affidavit and to the best of his/her knowledge and belief, it is true, correct,
and complete, and the undersigned further declares that he/she has authority to
sign this document on behalf of Transferor.
ALCO XII, L.L.C.,
a Mississippi limited liability company
By: _____________________
Its: _____________________
Date: _____________________
EXHIBIT A
Part of Block 1 of the Westphalia Subdivision; part of Lot 9 of the
Foote-McInnis Subdivision; and part of Blocks 1 and 2 and the vacated Washington
and Johnson Streets and Ellene Avenue of the A. Foote Subdivision; all of the
above property being a part of the Northwest Quarter of the Southwest Quarter of
Section 17, Township 4 North, Range 13 West, in the City of Hattiesburg, Forrest
County, Mississippi.
And all of the above property being more particularly described as commencing at
the Northeast Corner of Lot 1, Block 1 of the A. Foote Subdivision and thence
run South 89 degrees 48 minutes 12 seconds West along the South line of McInnis
Street for 380.00 feet to the Point of Beginning, thence run South for 222.27
feet to the intersection with the North line of a proposed new street (Fox
Chase), thence run Southwesterly along the proposed North line of said street
and along an arc to the right whose radius is 61.00 feet and whose chord bearing
is South 67 degrees 20 minutes 53 seconds West and whose chord distance is 46.99
feet for a distance of 48.23 feet, thence run Southwesterly along the proposed
North line of said street and along an arc to the left whose radius is 195.00
feet and whose chord bearing is South 59 degrees 56 minutes 45 seconds West and
whose chord distance is 102.58 feet for a distance of 103.80 feet, thence run
West and along the north line of said street for 290.35 feet to the centerline
of a small creek, thence run North 58 degrees 47 minutes 52 seconds West along
the centerline of said creek for 3.12 feet, thence run North 48 degrees 08
minutes 39 seconds West along the centerline of said creek for 128.12 feet,
thence run North 51 degrees 24 minutes 34 seconds West along the centerline of
said creek for 92.26 feet, thence run North 23 degrees 36 minutes 20 seconds
West along the centerline of said creek for 73.84 feet, thence run North 51
degrees 49 minutes 23 seconds West along the centerline of said creek for 32.23
feet, thence run North 25 degrees 13 minutes 50 seconds West along the
centerline of said creek for 63.22 feet to the intersection with the South line
of McInnis Street, thence run North 89 degrees 48 minutes 12 seconds East along
the South line of McInnis Street for 674.57 feet to the Point of Beginning, and
containing 3.69 acres, more or less; and to be known as all of Lot 2 of the
Hattiesburg Retirement Residences Subdivision.
EXHIBIT G
FORM OF LEASE TERMINATION AGREEMENT
This Agreement is made and entered into as of the ___ day of __________,
2002 and shall be effective as of the Effective Date (as defined below) by and
between ALCO XII, L.L.C., a Mississippi limited liability company ("Landlord")
and Emeritus Corporation, a Washington corporation ("Tenant").
RECITALS
A. Landlord is the owner of the real property described in Exhibit A
(the "Real Property") and the improvements thereon and the furniture, fixtures
and equipment therein that are currently operated by Tenant as an 83 bed
assisted living facility known as Loyalton of Hattiesburg located at103 Fox
Chase Street Hattiesburg, Mississippi 39402 (the "Facility").
B. Landlord is the lessor under that certain Lease Agreement dated June
10, 1998 pursuant to which Landlord leases the Real Property and the Facility
to Tenant.
D. Under the terms of the Purchase and Sale Agreement dated March___,
2002 Landlord agreed that Landlord would, concurrently with the closing of the
transaction provided for therein (the "Closing") terminate the Lease.
E. The Closing is occurring concurrently herewith and Landlord and
Tenant are desirous of documenting the terms and conditions under which said
termination will occur.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants of the parties set forth herein, IT IS HEREBY AGREED AS FOLLOWS:
AGREEMENT
1. Termination. As of the Effective Date, all of Landlord's right,
------------
title and interest in and to and all of Tenant's right, title and interest in
and to and obligations under, the Lease shall be and hereby are terminated,
subject in each case to the limitations set forth herein.
2. Release. Tenant and Landlord acknowledge and agree that as of the
-------
Effective Date, Landlord and Tenant each shall be and hereby is released from
any further obligations under the Lease; provided, however, that nothing herein
shall be construed as a release by Landlord of Tenant with respect to any of
Tenant's obligations under Sections 2.3 and 3.1 of the Lease, it being the
intent of the parties that Tenant pay when due all Additional Charges and
Impositions, even if such Additional charges and Impositions arose prior to the
date hereof but are not yet due as of the date hereof , and it further being the
intent of the parties that Tenant pay obligations related to the Facility as
provided under any other provisions the Lease which relate to the acts or
omissions of Tenant occurring prior to the Effective Date hereof or of Tenant by
Landlord with respect to Landlord's obligation to return to Tenant any security
deposit being held by Landlord under the terms of the Lease, which,
notwithstanding anything to the contrary contained in the Lease, shall be
returned to Tenant by Landlord on the Effective Date .
3. Governing Law/Amendment. This Agreement shall be governed by and
------------------------
construed in accordance with the laws of the State of Mississippi and may not be
amended or modified except by written instrument signed by the parties hereto.
4. Attorneys' Fees. In the event of a dispute among the parties
----------------
hereto with respect to the interpretation or enforcement of the terms hereof,
the prevailing party shall be entitled to collect from the other its reasonable
attorneys fees and costs, including its costs and fees on appeal.
5. Entirety. This Agreement and any documents executed in furtherance
--------
hereof or in conjunction herewith represent the entire agreement of the parties
with respect to the subject matter hereof.
6. Notices. Any notice, request or other communication to be given by
-------
either party hereunder shall be in writing and shall be sent to the parties and
in the manner and at the addresses specified in the Lease.
7. Severability. Should any one or more of the provisions hereof be
------------
deemed to be invalid or unenforceable said determination shall not affect the
validity or enforceability of the remaining terms hereof.
8. Captions. The captions in this Agreement have been inserted for
--------
convenience of reference only and shall not be construed to define or to limit
any of the terms or conditions hereof.
9. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be a duplicate original, but all
of which together shall constitute one and the same instrument.
10. Effective Date. This Agreement shall be conditioned upon, and
---------------
effective as of the date of Closing (the "Effective Date"). In the event that
Closing does not occur for any reason whatsoever, this Agreement shall be null
and void ab initio and the rights and obligations of the parties under the Lease
shall remain unaffected.
11. Release of Liens. Landlord does hereby acknowledge and agree that
------------------
any and all liens granted to it under the terms of the Lease shall be and
hereby are terminated and released effective as of the Effective Date.
IN WITNESS WHEREOF, the parties hereby execute this Agreement as of the day
and year first set forth above.
LANDLORD: ALCO XII, L.L.C.,
a Mississippi limited liability company
By: ___________________________
Its: ___________________________
TENANT: EMERITUS CORPORATION,
a Washington corporation
By: ___________________________
Its: ___________________________
Exhibit A
Part of Block 1 of the Westphalia Subdivision; part of Lot 9 of the
Foote-McInnis Subdivision; and part of Blocks 1 and 2 and the vacated Washington
and Johnson Streets and Ellene Avenue of the A. Foote Subdivision; all of the
above property being a part of the Northwest Quarter of the Southwest Quarter of
Section 17, Township 4 North, Range 13 West, in the City of Hattiesburg, Forrest
County, Mississippi.
And all of the above property being more particularly described as
commencing at the Northeast Corner of Lot 1, Block 1 of the A. Foote Subdivision
and thence run South 89 degrees 48 minutes 12 seconds West along the South line
of McInnis Street for 380.00 feet to the Point of Beginning, thence run South
for 222.27 feet to the intersection with the North line of a proposed new street
(Fox Chase), thence run Southwesterly along the proposed North line of said
street and along an arc to the right whose radius is 61.00 feet and whose chord
bearing is South 67 degrees 20 minutes 53 seconds West and whose chord distance
is 46.99 feet for a distance of 48.23 feet, thence run Southwesterly along the
proposed North line of said street and along an arc to the left whose radius is
195.00 feet and whose chord bearing is South 59 degrees 56 minutes 45 seconds
West and whose chord distance is 102.58 feet for a distance of 103.80 feet,
thence run West and along the north line of said street for 290.35 feet to the
centerline of a small creek, thence run North 58 degrees 47 minutes 52 seconds
West along the centerline of said creek for 3.12 feet, thence run North 48
degrees 08 minutes 39 seconds West along the centerline of said creek for 128.12
feet, thence run North 51 degrees 24 minutes 34 seconds West along the
centerline of said creek for 92.26 feet, thence run North 23 degrees 36 minutes
20 seconds West along the centerline of said creek for 73.84 feet, thence run
North 51 degrees 49 minutes 23 seconds West along the centerline of said creek
for 32.23 feet, thence run North 25 degrees 13 minutes 50 seconds West along the
centerline of said creek for 63.22 feet to the intersection with the South line
of McInnis Street, thence run North 89 degrees 48 minutes 12 seconds East along
the South line of McInnis Street for 674.57 feet to the Point of Beginning, and
containing 3.69 acres, more or less; and to be known as all of Lot 2 of the
Hattiesburg Retirement Residences Subdivision.
211453
EXHIBIT H
FORM OF CONFIRMATION AND RELEASE AGREEMENT
CONFIRMATION AND RELEASE
------------------------
THIS CONFIRMATION AND RELEASE (this "Release") is made as of this _____ day of
March, 2002 by and between ALCO XII, L.L.C., a Mississippi limited liability
company ("ALCO") and Craig Spaulding (ASpaulding@).
WHEREAS, ALCO and Spaulding are parties to that certain Letter Agreement dated
February 28, 2001 ("Letter Agreement") with respect to that certain facility
known as Loyalton of Hattiesburg located at 103 Fox Chase Street, Hattiesburg,
Mississippi (the "Facility").
WHEREAS, ALCO and Emeritus Corporation, a Washington corporation ("Emeritus"),
have entered into a Purchase and Sale Agreement dated as of March ___, 2002
whereby ALCO intends to sell the Facility to Emeritus or its designee and
Emeritus intends to purchase or to cause its designee to purchase the Facility
from ALCO (the "Transaction").
WHEREAS, the Letter Agreement provides that Spaulding is entitled to a deferred
development fee in an amount not to exceed $125,000 (the "Development Fee") upon
the sale of the Facility if and to the extent ALCO receives "Excess Cash
Proceeds" from the Transaction.
WHEREAS, ALCO has demonstrated to the satisfaction of Spaulding that there
will be no Excess Cash Proceeds resulting from the Transaction and has requested
that Spaulding confirm that he has no right to be paid the Development Fee in
connection with the Transaction and that he is releasing ALCO from any and all
liability with respect thereto.
WHEREAS, Spaulding has agreed to provide ALCO with the requested
confirmation and release.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
intending to be legally bound, Spaulding hereby agrees as follows:
1. Spaulding for himself and his successors, legal representatives and
assigns and all persons claiming by, through or under him, does hereby
acknowledge and agree that he has no right, title or interest in and to the
Development Fee in connection with the Transaction and does hereby remise,
release, acquit and forever discharge ALCO and its officers, directors, members,
managers, employees, attorneys, agents, affiliates, subsidiaries, successors in
interest and assigns of, from and against any and all manner of actions, causes
of actions, choses in action, suits, debts, dues, sums of money, compensation,
accounts, rentals, commissions, reckonings, bonds, bills, specialties,
covenants, rights, contracts, controversies, agreements, promises, costs,
damages, judgments, executions, claims and demands whatsoever (regardless of by
whom raised) in law or in equity, which Spaulding now has, ever had or may ever
have with respect to the payment of the Development Fee on account of, arising
out of, or in connection with the development, leasing or sale of the Facility.
2. This Agreement represents the entire and final Agreement of the parties
hereto with respect to the subject matter hereof and may not be amended or
modified except by written instrument signed by the parties hereto. This
Agreement supersedes all prior negotiations, writings or agreements among the
parties hereto with respect to the subject matter hereof.
3. This Agreement may be executed in counterparts, each of which shall be
deemed to be an original, but all of which taken together shall constitute but
one and the same instrument. The delivery of a facsimile copy of this Agreement
will be deemed to be acceptable delivery of an executed copy of this Agreement.
4. Each of the parties hereto acknowledges and agrees that it has
participated in the drafting and negotiation hereof. Further, Spaulding
acknowledges and agrees that he fully understands the terms and conditions
hereof and is signing the same knowingly and voluntarily. Accordingly, in the
event of a dispute among the parties hereto with respect to the interpretation
or enforcement of the terms hereof no provision shall be construed so as to
favor or disfavor either party hereto.
5. In the event of a dispute among the parties hereto with respect to the
interpretation or enforcement of the terms hereof, the prevailing party shall be
entitled to collect from the other its reasonable costs and attorneys fees,
including its costs and fees on appeal.
IN WITNESS WHEREOF, the parties hereby execute this Agreement as of the day
and year first set forth above.
ALCO XII, L.L.C.
a Mississippi limited liability company
By: ___________________________
Its: ___________________________
________________________________
CRAIG SPAULDING