SUBLEASE TERMINATION AND RELEASE AGREEMENT
THIS AGREEMENT is made and entered into as of the 26th day of August, 2002
(the "Effective Date") by and between Sage, L.L.C., a Washington limited
liability company doing business in Massachusetts as Sage Assisted Living,
L.L.C. ("Landlord") and Emeritus Properties XIV, LLC, a Washington limited
liability company ("Tenant").
RECITALS
A. Pursuant to a Lease dated as of January 1, 2002 between Auburn Land,
LLC ("Owner") and Landlord (the "Lease") Landlord is the lessee of that certain
real property located at 000 Xxxxxxxxxx Xxxxxx, Xxxxxx, XX 00000 which is more
fully described in Exhibit A hereto (the "Real Property") and the 108 unit
assisted living facility located thereon and commonly known as The Lodge at Xxxx
Xxxx (the "Facility"), and Landlord subleases the Facility to Tenant pursuant
to that certain Sublease Agreement dated January 1, 2002 (the "Sublease").
B. Under the terms of Section 2.2 of the Lease, Owner granted to
Landlord the right to purchase the Real Property and the Facility (the "Purchase
Option"). Owner further granted Landlord the right to assign the Purchase
Option to Emeritus Corporation ("Emeritus") or to any subsidiary or affiliate
entity whose ownership is at least 51% in common with Emeritus and of which
Emeritus has control or in common control.
C. Tenant is wholly owned by Emeritus.
D. Landlord has assigned the Purchase Option to Tenant and Tenant has duly
exercised the Purchase Option.
E. In connection with the sale of the Real Property and the Facility by
Landlord to Tenant (the "Sale Transaction"), Owner and Landlord have agreed to
terminate the Lease and Landlord and Tenant have agreed to terminate the
Sublease.
F. Landlord and Tenant are interested in (i) confirming termination of
the Sublease and (ii) releasing each other from further liability under the
Sublease.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants of the parties set forth herein, IT IS HEREBY AGREED AS FOLLOWS:
1. Sublease Termination. Landlord and Tenant hereby confirm the termination
of the Sublease as the Effective Date.
2. Release.
a. As of the Effective Date, Landlord hereby releases Tenant and any
past or present officer, director, employee, agent or shareholder thereof
(collectively, the "Tenant Released Parties") and the Tenant does hereby release
Landlord and any past or present officer, director, employee, agent or
shareholder thereof (the "Landlord Released Parties") from any and all liability
under the Sublease; provided, however, nothing herein shall be construed as
releasing Landlord from its obligation to return to Tenant within five (5)
business days after the Effective Date any security deposit which it may be
holding under the terms of the Sublease or as releasing Tenant or Landlord from
any obligations which it may have under the Sublease with respect to its acts
or omissions prior to the Effective Date.
c. The release provided for in this Paragraph 2 shall be fully and
unconditionally effective on the Effective Date.
3 Tenant Representations. Notwithstanding anything contained herein to
the contrary, Tenant represents that: (i) Tenant is wholly owned by Emeritus
Corporation and (ii) Tenant is not aware of any default, or event given the
passage of time that would become a default, by the Landlord under the Sublease,
and has not received, or is aware of, any form of governmental notice of
violation of any law, code or similar restriction affecting or relating to the
Real Property and/or the Facility.
4. Further Assurances. Notwithstanding anything to the contrary contained
herein, Landlord and Tenant agree to execute and/or file any and all other
documents, agreements or other instruments as may be necessary or appropriate to
confirm the agreements reached by, and the obligations imposed on, Landlord and
Tenant hereunder.
5. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which taken together shall
constitute but one and the same instrument.
6. Entirety. This Agreement represents the entire and final agreement of
the parties hereto with respect to the subject matter hereof and supersedes all
prior discussions, negotiations and writings with respect thereto. This
Agreement may only be amended by written instrument signed by the parties
hereto.
7. Construction. Each of the parties has participated in the drafting and
negotiation of this Agreement. Accordingly, in the event of a dispute among the
parties with respect to the interpretation or enforcement of the terms hereof,
no provision shall be construed so as to favor or disfavor any party hereto.
8. Attorneys Fees. In the event of a dispute among the parties hereto with
respect to the interpretation or enforcement of the terms hereof, the prevailing
party shall be entitled to collect from the other its reasonable attorneys fees
and costs, including its costs and fees on appeal.
9. Captions. The captions are included in this Agreement for convenience
of reference only and shall not be construed so as to define, limit or modify in
any manner any of the terms hereof.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Massachusetts .
IN WITNESS WHEREOF, the parties hereby execute this Agreement as of the day
and year first set forth above.
SAGE, L.L.C.
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Its: ______________________________
EMERITUS PROPERTIES XIV, LLC
By: Emeritus Corporation
Its: Sole Member
By: /s/ Xxxxxxx X. Xxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxx
Its: CFO
ACKNOWLEDGEMENTS
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this ___ day of ________________, 2002 before me appeared ___________ to
me personally known, who, being by me duly sworn, did say that he is the Manager
of Sage, L.L.C., a Washington limited liability company, that the foregoing
instrument was signed and sealed on behalf of said limited liability company and
he acknowledged said instrument to be the free act and deed of said limited
liability company.
______________________________________
Notary Public in and for the State of Washington
My Commission Expires: ________________
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this ___ day of ________________, 2002 before me appeared ___________ to
me personally known, who, being by me duly sworn, did say that he is the
__________ of Emeritus Corporation, the sole member of Emeritus Properties XIV,
LLC., a Washington limited liability company, that the foregoing instrument was
signed and sealed on behalf of said limited liability company and he
acknowledged said instrument to be the free act and deed of said limited
liability company.
______________________________________
Notary Public in and for the State of Washington
My Commission Expires: ________________
