AGREEMENT AND CONSENT
OF LESSOR TO ASSIGNMENT OF LEASE
THIS AGREEMENT AND CONSENT OF LESSOR TO ASSIGNMENT OF LEASE (this
"Agreement") is made as of September 18, 2002, by and between TEXAS HCP HOLDING,
L.P., a Delaware limited partnership ("Lessor"); REGENT ASSISTED LIVING, INC.,
an Oregon corporation ("Assignor"); and ESC III, L.P., a Washington limited
partnership doing business in Texas as Texas-ESC III, L.P. ("Assignee").
RECITALS
A. Lessor is the "Lessor" and Assignor is the "Lessee" under that
certain lease identified on Exhibit A attached hereto and incorporated herein by
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this reference (as the same have been or may hereafter be modified, amended, or
supplemented from time to time in accordance with the respective terms thereof,
collectively, the "Lease"). The land, improvements, related rights and personal
property (if any) covered by such Lease may sometimes be referred to herein,
collectively, as the "Leased Property."
B. Assignor desires to assign all of its right, title and interest in and to
the Lease to Assignee and Assignee desires to assume all of the duties,
covenants, obligations and liabilities of Assignor and all such prior assignees
(if any) under the Lease (herein, the "Lease Assignment"), in each case whether
accruing prior to, on or after the effective date of such Lease Assignment (the
"Lease Assignment Effective Date").
C. Each of Assignor and Assignee desire to obtain Lessor's consent to the
Lease Assignment and Lessor is willing to consent to the same, but only upon the
terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby confirmed and acknowledged, the parties hereto
agree as follows:
1. Consent of Lessor to Lease Assignment
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. Subject to the other terms, conditions, agreements and covenants of the
parties hereto as set forth in this Agreement, Lessor hereby consents to the
Lease Assignment subject to the following understandings and agreements:
(a) immediately upon the Lease Assignment Effective Date, Assignee shall
unconditionally assume and agree to keep, perform and observe all of the
covenants, conditions, duties, obligations and liabilities of the "Lessee" under
the Lease, whether accruing or arising prior to, on or after the Lease
Assignment Effective Date and Assignee shall affirm and agree to the same
pursuant to Paragraph 2(a) below, provided that Assignee shall not be liable to
Lessor for any obligation of Lessee under the Lease to the extent relating to
events occurring prior to the Lease Assignment Effective Date and not relating
to the physical condition of the Facility, and
(b) notwithstanding the occurrence of the Lease Assignment Effective Date,
Assignor shall remain jointly and severally liable to Lessor, as a principal and
not a surety, for the full and prompt payment, performance and observance
of all of the covenants, conditions, duties, obligations and liabilities of the
"Lessee" under the Lease accruing prior to the date that is one (1) year after
the Lease Assignment Effective Date, including, but not limited to, any
obligations of Assignor relating to events occurring or conditions existing
prior to such date.
Lessor's consent pursuant to this Paragraph 1 is also expressly subject to the
respective conditions set forth in Paragraph 6 below.
2. Assumptions, (Re)affirmations and Consents.
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(a) Assignee. Immediately upon the Lease Assignment Effective Date,
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Assignee hereby unconditionally assumes and agrees to keep, perform and observe,
jointly and severally with Assignor, all of the covenants, conditions,
duties, obligations and liabilities of the "Lessee" under the Lease, whether
accruing or arising prior to, on or after the Lease Assignment Effective Date,
provided that Assignee shall not be liable to Lessor for any obligation of
Lessee under the Lease to the extent relating to events occurring prior to the
Lease Assignment Effective Date and not relating to the physical condition of
the Facility.
(b) Assignor. Assignor hereby agrees that notwithstanding the Lease
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Assignment, Assignor shall remain liable to Lessor, jointly and severally with
Assignee, as a principal and not a surety, for the full and prompt payment,
performance and observance of all of the covenants, conditions, duties,
obligations and liabilities of each respective "Lessee" under the Lease accruing
prior to the date that is one (1) year after the Lease Assignment Effective
Date, including, but not limited to, any obligations of Assignor relating to
events occurring or conditions existing prior to such date.
3. No Further Implied Consents to Assignments, Subleases, Management
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Engagements or Other Transfers under the Lease; Waiver of Transfer Consideration
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. The parties hereto acknowledge and agree that Lessor's consent as
provided herein shall not (a) constitute Lessor's consent to any subsequent
assignment of the Lease, subletting of the Leased Property or engagement of a
manager to manage the Facility or other Transfer (as defined in the Lease)
requiring Lessor's consent pursuant to Article XXIV of the Lease or (b) be
construed as a waiver, release, or relinquishment by Lessor of any of its
respective rights and privileges under the Lease ; provided, however, that by
its signature hereto, Lessor hereby waives its right to receive any Transfer
Consideration or Leasehold FMV (as defined in the Lease) with respect to the
Lease Assignment.
4. [Intentionally Omitted].
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5. Representations by the Parties.
(a) By all Parties (Including Lessor). Each party hereto represents and
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warrants to each other party hereto as of the date hereof and as of the Consent
Effective Date (as defined below) as follows on behalf of itself and no other
party:
(i) Such party is duly organized, validly existing and in good standing
under the laws of its state of organization and has full power, authority and
legal right to execute and deliver and to perform and observe the provisions of
this Agreement and the applicable Exhibits hereto.
(ii) This Agreement has been, and upon the consummation of the Lease
Assignment, all other documents to be executed by such party hereunder or in
connection with the Lease Assignment will have been, duly authorized, executed
and delivered by such party, and constitute and will constitute the valid and
binding obligations of such party enforceable against it in accordance with
their respective terms, except as such enforceability may be limited by
creditors rights laws and general principles of equity.
(iii) Such party is solvent, has timely and accurately filed all tax returns
required as of the date hereof to be filed by it, and is not in default in the
payment of any taxes levied or assessed against it or any of its assets, or
subject to any judgment, order, decree, rule or regulation of any governmental
authority which would, in each case or in the aggregate, adversely affect its
condition, financial or otherwise, or its prospects.
(iv) Other than the receipt by Assignee of licensure approval from the Texas
Department of Health Services, which Assignee will have obtained as of the
Consent Effective Date, no consent, approval or other authorization of, or
registration, declaration or filing with, any governmental authority is required
for the due execution and delivery of this Agreement, any of the other documents
to be executed by such party hereunder, or for the performance by or the
validity or enforceability thereof against such party.
(b) By All Parties (Other than Lessor). Each party hereto (other than
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Lessor) represents and warrants to Lessor as of the date hereof and as of the
Consent Effective Date as follows on behalf of itself and no other party:
(i) There are no actions, proceedings or investigations, including tax
audits, pending or threatened, against or affecting such party which could
reasonably be expected to materially and adversely affect the financial
condition or prospects of such party.
(ii) The execution and delivery of this Agreement and each other document or
instrument required to be delivered pursuant to this Agreement or in connection
with the Lease Assignment and to which such entity is a party will not result in
(A) a breach or violation of (1) any federal, state, county, municipal or other
governmental statutes, laws, rules, orders, regulations, ordinances, judgments,
decrees or injunctions of any governmental authority affecting or binding upon
such entity or its business (including without limitation any permits, licenses,
authorizations or regulations relating to thereto); (2) the Organizational
Documents (as defined below) of such entity; or (3) any agreement or instrument
to which such entity is party or by which it is bound, where such breach or
violation would have a material adverse effect on the business, operations or
prospects of such entity; or (B) the acceleration of any material obligation of
such entity.
(iii) Such party has delivered to Lessor true and correct copies of all of
its Organizational Documents and such Organizational Documents are complete in
all material respects. As used herein, "Organizational Documents" shall mean,
collectively, as applicable, the articles or certificate of incorporation,
certificate of limited partnership or certificate of limited liability company,
by-laws, partnership agreement, operating company agreement, trust agreement,
statement of partnership, fictitious business name filings and all other
organizational documents relating to the creation, formation and/or existence of
a business entity, together with resolutions of the board of directors, partner
or member consents, trustee certificates, incumbency certificates and all other
documents or instruments consummating, approving or authorizing the Lease
Assignment and the execution and delivery of this Agreement and the other
documents and instruments required to be executed and delivered hereby by such
party.
(iv) Neither this Agreement nor any certificate, statement or other document
furnished or to be furnished to Lessor by or on behalf of such party in
connection with this Agreement or the Lease Assignment contains or will contain
any untrue statement of a material fact or omits or will omit to state a
material fact necessary in order to make the statements contained herein or
therein not misleading.
(c) By Assignor. Assignor represents and warrants to Lessor as of the date
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hereof and as of the Consent Effective Date as follows:
(i) Attached hereto as Exhibit B is a schedule listing each sublease or
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other commercial (as opposed to resident or patient) occupancy arrangement
affecting all or any portion of the Leased Property.
(ii) Assignor has delivered to Lessor copies of the audited financial
statements (or, if audited statements are unavailable, unaudited statements) for
itself and its consolidated Subsidiaries (as defined in the Lease) for the
year ended December 31, 2001, and such financial statements are true, correct
and complete in all material respects, have been prepared from and in accordance
with the books and records of Assignor and its consolidated Subsidiaries, as
applicable, and fairly present the financial position and results of operations
of Assignor and its consolidated Subsidiaries at the date(s) and for the
period(s) indicated.
(iii) There has been no material adverse change in the financial condition
of Assignor or its consolidated Subsidiaries from that disclosed in the
financial statements delivered pursuant to clause (ii) above.
(d) By Assignee. Assignee represents and warrants to Lessor as of the date
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hereof and as of the Consent Effective Date that from and after the Lease
Effective Date, the Lease will be the valid and binding obligation of Assignee,
enforceable against Assignee in accordance with its terms, except as such
enforceability may be limited by creditors rights laws and general principles of
equity.
(e) By Lessor. To Lessor's knowledge, (i) except for the continuing failure
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of Assignor to fully comply with the provisions of Article XIII of the Lease,
there is no default on the part of Assignor under the Lease or event, which,
with the giving of notice or passage of time or both, would constitute an Event
of Default under the Lease; (ii) the Lease is valid and in full force and effect
and has not been modified, supplemented, assigned or amended by Lessor; (iii)
there are no existing or pending condemnation proceedings which could affect the
Leased Property and (iv) the current monthly Minimum Rent is $79,034.68, and
Minimum Rent with respect to the Lease has been paid through September 30, 2002.
For purposes of this Agreement, the term "Lessor's knowledge" shall mean the
current actual knowledge of Lessor without duty of investigation or inquiry.
6. Other Conditions to the Effectiveness of Lessor's Consent
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. Notwithstanding anything else to the contrary in this Agreement,
Lessor's consent to the Lease Assignment is expressly subject to satisfaction of
each of the following conditions:
(a) Each party hereto (other than Lessor) shall have executed and delivered
to Lessor an original or counterpart original of this Agreement.
(b) The Lease Assignment shall be consummated no later than September 16,
2002, and Lessor shall have received written notice thereof in accordance with
the notice provisions of Paragraph 8(b) below.
(c) Each of the representations and warranties set forth in Paragraph 5
above by each party hereto (other than Lessor) shall be true and correct as of
the date hereof and the Lease Assignment Effective Date.
(d) Lessor shall have received a legal opinion covering substantively the
matters described in clauses (i), (ii) and (iv) of Paragraph 5(a) above, clause
(ii) of Paragraph 5(b) above and Paragraph 5(d) above with respect to Assignee
in a form and from counsel reasonably acceptable to the Lessor.
The date of satisfaction of the last of the conditions set forth in this
Paragraph 6 shall be referred to herein as the "Consent Effective Date."
7. Reimbursement of Costs
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. Each of Assignor and Assignee hereby agrees, jointly and severally, to
reimburse Lessor for its actual costs and expenses, including actual attorneys'
fees and expenses, incurred in connection with the review, preparation,
negotiation and documentation of this Agreement and the Exhibits hereto and the
preparation, negotiation and/or review of any other document or instrument in
connection with the Lease Assignment. Such reimbursement shall be made by
delivery of one of such party's check therefor within ten (10) days following
Lessor written demand therefor.
8. Miscellaneous Provisions.
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(a) Successors and Assigns. Subject to the restrictions and other
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limitations expressly set forth herein and in the Lease, the terms, covenants,
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and conditions hereof shall inure to the benefit of and be binding upon the
respective parties hereto, their successors, and permitted assigns.
(b) Notices. Notices to the parties to this Agreement shall be in writing
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and sent and deemed effective in the manner and at the time provided in the
Leases. Notices shall be given to the addresses set forth below or to any other
address designated in writing by the appropriate party:
If to Lessor: c/o Texas HCP G.P., Inc.
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0000 XxxXxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: Legal Department
with a copy to: Xxxxxx & Xxxxxxx
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000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxx X. Xxxxxxx, Esq.
If to Assignor: Regent Assisted Living, Inc.
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000 XX Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, President
If to Assignee: c/o Emeritus Corporation
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0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxxx Xxxxxxxxxx
(c) Counterparts. This Agreement may be executed in any number of
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counterparts and by different parties to this Agreement in separate
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counterparts, each of which when so executed shall be deemed to be an original
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and all of which taken together shall constitute one and the same Agreement.
Delivery of an executed counterpart of a signature page to this Agreement via
telephone facsimile transmission shall be as effective as delivery of a manually
executed counterpart of this Agreement. Subject to the other provisions
hereof, this Agreement shall become effective when each of the parties has
received a counterpart of this Agreement executed by the other parties to this
Agreement or a copy of such executed Agreement signed in counterparts.
(d) Attorneys' Fees. In any dispute or action between the parties arising
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out of this Agreement, the prevailing party shall be entitled to have and
recover from the losing party such amount as the court may adjudge reasonable as
attorneys' fees and expenses together with costs of litigation incurred by the
prevailing party, in addition to all other amounts provided at law.
(e) Amendment. Any alteration, change or modification of or to this
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Agreement, in order to become effective, must be made in writing and in each
instance signed on behalf of each party to be charged.
(f) Severability. If any term, provision, condition or covenant of this
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Agreement or its application to any party or circumstances shall be held, to any
extent, invalid or unenforceable, the remainder of this Agreement, or the
application of the term, provision, condition or covenant to persons or
circumstances other than those as to whom or which it is held invalid or
unenforceable, shall not be affected, and shall be valid and enforceable to the
fullest extent permitted by law.
(g) Integration. This Agreement contains the entire understanding among the
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parties relating to the matters set forth herein. All prior or contemporaneous
agreements, understandings, representations and statements with respect to the
subject matters hereof, whether direct or indirect, oral or written, are merged
into and superseded by this Agreement, and shall be of no further force or
effect.
(h) Cooperation of Parties. Each party agrees to sign any other and further
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instruments and documents and take such other actions as may be reasonably
necessary or proper in order to accomplish the intent of this Agreement, so long
as the terms thereof are fully consistent with the terms of this Agreement.
(i) Governing Law. This Agreement shall be construed under the laws of the
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State of Texas.
(j) Exhibits. The following Exhibits are attached hereto and incorporated
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herein by this reference:
Exhibit A - Description of Lease
Exhibit B - List of Subleases
[Signature Page Follows]
[Signature Page to Agreement and Consent of Lessor to Assignment of Lease]
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement
effective as of the date first above written.
LESSOR:
TEXAS HCP HOLDING, L.P., a Delaware limited partnership
By: TEXAS HCP G.P., INC., a Delaware corporation, its sole General Partner
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Its: Vice President
ASSIGNOR:
REGENT ASSISTED LIVING, INC.,
an Oregon corporation
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Its: Treasurer
ASSIGNEE:
ESC III, L.P.,
a Washington limited partnership doing business in Texas as Texas-ESC III, L.P.
By: ESC X.X. XX, INC., a Washington corporation, its general partner
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
Its: CFO
Exhibit A
EXHIBIT A
DESCRIPTION OF LEASE
That certain Lease dated as of December 5, 1996, by and between Lessor and
Assignor, with respect to certain real and personal property located in San
Antonio, Texas, consisting of an assisted living facility commonly known as
"Xxxxxxxx House", as such Lease was amended by (i) that certain First Amendment
to Lease dated as of Xxxxx 0, 0000, (xx) that certain Second Amendment to Lease
dated as of September 20, 1998, (iii) that certain Third Amendment to Lease
dated as of December 26, 2000, (iv) that certain Fourth Amendment to Lease dated
as of March, 2001, and (v) that certain Fifth Amendment to Lease dated as of
November 1, 2001.
Exhibit B
EXHIBIT B
LIST OF SUBLEASES
None.
