PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT is made and entered into as of this 23 day of
December,1998, by and between EMERITUS CORPORATION, a Washington corporation,
(hereinafter referred to as the "Purchaser") and MEDITRUST COMPANY LLC, a
Delaware limited liability company, successor by merger to Meditrust Acquisition
Corporation I, a Massachusetts corporation (hereinafter referred to as the
"Seller").
WITNESSETH
WHEREAS, the parties hereto desire Seller to sell to the Purchaser and the
Purchaser to purchase, on the Closing Date (as hereinafter defined), fee simple
title to the Real Estate (as hereinafter defined) and all of Seller's rights in
the Other Property Rights (as hereinafter defined), all in accordance with the
terms and conditions herein set forth.
NOW, THEREFORE, for and in consideration of the foregoing premises, the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, all of which each party respectively agrees constitutes
sufficient consideration received at or before the execution hereof, the parties
hereto do hereby agree as follows:
1. DEFINITIONS AND MEANINGS. In addition to any other terms whose definitions
are fixed and defined by this Agreement, each of the following defined terms,
when used in this Agreement with an initial capital letter or letters, shall
have the meaning ascribed thereto by this Section 1:
1.1 "Agreement" means this Purchase and Sale Agreement, together with all
Exhibits and Schedules attached hereto as amended, restated and supplemented
from time to time.
1.2 "Closing" means the consummation of the purchase and sale contemplated by
this Agreement by the deliveries required under Section 11 hereof.
1.3 "Closing Date" means the time and date, established under Section 11.1
hereof, when the purchase and sale contemplated by this Agreement is to be
consummated, as such date may be extended by mutual agreement of the parties or
pursuant to the provisions of this Agreement.
I.4 "Facilities" (and each a "Facility") means the two facilities identified in
attached Schedule 1.4., and known as Ridgeland Court, Ridgeland, Mississippi and
Kirkland
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Lodge, Kirkland, Washington.
1.5 "Improvements" means the buildings, related structures and other
improvements located on the Land (including the Facilities) together with all
trade and other fixtures associated therewith, to the extent owned by Seller.
1.6 "Land" means the tracts or parcels of land on which the Facilities are
located more particularly described in attached Schedule 1.6.
1.7 "Leases" (and each a "Lease") means the Facility Lease Agreements by and
between Seller (or its affiliate) and a Lessee, as more specifically
identified in attached Schedule I.7.
1.8 "Lessees" means the lessees under the Leases, each of which is Purchaser or
its affiliate.
1.9 "Other Property Rights" means collectively the Personal Property, the
Service Contracts, and all of Seller's rights in all prepaid rents, impound
accounts, and all other rights owned by Seller in the Facilities or in which
Seller has an interest as landlord under the Leases.
1.10 "Permitted Exceptions" shall mean (i) the liens, encumbrances, rights,
licenses, covenants, restrictions, agreements, encroachments, overlaps, special
assessments, claims, leases, tenancies, adverse interests, and defects of record
as of the date of this Agreement other than monetary encumbrances, and (ii) real
estate taxes on the Real Estate not yet due and payable on the Closing Date.
1.11 "Person" shall mean a corporation (including a business trust),
association, trust, partnership, joint venture, joint stock company,
organization, proprietorship, natural person, government or governmental agency
or political subdivision thereof or any other entity of whatever nature.
1.12 "Personal Property" means all personal property and equipment, if any,
owned by Seller which is used in the operation of the Real Estate or a Facility,
and located therein or thereon.
1.13 "Purchase Price" means the amount which the Purchaser shall pay to
consummate the purchase and sale for all of the Facilities as provided for in
this Agreement.
1.14 "Real Estate" means (i) the Land, (ii) the Improvements, and (iii) all
rights,
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rights-of way, easements, mineral rights, privileges, options, leases, real
estate licenses, appurtenances, and all of Seller' s interest (if any) in all
Permits (as defined in the Leases) in any manner belonging to, or pertaining to,
the Land and the Improvements.
1.15 "Service Contracts" means all of Seller's rights (if any) in all
maintenance , service, construction or equipment warranties and Contracts (as
defined in the Leases), if any, related to or used in connection with the Real
Estate.
1. I 6 "Transaction Documents" shall mean this Agreement and those documents set
forth in Section 11.2 hereof or delivered in connection herewith.
2. SALE AND PURCHASE. The Seller agrees to sell the Real Estate and Other
Property Rights to the Purchaser on the terms and conditions contained in this
Agreement and the Purchaser agrees to purchase the Real Estate and Other
Property Rights from the Seller on the terms and conditions contained in this
Agreement.
3. PURCHASE PRICE. The Purchase Price for each Facility is set forth on attached
Schedule 3.1. The Purchase Price shall be paid by the Purchaser to the Seller at
Closing by wire transfer without adjustment of any kind or nature except for as
provided in Section 7.3. In no event shall Seller be obligated to sell any one
or more of the Facilities unless Purchaser acquires all of the Facilities. The
Purchase Price shall be allocated among the Real Estate and Other Property
Rights as set forth in Schedule 3.1.
4. Intentionally Omitted.
5. SELLER'S REPRESENTATIONS. As an inducement to the Purchaser to enter
into this Agreement and to purchase the Real Estate and Other Property Rights,
the Seller warrants and represents to, and covenants with, the Purchaser, as
follows (which representations, warranties and covenants shall survive as set
forth in Section 13.15):
5.1 Existence; Power; Qualification. Seller is a limited liability company duly
organized, validity existing and in good standing under the laws of the State of
Delaware. Seller has all requisite corporate power and authority to own and
operate its properties and to carry on its business as now conducted and as
proposed to be conducted and to enter into and carry out the terms of the
Transaction Documents.
52 Valid and Binding. Upon obtaining the approval and consent of its Members,
Seller will be duly authorized to make and enter into this Agreement and to
carry out the transactions contemplated therein and is, or will be by Closing,
duly authorized to make and enter into all of the other Transaction Documents to
which it is or will be a party and to carry out
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the transactions contemplated therein. Subject to obtaining such approval and
consent, this Agreement has been duly executed and delivered by Seller and is
the legal, valid and binding obligation of Seller enforceable against Seller in
accordance with its terms. Subject to obtaining such approval and consent, all
of the other Transaction Documents to which Seller is or will be a party have
been, or will be by Closing, duly executed and delivered by Seller, and each is,
or will be by Closing, a legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with their respective terms.
5.3 No Violation. The execution, delivery and performance of the Transaction
Documents and the consummation of the transaction thereby contemplated shall not
result in any breach of, or constitute a default under, or result in the
acceleration of, or constitute an event which, with the giving of notice or the
passage of time, or both, could result in default or acceleration of any
obligations of Seller under any permit, contract, mortgage, lien, lease,
agreement; instrument, franchise, arbitration award, judgement, decree, bank
loan or credit agreement, trust indenture or other instrument to which Seller is
a party or by which Seller may be bound or affected.
5.4 FIRPTA Representation. The Seller is not a "foreign person" as that term is
defined in the Internal Revenue Code of I986, as amended (the "Code"), and the
regulations promulgated pursuant thereto.
5.5 Other Agreements. Other than the Leases and as set forth in documents duly
recorded in the public records of the jurisdiction in which a Facility is
located, Seller has not entered into and will not enter into any other
agreements granting any Person a right or interest in the Real Estate or
Personal Property or any of the Facilities. Seller has not obligated and will
not obligate itself in any manner whatsoever to sell the Real Estate, Other
Property Rights or any portion thereof to any party other than Purchaser.
Purchaser acknowledges that the Lessees may have sublet portions of the
Facilities and Seller makes no representation or warranty with respect thereto.
5.6 Litigation. To Seller's current actual knowledge, there is no claim,
litigation, or proceeding pending against Seller with respect to which Seller
has been served notice (except for mechanics' liens and other litigation, claims
or proceedings arising or occurring as a result of the actions or inactions of
Purchaser its affiliates or any Person acting by, through or under them), or, to
Seller's current actual knowledge, threatened against Seller, which relate to
the Real Estate, the Other Property Rights, the Facilities, the Leases, or the
transactions contemplated by this Agreement.
5.7 Seller's Current Actual Knowledge. The representations and warranties herein
which are based upon the current actual knowledge of Seller are based upon the
current actual knowledge of Xxxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxx, who are
Senior Vice President
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and General Counsel and Chief Operating Officer, respectively, of Seller,
without any imputation of knowledge as a result of agency or constructive
knowledge principles, and without any obligation on Seller's or such Person's
part to undertake any investigation or take any affirmative action to acquire
any knowledge or to undertake any review of any files or records.
5.8 As-Is. Except for Seller's representations and warranties contained in
this Agreement and the other Transaction Documents, the Purchaser is
acquiring the Real Estate and Other Property Rights "AS IS" and "WHERE IS",
without express or implied warranty of any kind or nature from Seller or from
anyone acting for, by, through or under Seller.
6. PURCHASER'S REPRESENTATIONS. As an inducement to the
Seller to enter into this Agreement and to sell the Real Estate, the Purchaser
warrants and represents to, and covenants with, the Seller, as follows:
6.1 Existence; Power; Qualification. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Washington. Purchaser and its affiliates listed in Schedule 13.3 (the
"Acquisition Affiliates") have all requisite power to own and operate their
respective properties and to carry on their respective business as proposed
to be conducted and to enter into and carry out the Transaction Documents to
which they are a party and are duly qualified to transact business and are,
or by the Closing Date will be, in good standing in each jurisdiction where
such qualification is necessary or desirable in order to carry out their
respective business as proposed to be conducted.
6.2 Valid and Binding. Purchaser is duly authorized to make and enter into this
Agreement and Purchaser and the Acquisition Affiliates are, or will be by
Closing, duly authorized to carry out the transactions contemplated herein and
are, or will be by Closing, duly authorized to make and enter into all of the
other Transaction Documents to which they are a party and carry out the
transactions contemplated therein. All of the Transaction Documents to which
Purchaser or the Acquisition Affiliates are a party have been, or will be by the
Closing Date, duly executed and delivered by Purchaser and the Acquisition
Affiliates, and as of the Closing Date, each will be a legal, valid and binding
obligation of Purchaser and the Acquisition Affiliates, enforceable in
accordance with their respective terms.
6.3 No Violation. The execution, delivery and performance of the Transaction
Documents and the consummation of the transactions thereby contemplated shall
not result in any breach of, or constitute a default under, or result in the
acceleration of, or constitute an event which, with the giving of notice or the
passage of time, or both, could result in default or acceleration of any
obligation of Purchaser under any permit, contract, mortgage, lien, lease,
agreement, instrument, franchise, arbitration award, judgment, decree, bank loan
or credit agreement, trust indenture or other instrument to which Purchaser is a
party or by which Purchaser may be bound or affected and do not violate or
contravene any requirements of law.
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6.4 Consents and Approvals. Except as already obtained or filed, or will be
obtained or filed prior to the Closing Date, as the case may be, no consent or
approval or other authorization of, or exemption by, or declaration or filing
with, any Person and no waiver of any right by any Person is required to
authorize or permit, or is otherwise required as a condition of the execution,
delivery and performance of Purchaser's obligations under the Transaction
Documents.
6.5 Pending Actions Notices and Reports. There is no action or investigation
pending or, to the current actual knowledge of Purchaser, threatened,
anticipated or contemplated (nor, to the current actual knowledge of Purchaser,
is there any reasonable basis therefor) against or affecting Purchaser before
any governmental authority which could prevent or hinder the consummation of the
transactions contemplated hereby or call into question the validity of any of
the Transaction Documents or any action taken or to be taken in connection with
the transactions contemplated thereunder or which in any single case or in the
aggregate might result in any material adverse change in the business,
prospects, condition, affairs or operations of the Purchaser.
6.6 Purchaser's Documents. All copies of documents furnished or to be furnished
to the Seller by the Purchaser or on its behalf in connection with this
Agreement and the proposed purchase and sale of the Real Estate are true and
complete copies of the originals.
6.7 Xxxx-Xxxxx-Xxxxxx. The value of this transaction is less than $ I 5 million.
Based on the foregoing, no filing is required under the HSR Act.
6.8 Acknowledgment. Purchaser confirms and acknowledges to, and agrees with
Seller that:
(a)Purchaser or its affiliate has been the sole and exclusive operator of the
Facilities since the acquisition thereof by Seller and knows or should know
about all matters, facts and circumstances regarding the Facilities, including,
without limitation, the operation thereof, all licensing and regulatory matters
related thereto and all physical plant, structural, environmental, title,
zoning, land use and other related matters. To the extent Purchaser deems
necessary, it will make its own further inquiry and investigation into, and
based thereon and on its own knowledge, will form an independent judgment
concerning the Real Estate and the Facilities and the operation thereof and is
not relying on Seller for any facts or information with respect to those or any
other matters, except for those expressly set forth in Section 5;
(b)Except for any claim for indemnification by Purchaser as a result of a
material breach of the representations, warranties, and covenants contained in
this Agreement or any of the Transaction Documents, it will not assert
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any claim against Seller or hold the Seller liable for any inaccuracies,
misstatements or omissions with respect to information, if any, furnished by the
Seller or any of its directors, officers, employees, partners, agents, advisor,
consultants, representatives, affiliates, successors or assigns, in connection
with the transactions contemplated hereby.
(c)Except for the express representations and warranties contained in Section
5 of this Agreement, or any of the Transaction Documents, the Seller is not
making, and Purchaser is not relying upon, any representation or warranty,
express or implied, or any nature whatsoever.
(d)Without limiting the foregoing, Purchaser understands that (i) there may
be no Service Contracts, Permits or Other Personal Property in which Seller has
any rights or interests and (ii) in any event, Purchaser is only acquiring
Seller's interest therein, if any.
6.9 Nothing Omitted. None of the Transaction Documents as they relate to
Purchaser, nor any certificate, agreement, statement or other document,
furnished to or to be furnished to Seller by Purchaser in connection with the
transactions contemplated b5 the Transaction Documents, contains or will
contain any untrue statement of a material fact or omits or will omit to
state a material fact relating to Purchaser necessary in order to prevent all
statements contained herein and therein from being misleading.
7. RISKS. CONDUCT AND COVENANTS OF THE PARTIES.
7.1 Leases. Until the Closing and the payment of the Purchase Price, the terms
and provisions of the Leases shall remain in full force and effect.
7.2 Publicity. All press releases, filings and other publicity prior to Closing
concerning the transactions contemplated hereby will be subject to review and
approval by both the Seller and the Purchaser, such approval not to be
unreasonably withheld or delayed. Such approval shall not be required if the
Person issuing such publicity reasonably believes it to be necessary for
compliance with law, but such Person shall provide, to the extent reasonably
practical, the other party with reasonable notice and an opportunity to review
same before release. Both the Seller and the Purchaser hereby covenant and agree
prior to the Closing Date to keep the terms and conditions of this Agreement
confidential except to the extent that disclosure is required by law, and except
to Seller's and Purchaser's lenders, members or partners of any tier and their
respective professionals, advisors and other third parties to whom Seller or
Purchaser, as the case may be, is obligated to make disclosure or who are
advising Seller or Purchaser or its members or partners of any tier in
connection herewith.
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7.3 Transfer Fees and Closing Prorations. Each of the parties shall be
responsible for the fees and expenses of its counsel in connection with the
transactions contemplated hereby. The Purchaser shall be responsible for payment
of all customary closing costs in connection with the transfers contemplated by
this Agreement, including, without limitation, stamp taxes, documents taxes,
transfer fees or any other payments in the nature of or in lieu of transfer fees
and costs of title policies and endorsements. Base Rent and Additional Rent
under the Leases will be prorated as of Closing and all prepaid Rent and other
deposits will be credited to Purchaser. All prepaid Rent and other deposits (if
any) are listed on Schedule 7.3. It is understood that no proration of taxes,
insurance, assessments or other operating expenses will be required between
Seller and Purchaser based on local custom and practice and that Purchaser will
be responsible for all of the same.
8. PURCHASER'S CONDITIONS PRECEDENT TO CLOSING.
The Closing and the Purchaser's obligations hereunder and with respect
thereto are expressly contingent and conditional upon the fulfillment,
compliance, satisfaction and performance of each of the following conditions
prior thereto, any one or more of which may be waived or deferred in whole or
in part, but only in writing, by the Purchaser at its option and sole
discretion.
8.1 Accuracy of Warranties; Compliance with Covenants. All representations and
warranties by the Seller contained in and made pursuant to this Agreement shall
be accurate in all material respects at and as of the Closing Date. In addition
to the specific matters referred to in this Section 8, the Seller shall have
tendered to the Purchaser all of the instruments and certificates, required from
the Seller on or before the Closing Date pursuant to the terms of this
Agreement; and the Seller shall have complied with all of its affirmative and
negative covenants set forth herein.
8.2 Absence of Injunction. There shall be no injunction, or any order of any
nature issued by or pending before any court or governmental agency directing
that the transactions contemplated by this Agreement not be consummated.
8.3 Closing Certificate. The Seller shall deliver to the Purchaser a duly
executed confirmatory closing certificate executed by the Seller which
represents and warrants that all conditions set forth in this Section 8.1 have
been fulfilled and satisfied.
8.4 Financing. Purchaser shall have secured financing for the purchase of the
Facilities on terms and conditions reasonably acceptable to Purchaser.
8.5 Deemed Waiver of Conditions Precedent. Any condition precedent to the
Closing which has not been fulfilled, complied with, satisfied or performed at
or prior to the Closing Date shall be conclusively deemed waived if the
Purchaser consummates the Closing
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despite knowledge of the lack of fulfillment, compliance with, satisfaction or
performance of such condition.
9. SELLER'S CONDITION PRECEDENT TO CLOSING.
The Closing and the Seller's obligations hereunder and with respect thereto
are expressly contingent and conditional upon the fulfillment, compliance,
satisfaction and performance of each of the following conditions prior
thereto; any one or more of which may be waived or deferred in whole or in
part, but only in writing, by the Seller at its option and sole discretion.
9.1 Accuracy of Warranties; Compliance with Covenants and Title to Real Estate.
All representations and warranties by the Purchaser contained in and made
pursuant to this Agreement shall be accurate and complete in all material
respects at and as of the Closing Date. In addition to the specific matters
referred to in this Section 9, the Purchaser shall have complied with all of its
covenants hereunder and tendered to the Seller all of the agreements,
instruments, documents, certificates and other materials required from the
Purchaser on or before the Closing Date pursuant to the terms of this Agreement.
9.2 Absence of Injunction. There shall be no injunction, or any order of any
nature issued by or pending before any court or Governmental Agency directing
that the transactions contemplated by this Agreement not be consummated.
9.3 Closing Certificate. The Purchaser shall deliver to the Seller a duly
executed confirmatory closing certificate executed by the Purchaser which
represents and warrants that all conditions set forth in this Section 9 have
been fulfilled and satisfied.
9.4 Member Approval. Seller shall have obtained the approval and consent of its
members to consummate the transactions contemplated hereby.
9.5 Deemed Waiver of Conditions Precedent. Any condition precedent to the
Closing which has not been fulfilled, complied with, satisfied or performed at
or prior the Closing Date shall be conclusively deemed waived if the Seller
consummates the Closing despite knowledge of the lack of fulfillment, compliance
with, satisfaction or performance of such condition.
10. RIGHTS OF TERMINATION.
10.1 Termination of Agreement. This Agreement and the transactions contemplated
hereby may (at the option of the party having the right to do so) be terminated
at any time on or prior to the Closing Date:
(a) Mutual Consent. By mutual written consent of Purchaser and the Seller;
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(b)Court Order. By Purchaser or Seller if any court of competent jurisdiction
shall have issued an order pursuant to the request of a third party restraining,
enjoining or otherwise prohibiting the consummation of the transactions
contemplated by this Agreement;
(c)Failure to Close By January 15,1999. By Purchaser or Seller if the
transactions contemplated hereby shall not have been consummated on or before
January 15,1999, provided, however, that such right to terminate this Agreement
shall not be available to any party whose failure to fulfill any obligation of
this Agreement has been the cause of, or resulted in, the failure of the
transactions contemplated hereby to be consummated on or before such date;
(d)Termination by Seller. By the Seller upon notice to Purchaser if (i) a
condition to the performance of the Seller set forth in Section 9 hereof shall
not be fulfilled at the time specified for the fulfillment thereof, (ii) a
material default under or a material breach of this Agreement shall be made by
Purchaser or (iii) any representation or warranty set forth in this Agreement or
in any instrument delivered by Purchaser pursuant hereto shall be materially
false or misleading; or
(e)Termination by Purchaser. By Purchaser by notice to the Seller if (i) a
condition to the performance of the Purchaser set forth in Section 8 hereof
shall not be fulfilled at the time specified for the fulfillment thereof, (ii) a
material default under or a material breach of this Agreement shall be made by
the Seller or (iii) any representation set forth in this Agreement or in any
instrument delivered by Seller pursuant hereto shall be materially false or
misleading.
10.2 Effect of Termination and Right to Proceed. If this Agreement is terminated
pursuant to Section 10.1, then except as provided below, all further obligations
of Purchaser and Seller under this Agreement shall terminate without further
liability of Purchaser or any affiliate thereof to the Seller or the Seller or
any affiliate thereof to Purchaser or any affiliate thereof, except, in the case
of termination pursuant to Section 10.1 (d) or Section I 0.1 (e), as to
liability for material misrepresentation, breach or default in connection with
any warranty, representation, covenant or obligation given, occurring or arising
to the date of termination.
11. CLOSING.
11.1 Closing Date. The Closing under this Agreement shall take place through
Chicago Title Insurance Company at :00 a.m. on , or at such other time
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and place designated by Purchaser and Seller (such date of Closing being
referred to herein as the "Closing Date").
11.2 Deliveries of the Seller at Closing. At the Closing, the Seller shall
deliver to the Purchaser the following:
(a)Deeds to the Real Estate, free from all liens, except for the Permitted
Exceptions ("Deeds").
(b)A xxxx of sale conveying the Personal Property "as is" and "where is" and
without any warranty or representation of any kind or nature, except that the
Personal Property shall be free and clear of all liens and encumbrances arising
by, through or under Seller ("Bills of Sale").
(c)Certificates of resolutions of the members of the Seller authorizing the
transactions contemplated hereby, certified by the Managing Member of the
Seller.
(d)Certificates of the Managing Member of the Seller as to incumbency and
other related matters.
(e)Closing Certificate referred in Section 8.3 executed by the Seller.
(f)Certificate of Seller, executed under the pains and penalties of perjury,
stating that the Seller is not a "foreign person," as defined in Section 1445(f)
of the Code and the regulations issued thereunder, in order to comply with
Section 1445(b)(2) and the regulations issued thereunder, in such form as the
Purchaser may require in its reasonable discretion or the title insurance
company issuing the title policy may reasonably require.
(g)A certification of the information necessary to complete and file with the
Internal Revenue Service a Form 1099-S in connection with the conveyance of the
Real Estate.
(h)Assignment and Assumption Agreements with respect to all of Seller's
right, title and interest (if any) and to Service Contracts and Permits (if any)
to Purchaser.
(i)Termination of Leases from Seller, unless otherwise directed by Purchaser
pursuant to Section 12 below.
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(j)Such other documents and instruments as are customary in the jurisdiction
in which each Facility is located to vest in Purchaser fee simple title to the
Real Property and title to the Other Property Rights and release all security
interests and rights of Seller therein and thereto.
11.3 Deliveries of Purchaser at Closing. At the Closing, the Purchaser shall
deliver to the Seller the following:
(a)Payments in accordance with Section 3 hereof.
(b)Closing Certificate referred to in Section 9.3.
(c)Certificates of resolutions of the members of the Purchaser and the
Acquisition Affiliates, authorizing the transactions contemplated hereby,
certified by the managing member of the Purchaser and/or the Acquisition
Affiliates.
(d)Certificates of the managing member of the Purchaser and the Acquisition
Affiliates as to incumbency and other related matters.
(e)Termination of Leases from the Lessees, unless otherwise directed by
Purchaser pursuant to Section 12 below.
(f)Letter regarding Survival of Representations from the Lessees.
12. EFFECT OF CLOSING.
Purchaser has informed Seller that concurrently with the Closing, Purchaser is
acquiring all of the Lessees' interests under the Leases from its. affiliates
and that as between Purchaser and its managers of the Facilities, the Leases may
be amended and restated without the Seller or its affiliates being a party
thereto or expressly or impliedly consenting thereto. Notwithstanding the
foregoing, the Leases and the Lease Documents (as that term is defined in the
Leases) shall be deemed to have terminated at Closing as between Seller and
Lessee and neither Purchaser nor its affiliates shall have any rights or
remedies against Seller as Lessor thereunder, and Seller and its affiliates are
hereby released from all liabilities and obligations thereunder, provided that
the indemnification provisions of the Leases and the Lease Documents made by the
Lessees under the Leases for the benefit of Seller shall survive pursuant to
separate agreement between Seller and Xxxxxxxxx.
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00. MISCELLANEOUS.
13.1 No Broker. The Purchaser represents to the Seller, and the Seller
represents to Purchaser, that no agent, finder or broker has acted for it or was
the producing and effective cause of this Agreement or the transactions
contemplated herein, and that no commissions or finder's fees are due by it to
any third parties. Purchaser agrees to indemnify and hold Seller harmless, and
Seller agrees to indemnify and hold Purchaser harmless, with respect to any and
all expenses, obligations, and liabilities resulting from the claims or causes
of action relating to any claims made by any person retained or used by it for
any agent's, broker's or finder's fees or commissions relating to the
transactions contemplated herein.
13.2 Entire Agreement. This Agreement, together with the Schedules and Exhibits
attached hereto and the Transaction Documents contain the entire understanding
of the parties with respect to the subject matters hereof and supersede and
terminate all prior and other contemporaneous oral or written understandings and
agreements between the parties hereto.
13.3 Binding Effect Assignment. This Agreement, shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, successors,
personal representatives and permitted assigns. Neither party may assign its
rights hereunder without the written consent of the other. Notwithstanding the
foregoing, Seller's prior written consent shall not be required for Purchaser to
assign, in whole or in part, this Agreement as to each Facility to those
affiliates of Purchaser designated on Schedule 13.3 except that no such
assignment shall relieve Purchaser from its obligations hereunder. In such
event, Xxxxx, Xxxx of Sale and other Transaction Documents required to close the
purchase of a Facility shall be in the name of Purchaser's designated affiliate.
13.4 Notices. Any notice, demand, offer or other writing required or permitted
pursuant to this Agreement shall be in writing, furnished in duplicate and shall
be transmitted by hand delivery, facsimile, certified mail, return receipt
requested, or Federal Express or another nationally recognized overnight courier
service, postage prepaid, as follows:
(a) If to the Seller:
Meditrust Company LLC
c/o Meditrust Corporation
000 Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxxx
Senior Vice President and General Counsel
Fax No. (000) 000-0000
With a copy to:
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Xxxxxxxx, Xxxxxxx & Xxxxxxx
A Professional Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
Fax No. (000) 000-0000
(b) If to the Purchaser:
Emeritus Corporation
0000 Xxxxxx Xxxxxx,
Xxxxx 000 Xxxxxxx, XX 00000
Fax No. (000) 000-0000
With a copy to:
Xxxxxxx Coie
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxx
Fax No. 000-000-0000
Any party shall have the right to change the place to which such notice shall be
given by similar notice sent in like manner to all other parties hereto. Any
such notice, if sent by private express overnight courier service, shall be
deemed delivered on the earlier of the date of actual delivery or the next
business day following deposit, postage prepaid, with such private express
overnight courier service and if delivered by hand delivery shall be deemed
delivered on the date of the actual delivery and if sent by mail, shall be
deemed delivered on the earlier of the third day following deposit with the U.S.
Postal Service or actual delivery.
13.5 Captions. The captions of this Agreement are for convenience and reference
only, and in no way define, describe, extend or limit the scope or intent of
this Agreement or the intent of any provisions hereof.
13.6 Joint Effort. The preparation of this Agreement has been the joint
effort of the parties, and the resulting document shall not be construed more
severely against one of the parties than the other.
13.7 Counterparts. This Agreement may be executed in counterparts and each
executed copy shall be deemed an original which shall be binding upon all
parties hereto.
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13.8 Partial Invalidity. The invalidity of one or more of the phrases,
sentences, clauses, sections or articles contained in this Agreement shall not
affect the remaining portions so long as the material purposes of this Agreement
can be determined and effectuated.
13.9 No Offer. Neither the negotiations to date nor the preparation of this
Agreement shall be deemed an offer by any party to the other. No such contract
shall be deemed binding on any party until such party has executed and delivered
a written agreement.
13.10 Amendments. This Agreement may not be amended in any respect whatsoever
except by a further agreement, in writing, fully executed by each of the
parties.
13.11 Schedules and Exhibits. All Schedules and Exhibits referred to in this
Agreement shall be incorporated into this Agreement by such reference and
shall be deemed a part of this Agreement as if fully set forth in this
Agreement.
13.12 Governing Law; Attorneys Fees. This Agreement including the validity
thereof and the rights and obligations of the parties hereunder shall be
governed by and construed in accordance with the laws of The Commonwealth of
Massachusetts, provided that the law of the state where the Real Estate is
located shall govern the enforceability, form, enforceability and content of
the Xxxxx, Xxxx of Sale and other Transaction Documents (other than this
Agreement). In the event either party brings an action or any other
proceeding against the other party to enforce or interpret any of the terms,
covenants or conditions hereof, the party prevailing in any such action or
proceeding shall be paid all costs and reasonable attorneys' fees by the
other party in such amounts as shall be set by the court, at trial and on
appeal.
13.13 Third Parties. Nothing in this Agreement, whether express or implied, is
intended to confer any rights or remedies under or by reason of this Agreement
on any Persons other than the parties hereto and their respective legal
representatives, successors and permitted assigns. No Person, other than the
Purchaser and Seller, may rely hereon or derive any benefit hereby as a third
party beneficiary or otherwise, including, without limitation, the Agent.
13.14 Rules of Construction. References in this Agreement to "herein," "hereof'
and "hereunder" shall be deemed to refer to this Agreement and shall not be
limited to the particular text in which such words appear. The use of any gender
shall include all genders, and the singular number shall include the plural and
vice versa as the context may require.
13.15 Survival. Seller's representations and warrantees set forth in Section 5
in the Deeds and Bills of Sale and Purchaser's representations, warranties and
indemnity in this Agreement shall survive the Closing and shall not be merged in
the Transaction Documents. Anything to the contrary contained herein
notwithstanding, the Purchaser's ability to commence an action ("Claim") against
the Seller for breach of any of Seller's representations or warranties
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contained herein shall be limited in certain respects as follows:
(a)In determining the amount of losses for which any party is responsible
hereunder, such losses shall reflect an appropriate adjustment for (i) tax
benefits to the other party (including, for example, the deductions of paying
for the cost of the matter in question) and (ii).insurance proceeds.
(b)If Seller pays at any time an amount pursuant to any Claim and Purchaser
or its affiliates subsequently becomes entitled to recover from some other
person any amount with respect to the losses previously paid by Seller, the
Purchaser shall take all reasonable actions to enforce such recovery and shall
promptly forward to the Seller any such amounts received which were previously
paid by Seller.
(c)In no event shall any party hereto be liable for consequential or
diminution of value damages.
(d)If any matters giving rise to a Claim may be covered by any insurance
policy, then no amount shall be recovered hereunder unless or until Purchaser
shall have made a claim against its insurers under such policy and such
insurance claim shall have been finally decided for all such losses.
[Remainder of Page Intentionally Left Blank)
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals
as Of the date first above appearing.
MEDITRUST COMPANY LLC, a Delaware
Limited liability company
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Title: Senior Vice President
Witness: /s/ Xxx X. Xxxxxxxx
-------------------
EMERITUS CORPORATION
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Title: Vice President of Finance
Witness: /s/ Xxxxxxxx X. Xxxxxxx
-----------------------
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