ASSIGNMENT AGREEMENT
between
EMERITUS CORPORATION
as Assignor
and
TEXAS HCP HOLDING, L.P.
as Assignee
April 1, 0000
Xx Xxxx, Xxxxx
Xxx Xxxxxxx, Xxxxx
San Marcos, Texas
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT (this "Agreement"),
dated as of April 1, 1997, is between EMERITUS
CORPORATION, a Washington corporation
("Assignor"), and TEXAS HCP HOLDING, L.P., a
Delaware limited partnership ("HCP").
RECITALS
WHEREAS, Assignor is a party to the Purchase
and Sale Agreements (as hereinafter defined)
pursuant to which Assignor has the right to
acquire the Properties (as hereinafter defined)
which term shall include, without limitation, all
of Sellers' (as hereinafter defined) right, title
and interest, owned, leased or otherwise, in and
to all buildings, structures and improvements now
thereon, and the fixtures and equipment owned,
leased or otherwise belonging to Sellers and used
in connection with the operation and maintenance
of said Properties, including, without limitation,
any of the following: (a) furnaces, heaters,
heating equipment, oil and gas burners, air
conditioning equipment and ventilators, and
fixtures appurtenant thereto, hot water heaters,
plumbing and bathroom fixtures, electric and other
lighting fixtures, outside television antennas,
fences, gates, trees, shrubs, and plants; (b) all
of the right, title, and interest of Sellers, if
any, in and to and with respect to any land lying
in the beds of ways bounding said Properties; and
(c) any easements, rights-of-way and other
appurtenances, rights and privileges, benefitting,
belonging or pertaining to said Properties;
WHEREAS, pursuant to the Purchase and Sale
Agreements, Assignor has the right to assign its
rights under the Purchase and Sale Agreements; and
WHEREAS, Assignor and HCP desire that
pursuant hereto on the Closing Date (as
hereinafter defined), HCP shall have the right to
receive the conveyance of the Properties from the
applicable Sellers in accordance with the terms of
the applicable Purchase and Sale Agreements, and
simultaneously therewith that HCP, as lessor, and
ESC, as lessee, shall enter into a separate lease
for each of the Properties, all in accordance with
the terms and conditions hereinbelow set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the
mutual covenants of Assignor and HCP and of the
premises, Assignor hereby assigns, transfers and
sets over to HCP all of Assignor's rights under
the Purchase and Sale Agreements to receive the
conveyance of the Properties from the applicable
Sellers in accordance with the terms of the
applicable Purchase and Sale Agreements, it being
expressly understood and agreed that none of the
duties or obligations of Assignor under the
Purchase and Sale Agreements, other than the
obligation to pay the purchase price set forth
below in Section 2.1 upon conveyance of good and
indefeasible title to the Properties, free and
clear of all liens, claims and encumbrances
(except Permitted Encumbrances (as defined
below)), are delegated or otherwise transferred to
HCP hereby. To the extent that the total purchase
price under the Purchase and Sale Agreements is
less than the total purchase price set forth in
Section 2.1 below, HCP shall pay the difference to
Assignor in consideration of its entry into this
Agreement. Assignor and HCP hereby further agree
as follows:
ARTICLE I.
DEFINITIONS
Section 1.1. As used in this Agreement, the
following capitalized terms have the respective
meanings set forth after them:
ASSIGNOR - Emeritus Corporation, a Washington
corporation. Closing the transactions taking
place on the Closing Date.
CLOSING DATE - The date on which HCP receives
the conveyance of good and indefeasible title to
the Properties from the applicable Sellers, free
and clear of all liens, claims and encumbrances
(except Permitted Encumbrances).
E1 PASO FACILITY - the land and improvements
commonly known as Camlu Retirement Apartments
located in EI Paso, Texas, consisting of the 158-
unit retirement and personal care facility on the
parcel of land described on Exhibit A to the El
Paso Lease.
EL PASO LEASE - the lease of the El Paso
Property of even date herewith executed by HCP, as
lessor, and ESC, as lessee.
EL PASO PROPERTY - the EI Paso Facility
together with the El Paso Personal Property (as
defined as "Personal Property" in the El Paso
Lease).
ESC - ESC III, L.P. D/B/A TEXAS-ESC III,
L.P., a Washington limited partnership.
FACILITIES - the El Paso Facility, the San
Antonio Facility and the San Marcos Facility.
GOVERNMENTAL AUTHORITIES - the United States,
the state, county, city and other political
subdivisions in which the respective Properties
are located or which exercise jurisdiction over
the Properties or the construction or use of the
Properties thereon for all uses contemplated by
the applicable Lease, and any court,
administrator, agency, department, commission,
board, bureau or instrumentality or any of them
which exercise jurisdiction over the respective
Properties or the construction or use of the
Properties thereon for all uses contemplated by
the applicable Lease.
HAZARDOUS SUBSTANCES - as defined in the
Leases.
HCP - Texas HCP Holding, L.P., a Delaware
limited partnership.
LEASES - the El Paso Lease the San Antonio Lease
and the San Marcos Lease. ,
LESSEE DOCUMENTS - collectively, this
Agreement, the deeds or other instruments of
conveyance with respect to the Properties and the
Leases.
PERMITTED ENCUMBRANCES - collectively, (i)
liens for taxes, assessments and governmental
charges not yet delinquent and (ii) such other
title exceptions as counsel for HCP may reasonably
approve.
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PROPERTIES - the EI Paso Property, the San
Antonio Property and the San Marcos Property.
PURCHASE AND SALE AGREEMENTS - (i) the
Purchase and Sale Agreement, dated November 15,
1996, by and between Triple C of Texas, a Texas
General Partnership, as seller, and Assignor, as
purchaser, as amended by the First Amendment to
Purchase and Sale Agreement, dated January 15,
1997, (ii) the Purchase and Sale Agreement, dated
November 15, 1996, by and between Xxxx and Xxxxx
Xxxxxxxx, a married couple, and Triple C
Retirement Centers, a Texas General Partnership,
as sellers, and Assignor, as purchaser, as amended
by the First Amendment to Purchase and Sale
Agreement, dated January 15, 1997, and (iii) the
Purchase and Sale Agreement, dated November 15,
1996, by and between San Marcos Investors, a
Washington general partnership, and Development
Enterprises, Inc., a Washington corporation, as
sellers, and Assignor, as purchaser, as amended by
the First Amendment to Purchase and Sale
Agreement, dated January 15, 1997.
SELLERS - Triple C of Texas, a Texas General
Partnership, Xxxx and Xxxxx Xxxxxxxx, a married
couple, Triple C Retirement Centers, a Texas
General Partnership, San Marcos Investors, a
Washington general partnership, and Development
Enterprises, Inc., a Washington corporation.
SAN ANTONIO FACILITY - the land and
improvements commonly known as Camlu Retirement
Apartments located in San Antonio, Texas,
consisting of a 162-unit retirement and personal
care facility on the parcel of land described on
Exhibit A to the San Antonio Lease.
SAN ANTONIO LEASE - the Lease of the San
Antonio Property of even date herewith executed by
HCP, as lessor, and ESC, as lessee.
SAN ANTONIO PROPERTY - the San Antonio
Facility together with the San Antonio Personal
Property (as defined as "Personal Property" in the
San Antonio Lease).
SAN MARCOS FACILITY - the land and
improvements commonly known as Camlu Retirement
Apartments located in San Marcos, Texas,
consisting of an 87-unit retirement and personal
care facility on the parcel of land described on
Exhibit A to the San Marcos Lease.
SAN MARCOS LEASE - the lease of the San
Marcos Property of even date herewith executed by
HCP, as lessor, and ESC, as lessee.
SAN MARCOS PROPERTY - the San Marcos Facility
together with the San Marcos Personal Property (as
defined as "Personal Property" in the San Marcos
Lease).
TITLE COMPANY - Chicago Title Insurance
Company, with an address at 000 0xx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxxxx 00000.
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ARTICLE II.
TERMS OF THE SALE AND LEASEBACK
Section 2.1. ACQUISITION. On the terms but
subject to the conditions of this Agreement (i)
Assignor shall cause the applicable Sellers to
convey, assign or grant, and HCP shall acquire on
the Closing Date, the Properties for a purchase
price equal to Twenty One Million One Hundred
Nineteen Thousand Dollars ($21,110,000). Subject
to subsection 2.1(a) below, the purchase price
shall be paid in cash on the Closing Date by wire
transfer of immediately available funds. The total
purchase price shall be allocated between the
Properties as follows:
EI Paso Property $
7,770,000
San Antonio Property $
8,680,000
San Marcos Property $
4,660,000
---------------
Total:
$21,110,000
=========
Section 2.2. CLOSING. The Closing shall be
held at the offices of Xxxxxx & Xxxxxxx, 000 Xxxx
Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, or at such
location as may otherwise be agreed upon by the
parties. If the Closing does not take place on or
prior to April 30, 1997, HCP may terminate this
Agreement.
Section 2.3. CONVEYANCE. On the Closing Date,
subject to the terms and conditions of this
Agreement, Assignor shall cause the applicable
Sellers to deliver directly or through the Title
Company, deeds to the Facilities and bills of sale
for the balance of the Properties and such other
instruments as shall be necessary to convey,
assign or grant to HCP good and marketable title
to the Properties, in each case, free and clear of
all liens, claims and encumbrances (except for
Permitted Encumbrances). HCP shall and Assignor
shall or shall cause Sellers to execute and
deliver such instruments and take such actions as
either party may reasonably request in order to
effectuate the purposes of this Agreement.
(a) The deeds or other instruments of
conveyance shall be sufficient to convey good and
indefeasible title, shall be duly executed and, if
requested by HCP, duly acknowledged and in
recordable form. Such deeds or other instruments
of conveyance shall, if applicable, include the
appropriate state and/or county Real Estate
Transfer Tax Declaration of Real Estate Value or
other affidavit as to any tax due on gross income
derived from the sale.
(b) The conveyance to HCP of the
respective Properties on the Closing Date shall
include, without limitation, subject to and in
accordance with the terms of the Purchase and Sale
Agreements, all of Sellers' right, title and
interest, owned or otherwise, in and to all
buildings, structures and improvements now
thereon, and the fixtures and equipment or other
assets or rights owned, leased or otherwise
belonging to Sellers and used in connection with
the operation and maintenance of the Properties,
including, without limitation, any of the
following: (i) furnaces, heaters, heating
equipment, oil and gas burners, air conditioning
equipment and ventilators, and fixtures
appurtenant thereto, hot water heaters, plumbing
and bathroom fixtures, electric and other lighting
fixtures,
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outside television antennas, fences, gates, trees,
shrubs, and plants; (ii) all of the right, title,
and interest of Sellers, if any, in and to and
with respect to any land lying in the beds of ways
bounding said Properties; and (iii) any easements,
rights-of-way and other appurtenances, rights and
privileges, benefitting, belonging or pertaining
to said Properties; provided, however, that no
intangible personal property relating to the trade
or business operated on the Properties, such as
operating licenses and good will, and no inventory
or vehicles shall be conveyed to HCP, and that all
such assets will be acquired by Assignor or ESC;
and Assignor will cause Sellers to execute or
obtain and deliver to HCP, as applicable, on the
Closing Date all proper instruments for the
conveyance of such title.
(c) On the Closing Date, HCP, as lessor,
and ESC, as lessee, shall enter into the Leases
and execute and deliver to the Title Company for
recordation memoranda thereof in form and
substance satisfactory to HCP and Assignor.
Section 2.4. PRORATIONS. Taxes, assessments,
water, sewer charges, premiums on existing
insurance policies, rents or any other items
pertaining to the Properties shall be prorated at
the Closing between Sellers and Assignor inasmuch
as all such items which are the responsibility of
Assignor under the terms of the Purchase and Sale
Agreements, will be the responsibility of ESC
pursuant to the Leases.
Section 2.5. COMMITMENT FEE DEPOSIT. Assignor
has paid HCP a commitment fee deposit of One
Hundred Ten Thousand Dollars ($110,000). HCP will
be entitled to retain such commitment fee deposit
in its entirety if the transactions contemplated
herein do not close because Assignor chooses
another financing source; otherwise, the
commitment fee will be applied against HCP's out
of pocket costs related to the transactions
contemplated with respect to the Lessee Documents
and the balance shall be refunded to Assignor.
Upon Assignor's request, HCP will provide
reasonable evidence in writing of its out of
pocket costs to Assignor.
Section 2.6. COSTS AND EXPENSES.
(a) All costs and expenses related to
the transactions contemplated with respect to the
Lessee Documents other than HCP's Costs (as
defined below), shall be paid for (as between HCP
and Assignor) by Assignor, including (i)
documentary transfer taxes, documentary stamp
taxes, sales and similar taxes and all other taxes
applicable to the transactions contemplated herein
together with interest and penalties, if any,
thereon, but excluding any income taxes of HCP;
(ii) all legal fees and disbursements of
Assignor's counsel incurred in connection with the
preparation of the Lessee Documents and the
conveyance of the Properties to HCP; (iii) all
costs relating to owner's title insurance
commitments and policies and chain of title
reports and ALTA surveys; and (iv) fees arising
out of Assignor's inspection for Hazardous
Substances and Assignor's engineering fees and all
other consulting fees not expressly included
within HCP's Costs. In addition, Assignor shall
pay fifty percent (50%) of HCP's Costs in excess
of One Hundred Ten Thousand Dollars ($110,000).
Nothing herein shall be construed as modifying or
amending any rights (as between Assignor and
Sellers) which Assignor has under the Purchase and
Sale Agreements to seek contribution from Sellers
for some or all of the costs described herein.
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(b) HCP shall be responsible for the
payment of HCP's legal fees (including in-house
costs) and HCP's appraisal, engineering and
environmental fees and travel costs related to the
transactions contemplated with respect to the
Lessee Documents (collectively, "HCP's Costs") up
to One Hundred Ten Thousand Dollars ($110,000).
HCP shall pay fifty percent (50%) of HCP's Costs
in excess of One Hundred Ten Thousand Dollars
($110,000).
Section 2.7. NATURE OF HCP'S INTEREST. HCP is
only purchasing the Properties and is acquiring no
interest, other than as a lessor pursuant to the
Leases (including any security interests granted
pursuant thereto), in the trade or business
operated by Seller or to be operated by ESC with
respect to the Properties.
ARTICLE III.
CONDITIONS TO THE OBLIGATION OF HCP TO CLOSE
The obligations of HCP hereunder are subject
to the following conditions. Should any condition
not be fulfilled or waived on the Closing Date to
the satisfaction of HCP, HCP shall, at its option,
but without waiving any rights provided in this
Agreement, be relieved of all obligations under
this Agreement.
Section 3.1. COMPLIANCE BY ASSIGNOR. Assignor
shall have complied with and satisfied all
provisions and conditions of the Lessee Documents
to be complied with or satisfied by Assignor prior
to the Closing Date, and shall cause ESC to comply
with and satisfy all provisions of the Lessee
Documents to be complied with or satisfied by ESC
prior to the Closing Date.
Section 3.2. RECORDATION AND COSTS. Assignor
shall have (i) made arrangements for the deeds or
other instruments of conveyance for the Properties
being transferred to HCP, as applicable, as well
as short form memoranda of the Leases, to be duly
recorded or filed for recordation in the manner
required by the laws of the state in which the
Properties are located, and (ii) paid, or arranged
to be paid, all costs and fees to be paid by
Assignor pursuant to Section 2.6, and such
arrangements shall be satisfactory to HCP and its
counsel.
Section 3.3. SURVEYS. HCP shall have
received, at Assignor's expense, either (a) final
"as-built" ALTA surveys of the respective
Properties done in accordance with the Minimum
Standard Detail requirements for ALTA/ACSM Land
Title Surveys jointly established and adopted by
ALTA and ACSM in 1986 that meet the requirements
of a Class A Survey as defined therein, certified
within 30 days of the Closing Date, or (b) such
other form of title surveys which are in form and
substance satisfactory to HCP. Such surveys shall
be certified to HCP and the Title Company as being
true and accurate and shall identify thereon all
easements, improvements (with dimensions in
relation to the lot and building lines), building
set back lines, flood plain and wetlands
boundaries or other legal boundary lines of
adjoining bodies of water, sewage, water,
electricity, gas and other utility facilities to
the points of connection (including location and
size, together with the recording information
concerning the documents creating easements for
such facilities), driveways or other cuts in
curbs, fences, rights of way, parking areas (along
with the number of spaces and striping), roads and
means of ingress and egress to and from the
respective Properties to all public or private
roads, and showing no
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encroachments, overlaps, conflicts or protrusions
onto any adjacent property or onto any building
line or easement affecting any portion of the
respective Properties; and showing that all
parcels comprising each respective Property are
contiguous. The respective survey certificates
shall include certification as to the metes and
bounds description and the acreage of the
respective Properties.
Section 3.4. TITLE INSURANCE. HCP shall have
received, at Assignor's expense, commitments from
the Title Company satisfactory to HCP and its
counsel for policies of title insurance showing
title to the Properties vested in HCP as of the
Closing Date subject only to the Permitted
Encumbrances. The policies, when issued, shall be
in current TLTA owner's form and shall include
such endorsements as HCP may reasonably require.
Each respective policy shall be in an amount equal
to the value of the applicable Property, but in no
event less than the portion of the purchase price
attributable to the land and improvements plus
$250,000, and shall insure (i) that any
conditions, covenants and restrictions affecting
the applicable Property have not been violated and
that a future violation thereof will not result in
a forfeiture or reversion of title; (ii) if
obtainable, that all streets adjoining the
applicable Property have been completed, dedicated
and accepted for public maintenance and use by the
appropriate governmental authorities and that the
applicable Property has access to public streets;
(iii) such matters with respect to local zoning
ordinances, general plans and all other applicable
land use regulations, private covenants,
conditions and restrictions, if any, as may be
reasonably required by HCP; and (iv) over and
against all parties in possession except the
current occupants thereof.
Section 3.5. FLOOD ZONE COMPLIANCE. HCP shall
have received, at Assignor's expense, written
statements from the Title Company or the surveyor
in form and substance satisfactory to HCP to the
effect that the respective Properties are not
located in flood hazard areas or satisfactory
evidence of the existence of flood insurance to
the extent any or all of the Properties are
located in a flood hazardous area.
Section 3.6. ENVIRONMENTAL REPORTS. HCP shall
have received written reports in form and
substance satisfactory to HCP from a qualified
geotechnical or engineering firm acceptable to HCP
concerning the presence, handling, treatment and
disposal of Hazardous Substances on, in or under
the respective Properties.
Section 3.7. INSURANCE. HCP shall have
received certificates of insurance fulfilling the
requirements therefor set forth in the Leases,
together with proof that any premiums therefor due
on or prior to the Closing Date have been paid.
Section 3.8. LETTER(S) OF CREDIT. HCP shall
have received letter(s) of credit fulfilling the
requirements set forth in the Leases.
Section 3.9. LICENSES, PERMITS, APPROVALS.
HCP shall have received evidence reasonably
satisfactory to it that (i) all licenses, permits,
approvals and authorizations from all Governmental
Authorities required to transfer the Properties
and to permit each respective Property to be used
for all uses contemplated by the applicable Lease,
including, if issued in the applicable
jurisdiction, a permanent, unconditional
certificate of occupancy and all requisite
licenses have been obtained and are in full force
and effect, or if all requisite licenses are not
expected to be obtained by the Closing Date, HCP
shall have received and approved an opinion from
The Xxxxxxxxx Group or other counsel to Assignor,
dated as of the Closing Date, which shall
summarize (a) the process
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of obtaining all requisite licenses, (b) the steps
that have been taken to obtain all requisite
licenses, (c) the remaining steps to be performed,
if any, (d) the expected date of receipt of each
requisite license and (e) any possible
circumstances which might delay or prevent
Assignor from obtaining any requisite license; and
(ii) the zoning ordinance, general plan and all
other land use regulations of the cognizant
Governmental Authorities and all private
covenants, conditions and restrictions, if any,
affecting each respective Property, permit the use
of such Property (and reconstruction and
resumption of use of such Property in the event of
damage or destruction thereof or cessation of use
thereof) for all uses contemplated by the
applicable Lease on terms and conditions
acceptable to HCP.
Section 3.10. LITIGATION. HCP shall have
reviewed and approved a written disclosure of all
pending or threatened litigation or governmental
proceedings (including any pending or threatened
audits relating to taxes) that affect any of the
Properties or are material to Assignor.
Section 3. 11. PHYSICAL INSPECTION. HCP shall
have reviewed and approved the physical condition
of the Properties, including the improvements and
the HVAC, electrical, plumbing and other systems,
and shall have received written reports in form
and substance satisfactory to HCP from a qualified
engineering firm approved by HCP or an engineer
employed by HCP to the effect that (i) the
improvements on each respective Property have been
constructed in compliance with the requirements of
all laws, ordinances, rules, regulations and
restrictions of record applicable thereto which
materially affect the use of such Property; (ii)
all public utilities, including water, sewer, gas
and electricity, to the extent necessary for the
operation of each respective Property, have been
connected to the Property and are adequate for all
uses of such Property contemplated by the
applicable Lease; (iii) all means of ingress and
egress, streets, parking and drainage facilities
are available to service each respective Property
and are adequate for all uses of such Property as
contemplated by the applicable Lease; and (iv) any
exceptions to HCP's title to or interest in each
respective Property will not interfere with any
use of such Property contemplated by the
applicable Lease or cause the value of such
Property to fall below the acquisition price.
Section 3.12. RECORDS. HCP shall have
reviewed all operating reports, plans and
specifications, leases and such other records
pertaining to the Properties as HCP shall
reasonably request.
Section 3.13. REPRESENTATIONS AND WARRANTIES.
The representations and warranties made by
Assignor in this Agreement and in any certificates
delivered pursuant hereto shall be true and
correct on and as of the Closing Date as if they
had been made on the Closing Date.
Section 3.14. LEASE; NO DEFAULT. No condition
shall exist which, with notice or the lapse of
time, or both, would constitute an Event of
Default under any of the Leases on the Closing
Date.
Section 3.15. DOCUMENTS AND CERTIFICATES. HCP
shall have received and approved such corporate
and other documents and certificates incident to
Assignor or the transactions contemplated herein
as HCP or its counsel shall reasonably request.
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Section 3.16. LEGAL OPINION. HCP shall have
received and approved opinions of The Xxxxxxxxx
Group or other counsel to Assignor, dated as of
the Closing Date, to the effect that:
(a) Assignor is duly organized, validly
existing and in good standing in its state of
incorporation and the state in which the
Properties are located; the execution and delivery
of this Agreement, the Leases and the other Lessee
Documents to be executed and delivered by Assignor
have been duly authorized; and this Agreement, the
Leases and all other Lessee Documents to be
executed and delivered by Assignor are valid,
binding and enforceable against Assignor, in
accordance with their terms as the enforcement of
remedies may be limited by applicable creditors
rights laws and governing principles of equity;
(b) ESC is duly organized, validly
existing and in good standing in the state of
Washington; the execution and delivery of the
Lease and the other Lessee Documents to be
executed and delivered by ESC have been duly
authorized; and the Lease and all other Lessee
Documents to be executed and delivered by ESC are
valid, binding and enforceable against ESC, in
accordance with their terms as the enforcement of
remedies may be limited by applicable creditors
rights laws and governing principles of equity;
(c) the execution and delivery of the
applicable Lessee Documents and the accomplishment
of the transactions contemplated thereby do not
and will not constitute an event of default under
or violation of any law, regulation, decree,
order,
contract, or other agreement by which Assignor or
ESC is or may be bound, including laws and
regulations governing the use of the Properties;
(d) to such counsel's knowledge,
Assignor and ESC have obtained all approvals and
consents required by Governmental Authorities and
other third parties necessary to convey, or cause
to be conveyed, to HCP the Properties, to lease
the Properties from HCP and operate the
Properties, and all licenses, permits, other
certificates, approvals and other authorizations
from Governmental Authorities or other third
parties which are necessary to permit the use of
the Properties for all uses contemplated by the
Leases, including if issued in the applicable
jurisdiction, a permanent, unconditional
certificate of occupancy and all requisite
licenses, have been obtained and are in full force
and effect, or if all requisite licenses are not
expected to be obtained by the Closing Date, a
summary of (i) the process of obtaining all
requisite licenses, (ii) the steps that have been
taken to obtain all requisite licenses, (iii) the
remaining steps to be performed, if any, (iv) the
expected date of receipt of each requisite license
and (v) any possible circumstances which might
delay or prevent Assignor from obtaining any
requisite license; and
(e) there are no pending or, to the best
knowledge of such counsel, threatened proceedings
by any Governmental Authority with respect to, or
in any manner affecting Assignor or ESC.
Section 3.17. MATERIAL ADVERSE CHANGE. HCP
shall have received evidence satisfactory to it to
the effect that no material adverse change in the
financial condition, business, or prospects of (i)
the Properties has occurred from September 30,
1996 to the Closing Date or (ii) Assignor or ESC
has occurred from December 31, 1996 to the Closing
Date.
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Section 3.18. NON FOREIGN AFFIDAVIT. Assignor
shall cause each of the Sellers to provide to HCP
a certificate to the effect that such Seller is
not a foreign person pursuant to Section
1445(b)(2) of the Internal Revenue Code.
Section 3.19. CONCURRENT CLOSING.
Concurrently on the Closing Date, HCP shall
receive the conveyance from the applicable Sellers
of all of such Sellers' right, title and interest,
owned, leased or otherwise in and to the
Properties and simultaneously therewith HCP, as
lessor, and ESC, as lessee, shall enter into the
Leases.
ARTICLE IV.
CONDITIONS TO THE OBLIGATION OF ASSIGNOR TO CLOSE
The obligations of Assignor hereunder are
subject to the following conditions. Should any
condition not be fulfilled to the satisfaction of
Assignor on the Closing Date, or waived by
Assignor, Assignor shall, at its option, but
without waiving any rights provided in this
Agreement, including without limitation, Section
2.5 hereof, be relieved of all obligations under
this Agreement.
Section 4.1. COMPLIANCE WITH AGREEMENT. HCP
shall have complied with all of the provisions of
this Agreement to be complied with by HCP prior to
or as of the Closing Date.
Section 4.2. REPRESENTATIONS AND WARRANTIES.
The representations and warranties made by HCP in
this Agreement and in any certificates delivered
pursuant hereto shall be true and correct on and
as of the Closing Date as if they had been made on
the Closing Date.
Section 4.3. CONCURRENT CLOSING. Concurrently
on the Closing Date, HCP shall receive the
conveyance from the applicable Sellers of all of
such Sellers' right, title and interest, owned,
leased or otherwise in and to the Properties and
simultaneously therewith HCP, as lessor, and ESC,
as lessee, shall enter into the Leases.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES AND COVENANTS OF
THE PARTIES
Section 5. I. REPRESENTATIONS AND WARRANTIES
OF ASSIGNOR. Assignor represents and warrants as
follows:
(a) Assignor is a corporation duly
organized, validly existing and in good standing
under the laws of. its state of incorporation and
is, or will be on the Closing Date, duly qualified
and authorized to do business in the states in
which the Properties are located in accordance
with local law. Assignor has full power, authority
and legal right to execute and deliver, and to
perform and observe the provisions of this
Agreement and all other instruments provided for
herein to which it is a party and to carry out the
transactions contemplated herein.
10
(b) ESC is duly organized, validly
existing and in good standing
under the laws of the state of Texas and is, or
will be on the Closing Date, duly qualified and
authorized to do business in the states in which
the Properties are located in accordance with
local law. ESC has full power, authority and legal
right to execute and deliver, and to perform and
observe the provisions of all instruments provided
for herein to which it is a party and to lease
from HCP pursuant to the Leases, the Properties.
(c) This Agreement has been, and on the
Closing Date all other Lessee Documents will have
been, duly authorized, executed and delivered by
Assignor.
(d) The execution and delivery of the
Lessee Documents, compliance with the provisions
thereof and the consummation of the transactions
therein contemplated by Assignor and ESC will not
result in (i) a breach or violation of (a) any law
or governmental rule or regulation applicable to
Assignor or ESC now in effect; (b) any provision
of the Articles of Incorporation or By-Laws of
Assignor or the limited partnership agreement of
ESC; (c) any judgment, order or decree of any
court or Governmental Authority binding upon
Assignor or ESC; or (d) any agreement or
instrument to which Assignor or ESC is a party or
by which it is bound; (ii) the acceleration of any
obligation of Assignor or ESC; or (iii) the
creation of any lien, claim or encumbrance other
than the Leases upon the Properties.
(e) To the best of Assignor's knowledge,
Sellers have and can convey to HCP good and
marketable fee simple title to the Properties,
free and clear of all liens, restrictions and
encumbrances except for Permitted Encumbrances,
provided that, to the best of Assignor's
knowledge, none of the Permitted Encumbrances,
individually or in the aggregate, materially
impairs the use of any of the Properties or any
portion thereof, for their present purpose or
results in title no longer being good and
marketable. A true, correct and complete copy of
the instrument or other document giving rise to
each Permitted Encumbrance has heretofore been
delivered to HCP.
(f) No consent, approval or other
authorization of, or registration, declaration or
filing with, any court or Governmental Authority
is required for the due execution and delivery of
any of the Lessee Documents by Assignor or ESC, or
for the validity or enforceability of any thereof
against Assignor or ESC, or for the payment of any
amounts by Assignor or ESC thereunder other than
the recording or filing for recordation of a short
form memorandum for each of the Leases and the
deed to each of the Properties.
(g) The Purchase and Sale Agreements are
in full force and effect, free of defaults by
Assignor, and free of defaults by Sellers known to
Assignor. The Purchase and Sale Agreements have
not been amended or otherwise modified except as
described in the definition of the Purchase and
Sale Agreements. To the best of Assignor's
knowledge, the representations and warranties of
Sellers, as set forth in the Purchase and Sale
Agreements, are true and correct in all material
respects.
(h) There are no actions, proceedings or investigations pending or ,
(h) There are no actions, proceedings or
investigations pending or, to the best knowledge
of Assignor, threatened against Assignor or ESC
before or by any court, arbitrator or Governmental
Authority which are expected, in the reasonable
judgment of Assignor, to materially and adversely
affect the financial condition or operations of
Assignor or ESC, or their ability to carry out the
transactions contemplated herein.
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(i) Assignor and ESC are solvent and
each (i) has timely filed all tax returns which
ace required to be filed by it and timely paid all
taxes which are required to be paid by it and (ii
i is not in default in the payment of any taxes
levied or assessed against it or any of its
assets, or under any judgment, order, decree, rule
or regulation of any court, arbitrator, or
Governmental Authority to which it may be subject
which would, in each case or in the aggregate,
adversely affect the transactions contemplated
herein.
(j) Except as otherwise disclosed in the
Environmental Reports provided pursuant to Section
3.6, (i) there are no underground tanks or
Hazardous Substances currently located on the
Properties, (ii) to Assignor's best knowledge, the
Properties have never been used for the purpose of
generating, storing, disposing of, treating or
transporting Hazardous Substances other than the
use and storage, in accordance with applicable
laws, of Hazardous Substances ordinarily used in
the course of Sellers' operations at the
Properties, (iii) to Assignor's best knowledge, no
Hazardous Substances are present or used, stored,
treated, released from or disposed of on the
Properties, other than the use and storage, in
accordance with applicable laws, of Hazardous
Substances ordinarily used in the course of
Sellers' operations at the Properties; (iv) no
enforcement, cleanup, removal or other
governmental or regulatory actions are pending or,
to the best of Assignor's knowledge, threatened
with respect to any of the Properties; (v) there
is no current or, to the best of Assignor's
knowledge, prior violation or state of
noncompliance with any environmental law relating
to Hazardous Substances with respect to any of the
Properties; (vi) no claims have been made or, to
the best of Assignor's knowledge, threatened by
any third party with respect to any of the
Properties relating to damage, contribution, cost
recovery, compensation, loss or injury resulting
from or related to any Hazardous Substance; and
(,vii) to the best of Assignor's knowledge, there
are no current, and have been no, businesses
engaged in the storage, treatment or disposal of
Hazardous Substances on any property adjacent to
any of the Properties.
(k) No eminent domain or condemnation
proceedings are pending or, to the best knowledge
of Assignor threatened, with respect to any of the
Properties.
(1) To the actual knowledge of Assignor,
none of the Properties are located within an area
of special risk with respect to natural or man-
made disasters or hazards, such as hurricanes,
earthquakes, tropical storms, flood, nuclear risk
or hazardous waste.
(m) To the best of Assignor's knowledge,
without any soil studies having been performed for
Assignor, there are no adverse geological or soil
conditions affecting any of the Properties.
(n) Neither Assignor nor Xxxxxx X. Xxxx
is retaining, or has any current intent to obtain,
any direct or indirect interest in any land or
project adjacent to or within one mile of any of
the Properties.
(o) Except as otherwise disclosed in the
Purchase and Sale Agreements, there are no pending
or, to the best knowled5e of Assignor, threatened
proceedings by any Governmental Authority with
respect to, or in any manner affecting, any of the
Properties, or in which HCP is or will be a party
by reason of its acquisition of any of the
Properties, and there are no pending or, to the
best knowledge of Assignor, threatened
12
proceedings with respect to, or in any manner
affecting any of the Properties or the use thereof
or in which HCP or ESC is or will be a party by
reason of their respective ownership and leasehold
interests, including proceedings for or involving
evictions, collections, taxes, condemnation or
eminent domain, building code or zoning violations
or personal injuries or property damage alleged to
have occurred on any of the Properties or by
reason of the construction of improvements on or
the use and operation of any of the Properties, or
any present plan or study by any Governmental
Authority which in any way challenges, affects or
would challenge or affect the continued ownership
or use of any of the Properties, or any street or
highway servicing or adjacent to any of the
Properties.
(p) Except as disclosed in the
Engineering Reports for each of the Properties
prepared by Building Analytics, dated February 18,
1997, there are no structural, electrical,
plumbing, mechanical or other physical defects
affecting the Properties.
(q)
(1) To the best of Assignor's
knowledge, each of the Properties and the use
thereof for all uses contemplated by the
applicable Lease are in material compliance
with all applicable laws, regulations and
ordinances, including all health, building,
safety and zoning laws, regulations and
ordinances;
(2) Local zoning ordinances,
general plans and other applicable land use
regulations and all private covenants,
conditions and restrictions, if any, permit
the transfer and use of the Properties (and
reconstruction and resumption of use of the
Properties in the event of damage or
destruction thereof or cessation of use
thereof for the business presently conducted
thereon as a matter of right for an unlimited
time period, and specifically not merely as a
legal non-conforming use or any other legal
status which would by its terms or by
operation of law limit the duration of such
use or the right to rebuild and resume use of
any of the Properties for all uses
contemplated by the applicable Lease in the
event of damage, destruction or cessation of
use of any of the Properties for any reason;
(3) Except as described in the
opinions provided pursuant to Section 3.16
hereof, all licenses, permits, approvals and
authorizations from all Governmental
Authorities required to transfer the
Properties and to permit each of the
Properties to be used for all uses
contemplated by the applicable Lease,
including, if issued in the applicable
jurisdiction, a permanent, unconditional
certificate of occupancy, have been obtained
and are or will be in full force and effect
on or before the Closing Date or as soon as
reasonably possible thereafter;
(4) To the best knowledge of
Assignor, there are no outstanding
deficiencies or work orders of any cognizant
Governmental Authority requiring conformity
to any applicable statute, regulation or
ordinance pertaining to any of the
Properties;
13
(5) To the best knowledge of
Assignor, none of the Properties are subject
to any notice, claim, requirement or demand
of any cognizant certifying agency or
Governmental Authority to rework or redesign
any portion of the Properties or to provide
additional fixtures, equipment or inventory
so as to conform to or comply with any
existing law, code or standard which has not
been fully satisfied prior to the date
hereof;
(6) To the best knowledge of
Assignor, all public utilities ,
including water, sewer, gas and
electricity, to the extent necessary for the
operation of the Properties, have
been connected to the Properties and are
adequate for the intended use of
each of the Properties;
(7) To the best knowledge of
Assignor, all means of ingress and egress,
streets, parking and drainage facilities are
adequate for the use of each respective
Property for all uses contemplated by the
applicable Lease;
(8) Assignor has delivered to -HCP
copies of its audited financial statements
for the year ended December 31, 1996, the
unaudited financial statements of ESC for the
year ended December 31, 1996 and the
Properties' unaudited financial statements
dated September 30, 1996, and such financial
statements are true, correct and complete in
all material respects, and Assignor's and
ESC's financial statements have been prepared
from and in accordance with the books and
records of Assignor and ESC, respectively,
and, to the best of Assignor's knowledge, the
Properties' financial statements have been
prepared from and in accordance with the
books and records of the Properties, and such
financial statements fairly present the
financial position of Assignor and ESC and,
to the best of Assignor's knowledge, the
Properties, and the results of Assignor's and
ESC's and, to the best of Assignor's
knowledge, the Properties' operations at the
date(s) and for the period(s) indicated;
.
(9) Since December 31, 1996, there
has been no material adverse change in the
financial condition of Assignor or ESC from
that disclosed in the financial statements
described in Section 5.1(p)(8) above; and
(10) To the best knowledge of
Assignor since September 30, 1996, there has
been no material adverse change in the
financial condition, business, or prospects
of any of the Properties from that disclosed
in the financial statements described in
Section 5.1 (p)(8) above.
(r) Neither Assignor, nor any of the
officers, employees or affiliates of Assignor has
employed any broker, finder or similar agent, or
entered into or will enter into any agreement with
any person or firm which could result in the
obligation of HCP to pay any finder's fees,
brokerage fee or commission or similar payment in
connection with the execution of this Agreement or
the consummation of the transactions contemplated
hereunder.
14
(s) Neither this Agreement nor any
certificate, statement or other document furnished
or to be furnished to HCP by or on behalf of
Assignor or ESC in connection with the
transactions contemplated herein 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.
(t) The transactions set forth in this
Agreement are not subject to the tax withholding
provisions of the Internal Revenue Code or of any
other provision of law.
(u) Each of the Sellers is a United
States person within the meaning of the Internal
Revenue Code.
Section 5.2. REPRESENTATIONS AND WARRANTIES
OF HCP. HCP represents and warrants as follows:
(a) HCP is a limited partnership duly
organized, validly existing and in good standing
under the laws of the State of Delaware. HCP has
full power, authority and legal right to execute
and deliver, and to perform and observe the
provisions of this Agreement and all other
instruments provided for herein to which it is a
party and to acquire from Sellers and lease to
ESC, pursuant to the Leases, the Properties and to
carry out the transactions contemplated herein.
(b) This Agreement has been, and all
other Lessee Documents to be delivered by HCP
pursuant to this Agreement on or before the
Closing Date, will have been, duly authorized,
executed and delivered by HCP.
(c) Neither HCP nor any of its officers,
employees or affiliates has employed any broker,
finder or similar agent or entered into or will
enter into any agreement with any person or firm
which could result in the obligation of Assignor
or HCP to pay any finder's fee, brokerage fee or
commission or similar payment in connection with
the execution of this Agreement or the
consummation of the transactions contemplated
herein.
ARTICLE VI.
OBLIGATIONS OF ASSIGNOR
Section 6.1. COVENANTS OF ASSIGNOR. Prior to
the Closing Date, Assignor shall (and to the
extent Assignor does not control the Properties,
Assignor shall use its best efforts to cause
Sellers and ESC to comply with the following
covenants with respect to the Properties):
(a) not amend any material agreement or
other instrument related to any of the
respective Properties or their respective
businesses to which it is a party or by which
it or any of the respective Properties may be
bound, and Assignor shall use its best
efforts to cause ESC and Sellers to not amend
any material agreement or other instrument
related to any of the respective Properties
or their respective businesses to which ESC
or any of the Sellers is a party or by which
ESC, any of the Sellers or any of the
respective Properties may be bound;
15
(b) pay or cause to be paid all income,
property, sales and withholding taxes and all ad
valorem and other taxes upon the respective
Properties and businesses operated with respect to
the respective Properties as they become due but
only to the extent that Assignor, ESC or any of
the Sellers are responsible therefor and/or to the
extent that nonpayment would result in a lien for
other than current property taxes;
(c) not dispose of or encumber any of
the respective Properties;
(d) not enter into or assume any
contract, agreement, obligation, lease, license or
commitment related to any of the respective
Properties except in the ordinary course of
business or as contemplated herein;
(e) not do any act or omit any act which
would cause a breach of any contract, commitment
or obligation which would have a material adverse
affect on any of the respective Properties;
(f) promptly advise HCP in
writing of any material adverse change in its
financial position, assets or earnings, or in the
financial position, assets or earnings of ESC or
any of the respective Properties;
(g) not amend, terminate or waive any
right related to any of the respective Properties
or its or their respective businesses, provided,
however, that nothing herein shall preclude
Assignor from making such termination as may be
necessary to deliver title to the respective
Properties to HCP in accordance with the terms
hereof;
(h) not commit to make any Capital
Additions (as defined in the Leases) to the
respective Properties without the written approval
of HCP;
(i) afford the officers, attorneys,
accountants, and other authorized representatives
of HCP access during normal business hours to the
respective Properties and to their books and
records related to the transactions contemplated
herein in order to afford HCP such opportunity of
review, examination and investigation as HCP shall
desire to make of the respective Properties and
permit HCP to make extracts from, and take copies
of, such books and records as may be reasonably
necessary for such purposes;
(j) give all notices to
Governmental Authorities required by law for the
transfer of the respective Properties; and
(k) take all action as may be necessary
to comply promptly with any and all rules,
regulations or orders of any Governmental
Authority affecting the respective Properties,
including orders of any board of fire underwriters
or other similar bodies in connection with the
making of repairs and alterations, and promptly,
and in no event later than seventy-two (72) hours
from the time of its receipt, notify HCP of all
such orders and requirements.
16
Section 6.2. NOTIFICATION OF CHANGES. At any
time at or prior to the Closing Date, Assignor
shall promptly notify HCP of (i) any change in the
condition of the respective Properties or any
contiguous or neighboring property which could
have a material adverse affect on any of the
respective Properties, Assignor, ESC or HCP, or
(ii) any event or circumstance of which Assignor
becomes aware which makes any representation or
warranty of Assignor contained herein untrue or
misleading, or any covenant of Assignor, ESC or
HCP under this Agreement or the Leases incapable
or less likely of being performed, it being
understood that the obligation to provide notice
to HCP under this Section shall in no way relieve
Assignor of any liability for a breach by Assignor
of any of its representations, warranties or
covenants contained herein, it being further
understood and agreed that Assignor shall have no
liability to HCP for a breach hereof in the event
HCP receives written notification from Assignor
with respect to such breach and HCP elects to
consummate the transactions provided for herein
notwithstanding the existence of such breach.
Section 6.3. EFFECT TRANSACTION. Assignor
shall take, and shall cause ESC to take, all
actions necessary or desirable to effect the
transactions contemplated herein.
Section 6.4. INDEMNIFICATION.
(a) Assignor unconditionally and
irrevocably indemnifies and agrees to defend and
hold harmless HCP from and against any and all
loss, cost or expense, including reasonable
attorneys' fees, arising from (i) the material
breach or violation of any representation or
warranty of Assignor contained herein; (ii) the
failure of Assignor to satisfy or perform any
covenant or other provision contained herein or in
the Purchase and Sale Agreements; (iii) any
material violations of any covenant, condition or
restriction affecting any of the Properties; (iv)
any encroachments of buildings or other
improvements onto adjoining lands or onto
easements or licenses or rights-of-way located on
any of the Properties which is not a Permitted
Encumbrance. (v) without limiting any other
provision of this Section 6.4(a), any encroachment
from the El Paso Property onto the property to the
southwest of the EI Paso Property (Assignor shall
have the right to contest and defend any action or
claim brought or made against HCP in connection
with such encroachment using counsel reasonably
acceptable to HCP and shall otherwise have the
right to negotiate with the adjoining owners and
resolve such matters in such reasonable manner and
within such reasonable time as Assignor shall
decide, subject to the reasonable consent of and
upon reasonable notice to HCP; provided, however,
that all costs and expenses, including attorney's
fees, associated with the matters covered by this
clause (v) shall remain the obligation of
Assignor) (vi) the presence or existence of any
Hazardous Substance on, in or under any of the
Properties and (vii) any claims made against HCP
by any of the Sellers or any third party arising
out of the transactions contemplated in this
Agreement or the Purchase and Sale Agreements
which claims are not the result of a breach of
HCP's covenants hereunder.
(b) HCP unconditionally and irrevocably
indemnifies and agrees to defend and hold harmless
Assignor from and against any and all loss, cost
or expense, including reasonable attorneys' fees,
arising from (i) the material breach or violation
of any representation or warranty of HCP contained
herein; and (ii) the failure of HCP, to satisfy or
perform any covenant of HCP or other provision
with respect to HCP s obligations contained
herein.
17
ARTICLE VII.
DAMAGE DESTRUCTION OR CONDEMNATION
Section 7.1. DAMAGE DESTRUCTION OR
CONDEMNATION. Assignor shall have the risk of loss
or damage to the Properties and liability arising
out of the operation of the Properties from any
cause whatsoever prior to the Closing Date. In the
event of any loss or damage to the Properties or
condemnation of all or any portion of any of the
Properties, the following procedure shall be used:
(a) In the event that prior to the
Closing Date, a material portion of one or more of
the Properties, taken individually, shall have
been damaged or destroyed by fire or other
casualty, or shall have been taken or condemned by
any public or quasi-public authority under the
power of eminent domain, HCP shall have the right
to terminate this Agreement on written notice to
Assignor which notice must be delivered within ten
(10) days after HCP receives notice of such
damage, destruction or condemnation. In the event
HCP fails to exercise its termination right
hereunder, then it shall be conclusively deemed to
have waived said right and Assignor shall assign
to HCP all of its rights to any insurance proceeds
or condemnation award and all claims in connection
therewith. In the event HCP exercises its
termination right hereunder, the parties shall
have no further rights or obligations hereunder
other than any rights Assignor may have to a
refund of a portion of its commitment fee pursuant
to Section 2.5 hereof.
ARTICLE VIII.
MISCELLANEOUS
Section 8.1. SURVIVAL. All agreements,
representations and warranties made by Assignor
and HCP herein and in all certificates and other
instruments delivered pursuant to this Agreement
shall survive the execution and delivery of this
Agreement and the delivery of the deed or other
instrument of conveyance to each of the
Properties.
Section 8.2. BROKERS. Assignor shall be
solely responsible for, and shall indemnify and
hold HCP harmless from and against any and all
claims for, any real estate commissions, leasing
fees or similar fees arising out of or in any way
relating to the purchase, sale or lease of the
Properties, except in the event of breach of HCP's
representation and warranty in Section 5. 2(c)
hereof.
Section 8.3. NOTICES. All notices, demands
and other communications hereunder shall be in
writing and delivered in accordance with the
provisions therefor set forth in the Leases.
Section 8.4. ATTORNEYS' FEES. If HCP or
Assignor brings an action or other proceeding
against the other to enforce any of the terms,
covenants or conditions hereof or any instrument
executed pursuant to this Agreement, or by reason
of any breach or default hereunder or thereunder,
the party prevailing in any such action or
proceeding and any appeal thereupon shall be paid
all of its costs and reasonable attorneys' fees
incurred therein.
18
Section 8.5. SUCCESSORS AND ASSIGNS. This
Agreement shall be binding upon HCP and Assignor
and their respective successors and assigns;
provided, however, that neither the rights nor the
obligations of Assignor hereunder may be assigned
or delegated without the prior written consent of
HCP, which such consent may be granted or withheld
in its sole and absolute discretion.
Section 8.6. NO WAIVER. Except: as otherwise
specifically provided herein, no delay in
exercising any right or remedy shall constitute a
waiver thereof, and no waiver by HCP or Assignor
of a breach of any covenant of this Agreement,
shall be construed as a waiver of any preceding or
succeeding breach of the same or any other
covenant or condition of this Agreement.
Section 8.7. INVALIDITY. In the event any one
or more of the 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.
Section 8. 8. GOVERNING LAW. This agreement
shall be governed by, and construed in accordance
with, the laws of the State of Washington except
to the extent the laws of the states in which the
Properties are located necessarily govern.
Section 8.9. ENTIRE AGREEMENT. This
Agreement, together with the other Lessee
Documents, the exhibits thereto and such other
documents as are contemplated hereunder or
thereunder, constitutes the entire agreement of
the parties with respect to the subject matter
hereof, and may not be changed or modified except
by an agreement in writing signed by the parties.
Section 8.10. SEVERABILITY. In the event any
provision of this Agreement is deemed to be
invalid, illegal or unenforceable, the remainder
of the Agreement shall be valid and enforceable.
Section 8.1 I. HEADINGS. All titles and
headings to sections, subsections, paragraphs or
other divisions of this Agreement are only for the
convenience of the parties and shall not be
construed to have any effect or meaning with
respect to the other contents of such sections,
subsections, paragraphs or other divisions, such
other content being controlling as to the
agreement among the parties hereto. "Including"
shall mean including, without limitation, and
other phrases of similar intent.
Section 8.12. COUNTERPARTS. This Agreement
may be executed in any number of counterparts,
each of which shall be a valid and binding
original, but all of which together shall
constitute one and the same instrument.
19
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be executed on the day
and year first above written by their respective
duly authorized officers.
TEXAS HCP HOLDING, L.P., a
Delaware limited partnership
By: TEXAS HCP G.P. , INC. , a
Delaware corporation
Its: General Partner
By:
Its:
EMERITUS CORPORATION,
a Washington corporation
By: /s/ Xxxxxxx X.
Xxxxxxxxxx
----------------------
--------------------
Xxxxxxx X. Xxxxxxxxxx
Its: President
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