EXHIBIT 10.31
SECOND AMENDMENT TO THE AMENDED AND RESTATED OPERATING AGREEMENT
OF ELDER HEALTHCARE DEVELOPERS, LLC
THIS SECOND AMENDMENT TO THE AMENDED AND RESTATED OPERATING AGREEMENT OF ELDER
HEALTHCARE DEVELOPERS, LLC ("Amendment") is made and entered into as of February
26, 1998, by and between ATRIA COMMUNITIES, INC., a Delaware corporation
("Atria"), and ASSISTED CARE DEVELOPERS, L.L.C., a Georgia limited liability
company ("Assisted Care").
RECITALS:
A. Atria and Assisted Care entered into an Operating Agreement ("Operating
Agreement") for Elder Healthcare Developers, LLC ("Company"), dated as of April
1, 1997, which was amended and restated by the parties on November 18, 1997, and
amended again by the First Amendment to the Amended and Restated Operating
Agreement of Elder Healthcare Developers, LLC., dated February 18, 1998.
B. The parties desire to amend the Operating Agreement pursuant to the terms
of this Amendment.
AGREEMENT:
NOW, THEREFORE, the parties hereby agree as follows:
1. AMENDMENTS TO SECTION 8.5. Sections 8.5(a)of the Operating Agreement is
hereby amended to read in its entirety as follows:
8.5 PAYMENTS FOR SERVICES PROVIDED BY MEMBERS
(a) (1) In connection with the services provided by Assisted Care
pursuant to Section 8.2(a) the Company shall pay Assisted Care a development
fee (the "Development Fee") equal to five percent of the facility's "Adjusted
Cost" (as defined herein). In no event shall the Development Fee for any
facility be less than $175,000 nor more than $250,000 unless the facility
consists of at least one assisted living facility and one independent living
facility located on one campus (a "Multi-Facility Campus"). If the Facility
constitutes a Multi-Facilities Campus and the Facility's Adjusted Cost for
the entire Multi-Facility Campus is more than $5,000,000, then the
Development Fee shall be five percent of the Adjusted Cost of each facility
constituting the Mult-Facilitiy Campus, provided that the Development Fee
payable for any facility included in the Multi-Facility Campus shall not
exceed $250,000. For Example, if a Multi-Facility Campus consisted of one
assisted living facility whose Adjusted Cost was $7,000,000 and one
independent living facility whose Adjusted Cost was $3,250,000, then the
Development Fee due Assisted Care will be the sum of $250,000 for the
Assisted Living Facility plus $162,500 for the Independent Living Facility.
DRAFT
FEBRUARY 25, 1998
(a)(2) The Company shall pay the development fee in three installments
with the first installment being due at the closing of the purchase of the
land for such facility, the second installment being due at the rough-in
inspection approval for such a facility, and the final installment upon the
receipt of a Certificate of Occupancy for that facility. For the purposes of
this Agreement, the term "Adjusted Cost" shall be the cost of all expenses
incurred by the Company in connection with the acquisition of the land,
construction of the facility and all other reasonable expenses incurred by
the Company in completing the facility and obtaining a Certificate of
Occupancy.
2. NO AMENDMENT TO BALANCE OF OPERATING AGREEMENT. All other provisions of
the Operating Agreement remain unaffected and unchanged by this Amendment.
3. MISCELLANEOUS PROVISIONS.
3.1 BINDING AGREEMENT. Except as otherwise provided herein, this
Amendment shall be binding upon, and inure to the benefit of, the parties
hereto, and their respective successors and assigns.
3.2 ENTIRE AGREEMENT. This Amendment contains the entire agreement
between the parties hereto with respect to the subject matter hereof. No
variations, modifications or changes hereof shall be binding upon any Member
unless set forth in a document duly executed by such Member.
3.3 COUNTERPARTS. This Amendment may be signed in one or more
counterparts, each of which shall constitute an original agreement, but all of
which shall constitute one agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
date first written above.
ATRIA COMMUNITIES, INC.
By: /s/ J. XXXXXXX XXXXXX
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Title: Chief Financial Officer
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("Atria")
ASSISTED CARE DEVELOPERS, L.L.C.
By: /s/ XXXXXX X. SCHEOPF
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Title: President
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("Assisted Care")
DRAFT
FEBRUARY 25, 1998
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