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EXHIBIT 10.5
WAIVER
WAIVER dated as of April 24, 2000 (this "Waiver") to the Settlement
Agreement among ARV Assisted Living, Inc. ("ARV"), Prometheus Assisted Living
LLC, Lazard Freres Real Estate Investors L.L.C., LF Strategic Realty Investors
II L.P., LFSRI II Alternative Partnership L.P., LFSRI II - CADIM Alternative
Partnership L.P., Atria Communities, Inc., and Kapson Senior Quarters Corp. (the
"Parties") dated as of September 29, 1999 (the "Settlement Agreement").
W I T N E S S E T H :
WHEREAS, the Parties desire to clarify the application of certain
provisions in the Settlement Agreement in connection with the Warrant to
purchase common stock of ARV dated as of the date hereof issued by ARV to LFSRI
II Assisted Living LLC (the "Warrant");
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
II. Waiver of Provisions of the Settlement Agreement. Notwithstanding any
provisions of the Settlement Agreement to the contrary, the parties agree that
the provisions of Section 3.01 and Section 3.02 of the Settlement Agreement
shall not apply to the issuance of the Warrant or the issuance of shares of
Common Stock upon exercise of the Warrant. ARV expressly waives compliance by
"Investor" or "Investor Affiliates" (as such terms are defined in the Settlement
Agreement) with Section 3.01, and Investor and each Investor Affiliate expressly
waive compliance by ARV with Section 3.02, of the Settlement Agreement with
respect to the issuance by ARV of the Warrant and Warrant Stock thereunder.
III. Representations and Warranties. Each of the parties hereto hereby
represents and warrants that (i) it has the power and authority and the legal
right to make, deliver and perform this Waiver, (ii), it has taken all necessary
actions to authorize the execution, delivery and performance of this Waiver and
(iii) the signatory hereto on behalf of such party is duly authorized to execute
this Waiver on behalf of such party.
IV. Continuing Effect. Except as expressly waived or otherwise agreed hereby,
the Settlement Agreement shall continue to be and shall remain in full force and
effect in accordance with its terms. The waiver and other agreements contained
herein shall not constitute a waiver or amendment of any other term, condition
or provision of the Settlement Agreement.
V. Governing Law. This Waiver shall be governed by, and construed and
interpreted in accordance with, the laws of the State of Delaware.
VI. Counterparts. This Waiver may be executed by the parties hereto on any
number of separate counterparts, and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver
to be duly executed and delivered by their properly and duly authorized officers
as of the day and year first above written.
ARV Assisted Living, Inc.
By:
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Name:
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Title:
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Prometheus Assisted Living LLC
By LF Strategic Realty Investors II L.P.
Its Managing Member
By Lazard Freres Real Estate Investors
L.L.C. Its General Partner
By:
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Name:
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Title:
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Lazard Freres Real Estate Investors L.L.C.
By:
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Name:
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Title:
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LF Strategic Realty Investors II L.P.
By Lazard Freres Real Estate Investors
L.L.C. Its General Partner
By:
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Name:
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Title:
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LFSRI II Alternative Partnership L.P.
By Lazard Freres Real Estate Investors
L.L.C. Its General Partner
By:
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Name:
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Title:
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LFSRI II - CADIM Alternative
Partnership L.P.
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By Lazard Freres Real Estate Investors
L.L.C. Its General Partner
By:
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Name:
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Title:
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