ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this "Agreement") is made as of
December 31, 2003 (the "Effective Date"), by and among HB-ESC II, LLC, a
Washington limited liability company ("Assignor"), EMERITUS CORPORATION, a
Washington corporation, doing business in Louisiana as Emeritus Corporation of
Washington ("Assignee"), and DANIEL R. BATY, an individual ("Guarantor").
RECITALS
A. Assignor is the "Lessee" under those certain leases identified on
Exhibit A attached hereto and incorporated herein by this reference (as the same
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have been or may hereafter be modified, amended, or supplemented from time to
time in accordance with the respective terms thereof, collectively, the
"Leases"). Exhibit A also identifies (i) the original and current "Lessee"
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under each Lease, (ii) the original and current "Lessor" under each Lease, (iii)
the City and State in which each facility is located (collectively, the
facilities covered by the Leases are referred to herein as the "Facilities"),
and (iv) the date of each Lease for identification purposes. The land,
improvements, related rights and personal property (if any) covered by the
Leases may sometimes be referred to herein, collectively, as the "Leased
Property."
B. Guarantor has guaranteed the obligations of Lessee under each of the
Leases pursuant to those certain written guaranties dated as of May 1, 2002, in
favor of the "Lessor" under the Leases (as the same may have been amended,
modified, supplemented or reaffirmed from time to time, collectively, the
"Guaranties").
C. Assignor desires to assign all of its right, title and interest in and to
the Leases to Assignee and Assignee desires to assume all of the duties,
covenants, obligations and liabilities of Assignor under the Leases, but only to
the extent such duties, covenants, obligations and liabilities arise on or after
the Effective Date.
D. Pursuant to Section 5 of the First Amendment to the Leases, identified on
Exhibit A, Assignor is permitted to assign the Leases to Assignee as provided
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therein.
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E. Guarantor has agreed to consent to the assignment, to reaffirm the
Guaranties as to the obligations of Assignor, and to expressly guaranty the
obligations of Assignee under the Leases.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby confirmed and acknowledged, the parties hereto
agree as follows:
1. Assignment and Assumption of Leases. Effective as of the Effective Date,
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Assignor hereby unconditionally assigns and transfers to Assignee all of
its right, title and interest under the Leases and Assignee hereby
unconditionally assumes and agrees to keep, perform and observe all of the
covenants, conditions, duties, obligations and liabilities of the "Lessee" under
each of the Leases.
2.
Consent and Reaffirmation of Guarantor.
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Guarantor consents to the assignment by Assignor to Assignee as provided in
Section 1 above. Guarantor acknowledges and agrees that the Guaranties shall
continue in full force and effect as to the obligations of Lessee under the
Leases, including both the obligations of Assignor as Lessee and the obligations
of Assignee as Lessee thereunder. Assignor and Assignee are authorized to
provide Lessor with a copy of this Agreement, and, at the request of Lessor,
Guarantor agrees to sign and deliver to Lessor a separate reaffirmation of the
Guaranties.
3. Miscellaneous Provisions.
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(a) Successors and Assigns. Subject to the restrictions and other
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limitations expressly set forth herein and in the Leases, the terms, covenants,
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and conditions hereof shall inure to the benefit of and be binding upon the
respective parties hereto, their successors, and permitted assigns.
(b) Notices. Notices to the parties to this Agreement shall be in writing
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and sent and deemed effective in the manner and at the time provided in the
Leases. Notices shall be given to the addresses set forth below or to any other
address designated in writing by the appropriate party:
If to Assignor: HB-ESC II, LLC
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c/o Columbia Pacific Management, Inc.
600 University Street, Suite 2500
Seattle, Washington 98101
Fax: (206) 728-9327
Attn: Kathy Mackey
If to Assignee: Emeritus Corporation
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3131 Elliott Avenue, Suite 500
Seattle, WA 98121-1031
Facsimile: (206) 301-4500
Attn: Raymond Brandstrom
If to Guarantor: Daniel R. Baty
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600 University Street, Suite 2500
Seattle, Washington 98121
A copy of all notices shall be sent to:
The Nathanson Group, PLLC
1520 Fourth Ave., Sixth Floor
Seattle, Washington 98101
Fax: (206) 623-1738
Attn: Randi S. Nathanson, Esq.
(c) Counterparts. This Agreement may be executed in any number of
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counterparts and by different parties to this Agreement in separate
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counterparts, each of which when so executed shall be deemed to be an original
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and all of which taken together shall constitute one and the same Agreement.
Delivery of an executed counterpart of a signature page to this Agreement via
telephone facsimile transmission shall be as effective as delivery of a manually
executed counterpart of this Agreement. Subject to the other provisions
hereof, this Agreement shall become effective when each of the parties has
received a counterpart of this Agreement executed by the other parties to this
Agreement or a copy of such executed Agreement signed in counterparts.
(d) Attorneys' Fees. In any dispute or action between the parties arising
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out of this Agreement, the prevailing party shall be entitled to have and
recover from the losing party such amount as the court may adjudge reasonable as
attorneys' fees and expenses together with costs of litigation incurred by the
prevailing party, in addition to all other amounts provided at law.
(e) Amendment. Any alteration, change or modification of or to this
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Agreement, in order to become effective, must be made in writing and in each
instance signed on behalf of each party to be charged.
(f) Severability. If any term, provision, condition or covenant of this
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Agreement or its application to any party or circumstances shall be held, to any
extent, invalid or unenforceable, the remainder of this Agreement, or the
application of the term, provision, condition or covenant to persons or
circumstances other than those as to whom or which it is held invalid or
unenforceable, shall not be affected, and shall be valid and enforceable to the
fullest extent permitted by law.
(g) Integration. This Agreement contains the entire understandings among
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the parties relating to the matters set forth herein. All prior or
contemporaneous agreements, understandings, representations and statements with
respect to the subject matters hereof, whether direct or indirect, oral or
written, are merged into and superseded by this Agreement, and shall be of no
further force or effect.
(h) Cooperation of Parties. Each party agrees to sign any other and further
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instruments and documents and take such other actions as may be reasonably
necessary or proper in order to accomplish the intent of this Agreement, so long
as the terms thereof are fully consistent with the terms of this Agreement.
(i) Governing Law. This Agreement shall be construed under the laws of the
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State of Washington.
[Signature Page Follows]
[Signature Page to Assignment and Assumption of Leases]
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
effective as of the date first above written.
HB-ESC II, LLC,
a Washington limited liability company
By: /s/ Daniel R. Baty
ASSIGNOR: Daniel R. Baty, Manager
EMERITUS CORPORATION, a Washington corporation, doing business in Louisiana
as Emeritus Corporation of Washington
By: /s/ William M. Shorten
ASSIGNEE: William M. Shorten
Its: Director of Real Estate Finance
GUARANTOR: /s/ DANIEL R. BATY
DANIEL R. BATY
EXHIBIT A
LESSEE LESSOR CITY/STATE DATE OF LEASE
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February 21, 1997
HB-ESC II, LLC, successor to Integrated Living Communities of Alexandria,
L.L.C., successor to Integrated Living Communities of Alexandria, Inc.
First Amendment (5/1/02)
HCPI Alexandria, LA
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HB-ESC II, LLC, successor to Integrated Living Communities of Lafayette, L.L.C.,
successor to Integrated Living Communities of Lafayette, Inc.
February 21, 1997
First Amendment (5/1/02)
HCPI Lafayette, LA
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HB-ESC II, LLC, successor to Integrated Living Communities of Lake Charles,
L.L.C., successor to Integrated Living Communities of Lake Charles, Inc.
February 21, 1997
First Amendment (5/1/02)
HCPI Lake Charles, LA
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