Exhibit 10.1
CONTRIBUTION AGREEMENT
This CONTRIBUTION AGREEMENT (this "Agreement"), is entered into as of
June 30, 2003 by and between CAPITAL SENIOR LIVING PROPERTIES, INC., a Texas
corporation ("Contributing Member") and BRE/CSL HOLDINGS II L.L.C., a Delaware
limited liability company (the "Blackstone Member"), on behalf of itself and the
Venture (as hereinafter defined).
RECITALS
1. Contributing Member owns real property in Cottonwood, Arizona, the
legal description of such property being contained in Exhibit A (collectively,
the "Land") and all buildings, facilities, improvements located thereon (the
"Improvements") together with all appurtenant rights, privileges, easements,
tenements, hereditaments, rights-of-way and other appurtenances, including
without limitation all development rights, if any appurtenant to the Land (the
"Related Rights"; the Land, the Improvements and the Related Rights,
collectively, the "Property").
2. On the Contribution Date (as defined herein) (i) Contributing Member
and Blackstone Member desire to form a limited liability company (the "Venture")
pursuant to the terms of the Limited Liability Company Agreement attached hereto
as Exhibit B (the "Venture Agreement") and (ii) Contributing Member desires to
contribute the Property to the Venture, or the Property Entity, subject to the
Permitted Encumbrances (as defined herein), in exchange for Contributing Member
becoming a (i) Member (as set forth in the Venture Agreement) in the Venture and
(ii) receiving the Sharing Percentage (as defined herein) in the Venture on the
terms and conditions of this Agreement.
In consideration of the foregoing and the mutual representations,
warranties, covenants, and agreements herein contained, Contributing Member and
Blackstone Member agree as follows:
SECTION 1
DEFINITIONS
1.1. Definitions. Unless the context otherwise requires, the following
terms shall have the following meanings for purposes of this Agreement:
"Actual Knowledge of Contributing Member" shall mean the
actual knowledge of Xxxxx X. Xxxxxx, Xxxxxxxx X. Xxxxx, Xxxxx Xxxxxxx,
Xxxxx Xxxxxxxxxx, Xxxx Xxx, Xxxxxx Xxxxxx, Xxxxx Xxxxxxxx, or Xxxxx
Xxxxx.
"Affiliate" means, with respect to any person, any person
directly or indirectly controlling, controlled by, or under common
control with such other person.
"Affiliate Arrangements" shall have the meaning given to it in
Section 5.13(b).
"Agreed Value" shall mean $11,000,000, which shall be adjusted
for determining the Cash Contribution as follows: if the sum of
Contribution Costs is greater than $150,000, the Agreed Value shall
decrease by an amount equal to difference between the sum of
Contribution Costs and $150,000.
"Agreement" means this Contribution Agreement, as it may be
amended, supplemented or modified from time to time.
"Assets" shall have the meaning given to it in Section 2.1(a).
"Blackstone Indemnitee" means Blackstone Member, the Venture,
and any Affiliates of Blackstone Member and the Venture (except for
Contributing Member).
"Blackstone Indemnitor" shall have the meaning given to it in
Section 7.1(c).
"Blackstone Member" means BRE/CSL Holdings II L.L.C., a
Delaware limited liability company.
"Business" means the independent living, assisted living, and
related business at the Property.
"Capital Account" shall have the meaning given to it in the
Venture Agreement.
"Cash Contribution" shall mean an amount equal to 90%
multiplied by the difference between (a) the sum of (i) the Agreed
Value (as adjusted by the prorations set forth in Section 2.4), (ii)
the Contribution Costs, (iii) the Acquisition Fee, (iv) the Initial
Capital Funds and (b) the outstanding principal amount of the Existing
Loan.
"Claims" shall have the meaning given to it in Section
2.1(a)(iv).
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor statute. Any reference herein to a
particular provision of the Code shall mean, where appropriate, the
corresponding provision in any successor statute.
"Contracts" shall have the meaning given to it in Section
2.1(a)(v).
"Contribution Costs" shall mean all costs incurred by the
Venture in connection with the transactions contemplated by this
Agreement and the assumption by the Property Entity of the Existing
Loan including without limitation the Transfer Fee, the Extension Fee,
and any other financing fees, legal fees for Xxxxxxx Xxxxxxx & Xxxxxxxx
LLP, Jenkens & Xxxxxxxxx, local counsel, and regulatory counsel, costs
for an updated survey, the Title Policy, environmental and engineering
reports, and transfer taxes.
"Contribution Date" shall mean June 30, 2003.
"Conveyance Instruments" shall have the meaning given to it in
Section 2.2.
"Contributing Member" means Capital Senior Living Properties,
Inc., a Texas corporation.
"Contributing Member Indemnitee" means Contributing Member and
any Affiliates of Contributing Member.
"Contributing Member Indemnitor" shall have the meaning given
to it in Section 7.1(b).
"Environmental Laws" means all federal, state, and local laws,
statutes, regulations, orders, decrees, judgments, and common law
relating to the protection of human health, natural resources or the
environment, as amended from time to time, including but not limited to
(i) CERCLA, (ii) the Resource Conservation and Recovery Act, (iii) the
Hazardous Materials Transportation Act, (iv) the Clean Air Act, (v)
Clean Water Act, (vi) the Toxic Substances Control Act, (vii) the Safe
Drinking Water Act, and (viii) the Occupational Safety and Health Act,
and any similar state laws.
"Extension Fee" shall mean the fee in the amount of $9,275
imposed by Lender for the option to extend the Existing Loan to January
15, 2007.
"Existing Loan" shall mean the existing loan from Lender to
Contributing Member in the original principal amount of $9,000,000.
"Files and Records" shall have the meaning given to it in
Section 2.1(a)(xi).
"Financial Statements" shall have the meaning given it in
Section 5.5.
"Governmental Bonds and Deposits" shall have the meaning given
to it in Section 2.1(a)(ix).
"Hazardous Materials" shall mean substances defined as
"hazardous substances," "hazardous materials," or "toxic substances" in
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, 42 U.S.C. Sec. 9601, et seq.; the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; or the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et.
seq. or in the regulations adopted and publications promulgated
pursuant to said laws.
"Improvements" has the meaning set forth in the recitals to
this Agreement.
"Indemnitee" means Contributing Member Indemnitee and
Blackstone Member Indemnitee.
"Indemnitee Affiliate" means the employees, successors, and
assigns of each Indemnitee, and, with respect to each corporate
Indemnitee, its directors, officers, and shareholders and with respect
to each partnership or limited liability company Indemnitee, its
partners or members and their respective agents.
"Indemnitor" means Contributing Member Indemnitor and
Blackstone Indemnitor.
"Initial Capital Funds" shall mean an amount equal to $175,000
to be used by the Venture or the Property Entity for initial capital
expenditures at the Property.
"Intangible Property" shall have the meaning given to it in
Section 2.1(a)(iii).
"Intellectual Property" shall have the meaning given to it in
Section 2.1(a)(iii).
"Land" has the meaning set forth in the recitals to this
Agreement.
"Legal Requirement" means any material legal requirement of
any applicable governmental authority.
"Lender" means Bank One, NA.
"Liabilities" shall have meaning given to it in Section 2.3.
"Loan Documents" shall mean those documents governing the
Existing Loan.
"Losses" shall have the meaning given to it in Section 7.1(b).
"Management Agreement" shall have the meaning given to it in
the Venture Agreement.
"Permits" shall have the meaning given to it in Section
2.1(a)(viii).
"Permitted Encumbrances" shall mean (i) liens for current
Taxes not yet due and payable; (ii) easements, rights-of-way, building
or use restrictions, exceptions, variances, reservations, or similar
encumbrances of record affecting, but not materially interfering with
the present use of, any portion of the Property; and (iii) exceptions
to title set forth in the Title Policy and approved by Blackstone
Member in accordance with this Agreement.
"Personal Property" shall have the meaning given to it in
Section 2.1(a)(ii).
"Property" has the meaning set forth in the recitals to this
Agreement.
"Property Entity" shall mean BRE/Cottonwood L.L.C., a Delaware
limited liability company.
"Related Rights" has the meaning set forth in the recitals to
this Agreement.
"Rents" shall have the meaning given to it in Section 2.4(f).
"Residents" means residents in occupancy at the Property
pursuant to Residency Agreements.
"Residency Agreements" means the agreements in place whereby
Residents are in occupancy at the Property.
"Returns" means Tax returns, statements, reports, and forms
(including information returns and reports) required to be filed or
furnished with respect to the Assets or in connection with the
Business;
"Sharing Percentage" shall have the meaning given to it in the
Venture Agreement.
"Tax" means (i) any net income, alternative or add-on minimum
tax, gross income, gross receipts, sales, use, ad valorem, franchise,
capital, paid-up capital, profits, greenmail, license, withholding,
payroll, employment, excise, severance, stamp, occupation, premium,
property, environmental or windfall profit tax, custom, duty, or other
tax, governmental fee, or other like assessment or charge of any kind
whatsoever, together with any interest or any penalty, addition to tax,
or additional amount imposed by a Taxing Authority, and (ii) liability
for the payment of any amounts of the type described in (i) as a result
of any express obligations to indemnify any other Person.
"Taxing Authority" means any governmental authority
responsible for the imposition of any such tax (domestic or foreign).
"Tenant Leases" shall have the meaning given to it in Section
2.1(a)(vi).
"Title Company" shall mean TSNY, as agent for Fidelity
National Title Insurance Company.
"Title Policy" shall have the meaning given to it in Section
4.1(g).
"Transfer Fee" shall mean the fee in the amount of $37,750
imposed by Lender for the assumption of the Existing Loan by the
Property Entity.
"Venture" means BRE/CSL II L.L.C., a Delaware limited
liability company.
"Venture Agreement" has the meaning set forth in the recitals
to this Agreement.
SECTION 2
CONTRIBUTION OF ASSETS BY CONTRIBUTING MEMBER
2.1. Contribution of the Assets.
(a) Subject to the terms and conditions of this Agreement, on the
Contribution Date, Contributing Member agrees to assign, transfer and deliver to
the Venture subject to the Permitted Encumbrances, and Blackstone Member agrees
to cause the Venture to accept the following properties, interests, and assets
(collectively, the "Assets"):
(i) The Property;
(ii) All fixtures, machinery, equipment, furnishings,
vehicles, appliances, computer hardware, art work and other tangible
property (including, without limitation, general operating inventory,
maintenance and operating supplies, fuel, and spare parts for such
machinery and equipment) owned by the Contributing Member located on,
or used at, the Property or otherwise used exclusively in connection
with the Business (collectively, the "Personal Property");
(iii) All of the following owned by Contributing Member or
exclusively issued or licensed to Contributing Member and used in
connection with the operation of the Property: (1) trademarks, trade
names, service marks and other intellectual property rights (including,
without limitation, the name "Cottonwood Village" and any derivative
thereof) (collectively, the "Intellectual Property"), (2) warranties
and guaranties held by Contributing Member; (3) computer software used
in connection with any computer systems located at the Property; (4)
direct dial telephone numbers for the Property; and (5) all goodwill in
connection with the ownership, operation and maintenance of the
Property (collectively, the "Intangible Property");
(iv) To the extent transferable, all of Contributing Member's
rights, claims, credits, causes of action, or rights of setoff against
third parties relating to the Assets, including, without limitation,
unliquidated rights under manufacturers' and vendors' warranties and
guaranties but excluding all amounts representing reimbursements for
items paid by Contributing Member (collectively, the "Claims");
(v) To the extent transferable, all leases and purchase money
security agreements for any equipment, machinery, vehicles, furniture
or other personal property located at the Property and used in the
operation of the Property which are held by or on behalf of
Contributing Member; all maintenance, service and supply contracts, and
credit card service agreements; and all other contracts and agreements
which are held by Contributing Member or its Affiliates in connection
with the operation of the Business (collectively, the "Contracts"),
together with all deposits made or held by Contributing Member
thereunder;
(vi) All leases, subleases, and to the extent transferable,
licenses, concessions, and similar agreements granting an interest to
any other person or entity for the use and occupancy of any portion of
the Property (the "Tenant Leases") excluding the Residency Agreements,
together with all security deposits thereunder;
(vii) The Residency Agreements together with all security
deposits thereunder;
(viii) All certificates of occupancy and other transferable
licenses, certificates of need, permits, registrations, authorizations,
use agreements, orders, or approvals (including, without limitation, if
applicable, medicare and medicaid provider agreements) of governmental
or quasi-governmental agencies and authorities (whether federal, state,
local, municipal, or foreign) or private parties relating to the
construction, use, operation, or enjoyment of the Assets and the
provision of services at the Property (collectively, the "Permits");
(ix) All transferable bonds or deposits made by Contributing
Member or its predecessors in title (or its agents) with any
governmental agency or authority or with any utility company or third
party relating to the construction, use, operation, or enjoyment of the
Assets (collectively, the "Governmental Bonds and Deposits");
(x) All prepaid rentals and other prepaid expenses arising
from payments made by Contributing Member in the ordinary and usual
course of the operation of the Business prior to the close of business
on the Contribution Date;
(xi) Originals or copies of all books, records, files, and
papers, manuals, plans of operations, and budgets whether in hard copy
or computer format, used in the Business, including without limitation,
sales, marketing and advertising materials, Residency Agreements,
leases and all related correspondence, lists of present suppliers, and
personnel and employment records and, with respect to information
relating to Tax, only information that is necessary for the preparation
of any Tax returns to be filed by the Venture after the Contribution
Date or the determination of the Tax basis of the Assets (collectively,
the "Files and Records"); and
(xii) All lists of Residents and/or tenants associated with
the Assets.
Notwithstanding anything to the contrary contained herein, in no event
will the Assets (i) include cash on hand as of the Contribution Date (except for
all security deposits being held with, or on behalf of, Contributing Member in
connection with the Assets), or (ii) any accounts receivable arising out of
Residency Agreements, Tenant Leases, services or otherwise in connection with
the operation of the Business through and including the close of business on the
day prior to the Contribution Date.
2.2. Conveyance Instruments. In order to effectuate the contribution of
the Assets as contemplated by this Agreement, Contributing Member will execute
and deliver, or cause to be executed and delivered, all such documents or
instruments of assignment, transfer, or conveyance, in each case dated the
Contribution Date, as Blackstone Member shall reasonably deem necessary or
appropriate to vest in or confirm title to the Assets to the Venture or a wholly
owned subsidiary of the Venture (collectively, the "Conveyance Instruments") in
form and substance reasonably acceptable to Blackstone Member including without
limitation the following:
(a) A Deed for the Property with covenants against grantor's
acts only, as customarily used in the State of Arizona;
(b) A Xxxx of Sale conveying the Personal Property to the
Venture;
(c) An Assignment and Assumption of Tenant Leases assigning
the Tenant Leases to the Venture and pursuant to which the Venture
assumes the obligations assigned from and after the Contribution Date;
(d) An Assignment and Assumption of Residency Agreements
assigning the Residency Agreements to the Venture and pursuant to which
the Venture assumes the obligations assigned from and after the
Contribution Date;
(e) An Assignment and Assumption of Contracts assigning the
Contracts to the Venture and pursuant to which the Venture assumes the
obligations assigned from and after the Contribution Date;
(f) A General Assignment and Assumption assigning the
Intangible Property, the Claims, the Permits, the Governmental Bonds
and Deposits, and the Files and Records to the Venture and pursuant to
which the Venture assumes the obligations assigned from and after the
Contribution Date; and
(g) a certificate of registration of title for any vehicle
used in connection with a Property and owned by Contributing Member,
conveying such vehicle to the Venture.
2.3. No Liabilities Assumed. Except for the Existing Loan, neither the
Venture nor the Property Entity are assuming any liability or obligation of
Contributing Member (or any predecessor owner of all or part of its business and
assets) of whatever nature whether absolute, contingent, or fixed, liquidated or
unliquidated, matured or not yet due ("Liabilities"), and all Liabilities shall
be retained by and remain liabilities of Contributing Member including without
limitation any liability for Tax arising from or with respect to the Assets or
the operations of the Business, which is incurred in or attributable to any
period prior to the Contribution Date.
2.4. Prorations. The following items of revenue and expense shall be
prorated, adjusted and appropriated between the Contributing Member and the
Venture as of 11:59 P.M., Eastern Standard Time, on the day immediately
preceding the Contribution Date, and the net amount thereof either shall
increase the Agreed Value or be credited against the Agreed Value:
(a) Taxes, on the basis of the best available estimates for
such Taxes that will be due and payable on the Property for the tax
period up to the Contribution Date, such amounts to be adjusted as soon
as the actual Tax amounts become available;
(b) Water rates and charges;
(c) Sewer taxes and rents;
(d) Permit, license and inspection fees, if any, on the basis
of the fiscal year for which levied, if the rights with respect thereto
are transferable to the Venture;
(e) Operating Costs. All costs and expenses of operating the
Property (including insurance) and amounts paid or payable under the
Contracts;
(f) Rents. If Contributing Member receives any rents from
tenants under the Tenant Leases or Residents under Residency Agreements
after the Contribution Date ("Rents"), then such collections shall
first be applied to Rents accruing after the Contribution Date, second
to Rent attributable to the month in which the Contribution Date occurs
(which shall be prorated in accordance with this Section 2.4), and
third to any pre-Contribution Date obligations under such Tenant Lease
or Residency Agreement remaining unpaid to Contributing Member. Nothing
in this paragraph shall restrict Contributing Member's right to collect
delinquent Rents owed to Contributing Member for periods prior to the
Contribution Date directly from a tenant or a Resident, provided that
Contributing Member shall have no right to terminate Tenants Leases or
Residency Agreements or institute any dispossessory proceedings.
(g) Existing Loan. Any interest on the Existing Loan.
(h) Other Revenues. All other items customarily apportioned in
connection with the sale of similar properties.
2.5. Treatment of Contribution. The transfer of the Assets by
Contributing Member (a) to the extent exchanged for an interest in the Venture
shall be reported by the parties hereto as governed by Section 721(a) of the
Code and (b) to the extent exchanged for any consideration other than an
interest in the Venture shall be reported by the parties as governed by Section
1001 and Section 1012.
2.6. Provision for Tax Liabilities. Contributing Member and Blackstone
Member shall make, or cause the Venture to make, allocations with respect to the
Assets contributed in exchange for an interest in the Venture in accordance with
the "remedial method" as described in Treasury Regulation 1.704-3(d). On the
Contribution Date, Contributing Member shall deliver a FIRPTA affidavit in the
form set forth in the regulations under Section 1445 of the Code.
SECTION 3
INTENTIONALLY DELETED
SECTION 4
EVENTS OCCURRING ON THE CONTRIBUTION DATE
4.1. Deliveries by Contributing Member, Blackstone Member and the
Venture.
(a) On or prior to the Contribution Date, Contributing Member
and Blackstone Member will deliver to the other, or shall cause the
Venture to deliver to Contributing Member, the following:
(i) The Conveyance Instruments;
(ii) the Venture Agreement;
(iii) the Management Agreement;
(iv) a Closing Statement in form and substance
acceptable to Contributing Member and Blackstone Member; and
(v) Such additional documents to be executed by
Contributing Member or Blackstone Member as may be reasonably
requested by the other party in order to effectuate the
transaction contemplated hereby (including, without
limitation, any other documents required under applicable
Legal Requirements to convey the Assets to the Venture or to
record any Deed or any other conveyancing document).
(b) Blackstone Member shall contribute the Cash Contribution
to the Venture.
(c) Contributing Member shall deliver the following to
Blackstone Member:
(i) A non-foreign person affidavit sworn to by
Contributing Member as required by Section 1445 of the Code;
(ii) a certificate as to the incumbency and signature
of officers or other authorized representatives of
Contributing Member, certified copies of the articles of
organization of Contributing Member, and a copy of the general
authorizing resolutions of the board of Contributing Member,
certified as of the Contribution Date by the Secretary or an
Assistant Secretary or other authorized representative of such
person, which authorize the execution, delivery and
performance by such person of this Agreement and all documents
contemplated hereby to which such person is a party, together
with such other documents and evidence with respect to
Contributing Member and as Blackstone Member may reasonably
request in order to establish the consummation of the
transactions contemplated by this Agreement, the taking of all
corporate proceedings in connection therewith and compliance
with the conditions herein set forth;
(iii) any required real estate transfer tax
declaration or similar documents required in connection with
any tax imposed by any governmental authority in connection
with the transaction contemplated hereunder;
(iv) all originals (or copies if originals are not
available) of the Tenant Leases, the Residency Agreements, the
Contracts, the Permits, the Files and Records and keys and
lock combinations and/or security codes with respect to the
Property;
(v) valid certificates of insurance for the insurance
policies required to be carried pursuant to the Management
Agreement, evidencing (1) the issuance of such policies, (2)
the payment of all premiums currently due and payable, (3)
coverage which meets all of the requirements set forth in the
Management Agreements;
(vi) a survey of the Property, in form and substance
acceptable to Blackstone Member; and
(vii) a letter from the applicable governmental
authority confirming that the Property is in compliance with
all zoning requirements, in form and substance acceptable to
Blackstone Member.
(d) Contributing Member shall have caused the Lender to (i)
consent to the assignment of the Existing Loan to the Property Entity
and to (ii) amend the Loan Documents, in form and substance acceptable
to Blackstone Member.
(e) Contributing Member shall have caused the transfer of all
Permits and if required by law to continue to operate the Business, the
issuance of new Permits, to the Venture.
(f) Contributing Member shall deliver to the Title Company
such evidence or documents as may be reasonably required by the Title
Company in order to delete pre-printed exceptions relating to: (i)
mechanics' or materialmen's liens; (ii) parties in possession; (iii)
the status and capacity of the Contributing Member and the authority of
the person or persons who are executing the various documents on behalf
of the Contributing Member in connection with the contribution of the
Assets and or the legal existence of the Contributing Member and such
other title affidavits and indemnities required by the Title Company to
enable the Title Company to issue the Title Policy as required hereby.
(g) Contributing Member shall cause the Title Company to
deliver to the Venture an Owner's title insurance policy together with
endorsements required by Blackstone Member, without standard exceptions
for parties in possession, mechanics' liens, and matters of survey, and
subject only to the Permitted Encumbrances, in the amount of
$11,000,000, naming the Venture as the insured (the "Title Policy").
(h) Contributing Member and Blackstone Member, shall deliver
all other previously undelivered items required to be delivered by
Contributing Member, Blackstone Member, and the Venture, at or prior to
the Contribution Date pursuant to the terms of this Agreement and the
Venture Agreement.
4.2. Effect of Contributions. In exchange for its transfer of the
Assets to the Venture as provided herein on the Contribution Date, (a)
Contributing Member shall become a Member in the Venture pursuant to the terms
of the Venture Agreement; (b) Contributing Member shall receive the Sharing
Percentage in the Venture as set forth in Schedule A to the Venture Agreement;
(c) the Capital Account of Contributing Member shall be credited with such
amount set forth beside its name in Schedule A of the Venture Agreement; and (d)
Blackstone Member and Contributing Member shall cause the Venture to apply and
distribute the Cash Contribution in accordance with the terms of the Venture
Agreement.
SECTION 5
REPRESENTATIONS AND WARRANTIES OF
CONTRIBUTING MEMBER
5.1. Organization. Contributing Member is a corporation which is duly
organized, validly existing, and in good standing under the laws of its state of
formation, with the power and authority to own, lease, and operate its
properties and to carry on its business as now being conducted.
5.2. Authority. Contributing Member has the power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery by Contributing Member of this
Agreement and the documents contemplated in this Agreement, and the consummation
of the transactions contemplated hereby have been duly authorized by the board
of directors of Contributing Member; no other proceedings on the part of
Contributing Member or any other person or entity, are necessary to authorize
Contributing Member to enter into this Agreement or to consummate the
transactions contemplated hereby. This Agreement is, and the other documents to
be delivered by Contributing Member pursuant hereto (when executed and delivered
by Contributing Member) will be, valid and enforceable obligations of
Contributing Member, binding on Contributing Member in accordance with their
terms.
5.3. No Conflicts. The execution of this Agreement and the consummation
of this Agreement in accordance with its terms do not and will not result in a
breach of the terms and conditions of, nor constitute a default under or
violation of, Contributing Member's organizational documents or any law,
regulation, court order, mortgage, note, bond, indenture, agreement, license or
other agreement or obligation to which Contributing Member is now a party or by
which the Property may be bound or affected, except for transfer of the Property
subject to the existing mortgage indebtedness, until such debt is repaid
immediately following the contribution hereunder.
5.4. Certain Tax Matters.
(a) Contributing Member
(i) Has filed or will file or furnish when due in
accordance with all applicable laws all material Returns;
(ii) Has caused all Returns to be (and as to any
Returns not filed as of the date hereof, will cause such
Returns to be) complete and accurate in all material respects;
(iii) Has timely paid (or adequate provision has been
made) for all Taxes shown as due and payable on the Returns
that have been filed or are being apportioned pursuant to this
Agreement; and
(iv) Is not subject to any liens for Taxes now due
and payable on the Assets.
(b) Contributing Member shall submit to the Venture a list of
states and other jurisdictions to which any Tax is currently being paid
by Contributing Member.
(c) None of the Assets is (i) an asset or property that is or
will be required to be treated as described in Section 168(f)(8) of the
Internal Revenue Code of 1954 and in effect immediately before the Tax
Reform Act of 1986, or (ii) tax-exempt use property within the meaning
of Section 268(h)(1) of the Code.
5.5. Financial Statements. Attached hereto as Schedule 5.5 are true and
correct copies of an unaudited balance sheet and statement of income for the
Property and an unaudited balance sheet, statement of income, rent roll and
statement of cash flows for the most recent fiscal year for the Property (the
"Financial Statements"). The Financial Statements present fairly, in all
material respects, the financial position and results of the Property,
respectively as of such dates and its results of operations and cash flows for
such periods, in accordance with applicable law and generally accepted
accounting principles consistently applied. There are no material expenses
relating to any Property not shown on the Financial Statements. There are no
liabilities or obligations related to the Business which would reasonably be
expected to have a material adverse effect on the Business or the Property
except as have been disclosed to the Venture.
5.6. Title. To the Actual Knowledge of Contributing Member,
Contributing Member has good and marketable fee title to the Property, free and
clear of all liens except Permitted Encumbrances.
5.7. Zoning. To the Actual Knowledge of Contributing Member, the
Property and the use thereof complies in all material respects with all
applicable building and zoning ordinances and codes. Contributing Member has not
received any notices of violation of any such ordinances and codes, and to the
Actual Knowledge of Contributing Member, there are not facts, circumstances,
conditions or occurrences on the Property, that could reasonably be expected to
result in any violation of such ordinances and codes.
5.8. Litigation. As of the Contribution Date, except as set forth in
Schedule 5.8, there is no suit, claim, action, investigation or proceeding
pending or to the Actual Knowledge of Contributing Member, threatened in writing
against Contributing Member that relates to the Business, the Property or the
Assets.
5.9. No Adverse Parties In Possession. To the Actual Knowledge of
Contributing Member, there are no adverse or other parties in possession of the
Property, except for Residents pursuant to the Residency Agreements and tenants
pursuant to the Tenant Leases.
5.10. Compliance with Laws.
(a) Compliance Generally. Except as set forth on Schedule
5.10(a) attached hereto, Contributing Member has not received any
notice of any impending order or requirement which would cause
additional expenditures to be made to bring the Property and the Assets
into compliance with any Legal Requirement. Except as set forth on
Schedule 5.10(a) attached hereto, to the Actual Knowledge of
Contributing Member, the Assets comply in all material respects with
all applicable municipal, county, state and federal laws, regulations,
ordinances and orders and with all applicable municipal health and
building laws and regulations. Except as set forth on Schedule 5.10(a)
attached hereto, no Governmental Authority having jurisdiction over
Contributing Member or the Property has issued and delivered any
citations with respect to any material deficiencies or other matters
that fail to conform in all material respects to applicable statutes,
regulations or ordinances and that have not been corrected as of the
date hereof or that shall not have been corrected on or prior to the
Contribution Date. Except as set forth on Schedule 5.10(a) attached
hereto, Contributing Member has not received written or oral notice
from any agency supervising or having authority over the Property or
services provided at the Property requiring the Property or any
service, staff, or practice provided at the Property to be modified,
restricted or conditioned as to service or eligibility or be reworked
or redesigned or additional furniture, fixtures, equipment or inventory
to be provided at the Property so as to conform or comply with any
existing in any applicable law, code or standard.
(b) Contributing Member's Permits. Schedule 5.10(b) attached
hereto contains a true and complete list of the Permits. The Permits
are all of the licenses, permits, approvals, certificates of need,
qualifications and the like which are necessary for the ownership and
operation by Contributing Member of the Business and the Assets,
including without limitation the Property. Except as set forth on
Schedule 5.10(a) attached hereto, the Permits are in full force and
effect and no such Permit is conditional or restricted.
(c) Compliance of Facility with State Licensure Requirements.
Except as set forth on Schedule 5.10(a) and in the Permits listed on
Schedule 5.10(b) attached hereto; as of the Contribution Date, the
Property shall meet, in all material respects, all standards and
conditions for the provision of services at the Property and the
operation of the Business at the Property to the extent such standards
and conditions are applicable to the Property and is not subject to any
variances or waivers with respect to licensure or operational
requirements.
(d) Work Order, Statements of Deficiencies. Except as set
forth on Schedule 5.10(a) attached hereto, there are no pending work
orders or statements of deficiencies relating to any Property which
have been required or issued by any state department of health or any
insurance company, police or fire department, sanitation, health or
work authorities or any other federal, state, or municipal authority.
(e) Environmental Matters. To the Actual Knowledge of
Contributing Member, the Property is not in violation of any federal,
state or local law, ordinance or regulation relating to industrial
hygiene or to the environmental conditions on, under or about the
Property, including, but not limited to, soil and groundwater
condition. Neither Contributing Member, nor to the Actual Knowledge of
Contributing Member, any third party, has used, generated,
manufactured, stored or disposed of on, under or about the Property or
transported to or from the Property, or incorporated into any
improvements now or at any time thereon, any Hazardous Materials.
Contributing Member has not received any notice of any claim or
citation of noncompliance with respect to any violation of
Environmental Laws and, to the Actual Knowledge of Contributing Member,
there are no facts, circumstances, conditions or occurrences on the
Property that could reasonably be expected to result in the violation
of any such Environmental Laws or cause to be subject to any
restrictions on the existing or contemplated development, use or
transferability thereof under any Environmental Laws. To the Actual
Knowledge of Contributing Member, there are no underground storage
tanks under the Property. Contributing Member has not released or
agreed to any limitation of liability of any person, firm or entity
with respect to its or their obligations arising with respect to the
Property pursuant to any of the foregoing laws or regulations or any
state law or regulation regarding Hazardous Materials. To the Actual
Knowledge of Contributing Member, Contributing Member has obtained,
maintained and complied in all material respects with all permits,
licenses and other approvals required under any Environmental Laws
5.11. Assets and Liabilities.
(a) Liabilities. Except for the Existing Loan and the
Liabilities being retained by the Contributing Member, there are no
Liabilities.
(b) Encumbrances. After giving effect to the transfer to the
Venture as of the Contribution Date, the Property will not be subject
to any encumbrance except (i) any encumbrance accepted by the Venture,
(ii) any encumbrance created by the Venture or the Property Entity, and
(iii) any Permitted Encumbrances. If, subsequent to the Contribution
Date, any mechanics or other lien, charge or order for the payment of
money shall be filed against the Property or against the Venture or its
assigns, based upon any act or omission of Contributing Member, its
agents, servants, or employees, or any contractor or subcontractor
connected with work on a Property prior to the Contribution Date
(whether or not such lien, charge, or order shall be valid or
enforceable as such), within 30 days after notice to Contributing
Member of the filing thereof, Contributing Member (and not the Venture)
shall take such action, by bonding, deposit, payment or otherwise, as
will remove and satisfy such lien of record as against the Property.
5.12. Casualty and Condemnation. There are no unrepaired casualty
damage to any Property and there are no pending or, to the Actual Knowledge of
Contributing Member, threatened eminent domain or condemnation proceedings, with
respect to the Property or any portion thereof.
5.13. Contractual Matters.
(a) Contracts. Schedule 5.13(a) attached hereto contains a
true and complete list of all Contracts, between Contributing Member
and any other person or entity currently in effect in connection with
the Property or the operation thereof. Contributing Member has
heretofore delivered to the Venture a true and complete copy of each
such Contract listed in Schedule 5.13(a). Each Contract listed on
Schedule 5.13(a) is in full force and effect, and, to the Actual
Knowledge of Contributing Member, neither Contributing Member nor any
other party to any such Contract is in default of its respective
obligations thereunder, and to the Actual Knowledge of Contributing
Member, no event exists which, with notice or passage of time, would
become an event of default by Contributing Member thereunder.
(b) Transactions with Affiliates. No Affiliate of Contributing
Member is an officer, director, employee, consultant, competitor,
customer, or supplier of, or is a party to any Contract with,
Contributing Member in connection with any Property (collectively,
"Affiliate Arrangements"). The Venture hereby approves and consents to
the continued management and administration of the Property by Capital
Senior Living, Inc.
(c) Insurance. Attached as Schedule 5.13(c) hereto is a list
of all insurance coverage maintained by Contributing Member as of the
Effective Date in connection with the Property and the operation
thereof. All such insurance coverage is in full force and effect (with
no overdue premium) in the amounts set forth on Schedule 5.13(c). All
prepaid insurance policies shall be assigned if permitted by the
insurance company, to the Property Entity on the Contribution Date.
(d) Terminability. Except as set forth in Schedule 5.13(d),
all Contracts are terminable on 30-days notice, without payment or
penalty.
5.14. Finder's or Broker's Fee. Contributing Member has not engaged in
any conduct that has given or will give rise to any liability for any fee,
compensation, or reimbursement for expenses to any agent, finder, or broker,
either in the nature of a finder's fee or otherwise, in connection with the
transactions contemplated hereby.
5.15. Residents. Except for the default notice provisions that are
required by law or that are contained within the Residency Agreements which have
been provided to Blackstone Member by Contributing Member with respect to the
Property, there are no agreements with Residents at the Property that are not
terminable in accordance with the provisions of such Residency Agreements and in
accordance with applicable law or that would require the owner of the Property
to provide the care at the Property for the duration of the Resident's stay for
no or minimal consideration.
5.16. Consents. The execution, delivery and performance of this
Agreement and the transactions contemplated herein will not require any consent,
approval, authorization, order, or declaration of, or any filing or registration
with, any court, any Governmental Authority, or any other person or entity, the
absence of which would materially impair the ability of the Venture, or any
manager of the Property from providing services at the Property, except in
connection with the Permits listed on Schedule 5.16 hereto.
5.17. Employees. Contributing Member does not have any employees.
5.18. Suppliers, No Illegal Payments, Etc. Contributing Member has not:
(a) directly or indirectly given or agreed to give any illegal gift,
contribution, payment or similar benefit to any supplier, customer, governmental
official or employee or other person who was, is or may be in a position to help
or hinder Contributing Member (or assist in connection with any actual or
proposed transaction) or refer any resident or made or agreed to make any
illegal contribution, or reimbursed any illegal political gift or contribution
made by any other person, to any candidate for federal, state, local or foreign
public office which might subject Contributing Member to any damage or penalty
in any civil, criminal or governmental litigation or proceeding or the
non-continuation of which has had or might have any material adverse effect on
the Property; or (b) established or maintained any unrecorded fund or asset or
made any false entries on any books or records for any purpose.
5.19. Residency Agreements. Attached to Schedule 5.19 is a true and
complete copy of the current standard form of Residency Agreements. There are no
material undisclosed amendments or agreements to such Residency Agreement, nor
any special rates, services or concessions promised to any resident of any
Facility except as disclosed in the Residency Agreements or the rent rolls
attached as Schedule 5.5 hereto. The Residency Agreements comply in all material
respects with all applicable municipal, county, state and federal laws,
regulations, ordinances and orders and with all applicable municipal health and
building laws.
5.20. Tenant Leases. Schedule 5.20 sets forth a true and accurate list
of all Tenant Leases, and all amendments or modifications to, and side letters
modifying in any material respect the terms thereof. Each Tenant Lease is in
full force and effect in accordance with the terms thereof; each represents the
entire agreement between the parties thereto with respect to the occupancy of
the portion of the Property occupied thereunder. Neither Contributing Member nor
any Affiliate has given or received any notice claiming the existence of any
default under any Tenant Lease, which default remains uncured. As of the date of
this Agreement, no party to any Tenant Lease has paid rent or fees for more than
one month in advance or claims or is entitled to any offset against such
amounts. Contributing Member has delivered Blackstone Member true and complete
copies of the Tenant Leases and all amendments, modifications and letter
agreements relating thereto.
5.21. Intellectual Property. Schedule 5.21 sets forth a true and
accurate list of the Intellectual Property.
5.22. Governmental Bonds and Deposits. Schedule 5.22 sets forth a true
and accurate list of the Governmental Bonds and Deposits.
5.23. Contracts with Affiliated and Nonaffiliated Healthcare Providers.
Contributing Member represents that there are no agreements, memoranda of
understanding, contracts, stipulations, pricing schedules, referral agreements,
transfer agreements, or other similar arrangements between Contributing Member
and any third party pursuant to which healthcare services are arranged or
provided at the Property (collectively the "Healthcare Contracts").
5.24. Medicaid/Medicare Facility. Contributing Member represents and
warrants that Residents at the Property and Contributing Member do not submit
payment for services provided at the Property to Medicare or Medicaid for
payment. To the extent Contributing Member plans to provide Medicaid services
pursuant to any state or federal Medicaid Community-Based Waiver Program or
other substantially similar program, Contributing Member will notify Blackstone
Member 30 days in advance of such intention to confirm the same is consistent
with the plan or operations of the Property. Upon such confirmation,
Contributing Member agrees to maintain such program in compliance with all state
and federal laws and regulations for the reimbursement of Medicaid services at
the Property.
5.25. Existing Loan.
(a) Schedule 5.25(a) attached hereto contains a true and
complete list of all Loan Documents. Contributing Member has heretofore
delivered to the Venture a true and complete copy of each such Loan
Documents listed in Schedule 5.25(a). Each Loan Document is in full
force and effect, and neither Contributing Member nor Capital Senior
Living Corporation is in default of its respective obligations
thereunder, and no event exists which, with notice or passage of time,
would become an event of default by Contributing Member or Capital
Senior Living Corporation thereunder.
(b) The outstanding principal balance under the Existing Loan
as of the date hereof is $7,422,150.
(c) All required payments of principal, interest and all other
amounts due and payable through the date hereof under the Loan
Documents have been paid.
SECTION 6
REPRESENTATIONS AND WARRANTIES OF BLACKSTONE MEMBER
6.1. Organization.
Blackstone Member is a limited liability company which is duly
organized, validly existing, and in good standing under the laws of its state of
formation, with the power and authority to own, lease and operate its properties
and to carry on its business as now being conducted.
6.2. Authority. Blackstone Member has the power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery by Blackstone Member of this
Agreement and the documents contemplated in this Agreement, and the consummation
of the transactions contemplated hereby have been duly authorized by the members
of Blackstone Member; no other proceedings on the part of Blackstone Member or
any other person or entity, are necessary to authorize Blackstone Member to
enter into this Agreement or to consummate the transactions contemplated hereby.
This Agreement is, and the other documents to be delivered by Blackstone Member
pursuant hereto (when executed and delivered by Blackstone Member) will be,
valid and enforceable obligations of Blackstone Member, binding on Blackstone
Member in accordance with their terms.
6.3. Litigation. There is no suit, claim, action, investigation or
proceeding pending or to the actual knowledge of Blackstone Member threatened
against or affecting Blackstone Member or any of its affiliates which if
adversely determined would be reasonably expected to prevent or materially delay
the ability of Blackstone Member to perform its obligations hereunder.
6.4. Consents. To the actual knowledge of Blackstone Member, the
execution, delivery and performance of this Agreement and the transactions
contemplated herein will not require any consent, approval, authorization,
order, or declaration of, or any filing or registration with, any court, any
Governmental Authority, or any other person or entity, the absence of which
would materially impair the ability of the Venture, or any manager of the
Property from providing services at the Property.
6.5. No Conflicts. The execution of this Agreement and the consummation
of this Agreement in accordance with its terms do not and will not result in a
breach of the terms and conditions of, nor constitute a default under or
violation of, Blackstone Member's organizational documents or any law,
regulation, court order, mortgage, note, bond, indenture, agreement, license or
other agreement or obligation to which Blackstone Member is now a party or by
which the Property may be bound or affected.
6.6. Finder's or Broker's Fee. Blackstone Member has not engaged in any
conduct that has given or will give rise to any liability for any fee,
compensation, or reimbursement for expenses to any agent, finder, or broker,
either in the nature of a finder's fee or otherwise, in connection with the
transactions contemplated hereby, except for the Refinancing Fee to be paid to
the Venture in accordance with the Venture Agreement.
SECTION 7
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
7.1. Survival: Indemnification.
(a) The covenants, agreements, representations, and warranties of the
parties hereto contained herein or in any certificate or other writing delivered
pursuant hereto or in connection herewith shall survive the Contribution Date
for a period of 12 months. Notwithstanding the preceding sentence, any covenant,
agreement, representation, or warranty in respect of which indemnity may be
sought under this Section 7 shall survive the time at which it would otherwise
terminate pursuant to such sentence, if notice of the inaccuracy or breach
thereof giving rise to such indemnity shall have been given to the party against
whom such indemnity may be sought, prior to such time, subject to applicable
statutes of limitation.
(b) Contributing Member and its successors and assigns (each a
"Contributing Member Indemnitor"), jointly and severally, hereby agree to
indemnify each Blackstone Indemnitee and Blackstone Indemnitee Affiliate against
and agree to hold them harmless from any and all actual damage, loss, liability,
and expense (including, without limitation, reasonable expenses of investigation
and attorney's fees and expenses in connection with any action, suit,
proceeding, claim, investigation, or other loss, but not including any
consequential or punitive damages or losses) ( "Losses") incurred by such
Blackstone Indemnitee arising out of (i) any breach in any material respect of
any covenant or agreement or of any inaccuracy or omission in any material
respect in any representation or warranty made by Contributing Member pursuant
to this Agreement or (ii) any breach or default by Contributing Member or
Capital Senior Living Corporation under the Loan Documents or in connection with
the Existing Loan prior to the date hereof.
(c) Blackstone Member and its successors and assigns (each a
"Blackstone Indemnitor"), jointly and severally, hereby agree to indemnify each
Contributing Member Indemnitee and Contributing Member Indemnitee Affiliate
against and agree to hold them harmless from any and all actual Losses incurred
by such Contributing Member Indemnitee arising out of any breach in any material
respect of any covenant or agreement or of any inaccuracy or omission in any
material respect in any representation or warranty made by Blackstone Member
pursuant to this Agreement.
7.2. Control of Litigation.
(a) The Indemnitees and Indemnitee Affiliates agree to give
prompt notice to the Indemnitors of the assertion of any claim, or the
commencement of any suit, action, or proceeding in respect of which
indemnity may be sought under Section 7.1(b) or 7.1(c) of this
Agreement and of any Losses which any such Indemnitee deems to be
within the ambit of Section 7.1(b) or 7.1(c) of this Agreement other
than relating to Taxes (specifying with reasonable particularity the
basis therefor) and will give the Indemnitors such information with
respect thereto as the Indemnitors may reasonably request. The
Indemnitors may, at their own expense, participate in and, upon notice
to such Indemnitee, assume the defense of any such suit, action, or
proceeding; provided that the Indemnitors' counsel is reasonably
satisfactory to such Indemnitee. The Indemnitors shall thereafter
consult with such Indemnitee upon such Indemnitee's reasonable request
for such consultation from time to time with respect to such suit,
action, or proceeding, and the Indemnitors shall not, without such
Indemnitee's consent, which consent shall not be unreasonably withheld,
settle or compromise any such suit, action, or claim. If the
Indemnitors assume such defense, such Indemnitees shall have the right
(but not the duty) to participate in the defense thereof and to employ
counsel, at their own expense, separate from the counsel employed by
the Indemnitors. For any period during which the Indemnitors have not
assumed the defense thereof, the Indemnitors shall be liable for the
fees and expenses of counsel employed by any Indemnitee; provided,
however, that the Indemnitors shall not be liable for the fees or
expenses of more than one counsel employed by any Indemnitee in any
jurisdiction for all Indemnitees. If the Indemnitees assume the defense
thereof, the Indemnitees shall thereafter consult with the Indemnitors
upon the Indemnitors' reasonable request for such consultation from
time to time with respect to such suit, action, or proceeding and the
Indemnitees shall not, without the Indemnitors' consent, which consent
shall not be unreasonably withheld, settle or compromise any such suit,
action, or claim. Whether or not the Indemnitors choose to defend or
prosecute any claim, all of the parties hereof shall cooperate in the
defense or prosecution thereof.
(b) The Indemnitors shall not be liable under Sections 7.1
hereof with respect to any Losses resulting from a claim or demand the
defense of which the Indemnitors were not offered the opportunity to
assume as provided under Section 7.2(a) hereof to the extent the
Indemnitors' liability under Sections 7.1 hereof is prejudiced as a
result thereof.
7.3. Intentionally Deleted.
7.4. Cooperation on Tax Matters. Contributing Member and Blackstone
Member shall cooperate fully, and cause the Venture to cooperate fully, as and
to the extent reasonably requested by the other party, in connection with any
audit, litigation, or other proceeding with respect to Taxes. Such cooperation
shall include the retention and (upon the other party's request) the provision
of records and information which are reasonably relevant to any such audit,
litigation, or other proceeding and making employees available on a mutually
convenient basis to provide additional information and explanation of any
material provided hereunder. Contributing Member and Blackstone Member agree (a)
to retain, or cause the Venture to retain, all books and records which are
relevant to the determination of the Tax liabilities pertinent to the Assets and
Contributing Member relating to any period prior to the Contribution Date until
the expiration of the applicable statute of limitations and to abide by all
record retention agreements entered into with any Taxing Authority, and (b) to
give the other party reasonable written notice prior to destroying or discarding
any such books and records and, if the other party so requests, Contributing
Member, Blackstone Member, or the Venture, as the case may be, shall allow the
other party to take possession of such books and records.
SECTION 8
MISCELLANEOUS PROVISIONS
8.1. Intentionally Deleted.
8.2. Intentionally Deleted.
8.3. Amendment and Modification. This Agreement may be amended,
modified, or supplemented only by written agreement of the parties hereto.
8.4. Waiver of Compliance; Consents. Any failure of a party to comply
with any obligation, covenant, agreement, or condition herein may be waived by
the other party; provided, however, that any such waiver may be made only by a
written instrument signed by the party granting such waiver, but such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement, or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure. Whenever this Agreement requires or
permits consent by or on behalf of any party hereto, such consent shall be given
in writing in a manner consistent with the requirements for a waiver of
compliance as set forth in this Section 8.4, with appropriate notice in
accordance with Section 8.10 of this Agreement.
8.5. Assignment. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto, the Venture, and
their respective successors and permitted assigns. Any party may assign any of
its rights hereunder to an Affiliate, but no such assignment shall relieve it of
its obligations hereunder. Nothing in this Agreement, expressed or implied, is
intended or shall be construed to confer upon any person other than the parties,
any successors and permitted assigns, any rights, remedy, or claim under or by
reason of this Agreement or any provisions herein contained.
8.6. Expenses. Except as otherwise contemplated herein, whether or not
the transactions contemplated by this Agreement shall be consummated, all fees
and expenses (including all fees of counsel, actuaries, and accountants)
incurred by any party in connection with the negotiation and execution of this
Agreement and the Venture Agreement shall be borne by such party.
8.7. Further Assurances. From time to time, at the request of
Contributing Member or Blackstone Member and without further consideration, each
party, at its own expense, will, and cause the Venture to execute and deliver,
such other documents, and take such other action, as Contributing Member or
Blackstone Member may reasonably request in order to consummate more effectively
the transactions contemplated hereby and to vest in the Venture good and
marketable title to the Assets. Contributing Member hereby constitutes and
appoints, effective as of the Contribution Date, the Venture and its successors
and permitted assigns as the true and lawful attorney of Contributing Member
with full power of substitution in the name of the Venture or in the name of
Contributing Member, but for the benefit of the Venture, to collect for the
account of the Venture any items of Assets and to institute and prosecute all
proceedings which the Venture may in its reasonable discretion deem proper in
order to assert or enforce any right, title, or interest in, to, or under the
Assets, and to defend or compromise any and all action, suits, or proceedings in
respect of the Assets. The Venture shall be entitled to retain for its own
account any amounts collected pursuant to the foregoing powers, including any
amounts payable as interest in respect thereof.
8.8. Governing Law. This Agreement shall be governed by and construed
in accordance with the Laws of the State of New York.
8.9. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument and shall become a binding
Agreement when one or more of the counterparts have been signed by each of the
parties and delivered to the other party.
8.10. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered by hand or
if mailed by registered or certified mail (return receipt requested) or sent by
facsimile to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice):
Contributing Member:
Capital Senior Living Properties, Inc.
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxxx X. Xxxxx
Chief Executive Officer
Facsimile: (000) 000-0000
With a copy to:
Xxxxx X. Xxxxxxxx, Esq.
Capital Senior Living
00000 Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
and to:
Xxxxxxx X. Xxxx XX, Esq.
Jenkens & Xxxxxxxxx, P.C.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Facsimile: (000) 000-0000
Blackstone Member:
BRE/CSL Holdings II L.L.C.
c/o The Blackstone Group
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
8.11. Headings. The article and section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
8.12. Entire Agreement. This Agreement, including the exhibits,
schedules, and other documents and instruments referred to herein, together with
the Venture Agreement, embodies the entire agreement and understanding of the
parties hereto in respect of the subject matter contained herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
8.13. Severability. If any one or more provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision of this Agreement, but this Agreement shall
be construed as if such invalid, illegal, or unenforceable provision had never
been contained herein.
8.14. Exhibits. All Exhibits attached hereto are hereby incorporated in
and made a part as if set forth in full herein.
8.15. WAIVER OF JURY TRIAL. CONTRIBUTING MEMBER AND BLACKSTONE MEMBER
WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY OF
THEM AGAINST THE OTHER ON ALL MATTERS ARISING OUT OF THIS AGREEMENT OR THE USE
AND OCCUPANCY OF THE PROPERTY (EXCEPT CLAIMS FOR PERSONAL INJURY OR PROPERTY
DAMAGE).
8.16. CONSENT TO JURISDICTION. CONTRIBUTING MEMBER AND BLACKSTONE
MEMBER HEREBY IRREVOCABLY SUBMIT AND CONSENT TO THE NONEXCLUSIVE JURISDICTION
AND VENUE OF ANY STATE OR FEDERAL COURT HAVING JURISDICTION OVER NEW YORK
COUNTY, NEW YORK OR ANY COUNTY IN WHICH A PROPERTY IS LOCATED FOR ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY MATTER ARISING FROM OR RELATED TO THIS
AGREEMENT ANY DOCUMENT EXECUTED BY CONTRIBUTING MEMBER, BLACKSTONE MEMBER OR THE
VENTURE IN CONNECTION WITH THIS AGREEMENT. CONTRIBUTING MEMBER AND BLACKSTONE
MEMBER HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF ANY SUCH ACTION OR
PROCEEDING.
CONTRIBUTING MEMBER AGREES NOT TO INSTITUTE ANY LEGAL ACTION OR
PROCEEDING AGAINST BLACKSTONE MEMBER OR ANY DIRECTOR, OFFICER, EMPLOYEE, AGENT
OR PROPERTY OF BLACKSTONE MEMBER, CONCERNING ANY MATTER ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY RELATED DOCUMENT IN ANY COURT OTHER THAN A
STATE OR FEDERAL COURT HAVING JURISDICTION OVER NEW YORK COUNTY, NEW YORK
CONTRIBUTING MEMBER AND BLACKSTONE MEMBER HEREBY CONSENT TO SERVICE OF
PROCESS BY THE OTHER PARTY IN ANY MANNER AND IN ANY JURISDICTION PERMITTED BY
LAW. NOTHING HEREIN SHALL AFFECT OR IMPAIR CONTRIBUTING MEMBER'S AND BLACKSTONE
MEMBER'S RIGHT TO SERVE LEGAL PROCESS IN ANY MANNER PERMITTED BY LAW, OR
CONTRIBUTING MEMBER'S AND BLACKSTONE MEMBER'S RIGHT TO BRING ANY ACTION OR
PROCEEDING AGAINST CONTRIBUTING MEMBER, BLACKSTONE MEMBER OR THE PROPERTY OF
CONTRIBUTING MEMBER, BLACKSTONE MEMBER OR THE VENTURE IN THE COURTS OF ANY OTHER
JURISDICTION.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
CONTRIBUTING MEMBER:
CAPITAL SENIOR PROPERTIES, INC., a Texas
corporation
By:_____________________________________________
Name:___________________________________________
Title:__________________________________________
BLACKSTONE MEMBER:
BRE/CSL HOLDINGS II L.L.C.,
a Delaware limited liability company
By:_____________________________________________
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director and Vice President
