FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
FIRST
AMENDMENT TO
THIS FIRST AMENDMENT TO PURCHASE AND
SALE AGREEMENT (this “Agreement”) is made as of
March 25, 2008, by and among NATIONWIDE HEALTH PROPERTIES,
INC., a Maryland corporation (“NHP”), and its Affiliated
signatories hereto that are listed in Schedule 1, as
“Seller” (collectively, “Seller”), and EMERITUS CORPORATION, a
Washington corporation (“Buyer”), with respect to the
following Recitals:
R E C I T A L
S:
A. Seller
and Buyer have entered into that certain Purchase and Sale Agreement dated as of
February 6, 2008 (the “Purchase
Agreement”), with respect to certain real property and the improvements
located thereon, all as more particularly described in the Purchase
Agreement. All initially-capitalized terms used herein shall have the
same meaning given to such terms in the Purchase Agreement, unless otherwise
defined herein.
B. Pursuant
to the terms of the Purchase Agreement, Buyer is required to pay any loan costs,
including without limitation, assumption fees or prepayment penalties/defeasance
fees associated with the assumption or payoff/defeasance of the Existing
Debt.
C. The
parties currently intend that the Closing Date will occur on April 2,
2008. The parties have been informed that if the portion of the
Existing Debt encumbering the facilities known as (i) Loyalton of Cape May (the
“Cape May Debt”) and
(ii) Loyalton of Joliet (the “Joliet Debt”) is not prepaid
on the last day of a calendar month, accrued interest will be due and payable to
the respective lenders for the entire month in which such prepayment
occurs.
D. In
order to avoid any obligation to pay such additional interest with respect to
the Cape May Debt and Joliet Debt, Buyer and Seller have agreed to enter into
this Agreement in order to set forth the terms under which the Cape May Debt and
Joliet Debt will be prepaid on March 31, 2008.
NOW, THEREFORE, taking into
account the foregoing Recitals, and in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree to amend the Agreement in the following particulars only:
1. Release
of Xxxxxxx Money Deposit. Notwithstanding
anything set forth in the Purchase Agreement, Escrow Agent is hereby instructed
to disburse the Deposit to Seller on March 28, 2008 in accordance with the wire
transfer instructions set forth on Schedule 2 attached
hereto; provided, however, the
foregoing shall not be deemed or construed to release Seller from its obligation
to return the Deposit to Buyer in the event the Purchase Agreement is terminated
pursuant to any of the following provisions thereof: (a) pursuant to Section 10(a)(i), (b)
pursuant to Section
10(a)(ii) if the failure of the condition to Closing either (I) is the
result of a material breach by Seller of its obligations under the Purchase
Agreement, beyond any applicable cure period provided for in Section 10 thereof,
or (II) regardless of the fault of Seller, arises out of any
1
event or
circumstance that prevents Seller from consummating the transaction provided for
herein, (c) pursuant to Section 10(a)(iv), or
(d) pursuant to Section
10(a)(vi).
2. Prepayment
of Debt by NHP. At or before 11:00 AM (Pacific) on March 31,
2008, NHP shall wire transfer such amounts to the lenders or applicable loan
servicer(s) (the “Lenders”) as is required to
prepay the Cape May Debt and Joliet Debt in full as of March 31, 2008 pursuant
to Lenders’ written payoff demands delivered to NHP. Buyer hereby acknowledges
and agrees that, upon disbursement of such payoff amounts by NHP, the amount of
One Million Nine Hundred Eighty-Two Thousand Seven Hundred Seventy-Six and
84/100ths Dollars ($1,982,776.84) shall be deemed to have been advanced by NHP
on behalf of Buyer pursuant to the terms of that certain Promissory Note dated
as of March 31, 2008 in the original face amount of Thirty Million Dollars
($30,000,000) executed by Buyer in favor of NHP, which amount shall be applied
to the prepayment premiums due and payable in connection with the payoff of the
Cape May Debt and Joliet Debt.
3. Incorporation
of Recitals.
The Recitals to this Agreement are
incorporated herein by this reference.
4. Counterparts.
This Agreement may be executed in
several original counterparts. Each counterpart shall be deemed to be
an original for all purposes, and all counterparts shall together constitute but
one and the same instrument.
5. Effect of
Agreement.
Except as specifically amended pursuant
to the terms of this Agreement, the Purchase Agreement shall remain unmodified
and in full force and effect.
[The
remainder of this page is intentionally left blank.]
2
IN WITNESS WHEREOF, the parties hereby
execute this Agreement as of the day and year first set forth
above.
“SELLER”
|
|
WITNESSES:
/s/ Xxxxx
Xxxxxx
Printed
name: Xxxxx Xxxxxx
/s/ Xxx
Xxxxxxxx
Printed
name: Xxx
Xxxxxxxx
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NATIONWIDE
HEALTH PROPERTIES,
INC., a Maryland
corporation
By: /s/ Xxxxx X.
Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
______________
Title: _VP
Portfolio Management___________
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WITNESSES:
/s/ Xxxxx
Xxxxxx
Printed
name: Xxxxx Xxxxxx
/s/ Xxx
Xxxxxxxx
Printed
name: Xxx Xxxxxxxx
|
NH TEXAS PROPERTIES LIMITED
PARTNERSHIP, a Texas limited partnership
By:MLD
TEXAS CORPORATION,
a Texas corporation,
its General Partner
By: /s/ Xxxxx X.
Xxxxxxxx
Name: _ Xxxxx X. Xxxxxxxx ________
Title:
_ VP Portfolio Management __
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WITNESSES:
/s/ Xxxxx
Xxxxxx
Printed
name: Xxxxx Xxxxxx
/s/ Xxx
Xxxxxxxx
Printed
name: Xxx Xxxxxxxx
|
MLD
DELAWARE TRUST,
a
Delaware business trust
By: /s/ Xxxxx X. Xxxxxxxx __
Name: Xxxxx X. Xxxxxxxx _______
Title: Not in his individual capacity,
but
solely as Trustee
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S-1
WITNESSES:
/s/ Xxxxx
Xxxxxx
Printed
name: Xxxxx Xxxxxx
/s/ Xxx
Xxxxxxxx
Printed
name: Xxx Xxxxxxxx
|
MLD
PROPERTIES, LLC,
a
Delaware limited liability company
By: MLD
PROPERTIES, INC.,
a Delaware
corporation,
its Sole Member
By: _/s/ Xxxxx X. Xxxxxxxx ________
Name: __ Xxxxx X. Xxxxxxxx _______
Title: __
VP Portfolio Management _____
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WITNESSES:
/s/ Xxxxx
Xxxxxx
Printed
name: Xxxxx Xxxxxx
/s/ Xxx
Xxxxxxxx
Printed
name: Xxx Xxxxxxxx
|
NHP
SENIOR HOUSING, INC.,
a
California corporation
By: __/s/ Xxxxx X. Xxxxxxxx _______
Name: __ Xxxxx X. Xxxxxxxx _______
Title: __
VP Portfolio Management _____
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WITNESSES:
/s/ Xxxxx
Xxxxxx
Printed
name: Xxxxx Xxxxxx
/s/ Xxx
Xxxxxxxx
Printed
name: Xxx Xxxxxxxx
|
NHP
CM INVESTMENT, INC.,
a
Delaware corporation
By: _/s/ Xxxxx X. Xxxxxxxx ________
Name: __ Xxxxx X. Xxxxxxxx ________
Title: __
VP Portfolio Management ______
|
WITNESSES:
/s/ Xxxxx
Xxxxxx
Printed
name: Xxxxx Xxxxxx
/s/ Xxx
Xxxxxxxx
Printed
name: Xxx Xxxxxxxx
|
NHP
JOLIET, INC.,
an
Illinois corporation
By: __/s/ Xxxxx X. Xxxxxxxx _____
Name: __ Xxxxx X. Xxxxxxxx ______
Title: __
VP Portfolio Management ____
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S-2
WITNESSES:
/s/ Xxxxx
Xxxxxx
Printed
name: Xxxxx Xxxxxx
s/ Xxx
Xxxxxxxx
Printed
name: Xxx Xxxxxxxx
|
QR
LUBBOCK TEXAS PROPERTIES, L.P.,
a
Texas limited partnership
By:QR
LUBBOCK GP, LLC,
a Texas limited liability
company,
its General Partner
By:Nationwide
Health Properties, Inc.,
a Maryland
corporation,
its sole member
By: __/s/ Xxxxx X.
Xxxxxxxx
Name: __ Xxxxx X. Xxxxxxxx _______
Title:
__ VP Portfolio Management _____
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WITNESSES:
/s/ Xxxxx
Xxxxxx
Printed
name: Xxxxx Xxxxxx
s/ Xxx
Xxxxxxxx
Printed
name: Xxx Xxxxxxxx
|
BIP
SUB I, INC.,
a
Delaware corporation
By: ___/s/ Xxxxx X. Xxxxxxxx _______
Name: ___ Xxxxx X. Xxxxxxxx ____
Title: VP
Portfolio Management
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S-3
“BUYER”
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WITNESSES:
/s/ Xxxxxx X. London
Printed
name: Xxxxxx London
/s/ Xxxxxxxx X. Xxxx
Printed
name: Xxxxxxxx X. Xxxx
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EMERITUS
CORPORATION,
a
Washington corporation
By: _/s/
Xxxx Mendelsohn_____
Name: _
Xxxx Xxxxxxxxxx _________
Title: _SVP
Corporate Development____
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ACKNOWLEDGED
AND AGREED:
Chicago
Title Insurance Company
By: /s/
illegible
Its: AUP & Commercial Credit
Manager
S-4
SCHEDULE
1
ENTITIES
COMPRISING “SELLER”
1. Nationwide Health Properties,
Inc., a Maryland corporation
Fee
owner of:
Charleston Gardens - Charleston,
WV;
Silverleaf Manor - Meridian,
MS;
Loyalton of Rockford - Rockford,
IL;
Heritage Hills ALZ - Columbus,
GA;
Pine Meadow - Hattiesburg,
MS;
Austin Gardens ALZ - Lodi, CA;
and
Clare Bridge - Corona, CA.
2. NH Texas Properties Limited
Partnership, a Texas limited partnership
Fee
owner of:
Xxxxxxx
Xxxxxxx - Austin, TX;
Creekside
ALZ - Plano, TX;
Oak
Hollow ALZ - Bedford, TX;
Pinehurst
ALZ - Tyler, TX;
Stonebridge
ALZ - Dallas, TX; and
Desert
Springs ALZ - El Paso, TX.
3. MLD Delaware Trust, a Delaware
business trust
Fee
owner of:
Autumn Ridge - Herculaneum,
MO
4. MLD Properties, LLC, a
Delaware limited liability company
Fee owner of:
Xxxxxxxx Place of Shreveport -
Shreveport; LA; and
Pines of Goldsboro - Goldsboro,
NC.
Schedule
1-1
5. NHP Senior Housing, Inc., a
California corporation
Fee owner of:
The Lakes - Fort Xxxxx,
FL;
Loyalton of Folsom - Folsom, CA;
and
Canterbury Xxxxx - Attleboro,
MA.
6. NHP CM Investment, Inc., a
Delaware corporation
Fee owner of:
Loyalton of Cape May - Cape May,
NJ
7. NHP Joliet, Inc., an Illinois
corporation
Fee owner of:
Loyalton of Joliet - Joliet, IL;
and
Joliet ALZ Expansion - Joliet,
IL.
8. QR Lubbock Texas Properties,
L.P., a Texas limited partnership
Fee owner of:
Xxxxx Xxxxx XXX - Xxxxxxx,
Xxxxx
9. BIP Sub I, Inc., a Delaware
corporation
Fee owner of:
Richland Gardens - Richland,
WA
Schedule
1-2
SCHEDULE
2
WIRE
TRANSFER INSTRUCTIONS
Schedule
2-1