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EXHIBIT 99.7
SECTION 2.2(A) PURCHASE AGREEMENT AND ASSIGNMENT
THIS SECTION 2.2(a) PURCHASE AGREEMENT AND ASSIGNMENT (this
"Agreement") is made and entered into as of this 31st day of May, 2000, by and
among ALTERRA HEALTHCARE CORPORATION, a Delaware corporation (the "Company"),
RDVEPCO, L.L.C., a Michigan limited liability company, GROUP ONE INVESTORS,
L.L.C., a Delaware limited liability company, HOLIDAY RETIREMENT 2000, LLC, a
Washington limited liability company, the ELSA D. PRINCE LIVING TRUST and RDV
MANOR CARE, L.L.C., a Michigan limited liability company (each, individually a
"Purchaser" and collectively, the "Purchasers") and HBK MASTER FUND L.P., a
Cayman Islands limited partnership ("HBK").
R E C I T A L S:
WHEREAS, the Company and Purchasers executed and entered into that
certain Purchase Agreement dated as of April 26, 2000, as amended pursuant to
the First Amendment to Purchase Agreement dated as of May 31, 2000 (as so
amended, the "Purchase Agreement"), whereby the Company agreed to issue and sell
to the Purchasers and the Purchasers proposed to purchase from the Company, the
"Series A Stock", the "Series A Debentures" and the "Series B Debentures" (as
such terms are defined in the Purchase Agreement);
WHEREAS, pursuant to Section 2.2(a) of the Purchase Agreement, the
Company is entitled to issue, under certain conditions, up to $65,000,000 face
amount of the Company's Series C 9.75% Convertible Pay-In-Kind Debentures (the
"Series C Debentures");
WHEREAS, pursuant to Section 2.2(a), the Company has agreed to issue,
with the Purchasers' consent, and HBK has agreed to purchase $35,096,000 in face
amount of the Series C Debentures, in the manner and as more particularly
described below.
NOW, THEREFORE, the parties hereto promise and agree hereto as follows:
ARTICLE I
Definitions.
Section 1.1 Terms Defined in the Purchase Agreement. Unless the
context otherwise requires or unless otherwise expressly defined herein, the
terms defined in the Purchase Agreement shall have the same meanings whenever
used in this Agreement.
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ARTICLE II
Agreement to Acquire Series C Debentures
Section 2.1. Purchase of Series C Debentures. Simultaneously with
the execution and delivery of this Agreement, HBK is hereby purchasing, and
Company is hereby authorizing the issuance of, $35,096,000 in face amount of the
Series C Debentures (the "HBK Debentures") pursuant to and in the manner
contemplated by Section 2.2(a) of the Purchase Agreement, which purchase and
issuance are hereby consented to by the Purchasers.
Section 2.2. Purchase Price. HBK and the Company hereby agree that
(a) the purchase price for $7,000,000 in face amount of the HBK Debentures shall
consist of $7,000,000.00 payable to the Company in cash and (b) the purchase
price for the remaining $28,096,000 in face amount of the HBK Debentures shall
consist of the transfer and conveyance to the Company by HBK of the "Surrendered
Debentures" (as defined in Section 2.3 hereof).
Section 2.3 Assignment of Surrendered Debentures and Cash
Payment. HBK hereby confirms to the Company that, simultaneously herewith, it
has caused to be transferred to the Company's account at McDonald & Co.
Securities, Inc. (which account is described on Schedule 1 hereto): (i) Seven
Million and No/100 Dollars ($7,000,000.00) in full payment for the Debentures
referenced in Section 2.2(a) and (ii) the following convertible debentures
(collectively, the "Surrendered Debentures") in full payment for the Debentures
referenced in Section 2.2(b):
(a) $31,706,000 in face amount of the Company's 5.25% convertible
subordinated debentures due December 15, 2002 (together with
all accrued interest thereon); and
(b) $9,645,000 in face amount of the Company's 7.0% convertible
subordinated debentures due June 1, 2004 (together with all
accrued interest thereon).
The Company hereby agrees that, promptly following its confirmation of
its receipt of such consideration, the Company shall cause to be issued and
delivered to HBK the HBK Debentures.
Section 2.4 Representations and Warranties by the Company. In
order to induce HBK to enter into this Agreement and to purchase the HBK
Debentures, the Company hereby reaffirms and makes, for the benefit of HBK, each
of the representations and warranties contained in Section 3.1 of the Purchase
Agreement in the same manner and to the same extent as if HBK were a "Purchaser"
and the HBK Debentures were "Securities," as such terms are utilized therein.
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Section 2.5. Representations and Warranties by HBK. In order to
induce the Company to enter into this Agreement and to issue the HBK Debentures,
HBK hereby represents and warrants to the Company as of the date hereof, as
follows:
(a) HBK holds of record and owns beneficially the Surrendered
Debentures free and clear of any restrictions on transfer
(other than any restrictions under applicable federal and
state securities law), liens, encumbrances, options, warrants,
purchaser rights, contracts, commitments, equities, demands,
pledges or other claims of any type. HBK is not a party to any
option, warrant, purchase right or other contract or
commitment that could require HBK to sell, transfer or
otherwise dispose of all or any part of the Surrendered
Debentures, and HBK has not otherwise sold, transferred or
conveyed any interest in or rights to the Surrendered
Debentures to any other person.
(b) HBK hereby represents and makes, for the benefit of the
Company, each of the "Purchaser" representations contained in
Section 3.2 of the Purchase Agreement (excluding, however,
Section 3.2(g)) in the manner and to the same extent as if HBK
were a "Purchaser" and as if the HBK Debentures were
"Securities," as such terms are utilized therein.
Section 2.6. Survival of Representations and Warranties. The
representations and warranties of the parties in this Agreement shall survive
the closings and conveyances hereunder for a period of two (2) years from the
date hereof, whereupon no further claim for a breach hereof or thereof may be
asserted.
Section 2.7 Registration Rights Agreement. The parties hereto
acknowledge and agree to execute and deliver the Registration Rights Agreement
simultaneously with the execution and delivery of this Agreement.
Section 2.8. Effective Date. This Agreement shall be effective
only upon or after the Initial Closing pursuant to the Purchase Agreement.
ARTICLE III
Miscellaneous.
Section 14.1. No Waiver; Modifications in Writing. (a) No failure
or delay on the part of any party hereto in exercising any right, power or
remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
The remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to any party hereto at law or in equity. No
waiver of or consent to any departure by any party hereto from any provision of
this Agreement shall be effective unless in writing and signed by the party
entitled to the benefit thereof. No
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amendment, modification or termination of any provision of this Agreement shall
be effective unless in writing and signed by or on behalf of the parties hereto.
Any amendment, supplement or modification of or to any of this Agreement, any
waiver of any provision of this Agreement, and any consent to any departure from
the terms of any provision of this Agreement, shall be effective only in the
specific instance and for the specific purpose for which made or given.
Section 14.2. Notices. All notices and other communications
required or permitted under this Agreement shall be in writing and, if mailed by
prepaid registered or certified mail, return receipt requested, shall be deemed
to have been received on the earlier of the date shown on the receipt or three
(3) Business Days after the post-mark date thereof. Notices may be given by
recognized overnight courier services and shall be deemed to have been received
as of the regularly scheduled time for delivery established by such courier
service. In addition, notices hereunder may be delivered by hand in which event
the notice shall be deemed effective when delivered or by telecopy in which case
it shall be deemed effective upon confirmation of transmission. All notices and
other communications under this Agreement shall be given to the parties hereto
at the following addresses:
If to Company:
Alterra Healthcare Corporation
10000 Innovation Drive
Milwaukee, Wisconsin 53226
Attention: President
Fax: (414) 918-5055
With a copy to:
Rogers & Hardin
2700 International Tower
229 Peachtree Street, N.E.
Atlanta, Georgia, 30303
Attn: Alan Leet, Esq.
Fax: (404) 525-2224
If to Purchasers:
RDVEPCO, L.L.C.
c/o RDV Corporation
126 Ottawa Avenue, N.W.
500 Grand Bank Building
Grand Rapids, Michigan 49503
Attention: Robert H. Schierbeek, Treasurer
Fax: (616) 454-4654
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and
Group One Investors, L.L.C.
c/o RDV Corporation
126 Ottawa Avenue, N.W.
500 Grand Bank Building
Grand Rapids, Michigan 49503
Attention: Robert H. Schierbeek, Treasurer
Fax: (616) 454-4654
and
Holiday Retirement 2000, LLC
c/o Emeritus Corporation
3131 Elliott Avenue
Suite 500
Seattle, Washington 98121
Attention: Dan Baty
Fax: (206) 378-4205
With a copy to:
Hecht & Lentz
333 Bridge, N.W., Suite 330
Grand Rapids, MI 49504
Attention: David M. Hecht, Esq.
Fax: (616) 776-7203
and
Warner, Norcross & Judd LLP
111 Lyon Street, N.W.
900 Old Kent Building
Grand Rapids, Michigan 49503-2487
Attention: Bruce C. Young, Esq.
Fax: (616) 752-2500
If to HBK:
c/o HBK Investments L.P.
300 Crescent Court, Suite 700
Dallas, TX 75201
Attention: Jon L. Mosle
Fax: (214) 758-1253
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Any party hereto may change the address to which notices shall be directed under
this Section by giving written notice of such change to the other parties.
Section 14.3. Facsimile Signature; Execution in Counterparts. This
Agreement may be executed and delivered (including by facsimile transmission) in
any number of counterparts and by different parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original and all of which counterparts, taken together, shall
constitute but one and the same Agreement.
Section 14.4. Binding Effect; Assignment. The rights of Purchasers
or HBK under this Agreement may not be assigned to any other Person except with
the prior written consent of the Company. The rights of the Company under this
Agreement may not be assigned. This Agreement shall be binding upon the Company
and Purchasers and HBK, and their respective successors and permitted assigns.
This Agreement shall not be construed so as to confer any right or benefit upon
any Person other than the parties to this Agreement, and their respective
successors and permitted assigns.
Section 14.5. Governing Law. This Agreement shall be deemed to be a
contract made under the laws of the State of Michigan, and for all purposes
shall be construed in accordance with the laws of said state, without regard to
principles of conflicts of laws.
Section 14.6. Severability of Provisions. Any provision of this
Agreement that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 14.7. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise, (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, and (d)
all references herein to sections, Schedules and Exhibits shall be construed to
refer to sections of, and Schedules and Exhibits to, this Agreement.
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Section 14.8. Headings. The Article and Section headings used or
contained in this Agreement are for convenience of reference only and shall not
affect the construction of this Agreement.
Section 14.9. No Reliance. Each party hereto acknowledges that it
has obtained separate advice with respect to the legal, tax and accounting
consequences of the transactions contemplated by this Agreement, and that it has
neither sought nor relied upon any such advice from any other party hereto or
its Affiliates.
Section 14.10. Entire Agreement. This Agreement and the other
documents delivered simultaneously herewith constitute the entire agreement
among the parties with respect to the subject matter hereof.
Section 14.11. Further Assurances. The Company, the Purchasers and
HBK each will execute and deliver or cause to be executed and delivered such
further instruments and do or cause to be done such further acts as may be
reasonably necessary to carry out their respective obligations under this
Agreement.
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ALTERRA HEALTHCARE CORPORATION
By:/s/ William F. Lasky
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Name: William F. Lasky
Title: Chief Executive Officer and President
RDVEPCO, L.L.C.
By: RDV Altco, L.L.C., a member
By: RDV Corporation, a member
By:/s/ Robert H. Schierbeek
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Name:
Title:
By: EDP Assisted Living Properties, L.L.C.,
a member
By: Elsa D. Prince Living Trust u/a dated
January 24, 1976
By:/s/ Elsa D. Prince
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Name: Elsa D. Prince
Title: Trustee
GROUP ONE INVESTORS, L.L.C.
By: RDV Corporation, its manager
By: /s/ Robert H. Schierbeek
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Name:
Title:
HOLIDAY RETIREMENT 2000, LLC
By:/s/ Daniel R. Baty
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Name: Daniel R. Baty
Title: a member
ELSA D. PRINCE LIVING TRUST u/a dated
January 24, 1976
By:/s/ Elsa D. Prince
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Elsa D. Prince, as Trustee
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RDV MANOR CARE, L.L.C.
By: RDV Corporation, its manager
By: /s/ Robert H. Schierbeek
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Its:
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HBK MASTER FUND L.P.
By: HBK Investments, L.P.,
its investment manager
By:/s/ Kevin A. O'Neal
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Name: Kevin A. O'Neal
Title: Authorized Signatory
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