Exhibit 10.23
CONFORMED COPY
TAX MATTERS AGREEMENT
Dated as of June 18, 2004
BY AND BETWEEN
ALTERRA HEALTHCARE CORPORATION
"Seller"
AND
PROVIDENT SENIOR LIVING TRUST
"Acquiror"
TAX MATTERS AGREEMENT
This TAX MATTERS AGREEMENT (this "Agreement") is dated as of June
18, 2004, by and between Alterra Healthcare corporation, a Delaware
corporation ("Seller") and Provident Senior Living Trust, a Maryland real
estate investment trust ("Acquiror").
WITNESSETH
WHEREAS, Seller and Acquiror have entered into a Stock Purchase
Agreement dated as of the date hereof (the "Purchase Agreement"), pursuant to
which, among other things, Acquiror has agreed to acquire all the outstanding
shares of common stock of ALS Venture I, Inc., ALS West, Inc., AHC Borrower,
Inc. and ALS Financing II, Inc., each being a Delaware corporation (the
"Companies");
WHEREAS, Seller and Acquiror desire to make an election under
Section 338(h)(10) of the Code with respect to the purchase and sale of the
stock of the Companies pursuant to the Purchase Agreement, as a result of
which the Companies will be deemed to transfer all their assets and
liabilities to new target corporations and to liquidate into Seller under
Section 332 of the Code for Federal income tax purposes, and the tax year for
the Companies will end on the Closing Date; and
WHEREAS, as a condition to entering into the Purchase Agreement
and the Transaction Agreements (as defined in the Purchase Agreement), and as
an inducement to do so, the parties hereto are entering into this Agreement;
NOW, THEREFORE, in consideration of the promises and mutual
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Section 1. Definitions. For purposes of this Agreement, the
following terms shall apply:
(a) "Acquiror" shall have the meaning set forth in the
Introductory Paragraph.
(b) "Code" shall mean the Internal Revenue Code of 1986,
as amended.
(c) "Final Determination" shall mean (i) a decision,
judgment, decree, or other order by any court of competent jurisdiction,
which decision, judgment, decree, or other order has become final after
all allowable appeals by either party to the action have been exhausted
or the time for filing such appeal has expired, (ii) a closing agreement
entered into under Section 7121 of the Code, or any final settlement
agreement entered in connection with any administrative or judicial
proceeding, or (iii) the expiration of time for instituting a claim for
refund, or if such claim was filed, the expiration of time for
instituting a suit with respect thereto.
(d) "Indemnity Amount" shall mean the amount payable by
Seller to an Acquiror pursuant to Section 3.
(e) "Pre-Closing Period" shall mean any taxable year or
period that ends on or before the Closing Date.
(f) "Post-Closing Period" shall mean any taxable year or
period that begins after the Closing Date.
(g) "REIT" shall mean a real estate investment trust,
within the meaning of Sections 856 et. seq., of the Code.
(h) "Seller" shall have the meaning set forth in the
Introductory Paragraph.
(i) "Straddle Period" shall mean, with respect to any
taxable year or period of an entity or group of entities that begins on
or before the Closing Date but ends after the Closing Date, the portion
of such taxable year or period that (i) begins on the first day of such
taxable year or period, and (ii) ends on the Closing Date.
(j) "Tax" and/or "Taxes" shall mean all Federal, state,
local and foreign taxes, charges, fees, duties (including customs
duties), levies or other assessments, including without limitation,
income, gross receipts, net proceeds, ad valorem, turnover, real and
personal property (tangible and intangible), sales, use, franchise,
excise, value added, stamp, transfer, leasing, lease, user, transfer,
fuel, excess profits, occupational, interest equalization, windfall
profits, severance, license, payroll, environmental, capital stock,
disability, employee's income withholding, other withholding, and
unemployment taxes, which are imposed by any governmental authority, and
such term shall include any interest, penalties or additions to tax
attributable thereto.
(k) "Tax Authority" shall mean any governmental authority
having jurisdiction over the assessment, determination, collection, or
imposition of any Tax.
(l) "Tax Return" shall mean a report, return or other
information return required to be supplied to a governmental entity with
respect to Taxes (and any amendments thereto) including, combined or
consolidated returns for any group of entities.
(m) Any capitalized terms used herein and not defined
herein, shall have the meaning assigned to it in the Purchase Agreement.
Section 2. Tax Liability for Straddle Period. For purposes of
this Agreement, the Tax liability of any entity with respect to a Straddle
Period shall be computed as follows: (i) in the case of Taxes of an entity
that are either based upon or related to income or receipts, the Tax liability
for the Straddle Period shall be deemed equal to the amount that would be
payable if the period for which such Tax is assessed had ended on and included
the Closing Date, not including transactions occurring on the Closing Date
after the Closing, determined, to the extent permissible under applicable laws
and commercially practicable, in a manner which is consistent with such
entity's accounting practices and business operations as in effect prior to
the Closing Date; (ii) in the case of Taxes that are incurred as a result of
any sale, transfer, assignment or distribution of property, or other similar
transaction engaged in, by any such entity, the Tax
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liability for the Straddle Period shall be the amount due with respect to any
such sale, transfer, assignment, distribution, or other similar transaction
occurring on or prior to the Closing Date (not including transactions
occurring on the Closing Date but after the Closing); and (iii) in the case of
all other Taxes, Tax liability attributable to the Straddle Period shall be
equal to the Taxes imposed with respect to the Tax period that includes the
Straddle Period multiplied by a fraction, the numerator of which is the number
of days in the Straddle Period through and including the Closing Date and the
denominator of which is the number of days in the Tax period with respect to
which such Taxes are imposed; provided, however, that notwithstanding the
foregoing provisions of this section, with respect to real property Taxes,
Section 2.04 of the Purchase Agreement shall govern.
Section 3. Amount and Scope of Indemnification.
(a) Seller shall indemnify, defend, and hold harmless
Acquiror against and reimburse Acquiror for all Taxes, losses, damages,
cost, expenses, liabilities, obligations and claims of any kind
(including reasonable attorneys' fees and costs of investigation) in
connection with Taxes of the Companies that are attributable to a
Pre-Closing Period, including without limitation Taxes properly
allocable to a Straddle Period under Section 2, or that Acquiror may at
any time suffer or incur, or become subject to, as a result of or in
connection with the material inaccuracy of any representation or
warranty made by Seller in Section 3.19 of the Purchase Agreement or in
the schedules referred to in Section 3.19 of the Purchase Agreement.
Acquiror, if and to the extent it qualifies as a REIT with respect to
any taxable period and jurisdiction, shall not be required to make
additional distributions to its shareholders to reduce or eliminate its
liability for Taxes otherwise indemnified against hereunder, whether or
not such distributions are required to be made to maintain the
Acquiror's status as a REIT, but to the extent Acquiror is permitted to,
and chooses to, make any such additional distributions to its
shareholders, any reduction in Acquiror's liability for Taxes as a
result of such additional distributions shall be taken into account in
computing the Indemnity Amount hereunder.
(b) In the event Acquiror makes a claim for
indemnification hereunder, Acquiror shall provide Seller with a written
statement setting forth in reasonable detail the basis of the claim for
indemnification and the calculation of the amount owing under Section
3(a) (the "Indemnity Amount").
(c) Any payment determined due to Acquiror pursuant to
this Section 3 shall be paid within the later of (i) twenty (20)
business days after written notice from Acquiror to Seller that such
amounts are due and payable, or (ii) ten (10) business days prior to the
due date for any return (including without limitation any return of
estimated income taxes) on which Acquiror would reflect such income or
gain.
(d) Upon request of Seller, the basis of the claim and the
accuracy of Acquiror's calculation of the Indemnity Amount payable to
Acquiror pursuant to Section 3 shall be verified by an independent,
nationally recognized accounting firm (other than the preparer of
Acquiror's or Seller's Tax Returns or financial statements) acceptable
to Seller and Acquiror. In the event that the parties are unable to
agree on an acceptable accounting firm, each shall select one accounting
firm as its representative and the two
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accounting firms so selected shall select a third firm to perform the
requisite verification. In order to enable such accountants to verify
the basis and accuracy of such claim, Acquiror and Seller shall provide
to such accountants all information reasonably necessary for such
verification, including without limitation any computer analyses used by
Acquiror or Seller to calculate or question, as the case may be, such
amount or amounts. In conducting its verification, the accounting firm
shall consult with, and consider in good faith the opinions and
positions of, Acquiror and Seller as to the proper resolution of any
matters at issue. The review and determination of such calculations by
such accounting firm pursuant to this Section 3(d) shall be final. The
parties hereto agree that, if the accounting firm is required to resolve
any matters relating to the computations, the accounting firm (i) shall
provide Acquiror and Seller with a written notification that describes
in reasonable detail the matter or matters at issue, and (ii) prior to
its resolution of the matter or matters at issue, shall provide Acquiror
and Seller with an opportunity to set forth their positions concerning
the proper resolution of the matter or matters at issue in accordance
with a procedure reasonably acceptable to both Acquiror and Seller. The
cost of such verification shall be borne by Seller unless it is the
determination of such verification that the actual amount or amounts
payable (exclusive of interest and penalties) deviates, in a manner
favorable to Seller, by more than 10% from the amount originally
determined by Acquiror, in which case such cost shall be borne by
Acquiror.
(e) At the request and expense of Seller, Acquiror shall
seek any refund of any Tax. In the event Acquiror receives a refund of
(i) any amount which gave rise to an indemnification payment hereunder,
or (ii) any Tax paid by the Companies prior to the Closing Date with
respect to a Pre-Closing Period or Straddle Period, Acquiror shall
refund such indemnification payment to Seller; provided, however, that
if either party has notified the other that there may be an amount due
to Acquiror from Seller pursuant to this Agreement or the Purchase
Agreement, Acquiror may withhold payment until resolution of that claim
has occurred.
(f) Acquiror agrees not to file any amended return of any
of the Companies with respect to a Pre-Closing Period or Straddle Period
without the prior written consent of the Seller.
(g) To the extent that Acquiror or an Affiliate realizes
an actual Tax benefit as a result of the event giving rise to the
indemnity payment hereunder (such as, by way of example but not
limitation, a savings in Federal income Taxes resulting from an increase
in deductible state Taxes that are indemnified, in a case in which the
indemnity payment itself does not give rise to gross income for Federal
income tax purposes), Acquiror shall promptly rebate to Seller the
amount of such Tax benefit.
Section 4. Exclusions. (a) Notwithstanding any other provision
of this Agreement, Seller shall not have any liability for indemnification
under this Agreement for any Tax liability attributable, in whole or in part,
to:
(i) any fraud, willful misconduct or gross
negligence of Acquiror or officer, director, employee or agent thereof;
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(ii) any Tax resulting from a determination that
Acquiror is not treated as the owner of the Leased Property for income
tax purposes (including, but not limited to, any adverse effect on
Acquiror's status as a REIT); or
(iii) the willful failure of Acquiror to comply on a
timely basis with certification, information, documentation, reporting
or other similar requirements imposed on such Acquiror, or the willful
failure of Acquiror to comply with its obligations set forth in Section
5, to the extent Seller demonstrates that its ability to contest such
Tax liability is actually prejudiced by such willful failure of
Acquiror.
(b) Acquiror and Seller agree, for themselves and on
behalf of their respective existing and future affiliates and
representatives, that notwithstanding any provision to the contrary in
this Agreement, the Purchase Agreement or any other Transaction
Agreement, with respect to each indemnification obligation in this
Agreement, in no event shall the Seller have liability to the Acquiror
for any punitive, incidental, indirect or consequential damages, damages
for the loss of profits or other special damages (including, but not
limited to, any adverse effect on Acquiror's status as a REIT, unless
such failure is due to Seller's or Seller's willful misconduct,
recklessness or gross negligence), and in no event shall Taxes (subject
to the immediately preceding parenthetical clause) include any of the
foregoing.
(c) Notwithstanding anything to the contrary in this
Agreement, no liability shall be imposed upon Seller for any liability
for Taxes for amounts that are required to be paid by Seller, or any
affiliate, as Tenant, to Acquiror, or any of its affiliates, as
Landlord, under the Transaction Documents, including but not limited to
transfer and similar Taxes relating to the transactions contemplated
thereunder.
(d) Notwithstanding anything to the contrary in this
Agreement or any other Transaction Agreement, Seller shall have no
liability for Taxes to the Acquiror or any of its affiliates.
(e) Notwithstanding anything to the contrary in this
Agreement, Seller shall not be liable for any Taxes arising from
transactions that occur following the Closing, including transactions
occurring on the Closing Date after the Closing, and Acquiror shall not
be liable for any Taxes of the Companies arising from transactions that
occur at or preceding the Closing.
Section 5. Preparation of Tax Returns. Seller will be
responsible for the preparation and filing of all Tax Returns for the
Companies for all Pre-Closing Periods, and will pay all third-party costs and
expenses incurred in preparing and filing such Tax Returns. Acquiror will be
responsible for the preparation and filing of all Tax Returns for the
Companies for all Post-Closing Periods and any Tax period that includes a
Straddle Period. All Tax Returns of the Companies for any Pre-Closing Period
and any Straddle Period shall be prepared in a manner consistent with the
applicable entity's past practices as in effect prior to the Closing Date;
provided, however, that such past practices are in accordance with the Code
and the
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regulations thereunder. Acquiror shall submit any Tax Return that includes a
Straddle Period to Seller for review and consent, which consent shall not be
unreasonably withheld. Each of Acquiror and Seller agrees to reasonably
cooperate in making available information necessary to the preparation and
filing of such Tax Returns and each agrees to make available, at its expense,
records and employees of the Companies, Seller and Acquiror necessary for the
preparation or such Tax Returns. Acquiror and its accountants will be provided
for their review, a draft of each material Tax Return with respect to any
period (or portion thereof) ending on or before the Closing Date at least 20
days prior to the date Seller intends to file such Tax Return. To the extent
that positions previously taken on Tax Returns of the Companies require
further explication or substantiation in order for the Acquiror to prepare Tax
Returns with respect to Post-Closing Periods, the Seller shall provide or
cause to be provided such information and background with respect to such
matters as the Acquiror may from time to time reasonably request.
Section 6. Contests Pertaining to Tax.
(a) Acquiror shall promptly notify Seller (but in no event
later than 5 Business Days following the receipt by Acquiror) of (i) the
assertion of any claim or any dispute of any Tax reporting position, the
commencement of any audit or examination of any of the Companies by any
Tax Authority with respect to any Pre-Closing Period or Straddle Period
and (ii) the receipt by it from the Internal Revenue Service of a
written, proposed or final revenue agent's report, a 30-day letter or a
notice of deficiency (as described in 6212 of the Code) or similar
written notice from a Tax authority of a state, local, or foreign
government, in which an adjustment is proposed or determined to the
Taxes for which Seller may be required to provide indemnification
pursuant to this Agreement (a "Tax Claim"); provided, however, that any
failure to provide such notice shall not relieve Seller of any
obligation to indemnify Acquiror hereunder except, notwithstanding
anything to the contrary contained in Section 4(iii), to the extent that
the Seller's ability to contest such adjustment is prejudiced in
Seller's discretion by such failure of the Acquiror.
(b) Seller shall have the sole right to represent the
interests of any of the Companies, and to settle any dispute with
respect to Taxes arising, in any Tax audit or administrative or court
proceeding relating to Pre-Closing Periods or to any Straddle Period of
any of the Companies and to employ counsel of Seller's choice at
Seller's expense to carry out such representation; provided, however,
that Seller shall notify Acquiror of its intention to represent such
interests within ten (10) Business Days of Seller's receipt of the
notice from Acquiror in accordance with Section 6(a). Acquiror agrees
that it will cooperate fully with Seller and Seller's counsel in the
defense against or compromise of any claim in any said proceeding.
Acquiror shall execute and deliver to Seller any power of attorney or
other document requested by Seller in connection with any audit or
administrative or court proceeding with respect to which Seller is
representing the interests of any of the Companies (or any
successor-in-interest) in any proceeding described in this Section 6. In
connection with any audit or administrative or court proceeding with
respect to which Seller is representing the interests of any of the
Companies (or any successor-in-interest), Seller shall consult in good
faith with, and keep reasonably informed, Acquiror and its counsel and
shall provide Acquiror with copies of
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any documents, reports or claims issued by or sent to the relevant
auditing agent or Tax Authority, as well as a reasonable opportunity to
review and comment thereon, but the decisions regarding what actions are
to be taken shall be made by Seller in its reasonable judgment, taking
into account the reasonable requests and interests of the Acquiror.
(c) Acquiror shall not make payment of any claim for at
least ten (10) days after giving written notice of such claim to Seller
if such forbearance is permitted by law. If the conduct of the contest
requires Acquiror to pay the tax claimed and file or ▇▇▇ for a refund,
Seller shall advance to such Acquiror, on an interest-free basis,
sufficient funds to pay the tax and any interest, penalties and
additions to tax payable with respect thereto (to the extent such amount
is subject to Seller's indemnity obligations hereunder). Acquiror shall
as promptly as practicable use such funds to pay such tax, interest,
penalties or additions to tax, as the case may be.
(d) If Acquiror receives any settlement offer from the
Internal Revenue Service or similar notice from a Tax authority of a
state, local, or foreign government with respect to a claim for which
Acquiror seeks indemnity from Seller, such Acquiror shall promptly
inform Seller of the receipt of such settlement offer. If Seller
recommends acceptance of such settlement offer, but Acquiror declines to
accept such offer in writing within thirty (30) days: (i) the obligation
of Seller to make indemnity payments under this Agreement as the result
of any such contest or proceedings shall not exceed the obligation that
it would have had if such contest had been settled or proceeding
terminated on such date on the basis of the settlement offer the
acceptance of which was recommended by Seller; and (ii) Seller shall
have no further liability for costs or other expenses in respect of such
contest. Acquiror shall not settle any claim without Seller's consent;
provided, however, that Acquiror shall not be required to contest any
proposed adjustment and may settle any such proposed adjustment if (i)
Acquiror shall waive its right to indemnity with respect to such
adjustment and shall refund to Seller any amount previously paid or
advanced by Seller with respect to such adjustment or the contest of
such adjustment.
(e) If Seller shall have duly complied with all the terms
of this Section 6, Seller's liability for indemnification, if any, under
Section 3(a), shall be deferred (subject to the provisions of Section
6(c) hereof) until a Final Determination of the liability of such
Acquiror. At such time, Seller shall become obligated for the payment of
any indemnification hereunder resulting from the outcome of such
contest, and Acquiror shall become obligated to refund to Seller any
amount received as a refund by Acquiror or credited to Acquiror
attributable to advances by Seller hereunder. Within thirty (30) days
following such Final Determination, any amounts due hereunder shall be
paid first by set off against each other and either (i) Seller shall pay
to Acquiror any excess of the full amount due hereunder over the amount
of any advances previously made by Seller and applied against Seller's
indemnity obligation as aforesaid or (ii) Acquiror shall repay to Seller
any excess of such advances over such full amount due hereunder,
together with the portion of any interest received by such Acquiror that
is properly attributable to such excess amount of such advances during
the period such advances were outstanding, and, if Seller shall have
indemnified such Acquiror with respect to the adverse tax
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consequences of any advances or payments hereunder, the amount of tax
savings, if any, resulting from any payment pursuant to this sentence.
Section 7. Cooperation. Acquiror agrees to consider in good
faith any action (including filing claims for refund and amended Tax Returns)
which it is reasonably requested to take by Seller that would minimize the net
amount of any indemnity payment due from Seller hereunder.
Section 8. Adjustment to Purchase Price. All amounts, other than
interest accrued on amounts due but unpaid, paid by Seller to the Acquiror, or
reimbursed by the Acquiror to the Seller, as the case may be, are for Federal
income tax purposes intended by the parties to be, and shall to the extent
permitted by law be treated as, an adjustment to the Purchase Price and not to
constitute an item of income or deduction to either party for such purposes.
Section 9. Election under Section 338(h)(10) of the Code. Seller
and Acquiror shall join in making an election under Section 338(h)(10) of the
Code (and any corresponding elections under state or local tax law)
(collectively a "Section 338(h)(10) Election") with respect to the purchase
and sale of the stock of the Companies hereunder. Acquiror shall prepare the
Section 338(h)(10) Election forms and shall provide drafts of such forms for
Seller's approval. Acquiror shall file such forms after the Seller has
reviewed and signed the same. Seller shall not unreasonably delay the filing
of such forms.
Section 10. Section 338(h)(10) Taxes. Seller shall pay any Tax
(federal, state or local) attributable to the making of the Section 338(h)(10)
Election and will indemnify the Acquiror or the Companies against any adverse
consequences arising out of any failure to pay such Tax.
Section 11. Allocation of Purchase Price. A schedule (the
"Allocation Schedule") prepared in accordance with Sections 338 and 1060 of
the Code, and the regulations thereunder, allocating the Purchase Price among
the assets of the Companies is attached as Schedule A. The Seller and Acquiror
agree to file IRS Forms 8883 and 8594, and all federal, state and local Tax
Returns, in accordance with the Allocation Schedule on a timely basis, and to
file on a timely basis such amended IRS Forms 8883 and 8594 as may be required
from time to time in connection with any purchase price adjustments. Each of
the Seller and the Acquiror agrees promptly to provide the other party hereto
with any other information reasonably necessary to complete any such Form 8883
or 8594.
Section 12. Notices. All notices, demands, declarations,
consents, directions, approvals, instructions, requests and other
communications required or permitted by the terms of this Agreement shall be
given in the same manner as in the Purchase Agreement.
Section 13. Miscellaneous.
(a) Except as otherwise provided herein, the terms and
conditions of this Agreement shall be binding upon and inure solely to
the benefit of the parties hereto and their respective successors and
assigns, and nothing in this Agreement, express or implied, is intended
to confer upon any party other than the parties hereto or their
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respective successors and assigns any rights or remedies of any nature
whatsoever under or by reason of this Agreement.
(b) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW PRINCIPLES OF SUCH STATE
THAT MIGHT REFER THE GOVERNANCE, CONSTRUCTION OR INTERPRETATION OF THIS
AGREEMENTS TO THE LAWS OF ANOTHER JURISDICTION. EACH OF SELLER AND
ACQUIROR AGREES IRREVOCABLY AND UNCONDITIONALLY TO:
(i) submit for itself and its property in any Action
relating to this Agreement, or for recognition and enforcement of any
judgment in respect thereof, to the exclusive jurisdiction of the Courts
of the State of New York sitting in the County of New York, the court of
the United States of America for the Southern District of New York, and
appellate courts having jurisdiction of appeals from any of the
foregoing, and agrees that all claims in respect of any such Action
shall be heard and determined in such New York State court or, to the
extent permitted by law, in such federal court;
(ii) consent that any such Action may and shall be
brought in such courts and waives any objection that it may now or
hereafter have to the venue or jurisdiction of any such Action in any
such court or that such Action was brought in an inconvenient court and
agrees not to plead or claim the same;
(iii) waive all right to trial by jury in any Action
(whether based on contract, tort or otherwise) arising out of or
relating to any of this Agreement, or its performance under or the
enforcement of this Agreement;
(iv) agree that service of process in any such Action
may be effected by mailing a copy of such process by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such party at its address as provided in Section 12; and
(v) agree that nothing in this Agreement shall
affect the right to effect service of process in any other manner
permitted by the Laws of the State of New York.
(c) This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all
of which shall constitute one and the same agreement.
(d) When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement, unless
otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words
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"include," "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation."
(e) Except as described in Sections 3, 5 and 6 above, each
party shall pay all costs and expenses that it incurs with respect to
the negotiation, execution, delivery and performance of this Agreement.
If any action at law or in equity is necessary to enforce or interpret
the terms of this Agreement, the prevailing party shall be entitled to
reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
(f) Any term of this Agreement may be amended, and the
observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively),
only with the written consent of Acquiror and Seller.
Section 14. Term. Except as otherwise provided herein, with
respect to indemnification under Section 3(a) for Taxes, the term of this
Agreement shall extend from the date hereof until such time as the applicable
statute of limitations (including any extensions thereof) bars a claim by the
Internal Revenue Service or relevant foreign, state or local Tax authority for
a Tax otherwise indemnifiable under this Agreement.
Section 15. Termination. This Agreement shall automatically
terminate upon the termination of the Purchase Agreement in accordance with
its terms. In the event of the termination of this Agreement pursuant to this
Section 15, except as expressly provided in the Purchase Agreement, no party
hereto shall have any liability to any other party with respect to this
Agreement or the transactions contemplated hereby and this Agreement shall be
of no further force or effect.
Section 16. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced under any Law or
as a matter of public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated by this Agreement
is not affected in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties to this Agreement shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that
the transactions contemplated by this Agreement be consummated as originally
contemplated to the greatest extent possible.
Section 17. Entire Agreement. Except as otherwise provided in
this Agreement, or as otherwise expressly agreed in writing by the parties,
this Agreement and the other Transaction Documents constitute the entire
agreement and supersede all other prior or contemporaneous oral or written
agreements and understandings among the parties, or any of them, with respect
to the subject matter hereof, and there are no warranties, representations or
other agreements, express or implied, made to any party by any other party in
connection with the subject matter hereof or thereof except as specifically
set forth herein or therein or in the documents delivered pursuant hereto or
in connection herewith.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
ALTERRA HEALTHCARE CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and CEO
PROVIDENT SENIOR LIVING TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Chief Executive Officer
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