EXHIBIT 10.26
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made and entered into
as of this 20th day of February, 1997, by and between PARK PLACE II, L.L.C., a
Washington limited liability company (hereinafter "Seller") and BROOKDALE LIVING
COMMUNITIES, INC., a Delaware corporation (hereinafter "Buyer").
R E C I T A L S
WHEREAS, Seller owns real property, consisting of approximately 4.59 acres,
situated in the State of Washington, County of Spokane, 000 X. Xxxx Xxxx,
Xxxxxxx, Xxxxxxxxxx 00000, upon which an eight-three (83) unit assisted living
retirement facility and the personal property used in conjunction therewith is
located, which real property, improvements thereon and personal property are
operated by Seller under the name Park Place II Assisted Living and Special Care
Facility;
WHEREAS, Park Place General Partnership, a Washington general partnership,
("Park Place") owns real property, consisting of approximately 7.55 acres,
adjacent to Seller's property, and located at 000 X. Xxxx Xxxx, Xxxxxxx,
Xxxxxxxxxx 00000, upon which a one hundred and seventeen (117) unit independent
living retirement facility and other improvements thereon is located, and which
is operated by Park Place under the name Park Place Independent Living
Retirement Facility, which Park Place and Buyer have entered into a Purchase and
Sale Agreement executed on even date herewith;
WHEREAS, Park Place II Assisted Living and Special Care Facility and Park
Place Independent Living Retirement Facility, together, are operated by Seller
and Park Place under the name Park Place Retirement Community;
WHEREAS, Seller has agreed to sell to Buyer all of Seller's right, title
and interest in the real property and all improvements constructed or situated
thereon, together with all of Seller's tangible and intangible personal property
used in the operation of the Seller's business conducted upon the real property
(including, but not limited to, all trademarks, permits and licenses), and Buyer
has agreed to purchase same from Seller subject to the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
promises specified in this Agreement, and for other good and valuable
consideration, Buyer and Seller agree as follows:
ARTICLE 1.
PURCHASE AND SALE
1.01 Purchase and Sale. Subject to the terms and conditions of this
Agreement, Seller agrees to sell, convey and transfer to Buyer, and Buyer agrees
to purchase from Seller, at Closing, all of Seller's right, title and interests
in and to the following assets owned by
Seller and used in connection with the ownership or operation of the Park Place
II Assisted Living and Special Care Facility.
(A) All of the land situated in the State of Washington, County of
Spokane, 000 X. Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxx 00000, legally described on
attached Exhibit "1.01(A)," consisting of approximately 4.59 acres,
together with any and all improvements located on such land, and all of the
rights, privileges, easements and appurtenances belonging or appertaining
to such land and improvements, including any right, title and interest in
and to streets, alleys and rights-of-way adjacent to such land (such land
and improvements and all such rights, privileges, easements and
appurtenances are collectively referred to herein as the "Real Property").
(B) All tangible or intangible personal property or interest therein
now or hereafter owned or held by Seller in connection with the Real
Property (or any portion thereof) or in connection with the ownership,
operation, management or use thereof, except for personal property
specifically excluded pursuant to the terms of this Agreement, including,
but not limited to: (1) any trade style or trade names used in connection
with the Real Property, including but not limited to the names Park Place
II Assisted Living and Special Care Facility and Park Place Retirement
Community; (2) any and all contract rights and other agreements or leases
affecting the Real Property; (3) all plans and specifications or other
construction drawings of any type in Seller's possession or control
prepared in connection with the construction of any improvements or
proposed improvements; (4) all current assignable contracts, guaranties and
warranties (including guaranties and warranties pertaining to the
acquisition of the Real Property, or any parcel thereof by Seller),
licenses and other permits, approvals, authorizations, certificates,
permissions, no action letters and similar assurances issues by any private
person or persons or by any governmental or quasi-governmental authority or
authorities relating to the Real Property, or any portion thereof, or the
ownership, operation, management or use thereof; (5) all site plans,
surveys, soil and substrata studies, water studies, environmental studies,
architectural renderings, engineering plans, and other plans, diagrams, or
studies of any kind relating to the Real Property, or any portion thereof;
and (6) all furniture, inventory, books and records, equipment, machinery,
tools, appliances, kitchen equipment, dishes and utensils and any and all
other tangible or intangible property on the Real Property, or used in
connection with the ownership and operation of the Real Property and/or the
operation of Seller's business on the Real Property (all of the foregoing
are hereinafter collectively called the "Personal Property.")
The assets and property interests of Seller described in Section 1.01(A) and
1.01(B) being sold pursuant hereto shall collectively be referred to as the
"Assets."
1.02 Excluded Assets. The parties hereto agree and acknowledge that
Seller is not transferring the following Assets to Buyer: (1) the existing
checking account with Xxxxx Fargo Bank, Account No. 0000-000-000, for revenues,
deposits and expenses paid, any xxxxx cash or utility deposits or interest on
utility deposits or reserves, relating to the Assets being
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sold pursuant hereto or the operation by Seller of the Park Place II Assisted
Living and Special Care Facility prior to the Closing Date and (2) the money
market account existing with Xxxxx Fargo Bank, Account No. 0000-000-000 for
security deposits.
1.03 Contingency. The purchase and sale of the Assets referred to herein
shall be conditioned upon the simultaneous closing of the purchase and sale of
the Assets owned by Park Place (hereinafter "Park Place Assets") referred to in
that certain Purchase and Sale Agreement between Park Place General Partnership
and Buyer dated as of the date hereof (hereinafter the "PPGP Agreement"). A
"Seller Default" by Park Place General Partnership under the PPGP Agreement
shall automatically be a Seller Default by Seller under this Agreement. A
"Buyer Default" by Buyer under the PPGP Agreement shall automatically be a Buyer
Default under this Agreement. In the event that Buyer terminates the PPGP
Agreement in accordance with its terms, this Agreement shall automatically
terminate and the Xxxxxxx Money (as defined below) shall be returned to Buyer,
except in the event such termination was the result of a Buyer Default. In the
event Park Place General Partnership terminates the PPGP Agreement in accordance
with its terms, this Agreement shall automatically terminate and Buyer shall
have no rights or remedies against Seller except in the event such termination
was a result of a Seller Default.
ARTICLE 2.
PURCHASE PRICE
2.01 Purchase Price. Subject to the remaining terms and conditions of
this Agreement, Seller agrees to sell and Buyer agrees to purchase the Assets
for a total purchase price (the "Purchase Price") of Seven Million, Eight
Hundred and Fifty Thousand Dollars ($7,850,000.00), subject to adjustments and
prorations in accordance with this Agreement. Seller and Buyer shall agree on
an allocation of the Purchase Price among the Real Property and the Personal
Property on or before Closing.
2.02 Xxxxxxx Money. Buyer has deposited in an escrow account with First
American Title, Spokane, Washington, which will provide title insurance for the
project ("Title Company"), the sum of Twenty-Seven Thousand, Three Hundred,
Fifty-One and 92/100 Dollars ($27,351.92) in cash as initial xxxxxxx money (the
"Initial Xxxxxxx Money"). Simultaneously with the execution of this Agreement
by Buyer, Buyer shall deposit an additional One Hundred and Nine Thousand, Four
Hundred, Seven and 67/100 Dollars ($109,407.67) in cash as additional xxxxxxx
money (the "Additional Xxxxxxx Money") which shall be applied to the purchase
price of the Assets herein upon Closing. The Initial Xxxxxxx Money and the
Additional Xxxxxxx Money, together with all accrued interest thereon, is
referred to herein as the "Xxxxxxx Money." The Initial Xxxxxxx Money along with
the Additional Xxxxxxx Money shall be invested by the title company in a money
market fund or in such other investment instrument or account designated by
Buyer. Upon successful completion of the Feasibility Period as provided in
Section 2.03 herein without Buyer terminating this Agreement, the Initial
Xxxxxxx Money and the Additional Xxxxxxx Money shall be nonrefundable and
payable to Seller in the event Buyer fails to complete the purchase of the
Assets in accordance with the terms and conditions of this Agreement
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because of a Buyer Default. The Initial Xxxxxxx Money and the Additional
Xxxxxxx Money shall be held by the Company and applied to the purchase price at
Closing.
2.03 Feasibility Period. The feasibility period ("Feasibility Period"),
during which the Buyer shall conduct its due diligence with respect to the
Assets to be acquired by it under this Agreement, shall run from the date of
this Agreement through the periods specified in Exhibit "2.03" hereto. Seller
and Buyer acknowledge that the length of the Feasibility Period differs with
respect to each outstanding issue or item (an "Item") detailed in Exhibit
"2.03."
During the Feasibility Period, Buyer shall have the right to physically
inspect the condition of the Assets, to review the books and records maintained
for the Assets, to conduct various tests with respect to the Real Property at
the sole cost of Buyer, including, but not limited to, soil tests and
environmental and hazardous and toxic waste tests and to otherwise determine the
feasibility (economic or otherwise) of the acquisition, ownership and
development of the Assets. At any time during the Feasibility Period with
respect to any Item in question specified in Exhibit "2.03" for the period of
time specified in Exhibit "2.03", Buyer, in Buyer's sole and absolute
discretion, may, upon written notice to Seller, terminate this Agreement if
Buyer is not satisfied with the results of its due diligence investigations
and/or the materials delivered to Buyer relating to such Item, in which event,
the Xxxxxxx Money shall be returned to Buyer and all of the rights, duties and
obligations of the parties hereto shall immediately terminate, and this
Agreement shall be null, void and of no further force or effect. Regardless of
whether or not Buyer terminates this Agreement during the Feasibility Period,
Buyer shall provide Seller with copies of any reports, tests, inspections and
surveys with respect to the Real Property, including but not limited to, soil
tests and environmental and hazardous toxic waste tests, and any other tests and
reports and inspections which Buyer may have conducted during the Feasibility
Period, subject to the limitations contained in Section 15.07 below. Seller
shall reasonably cooperate with Buyer and Buyer's agents, employees and
representatives in connection with Buyer's inspections, tests, surveys and
studies of the Assets. Buyer shall complete all of Buyer's due diligence
relating to each Item, prior to the expiration of the Feasibility Period
relating to each such Item. Upon the expiration of the specific time period for
the specific Items set forth in Exhibit "2.03" without Buyer terminating this
Agreement, Buyer may no longer terminate this Agreement because of Buyer's
dissatisfaction relating to the specific Item in question.
In Exhibit "2.03", Buyer has set forth specific Items and the time needed
to review and approve each Item, which Exhibit "2.03" shall serve to extend the
Feasibility Period for the specific Items set forth therein for the time periods
set forth therein. If Buyer, in Buyer's sole and absolute discretion, is not
satisfied with the resolution of the specific Items set forth in Exhibit "2.03,"
within the time period set forth in Exhibit "2.03," Buyer shall then have the
right, in Buyer's sole and absolute discretion, to terminate this Agreement at
any time on or prior to the expiration date of the specific time period for the
outstanding Item, and Buyer shall be refunded the Xxxxxxx Money. Buyer shall
not otherwise terminate the Agreement with respect to any Item, except for its
dissatisfaction, in its sole and absolute discretion, with a specific Item
during the specific time period set forth in Exhibit "2.03." Once the specific
time period has expired for a specific Item, Buyer may not terminate this
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Agreement and request a refund of the Xxxxxxx Money because of Buyer's
dissatisfaction with such Item. In the event of a Buyer Default (as defined in
Section 17.02 below) of any terms of this Agreement, the Xxxxxxx Money shall be
non-refundable to Buyer and payable to Seller as described in Section 17.02
below.
2.04 Manner of Payment of Purchase Price. The Purchase Price shall be
paid by Buyer to Seller in cash at Closing either by wire transfer funds or by
cashier's or certified check.
2.05 Liability Assumption. In addition to the payment of the Purchase
Price, at the date of Closing, Buyer shall assume and agree to pay and/or
perform in a timely manner and discharge as they come due, subsequent to Closing
the following liabilities and obligations of Seller:
(A) the obligations of Seller accruing after the date of Closing
under the Leases described in Exhibit "2.05(A)" hereto (the "Leases"); and
(B) the obligations of Seller accruing after the date of Closing
under the Contracts described in Exhibit "2.05(B)" hereto (the
"Contracts").
Buyer shall not assume Contracts described in Exhibit "2.05(C)" hereto
which shall be terminated by Seller prior to Closing (the "Nonassigned
Contracts"). At Closing, Seller shall indemnify and hold harmless Buyer for
obligations under the (i) foregoing Leases and Contracts that accrued prior to
Closing and (ii) the foregoing Nonassigned Contracts that accrue prior to and/or
after Closing. At Closing, Buyer shall indemnify and hold harmless Seller for
obligations under the Leases and Contracts that accrue subsequent to Closing.
ARTICLE 3.
PRORATIONS AND BROKERAGE FEE
3.01 Buyer and Seller agree to prorate the following items, in cash or
other immediately available funds, on a daily basis, as of the Closing Date:
(A) all real property taxes relating to the Assets (in the event the
actual amount of all real property taxes are not known at Closing, such
taxes shall be prorated on the basis 1997 budgeted assumptions submitted in
the 1997 budget prepared by S.L. Start and Associates, and included in
correspondence dated January 21, 1997 from Xxx XxXxxxxxx on behalf of
Seller to Buyer (the "1997 Budget") and shall be reprorated after Closing
when the final amounts are known, and any such reproration payment shall be
due within ten (10) days after written demand from the party owed such
amount;
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(B) All personal property taxes relating to the Personal Property
became a lien one (1) year prior to when the personal property tax is
normally payable, and Seller shall pay for the personal property taxes for
1996 normally payable in the year 1997 and personal property taxes normally
payable in year 1998 for calendar year 1997 will be prorated between the
parties;
(C) all costs and expenses of pre-paid services and inventory which
accrue to Buyer's benefit after Closing and amounts owed for services and
inventory which benefitted Seller prior to Closing and are to be paid by
Buyer after Closing;
(D) rents and other sums due under the Leases set forth in Exhibit
"2.05(A)" hereto;
(E) obligations due under Contracts set forth in Exhibit "2.05(B)"
hereto;
(F) advance payments by residents or tenants for future services not
yet rendered as of the Closing;
(G) payments for licenses with Department of Health, including
Boarding Home fee and food service fee to the extent any such payments
accrue to Buyer's benefit after Closing, it being understood that Buyer is
not taking an assignment of such permits and any such proration shall only
benefit Seller to the extent Buyer pays less for such new licenses than
Buyer would have otherwise paid.
3.02 Brokerage Fee. Seller and Buyer have agreed to a "referral fee" due
and payable to Gulf/Atlantic Valuation Services. Each party shall be
responsible for the payment of their own portion of said fee agreement outside
of Closing. Each fee agreement with Gulf/Atlantic Valuation Services is
negotiated through separate agreement. Each party shall be responsible for any
other brokerage fees or commissions which such party incurs as a result of this
transaction.
3.03 Security Deposits. At Closing, Seller shall either pay to Buyer, or
Buyer shall be entitled to a credit against the Purchase Price equal to, all
security deposits and other amounts paid by residents or tenants which are
refundable to such residents or tenants (the "Security Deposits"). The Security
Deposits shall not include accrued interest on the Security Deposits earned by
Seller to the extent such interest does not have to be paid to any tenants or
residents.
ARTICLE 4.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER
4.01. Seller's Covenants. Between the date of the execution of this
Agreement and the date of the Closing, Seller shall:
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(A) keep and perform all of the obligations to be performed by the
Seller under each and every agreement, permit, license and approval
relating to or affecting the Assets, including without limitation the
Leases listed in Exhibit "2.05(A)" attached hereto, the Contracts listed in
Exhibit "2.05(B)" attached hereto and the Nonassigned Contracts listed in
Exhibit "2.05(c)" attached hereto;
(B) not enter into, execute, extend, renew, terminate or modify any
lease, easement, license or any other agreement relating to or affecting
the Assets without, in each case, Buyer's prior written consent and
approval, other than residency agreements on Seller's standard form without
material modifications, and at rates equal to or greater than Seller's
current scheduled rates as depicted on Exhibit "4.01(B)" attached hereto.
Copies of such residency agreements shall be delivered by Seller to Buyer
within five (5) days after being signed (but in no event later than
Closing);
(C) effectuate, at Seller's own expense, all necessary maintenance,
repair, and replacements required to maintain the Assets in good condition
and repair;
(D) not convey or remove from the Assets or any portion thereof any
of the Personal Property located on the Assets; and
(E) cooperate with Buyer in obtaining all permits, licenses and
approvals described in this Agreement, and take all actions reasonably
requested by Buyer in connection therewith.
(F) not mortgage, hypothecate or further encumber the Assets or any
portion thereof or permit any liens on the Assets or any portion thereof to
arise by operation of law, except that Seller may mortgage (the "Seller
Deed of Trust") the Real Property to a current member in Seller in
connection with the acquisitions of such member's limited liability company
interests in Seller provided that the aggregate amount of all sums secured
by all liens, mortgages and other encumbrances on the Assets does not
exceed ninety percent (90%) of the Purchase Price.
(G) remedy, at Seller's own expense, all violations of laws,
ordinances, orders or other requirements relating to the ownership,
construction, development and operation of the Assets which have been or
may be imposed by any governmental authority having jurisdiction over, or
affecting, all or any part of the Assets prior to the date of the Closing;
provided, however, that if such remedy would cost in excess of Fifty
Thousand Dollars ($50,000.00), Seller shall notify Buyer that Seller elects
not to pay such amounts in excess of Fifty Thousand Dollars ($50,000.00),
and Buyer shall have ten (10) days after such notification to elect to
either (i) terminate this Agreement, in which case the Xxxxxxx Money shall
be returned to Purchaser or (ii) pay such amounts in excess of Fifty
Thousand Dollars ($50,000.00), and in the event Buyer does not make a
timely election, Buyer shall be deemed to have selected item (i) above.
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4.02 Representations and Warranties.
(A) In order to induce Buyer to enter into this Agreement, Seller
represents and warrants to Buyer that on the date hereof and on the date of
the Closing:
(1) Seller has all the necessary and requisite authority to
enter into this Agreement and to consummate the transactions
contemplated hereby, and the persons executing this Agreement and all
other documents required to consummate the transactions contemplated
hereby on behalf of Seller are duly authorized to execute this
Agreement and such other documents on behalf of Seller.
(2) Seller is a limited liability company duly formed and
validly existing under the laws of the state of Washington;
(3) Seller is a "United States person," as defined by Internal
Revenue Code Section 1445 and Section 7701.
(4) The execution of this Agreement by Seller does not, and the
performance by Seller of the transactions contemplated by this
Agreement will not, violate or constitute a breach of its Certificate
of Formation and Operating Agreement or other organizational
documents, or any members resolution of Seller or any contract,
permit, license, order or decree to which Seller is a party or by
which Seller or its assets are bound.
(5) Seller has good, marketable and indefeasible fee simple
title to the Real Property, subject only to the matters disclosed in
the preliminary title report referred to in Section 8.01 of this
Agreement and the Seller Deed of Trust (and any related note) to be
recorded prior to Closing, and Seller will deliver to Buyer at
Closing, a statutory warranty deed, conveying good, marketable and
insurable title to the Real Property free and clear of all liens,
pledges, and encumbrances, except for the "Permitted Exceptions"
described in Exhibit "6.02" attached hereto.
(6) No party, person or entity is in possession of the Assets or
any portion thereof, and, no party, person or entity has any interest
in the Assets, or any portion thereof, except for (i) lessees under
the Leases referred to in Exhibit "2.05.A", (ii) Seller, (iii) the
matters disclosed in the Title Commitment and (iv) the Seller Deed of
Trust (and any related note) to be recorded prior to Closing.
(7) To the best of Seller's knowledge, the Assets and the
operation thereof are not in violation of any applicable federal or
state law, or any ordinance, order or regulation of any governmental
or quasi-governmental
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agency having jurisdiction over the Assets. No proceedings of any
type (including condemnation or similar proceedings) have been
instituted or to the knowledge of the Seller are pending or
contemplated against the Real Property or any part thereof or the
Assets or any portion thereof.
(8) To the best of Seller's knowledge, there are no unrecorded
liens or encumbrances (including, but not limited to, liens relating
to environmental matters) against the Assets or any portion thereof.
(9) Seller has not been notified of, nor billed for, any special
assessments of any nature with respect to the Real Property or any
portion thereof, nor has the Seller received any written notice of,
nor has the Seller knowledge of, any such special assessment being
contemplated.
(10) To the best of Seller's knowledge, true, correct and
complete copies of the Leases, the Contracts and the Nonassigned
Contracts listed in Exhibits "2.05(A)", "2.05(B)" and "2.05(C)",
together with all amendments thereto and modifications thereof, have
been delivered to Buyer or will be delivered to Buyer within the time
period provided in this Agreement, and all subsequent amendments or
modifications to any such contract or lease shall be promptly
delivered to Buyer.
(11) There are no outstanding contracts or commitments made by
Seller for any work or materials in connection with the Assets which
have not been, or will not be, on or before the date of the Closing,
fully paid for on a timely basis and except for the Leases and
Contracts to be assigned to Buyer pursuant to this Agreement, there
are no leases, contracts, commitments or agreements which will bind
Buyer or the Assets from and after Closing.
(12) No person or entity has any right or option to acquire all
or any portion of the Assets, other than Buyer pursuant to this
Agreement.
(13) To the best of Seller's knowledge, there currently exist no
events of default by Seller, or events which with passage of time or
notice or both would constitute events of default by Seller, under the
terms and provisions of any leases or any other contracts or
agreements, with respect to the Assets to which Seller is a party, or
to Seller's best knowledge, by any other party thereto.
(14) Seller has no employees employed in connection with the
operation of the Assets, other than the employees listed on Exhibit
"11.02(C)" of this Agreement.
(15) Seller holds, and at all times through the Closing will
hold, good, valid and marketable title to the Personal Property, free
and clear of any liens, encumbrances or adverse claims, except the
liens set forth in Exhibit
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"4.02(A)(15)" attached hereto, and Seller has and at all time through
the Closing will have, the right and authority to convey or assign to
Buyer all of the Personal Property.
(16) To the best of Seller's knowledge, there are no violations
by Seller, or to the best of Seller's knowledge, by any other person
or entity, of any restrictive covenants or other matters affecting the
Real Property.
(17) Seller has not been notified of any litigation or
governmental proceeding (including, without limitation, any eminent
domain proceeding) affecting the assets or any portion thereof, and to
Seller's best knowledge, no such litigation or proceeding is pending,
threatened, contemplated or exists.
(18) All the books and records maintained for the Assets by
Seller or Seller's agents, employees or representatives are located at
Seller's xxxxxx xx X. 00 Xxxx, Xxxxxxx, Xxxxxxxxxx 00000.
(19) Seller does not now owe and will not owe any taxes or any
penalties or interest thereon pursuant to any governmental law,
statute or regulation for which Buyer is or will be obligated to or
liable for a withholding of funds from the Purchase Price pursuant to
any so called "bulk sales" law or other applicable law, state or
regulation.
(20) Except as set forth in the Underground Storage Tank
Permanent Closure/Change-In-Service Checklist by Industrial Tank
dated April 10, 1992 (the "Tank Report") and Phase I Environmental
Report prepared by Xxxxxx Consultants, Inc. and dated April 20, 1995
(Phase I Report"), (a) Seller has not generated, treated, stored or
disposed of Hazardous Materials (as defined below) in, under or upon
the Real Property (above or below ground), or any portion thereof, or
used any Hazardous Materials in or on the Assets, or any portion
thereof, in violation of any Environmental Laws; (b) to the best of
Seller's knowledge, no prior owner and no prior or current occupant
generated, treated, stored or disposed of such Hazardous Materials in,
under or upon the Real Property, or used any Hazardous Materials in or
on the Assets, or any portion thereof, in violation of any
Environmental Laws; (c) to the best of Seller's knowledge, no
Hazardous Materials are present in, under or upon the Real Property,
or any portion thereof; (d) to the best of Seller's knowledge, the
Assets and the use and operation of the Assets are not in violation of
any Environmental Laws (as defined below); (e) to the best of Seller's
knowledge, no portion of the Real Property has ever been used as a
sanitary landfill or dump; (f) to the best of Seller's knowledge, no
underground storage tank or tanks are located on or under the Real
Property; and (g) to the best of Seller's knowledge, no Hazardous
Materials or underground storage tanks are present in, under or upon
any parcel of property adjacent to the Real Property.
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(21) To the best of Seller's knowledge, no portion of the Real
Property is a wetland designated by the United States Army Corp of
Engineers or other federal, state or local body or agency having
jurisdiction over the Assets, or any portion thereof.
(22) To the best of Seller's knowledge and except as otherwise
disclosed in writing to Buyer on or before February 21, 1997, there
are no user or other fees being assessed relating to the aquifer
protection area.
(23) To the best of Seller's knowledge, no portion of the Assets
contains any building materials containing asbestos or manufactured
from asbestos.
(24) The Real Property is adequately served by all necessary
utilities including, without limitations, storm water systems,
sanitary sewer, water, electricity, telephone, gas, cable, television
and other utility services necessary to operate the Park Place II
Assisted Living and Special Care Facility. No assessments are
currently due in said utilities.
(25) Seller has not used the services of any broker or finder in
connection with the transactions contemplated hereby, except for the
referral fee to Gulf/Atlantic Valuation referred to in Section 3.02.
If any such fees or commissions are claimed or payable as a result of
Seller's claimed action or inaction, such shall be Seller's sole
responsibility. Seller shall indemnify, defend, and hold Buyer
harmless from and against any and all losses, damages, costs and
claims suffered or incurred by Buyer as a result or by reason of any
claim by any person or entity having dealt with Seller for any
brokerage commission or finder's or referral fee except as provided
herein.
(B) In the event at any time prior to Closing Seller learns or has
reason to believe that any of the aforesaid representations and warranties
is no longer true or valid, Seller shall immediately notify Buyer in
writing and therein specify the factors rendering, or likely to render,
such representations or warranties untrue or invalid. All representations
and warranties of Seller contained in this Section 4.02, or elsewhere in
this Agreement, shall be deemed remade as of the date of Closing.
4.03 Environmental Indemnity. Seller hereby agrees to indemnify, defend
and hold the Buyer harmless from and against any and all losses, liabilities,
damages, injuries, costs, expenses and claims incurred or suffered by or
asserted against Buyer arising from or related to Seller's breach of any
Environmental Law on or with respect to the operation of Seller's business on
the Real Property, or any of the warranties and representations stated in
Paragraphs, 4.02(A)(20) and 4.02 (A)(23) hereof. For purposes of this
Agreement, "Hazardous Material" means and includes any waste material or other
substance defined as hazardous in 42 U.S.C. Sec. 9601(14), or any related or
applicable federal, state or local statute, law, regulation or ordinance,
pollutants or contaminants (as defined in 42 U.S.C. (S) 9601(33), petroleum
(including crude oil or any fraction thereof), any form of natural or
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synthetic gas, sludge (as defined in 42 U.S.C. (S) 6903(26A)), radioactive
substances, hazardous waste (as defined in 42 U.S.C. (S) 6903(27)) and any other
hazardous wastes, hazardous substances, contaminants or pollutants as defined or
described in any of the Environmental Laws. As used in this Agreement,
"Environmental Laws" means all federal, state and local environmental laws, and
any rule or regulation promulgated thereunder, and any order, standard, interim
regulation, moratorium, policy or guideline of or pertaining to any federal,
state or local government, department or agency including but not limited to,
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), the Superfund Amendments and Reauthorization Act of
1986 ("XXXX"), the Clean Water Act, the Clean Air Act, the Toxic Substances
Control Act, the Occupational Safety and Health Act, the Federal Insecticide,
Fungicide and Rodenticide Act, the Maine Protection, Research, and Sanctuaries
Act, the National Environmental Policy Act, the Noise Control Act, the Safe
Drinking Water Act, the Resource Conservation and Recovery Act ("RCRA"), as
amended, the Hazardous Material Transportation Act, the Refuse Act, the Uranium
Mill Tailings Radiation Control Act and the Atomic Energy Act and regulations of
the Nuclear Regulatory Agency, and all state and local environmental laws and
regulations. The indemnification hereunder shall include and benefit Buyer, all
subsidiaries and affiliates of Buyer and any nominee or assignee of Buyer taking
title to the Assets at Closing.
ARTICLE 5.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER
5.01 Buyer's Covenants. Buyer shall apply, within five (5) Business Days
after the date this Agreement is fully executed and a copy has been delivered to
both parties, for all permits, licenses and approvals necessary to operate Park
Place Retirement Community.
5.02 Buyer's Representations and Warranties.
(A) In order to induce Seller to enter this Agreement, Buyer represents,
warrants and covenants to Seller that on the date hereof and on the date of
Closing:
(1) Organization. Buyer is a corporation duly organized, validly existing
and in good standing under the laws of the state of Delaware, has received all
necessary approval and authority to own its property and to carry on its
business as is now owned and operated by it. Buyer has the requisite corporate
authority to carry on business in the State of Washington.
(2) Authority. The Board of Directors of Buyer has duly approved the
agreements contemplated herein in accordance with Buyer's Articles of
Incorporation and Bylaws. The execution, delivery and performance hereof by
Buyer has been duly authorized by all necessary corporate actions of Buyer and
its Board of Directors.
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(3) Operating Permits and Licenses. Buyer will use good faith efforts to
obtain prior to Closing all licenses and permits necessary to own and operate
the Assets and carry on the acquired business of the Park Place Retirement
Community. Buyer shall timely make (within five (5) Business Days after the
date this Agreement is fully executed and a copy has been delivered to both
parties) and diligently proceed in good faith to complete all applications
necessary to operate Park Place Retirement Community, including without
limitations the transfer of the Department of Health Boarding Home License from
Seller to Buyer. Provided Buyer has timely made such application and diligently
pursued such permit or license, a failure of the State of Washington or any
applicable agency of the State of Washington to issue and/or transfer all such
licenses and permits shall not be a Purchaser Default under this Agreement.
(4) Payment of Liabilities Assumed. Buyer shall pay and discharge all the
liabilities and obligations of Seller assumed by Buyer hereunder to include,
without limitation, the Leases and Contracts listed in Exhibits "2.05(A)" and
"2.05(B)," when and as the same shall become due and payable or dischargeable.
(5) Payment of Washington Sales and Use Tax. Buyer covenants and agrees
to pay any and all Washington state sales and use taxes, arising by virtue of
the sale of the Assets by Seller to Buyer.
(6) Inspection. Buyer has inspected all tangible property of the acquired
business and, except as otherwise provided in this Agreement, such tangible
property is in a condition, as of the date of such inspection by Buyer,
acceptable to Buyer.
(7) Broker Fees. Buyer has not used the services of any broker or finder
in connection with the transactions contemplated hereby, except for the referral
fee to Gulf/Atlantic Valuation referred to in Section 3.02. If any such fees or
commissions are claimed or payable as a result of Buyer's claimed action or
inaction, such shall be Buyer's sole responsibility. Buyer shall indemnify,
defend, and hold Seller harmless from and against any and all losses, damages,
costs and claims suffered or incurred by Seller as a result or by reason of any
claim by any person or entity having dealt with Buyer for any brokerage
commission or finder's or referral fee except as provided herein.
(8) No Litigation. To the best of Buyer's knowledge there are no suits,
claims or actions, whether legal, administrative, arbitration or other
proceeding, or governmental investigations pending, or to Buyer's knowledge
threatened, as of February 18, 1997, which if determined adversely to Buyer
would in Buyer's estimation result in a judgment against Buyer in excess of
$100,000.00.
(9) Solvency. As of the date of this Agreement Buyer's assets at a fair
valuation exceed the amount of all of Buyer's debts at a fair valuation, and
Buyer is able to pay all of its debts (including trade debts and contingent
liabilities) as they become due, and that no transaction contemplated hereby
shall constitute preferential or fraudulent transfers within the meaning of 11
U.S.C. (S)(S) 547 or 548 and under (S)(S) 19.40 and 23.72 of the Revised Code of
Washington.
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(10) Accuracy of Representations and Warranties. Buyer's representations
and warranties set forth in this Agreement are true, accurate and correct.
B. In the event at any time prior to Closing, Buyer learns or has reason
to believe that any of the aforesaid representations and warranties is no longer
true or valid, Buyer shall immediately notify Seller in writing, and therein
specify the factors rendering or likely to render such representations or
warranties untrue or invalid. All representations and warranties of Buyer
contained in this Section 5.02 or elsewhere in this Agreement shall be deemed
remade as of the date of Closing.
ARTICLE 6.
TITLE AND SURVEY MATTERS
6.01 Uniform Commercial Code Search. Seller shall order a Uniform
Commercial Code security interest search under the name of Seller, as debtor.
Such searches shall be done both at the office of the local place for filing and
at the central place of filing in the state of Washington. Seller shall provide
Buyer with the results of all such searches at least ten (10) days prior to the
original expiration date of the Feasibility Period.
6.02 Issuance of Title Policy. At the Closing Seller shall cause the Title
Company to issue to Buyer an Owner's Policy of Title Insurance (the "Title
Policy") with extended coverage and with the following endorsements (i) 3.01
Zoning Endorsement with parking and sign coverage, (ii) access endorsement,
(iii) contiguity endorsement insuring that the Real Property is contiguous with
the "Real Property" under the PPGP Agreement and (iii) such other endorsements
as Buyer may reasonably request, and Seller reasonably approves, on or before
the expiration of the Feasibility Period as it relates to the Survey and title
exception documents (the "Title Review Period"), at Seller's cost and expense in
the full amount of the Purchase Price insuring good, marketable and insurable
fee simple title in Buyer of the Real Property, subject only to the Permitted
Exceptions described on Exhibit "6.02" attached hereto. In the event that Buyer
requests any additional title endorsements during the Title Review Period which
Seller refuses to include in the Title Policy, Buyer shall have the right within
seven (7) days of any such rejection in writing by Seller to either withdraw its
request for such endorsements, agree to pay for such endorsements itself, or
terminate this Agreement, in which case the Xxxxxxx Money shall be returned to
Buyer.
6.03 Commitment, Searches and Survey. Not later than ten (10) days prior
to the expiration of the Feasibility Period, Seller, at Seller's sole cost and
expense, shall deliver or cause to be delivered to Buyer, in form and substance
reasonably satisfactory to Buyer, six (6) copies of an ALTA-ACSM Class A "as-
built" survey ("Survey") (including field notes) with respect to the Real
Property, dated and certified as of a date subsequent to the date of this
Agreement, prepared by a Public Surveyor registered by the state of Washington,
setting forth the legal description of the Real Property, showing the location
of any improvements, and showing the size and location of all easements,
encroachments and encumbrances listed on the title commitment (identifying each
by volume and page reference
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or recording number if applicable), reciting the exact area of the Real Property
in acres and square feet, reciting the exact area of each easement, encroachment
and encumbrance, showing no portion of the Real Property situated in an area
designated by the U.S. Secretary of Housing and Urban Development (or by any
other governmental or quasi-governmental agency or authority having jurisdiction
over the Real Property) as a flood plain, special flood hazard area or general
hazard area, showing all visible utility lines upon the Real Property, and
indicating such other information reasonably requested by Buyer in writing prior
to the expiration of the Feasibility Period. The Survey shall meet the accuracy
requirements of an ALTA-ACSM Class A survey, and contain a certificate
specifically addressed to Buyer, the Title Company and any other party or
parties designated by Buyer reading as follows:
"The undersigned does hereby certify that (i) this survey was this day
made upon the ground of the property reflected hereon, for the benefit of
and reliance by Seller, Buyer, the Title Company and all other parties
listed above; (ii) the description contained hereon is correct; (iii) the
property and each parcel thereof has access to and from a dedicated roadway
as shown hereon; (iv) except as shown hereon, there are no discrepancies,
conflicts, shortages in area, encroachments, improvements, overlapping of
improvements, setback lines, easements, or roadways; (v) the total acreage
and the gross square footage and the square footage net of any portion of
the property lying within public roadways shown hereon are correct; (vi)
none of the property lies within the 100-year flood plain or any special
flood hazard area or general hazard area as designated by any governmental
agency; and (vii) this survey satisfies the accuracy requirements of an
ALTA-ACSM Class A "as-built" survey."
The Survey must be satisfactory to the Title Company so as to permit it to
issue extended coverage on the Title Policy at Closing.
ARTICLE 7.
ACCOUNTS RECEIVABLE AND ACCOUNTS PAYABLE
7.01 Accounts Receivable. Buyer agrees that the accounts receivable owned
by Seller as of the Closing Date for rent and services rendered prior to Closing
are not being transferred or sold hereunder, and that from the Closing Date
forward Seller will be entitled to receive payment of the same. Buyer shall
remit to Seller within ten (10) days following the end of each month, following
the Closing, all payments received by Buyer, for the prior month, on the
accounts receivable owned by Seller. Buyer will prepare a schedule of Seller's
accounts receivable showing all payments received thereon within ten (10) days
after the last day of each month, which schedule shall be subject to approval by
Seller, which approval shall not be unreasonably withheld or delayed. Seller
acknowledges and agrees that Buyer is not quaranteeing, collection of, nor will
Buyer be obligated to expend any sums to collect, any accounts receivable owed
to Seller. In the event any amounts are received from tenants or residents
which are not sufficient to bring such tenant's or resident's accounts current,
such amounts shall first be applied against the accounts receivable payable to
Seller.
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7.02 Accounts Payable. Seller agrees to timely pay and satisfy in full
all amounts due for products, goods, supplies, inventory and services received
or performed at the Park Place II Assisted Living and Special Care Facility
prior to the Closing Date. Buyer agrees to timely pay and satisfy in full all
amounts (i) accruing after the Closing under the Contracts being assumed by
Buyer and (ii) due for products, goods, supplies, inventory and services
received or performed in the ordinary course of business after the Closing Date
at the Park Place II Assisted Living and Special Care Facility pursuant to a
schedule to be prepared by Seller and approved by Buyer in Buyer's reasonable
discretion prior to Closing (it being agreed to by the parties that such
schedule may include general estimates of the amounts in question which do not
have to be specified to the exact dollar). Such schedule shall be revised and
reconciled by the parties after the Closing from time to time to reflect the
actual amounts owed.
ARTICLE 8.
DELIVERY OF DOCUMENTS PRIOR TO CLOSING
8.01 Seller's Deliveries. Seller has delivered prior to the execution of
this Agreement the following:
(A) the results of the Uniform Commercial Code search and tax
searches on Seller, as debtor, in the state of Washington and County of
Spokane;
(B) the preliminary title report;
(C) copies of all contracts, agreements, instruments or arrangements
described in Exhibits "2.05(A)", "2.05(B) and "2.05(C)";
(D) a preliminary schedule of Seller's accounts receivable;
(E) a list of all of Seller's present employees of Park Place
Retirement Community and their titles, job descriptions, rates of pay,
bonuses earned, length of employment and vacation and sick pay earned and
accrued;
(F) copies of financial statements on the operation of the Park Place
II Assisted Living and Special Care Facility for the immediately preceding
two (2) fiscal years;
(G) a copy of each survey, environmental report and appraisal, in the
possession of Seller and which relate to the Assets or the Park Place II
Assisted Living and Special Care Facility; and
(H) a schedule setting forth the name of each resident or tenant and
the applicable rental charged, and copies of all current Leases.
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8.02 Buyer's Deliveries. Within five (5) days from the date hereof Buyer
shall deliver to Seller:
(A) the Certificate of Secretary or Assistant Secretary of Buyer,
with attached resolutions authorizing the transaction, and authorizing one
or more of the officers of Buyer to execute and deliver the Agreement; and
(B) the Buyer's most recent Financial Statements for 1995 and 1996.
ARTICLE 9.
CONDITIONS TO BUYER'S OBLIGATION TO CLOSE
The obligations of Buyer under this Agreement are subject to the
satisfaction, at or before the Closing, of all conditions set out in this
Article 9. In the event all of the conditions contained in this Article 9 are
not satisfied by Closing other than because of a Buyer Default, Buyer may
terminate this Agreement and the Xxxxxxx Money shall be returned to Buyer.
Buyer may waive, in writing, any or all of these conditions in whole or in part
without prior notice; provided, however, that no such waiver of a condition
shall constitute a waiver by Buyer of any of its other rights or remedies under
Section 17.01 of this Agreement, if Seller shall be in default of any of its
representations, warranties or covenants under this Agreement or any term or
provision of this Agreement, unless such waiver is a waiver of such default.
9.01 Representations, Warranties and Covenants True at Closing. The
covenants, representations and warranties of Seller to Buyer contained in this
Agreement shall be true and correct on the date of this Agreement and at the
date of Closing with the same force and effect as if such covenants,
representations and warranties were made at such time.
9.02 Authorization. All actions required to be taken by Seller to
authorize the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby shall have been duly and
validly taken by Seller.
9.02 Compliance with Agreement. Seller shall have performed and complied
in all material respects with Seller's obligations under this Agreement which
are to be performed or complied with by Seller prior to or at the Closing.
9.03 Actions, Suits, and Proceedings. No actions, suits or proceedings
before any court, or any government body or authority pertaining to the Assets,
the operation of the Park Place II Assisted Living and Special Care Facility,
the transaction contemplated by this Agreement or to its consummation thereof
shall have been instituted or threatened on or before the Closing Date.
9.04 Authority and Approvals. Buyer shall have obtained all licenses,
permits, certificates, approvals and other authorizations from the appropriate
governmental agencies that are necessary to operate the Park Place Retirement
Community as a retirement
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apartment facility, including but not limited to the DSHS Medicaid Contract. In
the event State of Washington and/or other applicable authorities does not issue
by the time of Closing all such licenses and permits which are necessary to own
and operate the assets and carry out the business of Park Place Retirement
Community, and Buyer has timely made all such applications and diligently
pursued obtaining such licenses and permits, Buyer may terminate this Agreement,
the Xxxxxxx Money shall be returned to Buyer, and this Agreement shall be null
and void.
9.05 Uniform Commercial Code Lien Searches. The Buyer shall have received,
at least five (5) days prior to Closing, certified copies of Uniform Commercial
Code lien searches and tax and judgment lien searches, all dated no earlier than
ten (10) days prior to Closing. In the event such lien searches reveal the
existence of security interests or liens held by anyone in the subject Assets of
this Agreement, such security interests or liens shall be terminated at or prior
to Closing and Buyer shall be furnished with evidence of termination of the
security interests.
9.06 Simultaneous Closing. The purchase and sale of the Park Place Assets
referred to in that certain Purchase and Sale Agreement between Park Place
General Partnership and Buyer dated as of the date hereof shall close
simultaneously with the Closing of the purchase and sale of the Assets hereto.
ARTICLE 10.
CONDITIONS TO SELLER'S OBLIGATION TO CLOSE
The obligations of Seller under this Agreement are subject to the
satisfaction, at or before the Closing, of all of the conditions set out in this
Article 10. In the event all of the conditions contained in this Article 10 are
not satisfied by Closing other than because of a Seller Default, Seller may
terminate this Agreement. Seller may waive any or all of the conditions in
whole or in part without prior notice; provided, however, that no such waiver of
a conditions shall constitute a waiver by Seller of any of its other rights or
remedies under Section 17.02 of this Agreement, if Buyer shall be in default of
any of its representations, warranties or covenants or any other provision of
this Agreement, unless such waiver is a waiver of such default.
10.01 Representations, Warranties and Covenants True at Closing. The
covenants, representations and warranties of the Buyer to the Seller contained
in this Agreement shall be true and correct at the date of Closing with the same
force and effect as if such covenants, representations and warranties were made
at such time.
10.02 Authorization. All actions required to be taken by Buyer to
authorize the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby shall have been duly and
validly taken by Buyer.
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10.03 Compliance with Agreement. Buyer shall have performed and complied
in all material respects with all obligations under this Agreement which are to
be performed or complied with prior to or at the Closing.
10.04 Actions, Suits and Proceedings Against Buyer. No action, suit or
proceeding against Buyer, before any court or any government body or authority,
pertaining to the transaction contemplated by this Agreement and to its
consummation, shall have been instituted or threatened on or before the Closing
Date against Buyer which has the effect of materially adversely affecting
Buyer's ability to perform its obligations under this Agreement.
10.05 Simultaneous Closing. The purchase and sale of the Park Place
Assets referred to in that certain Purchase and Sale Agreement between Park
Place General Partnership and Buyer dated as of the date hereof shall close
simultaneously with the Closing of the purchase and sale of the Assets hereto.
10.06 Authority and Approvals. Buyer shall have obtained all licenses,
permits, certificates, approvals and other authorizations from the appropriate
governmental agencies that are necessary to operate the Park Place Retirement
Community as a retirement apartment facility, including but not limited to the
DSHS Medicaid Contract.
ARTICLE 11.
CLOSING AND POST CLOSING
11.01 Closing. Subject to the satisfaction of all conditions precedent to
Closing, Provided that (i) all conditions to Buyer's obligation to Close under
this Agreement have been satisfied or waived in writing by Buyer and (ii) all
conditions to Seller's obligation to Close under this Agreement have been
satisfied or waived in writing by Buyer, the Closing shall be held on or before
February 28, 1997 ("Closing Date"), unless another date is mutually agreed to by
Seller and Buyer. Buyer shall have the right to extend The Closing Date upon
written notice to Seller at any time prior to February 28, 1997 for a period of
thirty-one (31) days. Such extension shall not affect the condition or
designation of the Xxxxxxx Money. In no event shall the Closing Date extend
beyond March 31, 1997, except to the extent of any delays caused by a breach by
Seller of its obligations under this Agreement.
At the Closing the parties will execute and deliver all documents
(hereinafter collectively referred to as the "Closing Documents"), duly
witnessed and acknowledged where appropriate, necessary to consummate the
transaction contemplated by this Agreement pursuant to the terms of this
Agreement.
11.02 Seller's Deliveries at Closing. At the Closing Seller shall deliver
or cause to be delivered to Buyer or as directed by Buyer, in form and substance
reasonably acceptable to Buyer:
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(A) a schedule of all resident and tenant deposits, Entrance Fee
liabilities, all security deposits, cleaning fees and similar deposits and
fees held by Seller and paid to Seller under the Leases, excluding interest
earned on such amounts to the extent not required to be paid to the party
entitled to the return of each such deposit. Seller shall pay such
deposits listed upon the schedule to Buyer at Closing;
(B) all resident or tenant records and the original copies of all
Leases and Contracts, relating to the operation of the Park Place II
Assisted Living and Special Care Facility (Buyer shall also have the right
to copy at Buyer's expense, all operational and accounting records relating
to the facility);
(C) a schedule of (i) names, titles and job descriptions, (ii) amount
of current compensation due, (iii) earned vacation pay, holiday pay and
FICA and unemployment taxes thereunder, (iv) accrued vacation and sick pay,
(v) seniority, (vi) bonuses, (vii) current compensation levels of all
employees at the Park Place II Assisted Living and Special Care Facility on
the Closing Date, which Schedule will be attached hereto as Exhibit
"11.02(C)." Seller shall, on or before twenty (20) days after the Closing
Date, pay to the respective employees, in cash, the amount of the items
shown in subparagraphs (ii) and (iii) the accrued vacation pay described in
clause (iv) above and the accrued bonuses under clause (vi) above;
(D) a final schedule of Seller's accounts receivables as of the date
of Closing as required by Section 7.01 hereof;
(E) a notice executed by Seller and acceptable to Buyer, addressed to
each tenant, resident, supplier, contract party and purveyor of Seller
and/or the Park Place II Assisted Living and Special Care Facility
informing them of the sale of the Assets and business to Buyer as of the
Closing Date and directing such party to make all future payments due under
said documents to Buyer and to direct all further communication to Buyer at
such address as Buyer shall designate in such notice (which notices shall
be sent by Buyer to the relevant addresses within five (5) days after
Closing);
(F) possession of the Park Place II Assisted Living and Special Care
Facility and the Assets, all keys, pass cards, master keys, access and
emergency codes and all other similar property and/or information;
(G) an executed and notarized statutory warranty deed conveying the
Real Property to Buyer in a form mutually agreed to by the parties in their
reasonable discretion;
(H) an executed xxxx of sale for the Assets in a form mutually agreed
to by the parties in their reasonable discretion;
(I) an executed Assignment of Contracts and Leases in a form mutually
agreed to by the parties in their reasonable discretion;
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(J) an executed Assignment assigning all Intangibles, if any,
included in the Assets to Buyer;
(K) the Title Policy;
(L) the required documents terminating all security interest in the
Assets.
(M) all certificates of title to all vehicles and other items of
personal property which are evidenced by a certificate of title; and
(N) such other items or documentation as Title Company or Buyer may
reasonably request in order to consummate the transactions contemplated by
this Agreement.
11.03 Buyer's Deliveries to Seller. At Closing Buyer shall deliver, or
cause to be delivered, to Seller:
(A) the Purchase Price, as adjusted by all credits and prorations as
determined under this Agreement, payable in cash or immediately available
wire transferred funds; and
(B) an Assumption Agreement of the Leases described in Exhibit
"2.05(A)" hereto and the Contracts described in Exhibit "2.05(B)" hereto in
a form mutually agreed to by the parties in their reasonable discretion.
11.04 Prorations. On the Closing Date, the parties shall deliver pro
rated monies as described in Article 3, Section 11.05 and Section 11.06 herein.
11.05 Buyer's Closing Costs. At Closing Buyer shall pay the following
costs:
(A) one half (1/2) of any Closing or escrow fees charged;
(B) one-half (1/2) of recording costs; and
(C) one-half (1/2) of the costs of the Uniform Commercial Code
search.
11.06 Seller's Closing Costs. At Closing Seller shall pay the following
costs:
(A) one half (1/2) of any Closing or escrow fees charged;
(B) one-half (1/2) of recording costs;
(C) one-half (1/2) of the costs of the Uniform Commercial Code
search; and
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(D) the real estate excise tax.
11.07 Utility Services. Seller shall cause all utility meters to be read
prior to Closing and Seller shall be liable for all resulting final bills. The
utility services shall be switched to Buyer's name effective on the Closing
Date.
ARTICLE 12.
INDEMNIFICATIONS
12.01 Indemnification by Seller. Seller shall indemnify and hold Buyer
harmless from any and all liabilities, obligations, judgments, demands, damages,
causes of action, claims, costs and expenses, including reasonable attorneys'
fees, arising from (i) the breach of any representation, warranty, covenant or
agreement of Seller contained in this Agreement, (ii) any violation of
Environmental Laws and any contamination from Hazardous Materials on the Real
Property caused by Seller arising out of the ownership or operation of the
Assets prior to the Closing Date and (iii) any event arising from the ownership
and operation of the Assets on or before the Closing Date except to the extent
Buyer is liable for any such events pursuant to the terms of this Agreement.
12.02 Indemnification by Buyer. Buyer shall indemnify and hold Seller
harmless from any and all liabilities, obligations, judgments, demands, damages,
causes of action, claims, costs and expenses, including reasonable attorneys'
fees, arising from (i) the breach of any representation, warranty, covenant or
agreement of Buyer contained in this Agreement, (ii) any violation of
Environmental Laws and any contamination from Hazardous Materials on the Real
Property caused by Buyer arising out of the ownership or operation of the Assets
by Buyer after the Closing Date and (iii) any event arising from the ownership
and operation of the Assets by Buyer on or after the Closing Date except to the
extent (a) arising from occurrences prior to the Closing Date or (b) Seller is
liable for any such events pursuant to the terms of this Agreement.
ARTICLE 13.
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
In the event, at any time prior to Closing, a party learns that any of said
representations, warranties and covenants are no longer true or valid, the party
shall immediately notify the other party in writing and therein specify the
factors rendering such representations, warranties or covenants untrue or
invalid.
The parties hereby acknowledge that the covenants, representations and
warranties of each set forth herein were relied upon by the others and without
such representations, covenants and warranties each such other party would not
have executed this Agreement nor completed the transaction. Such
representations, covenants and warranties of the parties contained in this
Agreement and/or certificates or documents submitted pursuant to or in
connection with the transaction herein contemplated by one party to the other
shall not merge on Closing but shall survive the confirmation of the Closing of
the transaction and,
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not withstanding such Closing and regardless of any investigation on behalf of
that party with respect thereto, shall continue in full force and effect after
Closing.
ARTICLE 14.
DAMAGE TO ASSETS
If prior to the Closing Date, all or any portion of the Assets are damaged,
destroyed or rendered inoperative (collectively the "Damage") by fire, natural
elements, or other causes beyond Seller's control, Seller shall immediately
notify Purchaser of such Damage and the following procedures shall apply:
(A) if the Damage is not Material (hereinafter defined) or the damage
is material but Buyer elects not to terminate this Agreement, Buyer shall
proceed to close and purchase the Assets as diminished by such Damage,
subject to a reduction in the Purchase Price equal to the full estimated
cost of repairing and/or replacing the Damage agreed to by Seller and Buyer
in their reasonable discretion;
(B) if the Damage is Material, then Buyer may terminate and cancel
the purchase of the Assets, the Xxxxxxx Money shall be returned to Buyer
and neither party hereto shall have any further rights against or
obligations to the other under this Agreement; and
(C) for the purposes of this paragraph, Damage shall be deemed to be
"Material" if the cost of repairing such Damage equals or exceeds One
Hundred Thousand and 00/100 Dollars ($100,000.00).
ARTICLE 15.
MISCELLANEOUS
15.01 Notices. Any notice required or permitted herein or by applicable
law shall be deemed properly given: (i) when personally delivered to Maker;
(ii) three (3) days following the date sent by United States Mail, certified or
registered, postage prepaid, return receipt requested; or (iii) one (1) business
day following the date sent by Federal Express or overnight United States Mail
or other national overnight carrier, and addressed in each such case as set
forth below:
if to Seller: Park Place II, L.L.C.
000 X. Xxxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxx
if to Buyer: Brookdale Living Communities, Inc
c/o The Prime Group, Inc.
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
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Attn: Xxxx X. Xxxxxxx
with a copy to: The Prime Group, Inc.
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
15.02 Headings. The headings in this Agreement are intended solely
for convenience or reference, and shall be given no effect in the construction
or interpretation of this Agreement.
15.03 Binding Effect. This Agreement and the terms, covenants,
benefits and duties set forth herein shall inure to the benefit of and be
binding upon the parties, and the heirs, successors, legal representatives and
assigns of each of the parties.
15.04 Counterparts. This Agreement may be executed in one or more
counterparts, all of which will be considered one and the same agreement.
15.05 Severability. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provisions were omitted.
15.06 Incorporation of Recitals. The recitals are incorporated in
the body of this Agreement as if set forth at length.
15.07 Time of the Essence and Delivery of Documents. It is
acknowledged by both Seller and Buyer that time is of the essence with respect
to all matters relating to this transaction, including, but not limited to, the
timely submittal of all reports and information relating to the property to
Buyer by Seller. Seller shall be entitled to copies of the results of due
diligence studies, reports and findings to the extent Buyer is legally able to
release such information and except as provided on Exhibit "15.07" attached
hereto. Copies of due diligence will be provided to Seller as the information
at the conclusion of due diligence. Seller agrees to hold said materials in
confidence until such time, if ever, when negotiations for an agreement or a
close have been irrevocably terminated.
15.08 Exhibits. The exhibits attached hereto and all post-exhibits
attached hereafter, together with all documents incorporated by reference
therein, form an integral part of this Agreement and are hereby incorporated
into this Agreement wherever reference is made to them to the same extent as if
they were set out in full at the point at which such reference is made. To the
extent that any of the Exhibits attached hereto provide that the final form of
such Exhibit is to be attached by the parties, then Seller and Buyer shall
diligently proceed in good faith and in their reasonably discretions to finalize
such Exhibits by the relevant date set forth in each such Exhibit. The parties
may incorporate such final Exhibits into the body of this Agreement by either
executing a formal amendment or amendments to this Agreement or by both parties
initialling each such Exhibit and attaching it to this Agreement without a
formal amendment.
-24-
15.09 Attorney Fees Recoverable. In the event any suit or action is
instituted to enforce or interpret any of the terms of this Agreement, including
any action or participation in or in connection with a case or proceeding under
any Chapter of the Bankruptcy Code or any successor statute, the prevailing
party shall be entitled to recover such sum as the court may adjudge reasonable
for a recovery of attorney fees and court costs incurred in such suit, action or
proceeding or any appeal from any judgment, order or decree entered therein.
The attorneys fees and court costs recoverable under this Section 15.09 are in
addition to, and not subject to, the limitations on damages referred to in
Section 17.01 and 17.02 below.
15.10 Further Assurances, Additional Documents and Acts. Each of the
parties hereto agrees that it will at any time and from time to time, do,
execute, acknowledge and deliver or shall cause to be done, executed,
acknowledged and delivered, all such further acts, deeds, documents,
assignments, transfers, conveyances and assurances as may reasonably be required
by the other parties hereto in order to carry out fully and effectuate the
transactions herein contemplated by this Agreement.
ARTICLE 16
CONDEMNATION
In the event between the date of this Agreement and the date of the
Closing, Seller receives written notice that any condemnation or eminent domain
proceedings are threatened or initiated which might result in the taking of any
part of the Real Property, Buyer may:
A. terminate this Agreement, in which event, the Xxxxxxx Money shall
promptly be returned to Buyer and all rights and obligations of the parties
hereunder shall cease; or
B. consummate the transactions contemplated by this Agreement, in which
event Seller shall assign to Buyer all of Seller's right, title and
interest in and to any award made in connection with such condemnation or
eminent domain proceedings.
Seller shall immediately notify Buyer in writing of the occurrence of any
threat or commencement of condemnation or eminent domain proceedings. Buyer
shall then notify Seller within fifteen (15) days after the date of Buyer's
receipt of Seller's notice of such condemnation or eminent domain threat
proceedings whether Purchaser elects to exercise its right under Subsection A or
B of this Section. In the event Purchaser receives written notice of the
Casualty or threat or occurrence of such condemnation or eminent domain
proceedings within fifteen (15) days of the date of Closing, and Purchaser
elects to consummate the transactions contemplated by this Agreement within the
time period provided above, the date of the Closing shall be adjusted
accordingly.
ARTICLE 17.
DEFAULTS AND REMEDIES
-25-
17.01 If Seller should breach any of its representations, warranties,
covenants or agreements contained in this Agreement or in any other agreement,
instrument, certificate or other document between Seller and Buyer, or from
Seller to Buyer, delivered pursuant to this Agreement, and such breach is not
cured within fifteen (15) days after written notice from Buyer to Seller of such
breach, or if a "Seller Default" has occurred under the the PPGP Agreement (in
any case, a "Seller Default"), and such Seller Default is not caused by a Buyer
Default, Buyer may as its sole and exclusive remedy under this Agreement, at law
and in equity, (1) cancel this Agreement and receive the prompt return of the
Xxxxxxx Money, and collect monetary damages from Seller in an amount equal to
One Hundred Thirty Six Thousand Seven Hundred and Fifty Nine Dollars and 59/100
($136,759.59) as full and final liquidated damages (except as otherwise provided
in Section 15.09 above), Buyer and Seller hereby acknowledging that, in the
event of Sellers failure to consummate the sale contemplated hereby, actual
damages suffered by Buyer would be difficult and/or inconvenient to determine or
ascertain; or (2) enforce specific performance of this Agreement. In the event
that Buyer elects to enforce specific performance of this Agreement as provided
in clause (2) above, Buyer shall have the right, at any time prior to the time
the Assets are actually conveyed to Buyer, to change such election and instead
proceed under clause (1) above. Such change in election by Buyer shall not make
Seller a "prevailing party" under Section 15.09 above in connection with any
litigation or other proceeding relating to specific performance, but the court
shall instead look to whether Buyer is ultimately the prevailing party in
enforcing its rights under clause (1) above.
17.02 If Buyer should breach any of its representations, warranties,
covenants or agreements contained in this Agreement or in any other agreement,
instrument, certificate or other document between Seller and Buyer, or from
Buyer to Seller, delivered pursuant to this Agreement, and such failure is not
cured within fifteen (15) days after a written notice from Seller to Buyer of
such failure or if a "Buyer Default" has occurred under the PPG Agreement (in
any case a "Buyer Default"), and such Buyer Default is not caused by a Seller
Default, Seller, as Seller's sole and exclusive remedy under this Agreement, at
law and in equity, may upon written notice to Buyer, terminate this Agreement
and receive the Xxxxxxx Money, as full and final liquidated damages (except as
otherwise provided in Section 15.09 above), Buyer and Seller hereby
acknowledging that, in the event of Buyer's failure to consummate the sale
contemplated hereby, actual damages suffered by Seller would be difficult and/or
inconvenient to determine or ascertain; and, thereafter, there shall be no
further liability hereunder on the part of either party or the other party.
ARTICLE 18.
VENUE
This Agreement shall be construed and enforced according to the laws of the
State of Washington. Any suit or action in regard to or arising out of the
terms or conditions of this Agreement shall be litigated in the State Court
situated in the City of Spokane, County of Spokane, State of Washington or the
United States Federal District Court for the District of Eastern Washington and
each party hereto, individually and jointly, hereby submits their person to the
jurisdiction of said court. Venue for any action shall be in the
-26-
City of Spokane, Spokane County, State of Washington. Each party hereto
expressly waives, to the full extent it may effectively do so under applicable
law, any objection it may at anytime have: (i) the laying of venue in any
action or proceeding in any such forum; and (ii) further irrevocably waives any
claim that any such forum is inconvenient forum. Nothing contained herein shall
present Buyer from removing any action brought in any State or local Court to
Federal Court.
ARTICLE 19.
ACCESS TO RECORDS
Recognizing that Seller may from time to time require access to books,
records, data or other information delivered to Buyer, Buyer agrees that as
often as Seller may reasonably request, Buyer will permit Seller's employees and
agents reasonable access to the records during the normal business hours for the
purpose of reviewing, photocopying or making compilation of or from any of the
Seller's books, records, data or other information delivered by Seller to Buyer
pursuant to the terms of this Agreement.
ARTICLE 20.
ESCROW
This agreement shall constitute escrow instructions to the Title Company
herein named, as well as the agreement of the parties hereto with respect to the
purchase of the Assets by Buyer from Seller. Title Company is hereby appointed
and designated to act as the escrow Agent and is authorized and instructed to
deliver pursuant to the terms of this agreement the documents and monies to be
deposited into escrow as hereinafter provided. The parties hereto will execute
such supplemental escrow instructions as are customarily used by Title Company,
with such changes as the parties may negotiate to reflect the terms of this
transaction, which instructions, however, shall be subject to and governed by,
and shall not supersede in any way, the provisions of this Agreement.
ARTICLE 21.
ASSIGNABILITY
Buyer and Seller retain the right to assign all or part of this Agreement
for its purpose of achieving a 1031 like kind exchange hereto or in connection
herewith, this Agreement shall benefit and be binding upon such assignee to the
extent of such assignment notwithstanding the fact that such assignee was not an
original party hereto or thereto, but no such assignment by a party shall
release such party of its obligations under this Agreement. Each assignee to a
party's interest hereunder is entitled to all of the rights and benefits of the
party under this Agreement.
-27-
[Signature Page Follows]
-28-
ARTICLE 22.
EXECUTION BY FACSIMILE SIGNATURE
This Agreement may be executed by facsimile signature. An executed copy
delivered with facsimile signature shall be deemed an original for all purposes
hereof. Each party executing by facsimile signature shall provide an original
signed copy to the party entitled thereto within five (5) days of such delivery.
IN WITNESS WHEREOF, the parties hereto have executed this instrument the
day and year first above written.
Seller: Buyer:
PARK PLACE II, L.L.C. BROOKDALE LIVING
COMMUNITIES, INC.
By: /s/ Xxxx X. Xxxxx
-------------------------
Xxxx X. Xxxxx, CEO By: /s/ Xxxx X. Xxxxxxx
-------------------------
Its: President/CEO
------------------------
State of CALIFORNIA )
) ss.
County of RIVERSIDE )
On this day personally appeared before me XXXX X. XXXXX, to me known to be
the CEO of PARK PLACE II, L.L.C., the limited liability company that executed
the foregoing instrument, and acknowledged the said instrument to be the free
and voluntary act and deed of said limited liability company, for the uses and
purposes therein mentioned, and on oath stated that he is authorized to execute
the said instrument on behalf of said limited liability company.
GIVEN under my hand and official seal this 20th day of FEBRUARY, 1997.
/s/ Xxxxx X. Xxxxxxxx
--------------------------------------
[NOTARY PUBLIC STAMP] NOTARY PUBLIC in and for the State of
CALIFORNIA, residing at: PALM DESERT
Commission expires: AUGUST 19, 1997
State of___________________)
) ss.
County of__________________)
-29-
On this day personally appeared before me Xxxx X. Xxxxxxx, to me known to
be the President/CEO of BROOKDALE LIVING COMMUNITIES, INC., the corporation that
executed the foregoing instrument, and acknowledged the said instrument to be
the free and voluntary act and deed of said corporation, for the uses and
purposes therein mentioned, and on oath stated that he/she is authorized to
execute the said instrument on behalf of said corporation.
GIVEN under my hand and official seal this 25th day of February, 1997.
/s/Xxxxx X. Xxxxxxx
-------------------------------------
NOTARY PUBLIC in and for the State of
Illinois, residing at: ____________
Commission expires: March 1, 2001
-30-
LIST OF EXHIBITS
Exhibit "1.01(A)" Legal Description of Property
Exhibit "2.03" Feasibility Period Conditions
Exhibit "2.05(A)" Leases
Exhibit "2.05(B)" Contracts
Exhibit "2.05(C)" Contracts Not Being Assigned
Exhibit "4.01(B)" Scheduled Lease Rates
Exhibit "4.02(A)(14)" Liens
Exhibit "6.02" Permitted Exceptions to Title Commitment
Exhibit "11.02(C)" Employee Compensation Schedule
Exhibit 15.07 Confidential Buyer Documents
-31-
EXHIBIT "1.01(A)"
Legal Description of Property
Parcel "B" of SHORT PLAT NO. SP 1033-95, according to plat recorded in Volume 12
of Short Plats, Page 58, in Spokane County, Washington.
-32-
EXHIBIT "2.03"
FEASIBILITY PERIOD CONDITIONS
LENGTH OF FEASIBILITY PERIOD
ITEM RELATING TO SUCH ITEM
------------------------------------------ ----------------------------
1. Appraisal of Properties February 21, 1997
2. Environmental Reports February 28, 1997
3. Review and Approval of all
1997 Budget Assumptions February 19, 1997
4. ALTA Survey, Title
and title exception documents February 28, 1997
5. All residential and comm. leases February 21, 1997
6. All service/maintenance agrmts. February 21, 1997
7. Results of Physical Inspection
performed by Xxxxx Consulting
Engineers (ordered) February 25, 1997
8. All actual tax bills (with valuations)
for previous two years February 25, 1997
9. All employees, job title, description
and compensation schedules February 27, 1997
10. All employee policies/procedures February 27, 1997
11. All payment and payroll information February 27, 1997
12. Other material to be supplied
pursuant to the Purchase Agreement 10 Business days from receipt (or
period contained in the Purchase
Agreement)
-33-
EXHIBIT "2.05(A)"
Leases
To Be Attached
by the Parties on or before February 21, 1997
-34-
EXHIBIT 2.05 (4)
page 1 of 3
---------------------------------------------------------------------------------------------------------------------------------
Park Place II LLC - Special Care Rent Roll
----------------------------------------------------------------------------------------------------------------------------------
Apt.# First Name Last Name Move-In Date Private/Semi Monthly Rent # Res. Age
1D Semi-Private $ 2,700.00
1W Semi-Private $ 2,700.00
2 Xxxxxxx Xxxxxxxx 12/18/96 Private $ 3,200.00 1
3 Xxxxxx Xxxxxx 12/5/96 Private $ 3,200.00 1 72
4D Xxxx "Xxxx" Xxxxxx 9/6/96 Semi-Private $ 2,700.00 1 83
4W Xxxxxx Xxxx 11/29/96 Semi-Private $ 2,700.00 1 88
5 Xxxxxx Xxxxx 4/23/96 Private $ 3,200.00 1 84
6 Xxx Xxxxxxx 2/1/96 Private $ 3,200.00 1 72
7D Xxxxxx Xxxxxxxxx 2/10/97 Semi-Private $ 2,700.00 1 82
7W Xxxxxx Xxxxxx 2/12/97 Semi-Private $ 2,700.00 1 90
8 Xxxxxx Xxxxx 12/28/96 Private $ 3,200.00 1 82
9 Xxxxxxx "Xxxx" Tandy 10/23/96 Private ($5200 Entry) $ 2,950.00 1 82
10 Xxxxxx Xxxx 3/14/96 Private $ 3,200.00 1 91
11 Xxxxx Xxxxxxx 3/1/96 Private ($5200 Entry) $ 2,950.00 1 84
12D Xxxxx Xxxxxxxx 1/25/97 Semi-Private $ 2,700.00 1 88
12W Semi-Private $ 2,700.00 1 86
13D Xxxxx Self 5/30/96 Semi-Private $ 2,700.00 1 84
13W Xxxxxxx Xxxxxx 8/9/96 Semi-Private $ 2,700.00 1 83
14D Xxxxxx XxxxxXxxx 2/1/96 Semi-Private $ 2,100.00 1 62
14W Xxxx Xxxxxx 2/1/96 Semi-Private $ 2,700.00 1 82
15D Semi-Private $ 2,700.00
15W Xxxxxx Xxxxxxx 1/7/97 Semi-Private $ 2,700.00 1 92
16D Xxxxx "Xxxxxx" Xxxxxxxx 5/31/96 Semi-Private $ 2,700.00 1 92
16W Xxxxxxxx Xxxxx 7/18/96 Semi-Private $ 2,700.00 1 85
17D Nova Xxxxxxxx 1/25/97 Semi-Private $ 2,700.00 1 85
17W Xxxxx Xxxxxx 1/13/97 Semi ($3100 entry) $ 2,450.00 1 86
18 Xxxxxxx Xxxxx 11/17/96 Private $ 3,200.00 1 83
19 Xxxxxx XxxXxx 7/29/96 Private ($5200 entry) $ 2,950.00 1 84
20 Xxxx Xxxxxxxxx 10/4/96 Private $ 3,200.00 1 78
Total $ 76,800.00 26 80.0
Notes:
----------------------------------------------------------------------------------------------------------------------------------
EXHIBIT 2.05 (A)
Park Place II, L.L.C. Leases
----------------------------------------------------------------------------------------------------------------------------------
Park Place II LLC - Assisted Living
----------------------------------------------------------------------------------------------------------------------------------
Apt.# Description Sq. Ft. First Name Last Name # Res. Phone Number Deposit Rec'd Base Rent Loc 2nd
302 studio alcove 400 $ 1,750.00
303 studio 354 $ 1,650.00
304 studio alcove 400 $ 1,750.00
305 1 bedroom 525 Xxxxx Xxxxx 1 921-5779 in 1/19/97 $ 1,950.00 zero
306 studio 354 Xxxxxx Xxxxxx 1 928-3544 in 9/30 $ 1,650.00 zero
307 1 bedroom 525 Xxxxxxx Xxxxxx 1 891-5921 in 10/1 $ 1,950.00 zero
308 1 bedroom 525 Xxxx Xxx Xxxxxx 1 in 12/28 $ 1,950.00 zero
MODEL 309 studio alcove 400 $ 1,750.00
310 studio alcove 400 Xxx Xxxx 1 922-4233 in 1/25/97 $ 1,750.00
311 1 bedroom 000 Xxxxx Xxxxxx 1 928-3157 in 9/1/96 $ 1,950.00 zero
312 2 bedroom 836 Xxxx & Xxxxx Xxxxx 2 927-7755 in 5/1/96 $ 2,200.00 zero $
313 studio alcove 400 Xxxxxxxxx Xxxxxx 1 927-4333 in 5/1/96 $ 1,700.00 $ 600.00
*314 studio alcove 400 Xxxxxxx Xxxxx 1 891-7130 in 9/25 $ 1,718.64
MODEL 315 2 bedroom 836 $ 2,300.00
316 1 bedroom 525 $ 1,950.00
RESPITE317 studio alcove 400 $ 1,750.00
318 studio alcove 400 Xxxx Xxxxxx 1 927-8173 in 9/5/96 $ 1,750.00 zero
319 1 bedroom 525 Xxxxx Xxxxxxx 1 891-6189 in 10/18 $ 1,950.00 $ 400.00
320 1 bedroom 525 Xxxx & Xxxxx Xxxxxx 2 924-2882 in 5/1/96 $ 1,950.00 zero $
*321 studio 354 Xxxxx Xxxx 1 891-8688 in 10/5 $ 1,650.00 $ 68.64
322 1 bedroom 525 Xxxx Xxx 1 in 12/31/96 $ 1,950.00 $ 400.00
*323 studio alcove 400 Xxxxxxx Xxxxxxx 1 928-6172 in 9/25 $ 1,718.64
*324 studio 354 Xxxxxxxx Xxxxxxxxxxxxx 1 891-6429 in 10/1 $ 1,650.00 $ 68.64
325 studio alcove 400 $ 1,750.00
326 1 bedroom 525 Xxxxxxx Xxxxx 1 891-7102 in 10/4 $ 1,950.00 zero
48 $115,643.20 $4,674.56 $
NOTES:
----------------------------------------------------------------------------------------------------------------------------------
EXHIBIT 2.05 (A) Park Place II, L.L.C. Leases
---------------------------------------------------------------------------------------------------------------------------------
PARK PLACE II LLC - ASSISTED LIVING
---------------------------------------------------------------------------------------------------------------------------------
Apt.# Description Sq. Ft. First Name Last Name # Res Phone Number Deposit Rec'd Base Rent LOC 2nd
---------------------------------------------------------------------------------------------------------------------------------
101 1 bedroom 525 Xxxxxxxx Xxxxx 1 927-7127 in 5/3/96 $1,950.00 $ 200.00
---------------------------------------------------------------------------------------------------------------------------------
102 studio alcove 400 $1,750.00
---------------------------------------------------------------------------------------------------------------------------------
103 studio 354 Xxxxx Xxxxx 1 891-8517 in 9/12/96 $1,650.00 zero
---------------------------------------------------------------------------------------------------------------------------------
*104 studio 354 Xxxx Xxxxx 1 924-7972 in 7/3/96 $1,650.00 $ 68.64
---------------------------------------------------------------------------------------------------------------------------------
105 1 bedroom 525 H.L.& Xxxxxxx Xxxxx 2 922-8042 in 8/17/96 $1,950.00 zero $
---------------------------------------------------------------------------------------------------------------------------------
106 studio 354 $1,650.00
---------------------------------------------------------------------------------------------------------------------------------
107 1 bedroom 525 Xxxx Xxxxxxxx 1 928-8115 in 5/1/96 $1,950.00 zero
---------------------------------------------------------------------------------------------------------------------------------
108 1 bedroom 525 Xxxxxxx Xxxx 1 928-6561 in 5/6/96 $1,950.00 zero
---------------------------------------------------------------------------------------------------------------------------------
109 studio alcove 400 Xxxxxx Xxxx 1 927-9296 in 5/1/96 $1,650.00 $ 400.00
---------------------------------------------------------------------------------------------------------------------------------
110 studio 354 Xxxxxxx XxXxxx 1 928-3750 in 5/31/96 $1,650.00 zero
---------------------------------------------------------------------------------------------------------------------------------
111 1 bedroom 525 Xxxxxx Xxxxxxx 1 926-3437 in 9/27 $1,950.00 zero
---------------------------------------------------------------------------------------------------------------------------------
201 1 bedroom 525 Xxxx Case 1 892-1767 in 7/22/96 $1,950.00 $ 200.00
---------------------------------------------------------------------------------------------------------------------------------
202 studio alcove 400 $1,750.00
---------------------------------------------------------------------------------------------------------------------------------
203 studio 354 $1,650.00
---------------------------------------------------------------------------------------------------------------------------------
204 studio alcove 400 $1,750.00
---------------------------------------------------------------------------------------------------------------------------------
205 1 bedroom 525 Al & Xxxxx Xxxxx 2 924-3475 in 8/9/96 $1,950.00 zero $
---------------------------------------------------------------------------------------------------------------------------------
206 studio 354 Xxxxx Xxxxxx 1 926-4554 in 5/9/96 $1,650.00 $ 200.00
---------------------------------------------------------------------------------------------------------------------------------
207 1 bedroom 525 Xxxxxxxx Xxxx 1 927-7214 in 5/1/96 $1,950.00 zero
---------------------------------------------------------------------------------------------------------------------------------
208 1 bedroom 525 Xxxxx Xxxxxxx 1 926-2240 in 9/15/96 $1,950.00 $ 200.00
---------------------------------------------------------------------------------------------------------------------------------
*209 studio alcove 400 Xxxxxxx Xxxxxx 1 892-1410 in 7/26/96 $1,718.64
---------------------------------------------------------------------------------------------------------------------------------
210 studio alcove 400 $1,750.00
---------------------------------------------------------------------------------------------------------------------------------
211 1 bedroom 525 $1,950.00
---------------------------------------------------------------------------------------------------------------------------------
212 2 bedroom 836 $2,300.00
---------------------------------------------------------------------------------------------------------------------------------
213 studio alcove 400 Xxx Xxxx 1 1/30-2/18 $1,650.00
---------------------------------------------------------------------------------------------------------------------------------
*214 studio alcove 400 Xxxxxxxx Xxxxxx 1 892-0211 in 8/12/96 $1,718.64
---------------------------------------------------------------------------------------------------------------------------------
215 2 bedroom 836 Xxxx Xxxx 1 927-4222 in 12/19 $2,200.00 zero
---------------------------------------------------------------------------------------------------------------------------------
216 1 bedroom 525 Xxxxxx & Xxxx Xxxx 2 891-7353 in 10/1 $1,950.00 $1,000.00 $
---------------------------------------------------------------------------------------------------------------------------------
217 studio alcove 400 Xxxx Xxxxxxxx 1 926-7315 in 5/13/96 $1,750.00 $ 200.00
---------------------------------------------------------------------------------------------------------------------------------
218 studio alcove 400 Xxxxx Xxxxx 1 892-0343 in 7/31/96 $1,750.00 zero
---------------------------------------------------------------------------------------------------------------------------------
219 1 bedroom 000 Xxxx Xxxxx-Xxxxxx in 2/9/97 $1,950.00 zero
---------------------------------------------------------------------------------------------------------------------------------
220 1 bedroom 525 Xxxxxx & Xxx Xxxxxxxx 2/8-3/1 $1,950.00 $
---------------------------------------------------------------------------------------------------------------------------------
221 studio 354 Xxxxxx Xxxxxxx 1 924-1570 in 10/31 $1,650.00 $ 600.00
---------------------------------------------------------------------------------------------------------------------------------
222 1 bedroom 525 Xxxxxxx Xxxx 926-8490 in 12/14 $1,950.00 zero
---------------------------------------------------------------------------------------------------------------------------------
*223 studio alcove 400 Xxxxxx Xxxxxxxxxxx 1 921-1703 in 10/30 $1,718.64
---------------------------------------------------------------------------------------------------------------------------------
*224 studio 354 Xxxx Xxxx Xxxxxx 1 892-1802 in 8/1/96 $1,650.00 $ 68.64
---------------------------------------------------------------------------------------------------------------------------------
225 studio alcove 400 $1,750.00
---------------------------------------------------------------------------------------------------------------------------------
226 1 bedroom 525 Xxxxx Xxxxx 1 891-9068 in 5/5/96 $1,950.00 zero
---------------------------------------------------------------------------------------------------------------------------------
301 1 bedroom 525 Xxxxxxxx Xxxxxxxxxx 1 892-1787 in 8/26/96 $1,950.00 zero
---------------------------------------------------------------------------------------------------------------------------------
EXHIBIT "2.05(B)"
Contracts
To Be Attached
by the Parties on or before February 21, 1997
-35-
EXHIBIT "2.05(B)"
Park Place II, L.L.C. Contracts
-------------------------------
1. Xxxxxx Lawn & Tree Care, Inc.
Agreement
Dated: 1/1/97
2. Evergreen Pharmaceutical East
Pharmaceutical Products Contract
Dated: 2/1/96
3. BFI Medical Waste Systems
Service Agreement
Dated: 3/14/96
4. Xxx Cable of Spokane, Inc.
Multiple Dwelling Unit Cable Service and Access Agreement
Dated: 2/2/96
5. Xxxxx Xxxxx
Agreement to Provide Consulting Dietician Services
Dated: 1/30/96
6. Fire Power, Inc.
Preventative Maintenance Agreement
Dated: 1/18/96
7. GT Graphic Consultants, Inc.
LVC Full-Service Copier Maintenance Agreement and Equipment Lease
Dated: 3/20/96
8. Xxxxx Northwest, Inc.
Service Agreement*
9. Xxxxx Heating
Service Agreement
Dated: 11/7/96
* Note: no contract, see sample invoice attached, service cancellation requires
30-day notice, multiple air fresheners provided around campus
EXHIBIT "2.05(C)"
CONTRACTS NOT BEING ASSIGNED
1. Management Agreement dated October 10, 1995 between Seller and
Start/Northwest doing business as Senior Living Management Services.
-36-
EXHIBIT "4.01(A)(14)"
Liens
None
-37-
EXHIBIT "4.01(B)"
Schedule Lease Rates
To Be Attached
by the Parties on or before February 21, 1997
See Following Page
-00-
Xxxx Xxxxx XX, X.X.X. Scheduled Lease Rates
-------------------------------------------
EXHIBIT 4.01(B)
Special Care Rates
Floor Plans Monthly Rent
Shared apartments $2,700
Private apartments $3,200
The monthly rent includes:
. 20 private or shared apartments
. Month-to-month rent; no entry fee
. Three meals daily
. Individualized activity programs
. Innovative behavior management program
. Enclosed garden and walking path
. Incontinence program
. Arts and crafts room
. Therapeutic and recreational exercise program
. Specialized nutritional planning
. Comprehensive initial and ongoing needs assessments
. Physical, occupational and speech therapy providers on-campus
. Music and pet therapies
. Alzheimer's support group and educational seminars for families and residents
. Assistance with grooming, bathing, medication management and other personal
care
. Laundry and housekeeping
. Utilities and cable TV
. Worship services
. Transportation to community activities
Park Place
Retirement Community
000 X. Xxxx Xxxx . Xxxxxxx, XX 00000
(000) 000-0000
Assisted Living Rates
Floor Plans Monthly Rent
Studio $1,650
Studio with Alcove $1,750
1 Bedroom $1,950
2 Bedroom $2,200
. The above rents are based on single occupancy.
$400 will be charged monthly for a second occupant.
The monthly rent includes:
. Three meals daily
. Month-to-month rents, no entry fee
. 24-hour licensed nursing staff
. Free laundry facilities
. Educational and activity programs
. Transportation services
. Emergency call system
. Weekly housekeeping
. Utilities and cable TV
. Maintenance-free living
Additional Services: $250 - $600 per month
Initial and ongoing assessments will determine
additional services required. These services may include:
. Assistance with grooming
. Bathing
. Medication monitoring
. Other personal care services
Park Place
Retirement Community
000 X. Xxxx Xxxx . Xxxxxxx, XX 00000
(000) 000-0000
EXHIBIT "6.02"
Permitted Exceptions to Title Commitment
To Be Attached
by the Parties on or before February 28, 1997
-39-
EXHIBIT "11.02(C)"
Employee Compensation Schedule
To Be Attached
by the Parties on or before February 21, 0000
Xxxx Xxxxx II, L.L.C.
Employee Compensation Schedule
Park Place II LLC
Employee Compensation @ 2/15/97
Full Time/
Employee Name Job Title Pay Rate Part Time
Xxxxx, Xxxxxxx A Resident Svc Assistant $6.50 PT
Xxxxxx, Xxxxxxx G Waitstaff $6.00 FT
Xxxxxx, Xxxx A Waitstaff $5.25 PT
Xxxxx, Xxxx L Resident Svc Assistant $6.50 FT
Xxxxxx, Xxxxx D Resident Svc Assistant $6.50 FT
Xxxxxxx, Xxxxxxx A Resident Svc Assistant $6.75 FT
Xxxxxx, Xxxxxx J Resident Svc Assistant $6.50 FT
Xxxxx, Xxxxxxx R Resident Svc Assistant $7.50 PT
Xxxxx, Xxxxxx R Waitstaff $5.25 PT
Xxxxxxxxxxx, Xxxxx A Resident Svc Assistant $7.25 FT
Xxxxxxxx, Xxxxx L Resident Svc Assistant $6.75 FT
Xxxxxx, Xxxxxx L Marketing/Leasing Agent $1,800.00* FT
Xxxxxxx, Xxxxxxx J Waitstaff $5.50 PT
Xxxxxxxx, Xxxxx L Community Resource Mgr $1,800.00 FT
Xxxxxx, Xxxxxxxx A Resident Svc Assistant $8.50 FT
Xxxxxx, Xxxxx L Resident Svc Assistant $6.75 FT
Xxxxx, Xxxxx E Resident Svc Assistant $6.50 PT
Xxxxxxx, Xxxxx A Resident Svc Assistant $6.50 FT
Xxxxxxx, Xxxxx T Resident Svc Assistant $6.50 FT
Xxxxxxxx, Xxxxxxxx A Resident Svc Assistant $7.50 FT
Xxxxx, Xxxxxx X Waitstaff $5.25 PT
Xxxxxx, Xxxxxx C Waitstaff $5.25 PT
Xxxxxx, Xxxxxx M Resident Svc Assistant $6.50 FT
Xxxxxx, Xxxx S Dishwasher $5.25 PT
Xxxxx, Xxxxx J Resident Svc Assistant $7.50 PT
Xxxxx, Virginia L Resident Svc Assistant $6.75 FT
Xxxxxxx, Xxxxxxx R Waitstaff $5.50 PT
Xxxxxxx, Xxxxx K Dishwasher $5.00 PT
Xxxxxx, Xxxxxxx R Receptionist $6.35 FT
Xxxxx, Xxx X Xxxx $6.50 FT
XxXxxxxxx, Xxxxxx C Resident Svc Assistant $6.75 FT
X'Xxxx, Xxxxxxxxx A Resident Svc Director $3,000.00 FT
Xxxxxx, Xxxxx Resident Svc Assistant $7.00 PT
Xxxxxxxx, Xxxxxx R Resident Svc Assistant $6.50 PT
Xxxx, Xxxx L Resident Svc Assistant $6.25 FT
Xxxxxx, Xxxx A Housekeeper $5.50 PT
Xxxxxxxxx, Xxxxxx F Activities Director $7.50 FT
Xxxx, Xxxxx L Resident Svc Assistant $6.75 PT
Xxxxx, Xxxx J Waitstaff $5.50 PT
Xxxxxx, Xxxxxx M Resident Svc Assistant $7.25 FT
Xxxxx, Xxxxxx M Food Services Director $2,500.00 FT
Xxxxx, Xxxxx A Housekeeper $5.50 FT
Xxxxx, Xxxxxx M Resident Svc Assistant $6.50 FT
Xxxxx, Xxxxx L Resident Svc Assistant $7.25 FT
Xxxxxx, Xxxxxxx E Housekeeper $6.00 FT
Xxxxxxx, Xxxxxxxxx E Resident Svc Assistant $7.25 FT
Wall, Mackensie M Waitstaff $5.25 PT
Xxxxxx, Xxxxx Y Resident Svc Assistant $6.50 FT
Xxxxxx, Xxxxxxxx M Licensed Practical Nurse $12.00 PT
Xxxxx, Xxxxxx D Registered Nurse $15.00 FT
Xxxx, Xxxxx M Resident Svc Assistant $6.75 FT
Xxxxx, Xxxxxx M Resident Svc Assistant $6.00 FT
Xxxxxx, Xxxxxx M Resident Svc Assistant $6.75 PT
*Plus Commissions
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EXHIBIT "15.07"
Confidential Buyer Documents
1. Appraisal
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