PARTNERSHIP INTEREST PURCHASE AGREEMENT
(EMERITUS)
This Partnership Interest Purchase Agreement (the "Agreement") is
dated June 4th, 1998 and is entered into between EMERITUS REAL
ESTATE LLC IV, a Washington limited liability company ("Seller")
and COLUMBIA PACIFIC MASTER FUND 98 GENERAL PARTNERSHIP, a
Washington general partnership, or assigns ("Buyer"). Seller
wishes to sell, and Buyer wishes to purchase, the Interest, as
defined below, upon the following terms and conditions.
1. THE INTEREST. The interest to be purchased by Buyer shall
consist of a thirty percent (30%) general partnership interest,
including the interest in profits, losses, cash distributions and
capital represented thereby (the "Interest"), in XXXXXX XXXXXX
PARTNERS LIMITED PARTNERSHIP, a Washington limited partnership
(the "Partnership"), the terms and conditions of which are set
forth in that certain Agreement of Xxxxxx Xxxxxx Partners Limited
Partnership dated August 7, I995 (the "Partnership Agreement").
2. CLOSING. "Closing" shall mean the date on which the parties
fully execute and deliver to one another counterparts of the
Assignment and Assumption of Partnership Interest attached hereto
as Exhibit A, but in no event later than June 30,1998.
3. PURCHASE PRICE. The purchase price to be paid to Seller by
Buyer for purchase of the Interest (the "Purchase Price") shall be
a total of One Million Ten Thousand Dollars ($1,010,000) and shall
be paid all cash at Closing.:
4. SELLER'S WARRANTIES AND REPRESENTATIONS.
(a) TITLE TO THE INTEREST. Buyer shall order, at Seller's expense,
a UCC search with respect to Seller's ownership of the Interest.
Seller warrants and represents to Buyer that Seller is the sole
owner of the Interest, free of all liens, encumbrances or claims,
and that Seller has full authority to sell the Interest to Buyer
hereunder without having to obtain the consent of any other party.
(b) PARTNERSHIP AGREEMENT. To Seller's knowledge, the Partnership
Agreement has not been modified or amended in any respect.
5. COSTS TO BUYER AND SELLER.
(a) Seller shall pay (i) costs of obtaining the UCC search
described in Section 4 above; (ii) one-half (1/2) of any escrow
fees; (iii) one-half (1/2) of any real or personal transfer taxes
arising as a result of this transaction; and (iv) costs of
Seller's counsel.
(b) Buyer shall pay (i) one-half (1/2) of any escrow fees; (ii)
one-half (1/2) of any real or personal transfer taxes arising as a
result of this transaction; and (iii) the costs of Buyer's
counsel.
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6. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS. Buyer's obligation
to perform under this Agreement is subject to and contingent upon
Buyer's confirmation that Seller holds the Interest free of liens,
encumbrances or claims and that Seller has full authority to sell
the Interest.
7. PRORATIONS. No prorations will be made at Closing.
8. DEFAULT. In the event Buyer defaults hereunder, Seller's sole
remedy shall be to recover as damages its actual out of pocket
expenses incurred in connection with this transaction. In the
event of Seller's breach, Buyer shall be entitled to any remedies
at law or in equity, including without limitation the ability to
specifically enforce this Agreement, or in the alternative may
elect to collect from Seller a breakup fee on One Hundred Thousand
Dollars ($100,000) in cash.
9. WAIVER AND RELEASE. Seller and Buyer acknowledge that each of
them is familiar with the Partnership, its operations and the
property owned and operated by the Partnership, and that neither
is relying on any representation or warranty of the other, except
as expressly set forth in this Agreement, as to the value of the
Interest or the ongoing value or prospects of the Partnership or
its operations. Accordingly, each of Seller and Buyer hereby
waives and releases each other from all claims or actions related
to the Interest, the Partnership, or the ongoing operations ofthe
Partnership.
10. MISCELLANEOUS.
(a) All notices, consents and approvals required by this Agreement
shall be either: (i) personally delivered; (ii) placed in the
United States mail, properly addressed and with full first-class
postage prepaid, certified mail with a return receipt; (iii) sent
via nationally recognized overnight courier; or (iv) sent via
telecopy with a hard copy sent via overnight courier. Said
notices, consents and approvals shall be deemed received on the
earlier of the date actually received or forty-eight (48) hours
after being sent as aforesaid.
Said notices, consents and approvals shall be sent to the parties
hereto at the following address, unless otherwise notified in
writing:
To: Seller: Emeritus Real Estate LLC IV.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
Fax No.: (000) 000-0000
With Copy to: Xxxxxx Pepper & Shefelman
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Fax No.: (000) 000-0000
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To Buyer: Columbia-Pacific Group, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Fax No.: (000) 000-0000
With Copy to: Whalen, Firestone, Xxxxxxxx, Xxxxxxx & Xxxxx LLP
0000 Xxxxxx Xxxxxx, Xxxxx 000 0
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Fax No.: (000) 000-0000
(b) ATTORNEY FEES. In the event that either party hereto brings an
action or proceeding for a declaration of the rights of the
parties under this Agreement, for injunctive relief, or for an
alleged breach or default of, or any other action arising out of
this Agreement or the transactions contemplated hereby, the
prevailing party in any such action shall be entitled to an award
of reasonable attorneys' fees and any court costs incurred in such
action or proceeding, in addition to any other damages or relief
awarded, regardless of whether such action proceeds to final
judgment.
(c) ENTIRE AGREEMENT AND AMENDMENTS. This Agreement, together with
any Exhibits referred to herein, constitute the final and complete
expression between the parties hereto and supersedes any and all
prior arrangements or understandings between the Parties. This
Agreement can be amended only by a writing signed by Buyer and
Seller.
(d) EXHIBITS. All exhibits attached hereto are hereby incorporated
by reference and made a part hereof.
(e) TIME IS OF THE ESSENCE. Time is of the essence in connection
with each and every provision of this Agreement.
(f) CHOICE OF LAW. This Agreement and each and every related
document is to be governed by, and construed in accordance with,
the laws of the state of Washington.
(g) SUCCESSORS. Except as otherwise provided herein, the
provisions and covenants contained herein shall inure to and be
binding upon the heirs, successors and assigns of the parties
hereto. However, Seller shall have no right to assign any of its
rights, privileges, duties or obligations under this Agreement or
to convey or transfer the Interest prior to Closing, without the
prior written consent of Buyer. Buyer shall be entitled to assign
Buyer's interest under this Agreement.
(h) SECTION HEADINGS. The headings of the Sections of this
Agreement are inserted solely for convenience of reference and are
not intended to govern, limit or aid in the construction of any
term or provision hereof.
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(i) WAIVER. No claim of waiver, consent or acquiescence with
respect to any provision of this Agreement shall be made against
either party except on the basis of a written instrument executed
by or on behalf of such party. A receipt by Seller of any payment
due hereunder, with knowledge of any breach of this Agreement,
shall not be deemed a waiver of such breach. The party for whose
benefit a condition is herein inserted shall have the unilateral
right to waive such condition.
(k) FURTHER ACTIONS. Buyer and Seller agree to execute such
further documents, and take such further actions, as may be
reasonably required to carry out the provisions of this Agreement,
or any agreement or document relating hereto or entered into in
connection herewith.
IN WITNESS WHEREOF, the undersigned have executed this document as
of the day and year first hereinabove written.
SELLER: EMERITUS REAL ESTATE LLC IV,
a Washington limited liability company
By:
Its
BUYER: Columbia Pacific Master Fund 98 General
Partnership, a Washington general partnership
By: Columbia Pacific Growth Fund 98 Limited
Partnership, a Washington limited partnership, its
partner
By: B.F. Limited Partnership, a Washington limited
partnership, its general partner
By: Columbia Pacific Group, Inc., a Washington
corporation, its general partner
By: /s/: Xxxxxx X. Xxxx
Xxxxxx X. Xxxx, President
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EXHIBIT A
ASSIGNMENT AND ASSUMPTION AGREEMENT
XXXXXX XXXXXX PARTNERS LIMITED PARTNERSHIP
This Assignment and Assumption Agreement is by and between
EMERITUS REAL ESTATE LLC IV, a Washington limited liability
company ("Assignor") and COLUMBIA-PACIFIC GROUP, INC., a
Washington corporation. ("Assignee"). Assignor wishes to assign to
Assignee a thirty percent (30%) general partnership interest,
including the interest in profits, losses, cash distributions, and
capital represented thereby (the "Interest") in XXXXXX XXXXXX
PARTNERS LIMITED PARTNERSHIP, a Washington limited partnership
(the "Partnership"), the terms and conditions of which are set
forth in that certain Agreement of Xxxxxx Xxxxxx Partners Limited
Partnership dated August 7,1995 (the "Partnership Agreement").
Accordingly, Assignor hereby sets over, assigns, and transfers
unto Assignee the Interest, upon all the terms and conditions of
the Partnership Agreement, and Assignee hereby accepts and agrees
to assume the Interest, upon the terms and conditions of the
Partnership Agreement.
Assignor represents that: (a) it is sole the owner and holder of
the Interest, (b) the Interest is free and clear of all liens and
encumbrances, and (c) all consents and approvals, if any,
necessary to permit this Assignment have been obtained by
Assignor.
Dated as of the ___ day of June, 1998.
ASSIGNOR: EMERITUS REAL ESTATE LLC IV,
a Washington limited liability company
By: /s/: Xxxxx X. Xxxxx
Its: Chief Financial Officer
ASSIGNEE: Columbia Pacific Master Fund 98 General
Partnership, a Washington general partnership
By: Columbia Pacific Growth Fund 98 Limited
Partnership, a Washington limited partnership, its
partner
By: B.F. Limited Partnership, a Washington limited
partnership, its general partner
By: Columbia Pacific Group, Inc., a Washington
corporation, its general partner
By: /s/: Xxxxxx X. Xxxx
Xxxxxx X. Xxxx, President
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