PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (the "Agreement") is dated, for
reference purposes only, as of the 24th day of January, 1996, and is by and
between WESTERN BIOLOGICS INC., a California corporation ("Western"), and
NANCY F. FEINSTEIN, and JAY L. FEINSTEIN (collectively, "Feinsteins"), and
EMERITUS CORPORATION, a Washington corporation ("Purchaser"). Western is the
owner of the business enterprise operated from the "Facility" (as that term
is defined below) as well as all "Personal Property" (as that term is defined
below) used in connection therewith. Western is a corporation wholly owned
by Nancy F. Feinstein. The Feinsteins are the fee title owners of the "Real
Property" and the "Facility" (as such terms are defined below). Western and
the Feinsteins are collectively referred to herein as "Seller".
1. PURCHASE AND SALE
On the terms and conditions set forth herein, Seller agrees to sell to
Purchaser and Purchaser agrees to purchase from Seller, the following:
a. The real property situated in the City of San Bernardino, State
of California, which is more particularly described in Exhibit A attached
hereto (the "Real Property"), together with all of the improvements on the
Real Property, including that certain 72 unit congregate care retirement
facility commonly known as the "Golden Park Retirement Apartments" (the
"Facility").
b. All equipment, furniture, fixtures, inventory, vehicles,
supplies (including linens, dietary supplies and housekeeping supplies) and
other tangible and intangible personal property owned by Seller and located
on the Real Property or used in connection with the operation of the
Facility, including but not limited to, all licenses, permits and approvals
for the operation of the Facility, all entitlements, telephone numbers, any
right, title or interest which Seller may have in and to any service marks,
trademarks or trade names owned, used or employed by Seller in conjunction
with the operation of the Facility, specifically including the names "Golden
Park" and "Golden Park Retirement Apartments" and any trade marks related
thereto and goodwill associated therewith, but specifically excluding cash,
cash equivalents and accounts receivable for the period prior to the Closing
Date (as defined below) (collectively, the "Personal Property"), which
Personal Property is more particularly described in Exhibit B.
The Real Property, Facility, and Personal Property are sometimes hereinafter
collectively referred to as "Seller's Assets."
2. PURCHASE PRICE
The purchase price payable by Purchaser to Seller for Seller's Assets
shall be Two Million One Hundred Thousand and no/100 Dollars ($2,100,000)
(the "Purchase Price"), payable as follows:
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a. Twenty-Five Thousand and no/100 Dollars ($25,000) upon execution of
this Agreement (the "Earnest Money"), which Earnest Money shall be delivered
to Commonwealth Title Company (the "Escrow Agent") and shall be deposited
into an interest bearing account, with any interest earned thereon accruing
to the benefit of Purchaser;
b. Approximately One Million Five Hundred Four Thousand Dollars
($1,504,000.00) shall be paid by Purchaser's assumption of the outstanding
principal balance as of the Closing Date (as that term is defined below) of
that certain loan to Seller (the "Existing Loan") originally made by Encino
Savings Bank, a California corporation, and currently held by Liberty Lending
Services, Inc. (the "Existing Lender"), the repayment of which is secured by
that certain Deed of Trust dated July 21, 1992, recorded July 24, 1992, as
Instrument No. 92-308979 in the Official Records of San Bernardino County,
California encumbering the Real Property (the "Existing Deed of Trust");
c. The balance of the Purchase Price, which amount shall be equal to the
Purchase Price less the sum of (i) the amount of the Earnest Money and (ii)
the outstanding principal balance as of the Closing Date of the Existing
Loan, shall be due and payable either in cash, by certified check or by wire
transfer at Closing (the "Remaining Balance").
d. The Purchase Price shall be allocated among Seller's Assets in the
manner set forth in Exhibit C attached hereto.
Except as specifically provided in this Agreement, Purchaser does not
hereby or in connection herewith assume any liability of Seller whatsoever in
relation to Seller's Assets which relates to the period prior to Closing.
3. CLOSING
The closing for the purchase and sale of the Seller's Assets under this
Agreement (the "Closing") shall take place not later than forty-five (45)
days following the expiration of the "Feasibility Period" (as that term is
defined below) (provided all of the conditions to closing set forth in
Paragraphs 13 and 14 have been satisfied or waived) (the "Closing Date").
Closing shall occur at the offices of Escrow Agent or at such other place as
Purchaser and Seller may mutually agree. Time is of the essence hereto.
4. CONVEYANCE
Conveyance of the Seller's Assets to Purchaser shall be effected by a
grant deed and bill of sale in form and substance reasonably acceptable to
Purchaser. Fee simple insurable title to the Real Property and marketable
title to the Personal Property shall be conveyed from Seller to Purchaser
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free and clear of all liens, charges, easements and encumbrances of any kind,
other than the following:
a. Liens for real estate taxes not yet due and payable;
b. The lien of the Existing Deed of Trust;
c. Such items of record as described in the Title Report (as defined
below) which are not objected to by Purchaser in accordance with the terms of
Paragraph 13.f.
5. COSTS, PRORATIONS AND ADJUSTMENTS
The costs of the transaction and the expenses related to the ownership
and operation of the Seller's Assets shall be allocated among Seller and
Purchaser as follows:
a. Seller shall pay any State and County transfer, documentary and/or
excise taxes due on the sale of the Real Property and the Facility.
b. Seller shall pay any sales tax due on the sale of the Personal
Property.
c. Seller shall pay the cost for a CLTA owner's standard policy of title
insurance for coverage in the amount of the purchase price and, Purchaser
shall be responsible for the additional premium in order to obtain an owner's
ALTA extended coverage policy of title insurance.
d. Seller shall pay for the cost of an ALTA survey as required hereunder
to be delivered by Seller to Purchaser.
e. Seller shall pay for the cost of the Environmental Report (as defined
below) which Seller is required to deliver to Purchaser pursuant to Paragraph
10.a.(xvi) below.
f. All revenues (including but not limited to rent due from the tenants
of the Facility) and expenses (excluding all payroll and employee benefits
which have accrued through the Closing Date which shall be handled as
provided for in Paragraph 18 below) related to the ownership or operation of
the Seller's Assets shall be prorated as of the Closing Date, with Seller
responsible for amounts attributable to the period prior to the Closing Date
and with Purchaser responsible for amounts attributable to the period from
and after the Closing Date.
g. Real and Personal Property taxes and assessments shall be prorated as
of the Closing Date, with Seller responsible for taxes assessments
attributable to the period prior to the Closing Date and with Purchaser
responsible for taxes and assessments attributable to the period from and
after the Closing Date.
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h. Seller shall arrange for a final statement with respect to all
utilities serving the Real Property and the Facility as of the Closing Date
and shall pay all fees identified thereon and Purchaser shall arrange for all
such utilities to be billed in its name from and after the Closing Date and
shall pay all fees due therefor from and after the Closing Date.
i. Purchaser and Seller shall each pay their own attorney's fees.
j. Purchaser and Seller share all recording fees related to the
recording of the Grant Deed and any escrow fees on a 50-50 basis.
j. Seller shall pay the cost of obtaining and recording any releases
necessary to deliver title to the Seller's Assets in accordance with the
terms of this Agreement.
k. Purchaser shall pay all costs, expenses and fees which may be
assessed by any governmental authority in connection with Purchaser obtaining
any governmental approval or consent which may be required of Purchaser in
order to consummate the purchase and sale of Seller's Assets and the transfer
of operations of the Facility, excluding, however, any costs, expenses or
fees which may be assessed by any governmental authority in connection with
Seller's compliance with applicable law in the operation of the Facility
prior to the Closing Date.
6. POSSESSION
At Closing, Purchaser shall be entitled to possession of the Seller's
Assets, subject only to the rights of the tenants of the Facility under the
Facility Leases (as defined below).
7. SELLER'S REPRESENTATIONS AND WARRANTIES
Seller hereby warrants and represents to Purchaser that:
a. SELLER'S 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
enforceability may be limited by creditors' rights, laws and applicable
principles of equity. The execution of this Agreement and the consummation
of the transaction contemplated herein 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 Seller is now a party or by which
Seller or any of the assets of Seller may be bound or affected.
b. TITLE. Seller has good and insurable fee simple title to the Real
Property and the Facility, subject only to the easements, reservations and
encumbrances, if any, permitted under Paragraph 4, and good and marketable
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title to the Personal Property free and clear of all leases, liens and
encumbrances. The Personal Property includes all of the furniture, fixtures
and equipment
necessary to operate the Facility at full capacity and all of such Personal
Property is, and at Closing will be, in good condition and repair, ordinary
wear and tear excepted.
c. THE REAL PROPERTY. The Facility is located on that certain parcel of
land more particularly described in Exhibit A attached hereto. The roof of
the Facility is and, as of the Closing Date, will be, in good and workable
condition and repair and does not leak (and shall not leak as of the
Closing Date) and all major mechanical systems at the Facility, including,
but not limited to, the air conditioning, electrical and heating and
ventilating systems are and, at Closing, shall be, in good and workable
condition and repair.
e. NECESSARY ACTION. Seller will proceed with all due diligence to take
all action and obtain all consents prior to Closing necessary for it to lawfully
enter into and carry out the terms of this Agreement.
f. TAXES AND TAX RETURNS. All tax returns, reports and filings of any
kind or nature required to be filed by Seller prior to Closing with respect
to its ownership and operation of the Facility and its ownership of the Real
Property and the Personal Property have been properly completed and timely
filed in material compliance with all applicable requirements and all taxes
or other obligations which are due and payable by Seller have been timely
paid.
g. LITIGATION. Except as provided in Exhibit D, there is no litigation,
investigation, or other proceeding pending or, to the best of Seller's
knowledge, threatened against or relating to Seller, its properties or
business, which is material to any of Seller's Assets or to this Agreement,
or which would prevent Seller from performing its obligations hereunder, and
the transaction contemplated herein has not 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 litigation,
investigation or other proceeding.
h. BOOKS AND RECORDS. All of the books and records maintained by Seller
with respect to its ownership and/or operation of the Seller's Assets are
true, accurate and correct in all material respects.
i. THE FACILITY LEASES. Attached hereto as Exhibit E is a true and
correct copy of the form of lease utilized by Seller for the leasing of units
at the Facility. Prior to or concurrently with the execution of this
Agreement, Seller has provided to Purchaser copies of each of the leases with
the tenants of the Facility which are currently in effect (collectively the
"Facility Leases"). Each of the Facility Leases is in full force and effect
and none of the Facility Leases have been modified or amended except as set
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forth in any amendment provided to Purchaser. Seller is not in default of
any of its obligations under the Facility Leases nor is Seller aware of any
default or any action which, with the passage of time or the giving of notice
or both, would constitute a default under the Facility Leases by any of the
tenants who are parties thereto. At Closing, Seller shall deliver to
Purchaser duly executed assignments of the Facility Leases.
j. RENT ROLL. Attached hereto as Exhibit F is a true and correct rent
roll as of January 1, 1996, which identifies each of the tenants of the
Facility, the monthly rent currently being paid by each such tenant and the
date to which said rent has been paid and, in the event of any rent
delinquencies, an explanation of the reason therefor and the efforts being
undertaken by Seller to collect said rent. Seller shall update the rent roll
on a monthly basis between the date hereof and the Closing Date.
k. LIENS. There are no mechanics', materialmen's or similar claims or
liens presently claimed or, to the best of Seller's knowledge, which will be
claimed against the Seller's Assets for work performed or commenced prior to
the date hereof at the request of Seller or of which Seller has knowledge,
Seller having made or caused to be made arrangements for payment of all
those improvements now under construction or development.
l. ENVIRONMENTAL MATTERS. Except in accordance with and in full
compliance with, any and all applicable governmental laws, regulations and
requirements (collectively, the "Environmental Laws") relating to
environmental and occupational health and safety matters and hazardous
materials, substances or wastes (as defined from time to time under any
applicable federal, state or local laws, regulations or ordinances), Seller
has not released into the environment or discharged, placed or disposed of
any such hazardous materials, substances or wastes or caused the same to be
so released into the environment or discharged, placed or disposed of at, on
or under the Seller's Assets. No hazardous materials, substances or wastes
are located on the Real Property or the Facility or have been released into
the environment or discharged, placed or disposed of in, on or under the Real
Property or the Facility; no underground storage tanks are or have been
located on the Real Property; the Real Property has never been used as a dump
for waste material; and the Real Property and the Facility and their prior
uses comply with and at all times have complied with, all Environmental Laws.
m. EMPLOYEES; UNIONS. None of Seller's employees are member of a labor
union or subject to collective bargaining agreement with respect to their
employment with Seller. Seller is not a party to any labor dispute or
grievance, except as otherwise provided in Exhibit G.
n. COMPLIANCE WITH LAW
(i) The Seller's Assets are in compliance with all currently
applicable municipal, county, state and federal laws, regulations,
ordinances, standards and orders and with all municipal, health, building
and zoning by-laws and regulations (including, without limitation, the
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building and zoning codes) where the failure to comply therewith or to
obtain a waiver therefrom could have a material adverse effect on the
business, property, condition (financial or otherwise) or operation of
the Seller's Assets;
(ii) There are no outstanding deficiencies or work orders of any
authority having jurisdiction over the Seller's Assets requiring conformity
to any applicable statute, regulation, ordinance or by-law pertaining
thereto; and
(iii) Seller is not aware of any claim, requirement or demand of
any agency supervising or having authority over the Facility to rework or
redesign it or to provide additional furniture, fixtures or equipment so
as to conform to or comply with any existing law, code or standard which
has not been fully satisfied prior to the date hereof or which will not
be satisfied prior to the Closing Date.
o. OPERATING CONTRACTS. Prior to or concurrently with the execution of
this Agreement, Seller has provided to Purchaser true and correct copies of
all operating contracts to which Seller is a party in connection with its
operation of the Facility (the "Operating Contracts"). Each of the Operating
Contracts is in full force and effect and none of the Operating Contracts
have been modified or amended except as set forth in any amendment provided
to Purchaser. Seller is not in default of any of its obligations under the
Operating Contracts nor is Seller aware of any default or any action which,
with the passage of time or the giving of notice or both would constitute a
default, under the Operating Contracts by any other party thereto. Each of
the Operating Contracts is assignable without the requirement of obtaining
the consent of the contracting party and each such contract is terminable
upon not more than 30 days notice. At Closing, Seller shall deliver to
Purchaser duly executed assignments of any of the Operating Contracts which
Purchaser elects to assume pursuant to Paragraph 11.a.(iv).
p. THE FACILITY. The Facility is a congregate care retirement facility
with a total of 72 units. The Facility is a duly and properly licensed to
operate as a congregate care facility. There is no action pending or, to the
best knowledge of Seller, recommended by any state or federal agency having
jurisdiction thereof, or any action of any other type, which would have a
material adverse effect on the Facility, its operations or business.
q. INVENTORY. All inventories of housekeeping and other supplies
located at the Facility are, and shall be at the time of Closing, in
sufficient condition and quantity as is customarily maintained in the
ordinary course of business in order to properly operate the Facility at
normal capacity.
r. DISCLOSURE. No representation or warranty by Seller contained in
this Agreement and no statement contained in any certificate, list, exhibit,
or other instrument furnished or to be furnished to Purchaser pursuant
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hereto, or in connection with the transaction contemplated hereby, contains
or will contain any untrue statement of a material fact, or omits or will
omit to state any material facts which are necessary in order to make the
statements contained herein or therein not misleading.
8. SELLER'S REPRESENTATIONS AND WARRANTIES
Purchaser hereby warrants and represents to Seller that:
a. STATUS OF PURCHASER. Purchaser is a corporation duly organized and
validly existing under the laws of the State of Washington and is, or prior
to Closing will be, duly qualified to do business in the State of California.
b. 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. This Agreement is valid, binding and
enforceable as against Purchaser in accordance with its terms, except as such
enforceability may be limited by creditors' rights laws and applicable
principles of equity. The execution of this Agreement and the consummation
of the transaction contemplated herein do not result in a breach of the
terms and conditions of nor constitute a default under or violation of
Purchaser's Articles of Incorporation or By-laws or any law, regulations,
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 the assets or Purchaser may be bound or affected.
c. LITIGATION. To the best of Purchaser's knowledge, 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, nor does Purchaser know or have reasonable grounds to
know of any basis for any such action.
d. NECESSARY ACTION. Purchaser will proceed with all due diligence to
take all action and obtain all consents prior to Closing necessary for it to
lawfully enter into and carry out the terms of this Agreement, including, but
not limited to, obtaining the consent of its Board of Directors.
e. DISCLOSURE. No representation or warranty by Purchaser contained in
this Agreement and no statement contained in any certificate, list, exhibit,
or other instrument furnished or to be furnished to Seller pursuant hereto,
or in connection with the transaction contemplated hereby, contains or will
contain any untrue statement of a material fact, or omits or will omit to
state any material facts which are necessary in order to make the statements
contained herein or therein not misleading.
9. BROKER
Seller hereby represents and warrants to Purchaser that the only real
estate broker involved in this transaction, including any negotiations
relating to this Agreement and any other agreements and documents
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contemplated hereby, is Marcus & Millichap (the "Broker"). Seller agrees that
any compensation due the Broker as a result of this Agreement or the Closing
is and shall be the sole and exclusive responsibility of Seller, and
Purchaser shall have no liability or responsibility therefor. Seller and
Purchaser represent and warrant to each other that they have employed no
broker and/or finder other than the Broker, whose real estate commission
shall be paid by Seller. In the event any claim, damage or cause of action
for brokerage and/or finder's fees is asserted against a party to this
Agreement who did not request such services, the party through whom the
broker and/or finder is making the claim shall indemnify, defend (with an
attorney of indemnitee's choice) and hold harmless the other party from and
against any and all such claims, demands and causes of action.
10. SELLER'S COVENANTS
a. PRE-CLOSING. Between the date hereof and the Closing Date, except as
contemplated by this Agreement or with the consent of Purchaser:
(i) Other than as set forth in Paragraph 4, Seller will satisfy and
discharge all claims, liens, security interests, tenancies (other than any
Operating Contracts which Purchaser elects to assume at Closing pursuant
to the terms hereof and the Facility Leases), and encumbrances on Seller's
Assets;
(ii) Seller will file all tax returns, reports and filings of any
kind or nature required to be filed by Seller and will timely pay all
taxes or other obligations which are due and payable with respect to
Seller's Assets;
(iii) Seller will not take any action inconsistent with its
obligations under this Agreement or which could hinder or delay the
consummation of the transactions contemplated by this Agreement, and
Seller will continue until the Closing to fulfill any obligations which
it may have under the Facility Leases;
(iv) Seller will operate the Facility only in the ordinary course
and with due regard to the proper maintenance and repair of the Facility
and the Personal Property;
(v) Seller will take all reasonable action to preserve the
goodwill of the tenants of the Facility;
(vi) Seller will make no material change in the operation of the
Facility nor sell or agree to sell any of the items which comprise the
Personal Property nor otherwise enter into an agreement materially
affecting any of the Seller's Assets;
(vii) Seller will use its reasonable efforts to retain the services
and goodwill of the employees of Seller located at or connected with the
operation of the Facility;
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(viii) Seller will maintain in force the existing hazard and
liability insurance policies, or comparable coverage, for the Seller's
Assets as now in effect;
(ix) Seller will not increase the compensation or other benefits or
bonuses payable or to become payable to any of the Seller's employees
connected with the operation of the Facility, except for increases
substantially in accordance with existing employment practices disclosed
to and approved by Purchaser, if any;
(x) Seller will not enter into any contract or commitment affecting
the Seller's Assets except in the ordinary course of business and any such
contract or commitment shall be terminable upon not more than 30 days
notice and Seller will advise Purchaser of any
contracts or commitments which it enters, whether in the ordinary course
of business or otherwise;
(xi) During normal business hours, Seller will provide Purchaser
and its agents with access on 24 hours notice to the Real Property and the
Facility, provided Purchaser does not unreasonably interfere with the
operation of the Facility and at such times Seller shall permit Purchaser
to inspect the books and records related to the Facility (which may be
unaudited) covering a period of not less than three years prior to the
date hereof and conduct an audit of said books and records (which may be
conducted by Purchaser or Purchaser's representative) and inspect the
physical and structural condition of the Facility, the Real Property and
the Personal Property. Said books and records shall include, but not be
limited to, leases, accounts payable records, rent rolls, operating
statements, inventory of personal property and all other contracts and
agreements which relate to Seller's Assets;
(xii) Seller will timely pay all obligations which are due and
payable with respect to the Seller's Assets;
(xiii) Seller will cause the Facility to be operated in substantial
compliance with all applicable municipal, county, state and federal laws,
regulations, ordinances, standards and orders as now in effect (including
without limitation, the building and zoning codes as currently applied with
respect thereto) and with the Environmental Laws, where the failure to
comply therewith could have a material adverse effect on the business,
property, condition (financial or otherwise) or operation of the Facility
or on the Seller's Assets;
(xiv) Seller will take all reasonable action to achieve substantial
compliance with any laws, regulations, ordinances, standards and orders
applicable to the Seller's Assets which are enacted after execution of this
Agreement and prior to Closing;
(xv) Seller will proceed with all due diligence to secure any
consents which may be necessary for the assignment of the Facility Leases;
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(xvi) Within fifteen (15) days following the mutual execution of
this Agreement, Seller will (a) deliver to Purchaser a UCC-1 search report
at both the county and state level covering the name of Seller and the name
of the Facility, (b) arrange with Commonwealth Title Insurance Company for
the issuance and delivery to Purchaser and to Purchaser's attorney of a
title report or commitment covering the Real property, together with copies
of all exception documents referenced therein (the "Title Report"),
(c) cause a survey firm acceptable to Purchaser to prepare and deliver to
Purchaser an ALTA/ACSM Survey of the Real Property and the Facility (the
"Survey") and (d) cause an environmental engineering firm acceptable to
Purchaser to prepare and deliver to Purchaser a Phase I environmental
assessment of the Real Property and Facility (the "Environmental Report");
and
(xvii) Seller will provide Purchaser within fifteen (15) days
following the mutual execution of this Agreement with copies of the
following documents relating the Real Property and the Facility to the
extent the same are in Seller's possession or reasonable control
(collectively, the "Property Documents"): all environmental reports,
structural reports and geological reports, governmental licenses,
permits and approvals, service and maintenance contracts not previously
delivered as part of the Operating Contracts, existing surveys of the
Real Property including any as-built surveys for the improvements,
wetland reports, soils reports, architectural drawings, plans and
specifications, engineering tests and reports, and all appraisals
prepared for the Real Property and the Facility.
(xviii) Seller shall cooperate in good faith with Purchaser in
obtaining the consent of the Existing Lender to Purchaser's assumption of
the Existing Loan.
b. CLOSING. On the Closing Date, Seller agrees that it will:
(i) Execute and deliver to Purchaser a good and sufficient Grant
Deed to the Real Property (including the Facility) and Bill of Sale with
respect to the Personal Property and such endorsements, assignments and
other instruments of transfer and conveyance as shall be necessary to
transfer and assign Seller's Assets to Purchaser as herein provided;
(ii) Execute and deliver to Escrow Agent such documents and
instruments as may be reasonably requested by the Existing Lender and
reasonably approved by Purchaser, in order to provide for Purchaser's
assumption of the Existing Loan, provided that such assumption documents
do not alter or amend any of the terms and conditions set forth in the
original loan documents which were executed by Seller in connection with
the Existing Loan;
(iii) Deliver to Purchaser a certificate dated as of the Closing
Date, certifying in such detail as Purchaser may reasonably specify the
fulfillment of the conditions set forth in Paragraph(s) 13.a. and b.;
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(iv) Deliver the Seller's Assets to Purchaser in good condition and
repair, ordinary wear and tear excepted;
(v) Deliver to Purchaser a duly executed assignment of the Facility
Leases in form and substance acceptable to Purchaser (the "Facility Lease
Assignment Agreement");
(vi) Pay its share of the Closing costs, including, but not limited
to, that portion of the premium for the issuance of the Title Policy
attributable to the cost for an owner's standard policy of title insurance
and the cost of the Survey described in Paragraph 10.a.(xvi);
(vii) Deliver to Purchaser an Assignment and Assumption Agreement
in form and substance acceptable to Purchaser with respect to any of the
Operating Contracts which
Purchaser elects to assume at Closing pursuant to Paragraph 11.a.(iv)
(the "Operating Contract Assumption Agreement");
(viii) Deliver to Purchaser the Resident Deposits, or at
Purchaser's option, receive a credit against the Purchase Price in the
amount of said Resident Deposits (as defined in Paragraph 19);
(ix) Deliver to Purchaser the Benefits Schedule (as defined in
Paragraph 18) and pay to the employees all of the Accrued Employee
Benefits, all in accordance with the provisions of Paragraph 18; and
(x) Deliver evidence to Purchaser of the designation of a duly
authorized representative to act with full power and authority on behalf
of Seller with respect to any post-closing obligations imposed on Seller
hereunder.
c. POST-CLOSING. After the Closing of this Agreement, Seller agrees
that, at Purchaser's sole cost and expense, it will take such actions and
properly execute and deliver to Purchaser such further instruments of
assignment, conveyance and transfer as, in the reasonable opinion of counsel
for Purchaser and Seller, may be reasonably necessary to assure, complete and
evidence the full and effective transfer and conveyance of Seller's Assets.
11. PURCHASER'S COVENANTS
a. PRE-CLOSING. Between the date hereof and the Closing Date, except as
contemplated by this Agreement or with the consent of Seller, Purchaser
agrees that:
(i) Purchaser will not take any action inconsistent with its
obligations under this Agreement or which could hinder or delay the
consummation of the transaction contemplated by this Agreement;
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(ii) Purchaser will proceed with all due diligence to obtain
all consents and approvals necessary to permit the consummation of the
transaction contemplated by this Agreement and/or necessary to permit
Purchaser to own and to operate the Facility.
(iii) Purchaser will proceed with all due diligence to conduct such
investigations with respect to Seller's Assets as it deems to be reasonably
necessary in connection with its purchase thereof, including, but not
limited to, zoning investigations, soil studies, environmental assessments,
seismic assessments, wetlands reports, review of all Property Documents
provided by Seller, investigations of Seller's and the Facility's operating
books and records and structural inspections, provided, however, no studies
or investigations conducted at the Real Property will be physically
intrusive on the Real Property or the Facility unless Seller consents
thereto, which consent shall not be unreasonably withheld (the "Feasibility
Review"); provided, however, nothing herein shall be construed as amending
or modifying in any manner the representations or warranties of Seller set
forth in this
Agreement, which representations and warranties shall be separate from and
unaffected by Purchaser's Feasibility Review; and provided, further, that
Purchaser shall maintain the confidentiality of any documents or
information obtained by it during the course of its Feasibility Review and
shall return the same to Seller in the event the transaction provided for
herein fails close for any reason whatsoever; and
(iv) On or before the expiration of the Feasibility Period (as
that term is defined below), Purchaser will advise Seller in writing which,
if any, of the Operating Contracts it elects to assume as of the Closing
Date.
b. CLOSING. On the Closing Date, Purchaser agrees that it will:
(i) Deposit with the Escrow Agent the remaining balance of the
Purchase Price;.
(ii) Deposit with the Escrow Agent Purchaser's share of the
Closing costs as herein provided;
(iii) Deliver to Seller a certificate of a responsible officer
dated as of the Closing Date, certifying in such detail as Seller
may reasonably specify the fulfillment of the conditions set forth in
Paragraph(s) 14.a. and b.;
(iv) Provide Seller with a resolution of Purchaser's Board of
Directors, certified by the Secretary of Purchaser as being true and
correct and in full force and effect, authorizing Purchaser to enter
into this Agreement, to execute the documents described herein and to
consummate the transaction provided for herein;
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(v) Execute and deliver to Seller or to Escrow Agent a counter-part
copy of the Operating Contract Assumption Agreement, if applicable;
(vi) Execute and deliver to Seller or to Escrow Agent a
counter-part of the Facility Lease Assignment Agreement; and
(vii) Execute and deliver to Escrow Agent such documents and
instruments as may be reasonably requested by the Existing Lender and
reasonably approved by Purchaser, in order to provide for Purchaser's
assumption of the Existing Loan, provided that such assumption documents do
not alter or amend any of the terms and conditions set forth in the
original loan documents which were executed by Seller in connection with
the Existing Loan.
C. POST-CLOSING. After the Closing of this Agreement, Purchaser agrees
that it will:
(i) Upon prior reasonable notice, provide Seller with access during
normal business hours to any books or records which Seller may need to file
or to defend tax returns or other filings filed prior or subsequent to the
Closing Date which relate to periods prior to the Closing Date; and
(ii) Take such actions and property execute and deliver such
further instruments as Seller may reasonably request to assure, complete
and evidence the transaction provided for in this Agreement.
12. MUTUAL
Following the execution of this Agreement, Purchaser and Seller agree:
a. If any event should occur, either within or without the knowledge or
control of Purchaser or Seller, which would prevent fulfillment of the
conditions to the obligations of any party hereto to consummate the
transaction contemplated by this Agreement, to use its or their reasonable
efforts to cure the same as expeditiously as possible; and
b. To cooperate fully with each other in preparing, filing, prosecuting,
and taking any other actions which are or may be reasonable and necessary to
obtain the consent of any governmental instrumentality or any third party or
to accomplish the transaction contemplated by this Agreement.
13. PURCHASER'S CONDITIONS
All obligations of Purchaser under this Agreement are subject to
fulfillment of each of the following conditions, any one or all or which may
be waived in writing by Purchaser:
a. SELLER'S REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING. Seller's
representations and warranties contained in this Agreement or in any
certificate or document delivered in connection with this Agreement or the
14
transactions contemplated herein 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.
b. SELLER'S PERFORMANCE. Seller shall have performed all of its
obligations under this Agreement that are to be performed prior to or at
Closing to the extent the same have not been waived by Purchaser in
accordance with the terms hereof.
c. APPROVALS. On or before the Closing Date, Purchaser shall have
received all consents, approvals and licenses as may be necessary for it to
own and to operate the Facility.
d. NO DEFAULTS. Seller shall not be in default, where said default
cannot be cured by Closing, under any mortgage, contract, lease or other
agreement to which Seller is a party or by which Seller is bound and which
affects or relates to the Real Property, the Personal Property or the
Facility, including, but not limited to, the Facility Leases.
e. DUE DILIGENCE REVIEW. Purchaser shall be satisfied with the results
of its Feasibility Review, including but not limited to (i) Purchaser's
approval of the physical condition of the Real Property and the structural
condition of the Facility, including the results of the Environmental Report
required hereunder to be delivered by Seller to Purchaser, (ii) Purchaser's
review and
approval of all Property Documents and (iii) Purchaser's review of the zoning
for the Real Property to confirm that the Real Property and the operation and
development of the Facility is in compliance with all applicable zoning laws.
In the event Purchaser has not advised Seller in writing on or before the
date thirty (30) days following the mutual execution of this Agreement (the
"Feasibility Period") of its objections to the results of its due diligence
investigation and its election to terminate this Agreement, this condition
shall be deemed not satisfied as of the date thereof. Nothing herein shall
be construed as amending or modifying in any manner the representations or
warranties of Seller set forth in this Agreement, which representations and
warranties shall be separate from and unaffected by Purchaser's Feasibility
Review except as to any representations or warranties which, during the
course of Purchaser's Feasibility Review, Purchaser obtains knowledge of
falsity or inaccuracy and advises Seller in writing thereof. In the event
Purchaser elects to terminate this Agreement, the parties shall have no
further rights or obligations hereunder, other than Purchaser's right to the
return of its Earnest Money and Seller's obligation to pay any title
cancellation and UCC search fees incurred as a result of such termination.
f. TITLE REVIEW. Within fifteen (15) days following receipt of the
Title Report (together with legible copies of all of the recorded documents
referenced therein as exceptions) and the Survey, Purchaser shall have
reviewed and approved or disapproved those matters reflected on the Title
Report and the Survey. In the event Purchaser objects to any such matters,
Purchaser shall advise Seller in writing of its objections within said
15
fifteen (15) day period; provided, however that such objections shall not
include those items specifically excluded in Paragraph 4. Within ten (10)
days of Seller's receipt of Purchaser's objections, Seller shall advise
Purchaser in writing as to whether it intends to correct the defects to which
Purchaser has objected. If Seller fails to notify Purchaser within said ten
(10) day period or timely notifies Purchaser of its refusal to correct some
or all of such defects, Purchaser shall have ten (10) days following the
earlier of (i) the expiration of said Seller's ten (10) day response period
or (ii) the date Purchaser receives Seller's notice of refusal, to advise
Seller of its decision to close, notwithstanding the defects, or to terminate
this Agreement. In the event of any such termination, neither party shall
have any further rights or obligations hereunder, other than Seller's
obligation to return or to direct the return of Purchaser's Earnest Money.
Any matter reflected in the Title Report or the Survey not objected to in
accordance with the terms hereof shall be deemed accepted by Purchaser;
g. TITLE POLICY. The Title Insurer shall issue to Purchaser as of the
date of Closing, an ALTA Owner's extended coverage policy of title insurance
for the Real Property and the Facility (the "Title Policy") with a value of
not less than the amount of the Purchase Price insuring Purchaser's interest
in the Real Property and the Facility, and subject to no exceptions other
than those of the usual printed exceptions which are acceptable to Purchaser
(the survey, parties in possession and mechanics lien exceptions being
specifically unacceptable to Purchaser), the Existing Deed of Trust, and
those exceptions to which Purchaser has not objected as provided for in
Paragraph 13 f. above.
h. UCC SEARCH. On or before the Closing Date, Purchaser shall be
satisfied with the results of the UCC search conducted by Seller pursuant to
Paragraph 10.a.(xvi).
i. BOARD APPROVAL. On or before the expiration of the Feasibility
Period, Purchaser shall have obtained the approval of its Board of Directors
to the acquisition of the Seller's Assets pursuant to the terms of this
Agreement.
j. ASSUMPTION OF EXISTING LOAN. On or before the Closing Date,
Purchaser shall have received the written consent of the Existing Lender to
Purchaser's assumption of the Existing Loan, which consent shall not be
subject to any terms or conditions which have not been approved by Purchaser.
In the event any of the foregoing conditions are not satisfied or are
not otherwise waived by Purchaser prior to the applicable period for
satisfaction or waiver, Purchaser shall have the right to terminate this
Agreement in accordance with the provisions of Paragraph 17 and in such event
Purchaser shall receive a full refund of its Earnest Money together with
all interest earned thereon.
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14. SELLER'S CONDITIONS
All obligations of Seller under this Agreement are subject to the
fulfillment, prior to or at Closing, of each of the following conditions, any
one or all of which may be waived by Seller in writing:
a. PURCHASER'S REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING.
Purchaser's representations and warranties contained in this Agreement or in
any certificate or document delivered in connection with this Agreement or
the transactions contemplated herein 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.
b. PURCHASER'S PERFORMANCE. Purchaser shall have performed its
obligations under this Agreement that are to be performed prior to or at
Closing to the extent the same have not been waived by Seller in accordance
with the terms hereof.
15. SELLER'S INDEMNIFICATION
Seller shall indemnify, defend and hold Purchaser harmless from and
against:
a. Except as otherwise provided in this Agreement, any and all
obligations relating to the ownership of Seller's Assets and the operation of
the Facility which exist at the Closing Date, including, but not limited to
(i) any obligations under the Facility Lease or the Operating Contracts
which Purchaser elects to assume at Closing, (ii) any obligations with
respect to the Resident Deposits and (iii) any prior bankruptcy filed by
Seller or anyone else in connection with the Facility and any private
or judicial foreclosures commenced in connection with the Real Property and/or
the Facility;
b. Any and all damage, loss or liability arising from and after the
Closing Date under any of the Operating Contracts which Purchaser does not
elect to assume at Closing;
c. Any and all damage, loss, or liability resulting from any
misrepresentation of a material fact, breach of warranty or nonfulfillment of
any agreement on the part of Seller under this Agreement or from any
misrepresentation in any certificate furnished or to be furnished to Purchaser
hereunder;
d. Any and all liability or loss arising out of or relating to any
failure in connection with the transaction contemplated herein to comply with
the requirements of any laws or regulations relating to bulk sales or
transfers; and
e. Any and all actions, suits, proceedings, demands, assessments,
judgments, reasonable costs, and other reasonable expenses, including, but
17
not limited to, reasonable attorney's fees, incident to any of the foregoing.
For purposes of Paragraph 15.a., an obligation shall be deemed to
"exist" as of the Closing Date if it relates to events which occurred prior
to the Closing Date even if it is not asserted until after the Closing Date.
16. PURCHASER'S INDEMNITY
Purchaser shall indemnify, defend and hold Seller harmless from and
against:
a. Except as otherwise provided in this Agreement, any and all
obligations relating to the ownership of the Seller's Assets and the operation
of the Facility from and after the Closing Date, including, but not limited
to, any obligations under any of the Facility Leases or Operating Contracts
which Purchaser elects to assume at Closing and any obligations with respect
to the Resident Deposits;
b. Any and all damage, loss or liability resulting from any
misrepresentation of a material fact, breach of warranty or nonfulfillment
of any agreement on the part of Purchaser under this Agreement or from any
misrepresentation in any certificate furnished or to be furnished to Seller
hereunder;
c. Any and all damage, loss or liability resulting from the conduct by
or the negligence or willful misconduct of Purchaser in performing its
Feasibility Review; and
d. Any and all actions, suits, proceedings, demands, assessments,
judgments, reasonable costs and other reasonable expenses, including, but not
limited to, reasonable attorney's fees, incident to any of the foregoing.
17. TERMINATION
a. This Agreement may be terminated and the transaction contemplated
herein abandoned at any time prior to Closing:
(i) By mutual agreement of the parties;
(ii) By Seller, if any of the conditions set forth in Paragraph
14 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
Paragraph 13 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;
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(iv) By either Seller or Purchaser in the event of a material
breach by the other party of its obligations hereunder; or
(v) If the Closing has not occurred by the Closing Date, unless
extended by mutual agreement of the parties.
b. In the event that prior to the Closing Date, a material portion of
the Real Property, the Facility or the Personal Property 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, Purchaser shall have the right to terminate this Agreement on
written notice to Seller. In the event Purchaser elects not to terminate its
rights hereunder, then Seller shall assign to Purchaser all of its rights to
any insurance proceeds or condemnation award and all claims in the connection
therewith. In the event Purchaser exercises its termination rights
hereunder, the parties shall have no further rights or obligations hereunder
other than Purchaser's right to the return of its Earnest Money.
c. Neither party to this Agreement may claim termination or pursue any
other remedy referred to in Paragraph 17.a. on account of a breach of a
condition, covenant or warranty by the other, without first giving such other
party written notice of such breach and not less than ten (10) days within
which to cure such breach. The Closing Date shall be postponed, if
necessary, to afford such opportunity to cure; provided, however, in no event
shall the Closing Date be postponed beyond April 26, 1996.
d. In the event of the termination of this Agreement by Seller under
Paragraphs 17.a.(ii) or (iv) or under Paragraph 17(a)(v), and any such
termination is due to the Closing having failed to occur as a result of a
material breach by Purchaser of its obligations hereunder, Seller's sole
remedy shall be to terminate this Agreement and to receive, as full and
complete liquidated damages, the sum of (i) the Purchaser's Earnest Money and
(ii) an amount equal to the actual total costs incurred by Seller in
connection with the procurement of the Environmental Report, the preparation
of the Survey, the cancellation of the escrow established with Escrow Agent
hereunder, the cancellation of the title commitment and all reasonable fees
charged to Seller by the Existing Lender in connection with procuring the
consent of the Existing Lender to the assumption of the Existing Loan,
except that the total amount for all such costs under this item "(ii)" shall
not exceed Ten Thousand Dollars ($10,000.00) (the "Additional Liquidated
Damages"). The parties acknowledge and agree that the amount of damages which
Seller may incur as a result of such termination may be difficult to
ascertain and that the amount of the Earnest Money, together with the
Additional Liquidated Damages, is a reasonable and fair estimate thereof,
after which the parties shall have no further rights or obligations hereunder.
e. In the event of the termination of this Agreement by Purchaser under
Paragraphs 17.a.(iii), (iv) or (v) as a result of the Closing failing to
occur due to a material breach by Seller of its obligations hereunder,
19
Purchaser shall have the right either to (i) terminate this Agreement and
demand the return of its Earnest Money after which neither party shall have
any further rights or obligations hereunder or (ii) seek specific performance
of Seller's obligations hereunder or damages for Seller's breach of its
obligations hereunder.
18. EMPLOYEE BENEFITS
On or before the Closing, Seller shall deliver to Purchaser a schedule
(the "Benefits Schedule") setting forth all of the earned and accrued
vacation, holiday and sick pay, and retirement and severance benefits and
earned bonuses (the "Accrued Employee Benefits") which have accrued and are
due to the employees of the Facility as of the Closing Date. At Closing,
Seller shall terminate all of the Facility employees effective as of the
Closing Date and pay to all such employees the full amount of the Accrued
Employee Benefits. Upon the request of Purchaser, Seller agrees to provide
to Purchaser written evidence that all such Accrued Employee Benefits have
been fully paid to the employees of the Facility.
19. RESIDENT SECURITY DEPOSITS
At Closing, Seller shall provide Purchaser with an accounting of all
resident security deposits being held by Seller as of the Closing Date (the
"Resident Deposits"). Such accounting shall set forth the names of the
residents or prospective residents for whom such funds are held, the amounts
held on behalf of each resident or prospective resident and the Seller's
warranty that the accounting is true, correct and complete.
20. TRANSFER OF RESIDENT SECURITY DEPOSITS
On the Closing Date, Seller shall do either of the following, the
election of which shall be made by Purchaser: (i) transfer the Resident
Deposits to the bank account designated by the Purchaser or (ii) grant to
Purchaser a credit in the amount of said Resident Deposits against the
payment of the remaining balance due on the Purchase Price. In either event,
Purchaser shall in writing acknowledge receipt of and expressly assume all
Seller's financial and custodial obligations with respect thereto, it being
the intent and purpose of this provision that, at Closing, Seller will be
relieved of all fiduciary and custodial obligations with respect to said
Resident Deposits, and that Purchaser will assume all such obligations and be
directly accountable to the residents and prospective residents of the
Facility, with respect thereto. Following the Closing, Purchaser shall
be responsible for notifying each of the residents of the Facility of the
Closing hereunder and the transfer of the Resident Deposits to Purchaser,
which notice shall include the name, address and telephone number of
Purchaser, all in accordance with applicable California law.
20
21. INDEMNITY FOR RESIDENT SECURITY DEPOSITS
Notwithstanding the foregoing, Seller will indemnify and hold Purchaser
harmless from all liabilities, claims and demands in the event the amount of
the Resident Deposits transferred to the Purchaser's bank account or the
credit for said Resident Deposits which has been applied against the Purchase
Price, as provided in Paragraph 20, did not represent the full amount of
such Resident Deposits then or thereafter shown to have been delivered to
Seller by the current residents or prospective residents of the Facility.
22. NOTICES
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: Ms. Nancy F. Feinstein and
Western Biologics Inc.
7665 East Silver Dollar Lane
Anaheim, California 92808
Telephone No.: (714) 637-0037
Facsimile No.: (714) 637-3626
Mr. Jay Feinstein
c/o Environmental Refrigeration, Inc.
14175 Telephone Avenue, Suite A
Chino, California 91710
Telephone No.: (909) 591-0859
Facsimile No.: (909) 591-0850
To Purchaser: Emeritus Corporation
Market One
2001 Western Avenue, Suite 669
Seattle, WA 98121
Telephone No.: (206) 443-4313
Facsimile No.: (206) 443-5432
With a copy to: The Nathanson Group
1411 Fourth Avenue, Suite 905
Seattle, Washington 98121
Attention: V. Anthony Unan, Esq.
Telephone No.: (206) 623-6239
Facsimile No.: (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).
21
23. SOLE AGREEMENT
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 and supersedes
all prior negotiations, discussions, writings and agreements between them.
24. SUCCESSORS
The terms of this Agreement shall be binding upon and inure to the
benefit of and be enforceable by and against the heirs and successors of the
parties hereto, it being specifically understood and agreed that Purchaser
shall have the right to assign in whole or in part its rights and obligations
hereunder to any affiliated entity or any entity which is sponsored by
Purchaser; provided no such assignment shall relieve Purchaser of its
obligations hereunder.
25. CAPTIONS
The captions of this Agreement are for convenience of reference only and
shall not define or limit any of the terms or provisions hereof.
26. SURVIVAL
All covenants, warranties and representations of Purchaser and Seller
herein shall survive for two years after Closing other than Seller's
representation and warranty in Paragraph 7.1., which shall survive for the
applicable statute of limitations period.
27. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
28. SEVERABILITY
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.
29. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be an original; but such counterparts shall together constitute
but one and the same instrument.
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30. THIRD PARTY BENEFICIARY
The provisions of this Agreement are not intended to confer any
benefits upon any person or entity not a party to this Agreement.
31. ACCOUNTS RECEIVABLE
Within ten days prior to the Closing Date, Seller shall provide
Purchaser with a detailed listing of Seller's accounts receivable which are
anticipated to be outstanding on the Closing Date.
32. RESPONSIBILITY FOR COLLECTIONS
From and after the Closing Date, Purchaser shall assume responsibility
for the billing for and collection of payments on account of services
rendered or goods sold by it on and after the Closing Date and Seller shall
retain all right, title and interest in and to and all responsibility for the
collection of its accounts receivable for services rendered or goods sold
prior to the Closing Date.
33. APPLICATION OF PAYMENTS
Any payments received by Purchaser after the Closing Date from residents
with balances due for the period prior to and after the Closing Date, shall
be applied by Purchaser first to reduce any post-Closing Date balances, with
the excess, if any, remitted to Seller to reduce any pre-Closing Date
balances due.
34. INSPECTION RIGHTS
Seller shall have the right during normal business hours and on
reasonable notice to Purchaser to inspect Purchaser's books and records with
respect to the accounts receivable received by it after the Closing Date from
residents with balances due as of the Closing Date.
35. ATTORNEY'S FEES
Should either party institute any action or proceeding to enforce or
interpret this Agreement or any provision hereof, for damages by reason of
any alleged breach of this Agreement or of any provision hereof, or for a
declaration of rights hereunder, the prevailing party in any such action or
proceeding shall be entitled to receive from the other party all costs and
expenses, including reasonable attorneys' and other fees, incurred by the
prevailing party in connection with such action or proceeding. The term
"attorneys' and other fees" shall mean and include attorneys' fees,
accountants' fees, and any and all other similar fees incurred in connection
with the action or proceeding and the preparations therefor. The term
"action or proceeding" shall mean and include actions, proceedings, suits,
arbitrations, appeals and other similar proceedings.
23
IN WITNESS WHEREOF, the parties hereby execute this Agreement as of the
day and year set forth opposite each party's signature below with the last
date constituting the date of mutual execution of this Agreement.
Dated: PURCHASER:
----------------
EMERITUS CORPORATION,
a Washington corporation
By: /s/ Raymond R. Brandstrom
-------------------------
Its: President
-------------------------
SELLER:
Dated: Jan. 24, 1996 /s/ Nancy F. Feinstein
------------- -----------------------
NANCY F. FEINSTEIN
Dated: Jan. 24, 1996 /s/ Jay L. Feinstein
------------- -----------------------
JAY L. FEINSTEIN
Dated: Jan. 24, 1996 WESTERN BIOLOGICS INC.,
------------- a California corporation
By: Nancy F. Feinstein
----------------------
Its: President
----------------------
24