Exhibit 10.22
AGREEMENT TO ASSIGN
AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT TO ASSIGN AGREEMENT OF SALE AND PURCHASE (the "Agreement")
is made and entered into as of the ______ day of _______________, 1998,
BY AND AMONG
Brookdale Living Communities, Inc.,
a Delaware corporation ("Brookdale")
AND
National Development Eastern Associates, Inc.,
a Pennsylvania corporation ("NDEA")
AND
Xxxxxxx X. XxXxxxx, Xxxxxx X. XxXxxxx,
Xxxxx X. XxXxxxx, Xxxxx X. XxXxxxx,
and Xxxxxxx X. XxXxxxx
(together, the "LeDonnes")
BACKGROUND
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WHEREAS, NHM Properties, Inc. (as the "Buyer") entered into a certain
Agreement of Sale and Purchase with the LeDonnes (or their predecessor in
interest in the case of Xxxxxxx X. XxXxxxx, Xxxxxx X. XxXxxxx and Xxxxx X.
XxXxxxx) (as the "Seller") dated November 4, 1996, relating to the sale and
purchase of certain parcels of land containing approximately 9.165 acres located
in the Town of XxXxxxxxxx, Allegheny County, Pennsylvania (the "Real Estate", as
more fully described in the attached Exhibit "A"), said Agreement of Sale and
Purchase having been subsequently amended by an "Amendment to Agreement of Sale
and Purchase" dated May 16, 1997, an "Amendment to Agreement of Sale and
Purchase" dated May 20, 1997, a "Third Amendment to Agreement of Sale and
Purchase" dated August 27, 1997, and a "Fourth Amendment to
and Assignment of Agreement of Sale and Purchase" of even date herewith
(collectively referred to herein as the "XxXxxxx Agreement"). A copy of the
XxXxxxx Agreement, including all amendments, is attached hereto as Exhibit "B";
and
WHEREAS, the parties desire to cause the assignment of the XxXxxxx
Agreement, from NDEA to Brookdale, subject to the terms and conditions set forth
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and legal
sufficiency of which is hereby acknowledged, the parties agree as follows:
(1) Conditional Agreement to Assign XxXxxxx Agreement. Subject to the
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terms and conditions set forth herein, NDEA hereby agrees to sell, transfer, and
assign to Brookdale all of NDEA's rights, title and interest in, to and under
the XxXxxxx Agreement, and agrees to delegate to Brookdale all of its duties
under the XxXxxxx Agreement, pursuant to the terms of an Assignment and
Assumption Agreement in the form attached hereto, and made a part hereof, as
Exhibit "C".
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(2) Conditional Agreement to Accept Assignment of XxXxxxx Agreement.
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Subject to the terms and conditions set forth herein, Brookdale agrees to accept
the above described assignment of NDEA's rights and assume NDEA's duties under
the XxXxxxx Agreement.
(3) Conditional Consent to Assignment of XxXxxxx Agreement. Subject to the
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terms and conditions set forth herein, the LeDonnes consent to the above
described assignment of the XxXxxxx Agreement to Brookdale as the "Buyer"
thereunder and agree to release NDEA from all obligations thereunder, from and
after the "Effective Date" (as defined below). Any notice given by the LeDonnes
under the XxXxxxx Agreement to Buyer from and after the date of this Agreement
shall be given to both NDEA and Brookdale. Notwithstanding that the assignment
provided for herein is not effective until the Effective Date, in the event
Buyer defaults under the XxXxxxx Agreement, Brookdale shall be entitled to an
opportunity to cure such default, ending ten (10) days after notice of such
default is given to Brookdale.
(4) Assignment Effective Upon Project Approval and Settlement. The
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assignment of rights and delegation of duties to Brookdale, acceptance by
Brookdale, and release of NDEA by the LeDonnes as described above, shall become
fully effective, without further notice, documentation, or action of the
parties, upon tender of the deed to convey the Real Estate by the LeDonnes to
Brookdale at the Settlement as described in the XxXxxxx Agreement (the
"Effective Date"); provided, however, that NDEA has obtained and provided the
"Project Approvals" to Brookdale. "Project Approvals" means all permits or
approvals (other than building permits, or operating licenses) needed to permit
the construction on the Real Estate of the "Project". The "Project" means a
five (5) story building and containing approximately 242,000 gross square feet,
containing approximately 220 residential units, some of which, (but not all)
will be licensed for personal care together with all necessary and related
utilities, parking, curb cuts, storm water management facilities, and site
improvements. The LeDonnes hereby agree to convey title to the Real Estate
pursuant to and in accordance with the terms of the XxXxxxx Agreement to
Brookdale or its assignee. Until the Effective Date, the within assignment
shall not become effective, and NDEA shall continue to be the "Buyer" under the
terms of the XxXxxxx Agreement, subject to the terms hereof.
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(5) Notices. All notices, demands, requests and other communications under
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this Agreement shall be in writing and shall be deemed properly served when
delivered, if delivered by hand to the party to whose attention it is directed,
or three (3) Business Days after deliver to a United States Post Office properly
addressed, if mailed postage prepaid or one (1) Business Day after guaranteed
next day delivery, delivery charges prepaid, or upon transmittal if delivered by
facsimile, charges prepaid, or upon transmittal if delivered by facsimile
provided receipt of the notice is confirmed, as the case may be, and in each
case, addressed as follows:
(A) If intended for the LeDonnes, to:
c/o Xxxx Xxxxxxx Xxxxxxx, Esq.
Kabala & Xxxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
(B) If intended for NDEA, to:
Xxxxxxx Hand
National Development Eastern
Associates, Inc.
0000 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxx
Attorney at Law
0000 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
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(C) If intended for Brookdale, to:
Brookdale Living Communities, Inc.
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Brookdale Living Communities, Inc.
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
and a further copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxx Xxxxxx XxxXxx & Xxxxxxxxxx, P.C.
330 North Wabash
22nd Floor - IBM Plaza
Xxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
or at such other address or to such other party which any party entitled to
receive notice hereunder designates to the others in writing.
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6) Counterparts. This Agreement may be executed in two or more
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counterparts, reach of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date the last party signs ("Effective Date").
"BROOKDALE"
Brookdale Living Communities, Inc.
Attest:________________________________ By:_____________________________
Title:__________________________
"NDEA"
National Development Eastern
Associates, Inc.
Attest:________________________________ By:_____________________________
Title:__________________________
"LeDONNES"
Witness:_______________________________ _______________________________
Xxxxxxx X. XxXxxxx*
Witness:_______________________________ _______________________________
Xxxxxx X. XxXxxxx*
Witness:_______________________________ _______________________________
Xxxxx X. XxXxxxx*
Witness:_______________________________ _______________________________
Xxxxx X. XxXxxxx, by Xxxxx
XxXxxxx, his attorney in fact
Witness:_______________________________ ________________________________
Xxxxxxx X. XxXxxxx, by Xxxxx
XxXxxxx, her attorney in fact
*Successors in interest to Xxxx Xxxxx XxXxxxx and Xxxxxx X. XxXxxxx, Co-Trustees
of the Xxxxxxx X. XxXxxxx Trust.
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EXHIBIT A
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The Real Estate consists of approximately 9.165 acres consisting of Parcel
B and Parcel C in the certain XxXxxxx Plan of Lots as recorded on April 25, 1997
in Plan Book Volume 202, Pages 183 and 184 in the Allegheny County Recorder of
Deeds Office.
Note: The "Third Amendment to Agreement of Sale and Purchase" dated August 27,
1997 incorrectly referred (in the first recital paragraph on page 1) to the Real
Estate as Parcel "A" and Parcel "B" in said XxXxxxx Plan of Lots instead of
Parcel "B" and Parcel "C", and said incorrect reference is hereby corrected.
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