EXHIBIT 10.64
Second Amendment to
Purchase and Sale Agreement
dated December 31, 2003
SECOND AMENDMENT
TO
PURCHASE AND SALE AGREEMENT
by and among
Riverchase Assisted Living, Ltd.
Senior Lifestyle Heritage, L.L.C.
Integrated Management - Xxxxxxxxxx Pointe, L.L.C.
Integrated Living Communities of West Palm Beach, L.L.C.
Senior Lifestyle Newport Limited Partnership
Senior Lifestyle Pinecrest Limited Partnership
Senior Lifestyle Prosperity Limited Partnership
Integrated Living Communities of Sarasota, L.L.C.
Olympia Fields Senior Housing, L.L.C.
Senior Lifestyle East Bay Limited Partnership
Senior Lifestyle Emerald Bay Limited Partnership
Greenwich Bay, L.L.C.
Senior Lifestyle North Bay Limited Partnership
Senior Lifestyle Sakonnet Bay Limited Partnership
South Bay Manor, L.L.C.
West Bay Manor, L.L.C. and
Integrated Living Communities of Dallas, L.P.
collectively, as Sellers,
and
CNL Retirement Corp., a Florida corporation,
as Purchaser
December 31, 2003
SECOND AMENDMENT
TO
PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment")
is made effective as of December 31, 2003 by and among (i) (1) Riverchase
Assisted Living, Ltd., a Texas limited partnership, (2) Senior Lifestyle
Heritage, L.L.C, a Delaware limited liability company, (3) Integrated Management
- Xxxxxxxxxx Pointe, L.L.C., a Delaware limited liability company, (4)
Integrated Living Communities of West Palm Beach, L.L.C. , a Delaware limited
liability company, (5) Senior Lifestyle Newport Limited Partnership, a Delaware
limited partnership, (6) Senior Lifestyle Pinecrest Limited Partnership, a
Delaware limited partnership, (7) Senior Lifestyle Prosperity Limited
Partnership, a Delaware limited partnership, (8) Integrated Living Communities
of Sarasota, L.L.C., a Delaware limited liability company, (9) Olympia Fields
Senior Housing, L.L.C., a Delaware limited liability company, (10) Senior
Lifestyle East Bay Limited Partnership, a Delaware limited partnership, (11)
Senior Lifestyle Emerald Bay Limited Partnership, a Delaware limited
partnership, (12) Greenwich Bay, L.L.C., a Delaware limited liability company,
(13) Senior Lifestyle North Bay Limited Partnership, a Delaware limited
partnership, (14) Senior Lifestyle Sakonnet Bay Limited Partnership, a Delaware
limited partnership, (15) South Bay Manor, L.L.C., a Delaware limited liability
company, (16) West Bay Manor, L.L.C., and (17) Integrated Living Communities of
Dallas, L.P., a Delaware limited partnership (each a "Seller" and collectively,
"Sellers"), and (ii) CNL Retirement Corp., a Florida corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Sellers and Purchaser entered into a Purchase and Sale
Agreement dated as of December 19, 2003, as amended by that certain First
Amendment to Purchase and Sale Agreement dated December 30, 2003 (collectively
the "Original Agreement") with respect to the purchase and sale of nineteen (19)
senior living facilities.
WHEREAS, the Alabama Property is encumbered by the Riverchase
Declaration (as defined below) and the Newport Property is encumbered by the
Newport Declaration (as defined below).
WHEREAS, the Purchaser requested that Riverchase Seller (as defined
below) and the Newport Seller (as defined below) obtain an estoppel regarding
the Riverchase Declaration and the Newport Declaration, respectively, however
Seller will instead make certain additional representations in respect to the
Riverchase Declaration and the Newport Declaration, respectively.
WHEREAS, the Purchaser has requested that Heron's Run Seller (as
defined below) and the Treemont Seller (as defined below) make certain
additional representations in respect to the Heron's Run Shared Services
Agreement (as defined below) and the Treemont Shared Services Agreement (as
defined below), respectively.
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WHEREAS, the Pointe at Newport Place Property was transferred to the
Newport Seller pursuant to the Existing Newport Deed (as defined below),
pursuant to which Newport Seller and its successors and assigns are required to
pay Newport Place Associates, Ltd. and its successors and assigns Ten Thousand
Dollars ($10,000) per bed for every bed installed at the Pointe at Newport Place
Property in excess of 80 beds which installation occurs during the period of
time between February 20, 1997 and February 20, 2007. As of the Closing Date,
the Pointe at Newport Place Property may have three (3) beds in excess of 80
beds installed, thus potentially entitling Newport Place Associates, Ltd. and
its successors and assigns to receive $30,000 from the Newport Seller, which
amount has not been paid.
WHEREAS, the Sellers and Purchaser wish to amend the Original Agreement
as set forth in this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the mutual receipt and
legal sufficiency of which are hereby acknowledged, Sellers and Purchaser hereby
agree as follows:
SECTION 1. DEFINITIONS.
Capitalized terms used in this Amendment and not defined elsewhere
herein shall have the meanings set forth on the Original Agreement.
SECTION 2. FEASIBILITY AND ADDITIONAL TERMINATION RIGHTS.
2.1 Completion of Diligence Inspections. Subject to the express
provisions of the remainder of this Section 2 of this Amendment, the execution
and delivery of this Amendment by Purchaser shall constitute Purchaser's
election not to deliver the Termination Notice. Subject to the express
provisions of the remainder of this Section 2, the Due Diligence Period is
hereby terminated and Purchaser hereby waives its right to deliver the
Termination Notice under the provisions of Section 2.2 of the Original
Agreement, except as provided pursuant to the express provisions of the
remainder of this Section 2 below.
2.2 Impact of Anticipated Real Property Tax Reassessments. Purchaser
shall have the right to terminate the Agreement by giving written notice (the
"Tax Termination Notice") to Sellers, with a copy to the Title Company, on or
before 5 p.m. Eastern Standard Time on January 5, 2004 if Purchaser is not
satisfied with the results of its underwriting with respect to the impact of
anticipated real property tax reassessments on the economics of the transaction.
Upon delivery of the Tax Termination Notice to Sellers and the Title Company,
the Agreement shall terminate, Purchaser shall receive a return of the Deposit
and each party to the Agreement shall pay for its own out-of-pocket expenses
incurred in respect of the transactions contemplated by the Agreement.
2.3 Insurance. Purchaser shall have the right to terminate the
Agreement by giving written notice (the "Insurance Termination Notice") to
Sellers, with a copy to the Title Company, on or before 5 p.m. Eastern Standard
Time on January 16, 2004, if Sellers have not delivered evidence reasonably
satisfactory to Purchaser that the Insurance Program Condition will be satisfied
as of the Closing Date. Sellers shall have the right, but not the obligation, to
deliver within three (3) Business Days of their receipt of the Insurance
Termination Notice written
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notice (the "Insurance Override Notice") to Purchaser, with a copy to the Title
Company, stating that Sellers agree that satisfaction of the Insurance Program
Condition shall be a condition precedent to Purchaser's obligation to close
pursuant to Section 4 of the Agreement, whereupon the Insurance Termination
Notice shall be of no further force and effect, and Purchaser shall proceed to
Closing on the Closing Date, subject to all the terms and conditions of the
Agreement, including satisfaction of the Insurance Program Condition. If Sellers
fail to deliver the Insurance Override Notice within three (3) Business Days of
their receipt of the Insurance Termination Notice, the Agreement shall
terminate, Purchaser shall receive a return of the Deposit, and each party to
the Agreement shall pay for its own out-of-pocket expenses incurred in respect
of the transactions contemplated by the Agreement.
2.4 Environmental. Purchaser shall have the right to terminate the
Agreement by giving written notice (the "Environmental Termination Notice") to
Sellers, with a copy to the Title Company on or before 5 p.m. Eastern Standard
Time on January 16, 2004, if Purchaser has received reasonably supported
evidence from its environmental insurance consultant that an Open Environmental
Item constitutes a current violation of Applicable Laws relating to
environmental conditions or Hazardous Materials, which Environmental Termination
Notice shall include a report from Purchaser's environmental consultant
supporting the foregoing. Sellers shall have the right, but not the obligation,
to deliver within three (3) Business Days of their receipt of the Environmental
Termination Notice written notice (the "Environmental Override Notice") to
Purchaser, with a copy to the Title Company, covenanting that Sellers shall take
the Environmental Actions, and, upon delivery of the Environmental Override
Notice, Purchaser's Environmental Termination Notice shall be of no further
force and effect, and Purchaser shall proceed to Closing on the Closing Date in
accordance with all the terms and conditions of this Agreement, provided that
Purchaser receives evidence on or before the Closing Date that the Environmental
Actions to be taken prior to the Closing Date have been accomplished. If Sellers
fail to deliver the Environmental Override Notice within three (3) Business Days
after their receipt of the Environmental Termination Notice, the Agreement shall
terminate, Purchaser shall receive a return of the Deposit, and each party to
the Agreement shall pay for its own out-of-pocket expenses incurred in respect
of the transactions contemplated by the Agreement.
SECTION 3. AMENDMENTS.
3.1 Amendments to Section 1. Section 1 (Definitions) of the Original
Agreement is hereby amended by adding the following new definitions:
"Agreement of Settlement" shall mean the Agreement of
Settlement dated as of May 30, 2000 among the parties thereto
with respect to the Heron's Run Shared Services Agreement and
the Treemont Shared Services Agreement and other matters.
"Environmental Actions" shall mean both of the following,
which must occur on or before the Closing Date, (a) each
applicable Seller's entry into a fixed price contract
("Environmental Contract") with an environmental consultant or
other suitable professional reasonably satisfactory to
Purchaser to perform the work necessary to cure any Open
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Environmental Items cited in the Environmental Termination
Notice such that the applicable Open Environmental Item shall
no longer constitute a violation of Applicable Laws relating
to environmental conditions or Hazardous Materials (the
"Remediation Work") which Environmental Contract shall provide
that the Remediation Work shall be performed within the later
of ninety (90) days after the Closing Date, or such additional
time as may be reasonably required to complete the Remediation
Work in accordance with Applicable Laws, and (b) each
applicable Seller shall escrow at Closing with the Title
Company pursuant to an escrow agreement acceptable to such
Seller and the Title Company an amount equal to one hundred
ten percent (110%) of any amounts due post-Closing under the
Environmental Contract(s). The terms and provisions of the
escrow agreement for the Environmental Contract(s) costs (and
disbursement of the funds escrowed thereunder) shall be
consistent with the terms and provisions of the escrow
agreement (and disbursement of the funds escrowed thereunder)
in connection with the Renovation Contracts as provided in
Section 8.4 of the Original Agreement.
"Existing Newport Deed" shall mean the Special Warranty Deed
by and between Newport Place Associates, Ltd., a Florida
limited partnership, as grantor, and Newport Seller, as
grantee, dated February 20, 1997, and recorded among the land
records of Palm Beach County, Florida on February 21, 1997 in
Deed Book 9665 at Page 1476 as instrument 97-063272.
"Heron's Run Seller" shall mean Integrated Living Communities
of West Palm Beach, L.L.C., a Delaware limited liability
company.
"Heron's Run Shared Services Agreement" shall mean the Amended
and Restated Shared Services Agreement, dated as of May 30,
2000, originally by and between Integrated Living Communities
of West Palm Beach, Inc. and Central Park Lodges of West Palm
Beach, Inc.
"Insurance Program Condition" shall mean either (i) to the
extent available within the applicable cost parameters,
insurance policies satisfying Article 9 (Insurance) of the
Lease for each Property at a cost for the first policy year
not to exceed one hundred five percent (105%) of Three Million
One Hundred Forty-Nine Thousand Three Hundred Seven Dollars
($3,149,307) in the aggregate for all Properties and the Niles
Property, without the necessity of any contribution of
additional capital by Purchaser or (ii) to the extent the
coverage in (i) is not available within the applicable cost
parameters, the risk management program currently in effect
with respect to the Properties, as more fully described in
Schedule Y attached hereto at a cost for the first policy year
not to exceed one hundred five percent (105%) of Three Million
One Hundred Forty-Nine Thousand Three Hundred Seven Dollars
($3,149,307) in the aggregate for
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all Properties and the Niles Property, with Sellers
maintaining, at their sole cost and expense, such additional
security as may be necessary to support such program.
"Newport Credit" shall mean Thirty Thousand Dollars ($30,000).
"Newport Declaration" shall mean that certain Declaration of
Restrictive Covenants by Stanford Park, Ltd., dated September
20, 1988, and recorded September 29, 1988 in O.R. Book 5822,
Page 999, Public Records, as augmented by Assignment of
Declarant's Rights Without Representations and Warranties
between Orange Grove Development Corp., in favor of Newport
Place Associates, Ltd., dated May 28, 1993 and recorded June
3, 1993 in O.R. Book 7737, Page 1835, Public Records and
augmented further by Acknowledgement of Assignment of
Declarant's Rights by Xxxxx X. Xxxxxxxxx and Xxxxxx X.
Xxxxxxxxx, dated June 22, 1993, and recorded August 26, 1993,
in O.R. Book 7857, Page 944, Public Records, encumbering the
Newport Campus.
"Newport Seller" shall mean Senior Lifestyle Newport Limited
Partnership, a Delaware limited partnership.
"Open Environmental Items" means the matters identified on
Schedule X attached hereto.
"Riverchase Declaration" shall mean that certain Declaration
of Protective Covenants, Agreements, Easements, Charges and
Liens for Riverchase (Business) between Xxxxxxx Construction
Corporation and The Equitable Life Assurance Society of the
United States, dated January 30, 1974, and recorded in Book
13, Page 15 and amended by the Amendment No. 1, recorded in
Real Volume 1294, Page 30 and amended by the Amendment No. 2,
recorded May 12, 1977 in Real Volume 1437, Page 570, Jefferson
County, Alabama records, encumbering the Alabama Property.
"Riverchase Seller" shall mean Riverchase Assisted Living,
Ltd., a Texas limited partnership.
"Terminated Subleases" shall mean the Sublease dated as of
June 1, 1996 between Integrated Living Communities of Colorado
Springs, Inc. and Integrated Health Services of Xxxxxx, Inc.
and the Sublease dated as of June 1, 1996 between Integrated
Communities of Bradenton, Inc. and Integrated Health Services
of Xxxxxx, Inc.
"Texas Shared Services Agreement" shall mean the Amended and
Restated Services Agreement between Integrated Living
Communities of
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Denton (Texas), Inc. and Integrated Health Services at Great
Bend, Inc.
"Treemont Seller" shall mean Integrated Living Communities of
Dallas, L.P., a Delaware limited partnership.
"Treemont Shared Services Agreement" shall mean the Amended
and Restated Shared Services Agreement, dated as of May 30,
2000, originally by and among Integrated Living Communities of
Dallas, Inc., Senior Lifestyles Corporation and Cambridge
Group of Texas, Inc."
3.2 Amendment to Section 2.5. Section 2.5 (Environmental Reports) is
hereby deleted in its entirety, and the following is hereby substituted in its
place:
"2.5 Environmental Reports. During the Due Diligence Period,
Purchaser shall have the option to obtain, at its sole cost
and expense, Phase I environmental reports in respect of the
Properties (collectively, "Environmental Reports"). In the
event Purchaser terminates this Agreement, Purchaser agrees to
provide Sellers with a copy of the initial Environmental
Reports and all updates thereto. If Purchaser does not deliver
the Termination Notice, Purchaser will be deemed to have
accepted all matters set forth in the Environmental Reports,
except to the extent such matters are subject to Section 2.4
above. Until January 13, 2004, Purchaser shall have the option
to obtain at its sole cost and expense additional reports in
respect of Open Environmental Items.
3.3 Amendments to Section 4. Section 4. (Conditions to Purchaser's
Obligation to Close) is hereby amended by adding the following new Section 4.8:
4.8 Title Company Requirements Respecting Outstanding Notices
of Commencement. Sellers shall have furnished the Title
Company with such affidavits and/or other documentation
necessary to delete any title exceptions on the owner's title
insurance policies to be obtained by Purchaser or the
Applicable Property Transferee at Closing relating to recorded
Notices of Commencement.
3.4 Amendments to Section 6. Section 6 (Representations and Warranties
of Sellers; Purchaser's Independent Investigation; Access) of the Original
Agreement is hereby amended by adding the following new Section 6.4:
"6.4 Representations and Warranties of Riverchase Seller,
Newport Seller, Treemont Seller and Heron's Run Seller. To
induce Purchaser to enter into this Agreement, Riverchase
Seller, Newport Seller, Treemont Seller and Heron's Run Seller
represent and warrant, respectively, to Purchaser as follows:
(a) Riverchase Seller's Representations. Riverchase
Seller represents and warrants that with respect to the
Riverchase Declaration (i)
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since the acquisition of the Alabama Property, Riverchase
Seller has not received any demand for payment or any other
notice under or in connection with the Riverchase Declaration
(including, but not limited to, a demand for an annual or
special assessment under the Riverchase Declaration), (ii) to
Riverchase Seller's actual knowledge the Riverchase
Declaration has not been enforced by any person or entity
during the period of Riverchase Seller's ownership of the
Alabama Property, and (iii) Riverchase Seller has neither
given nor received any notice of default under the Riverchase
Declaration.
(b) Newport Seller's Representations. Newport Seller
represents and warrants that with respect to the Newport
Declaration (i) since the acquisition of the Newport Campus,
Newport Seller has not received any demand for payment or any
other notice under or in connection with the Newport
Declaration (including, but not limited to, a demand for an
annual or special assessment under the Newport Declaration),
(ii) to Newport Seller's actual knowledge the Newport
Declaration has not been enforced by any person or entity
during the period of Newport Seller's ownership of the Newport
Campus, and (iii) Newport Seller has neither given nor
received any notice of default under the Newport Declaration.
(c) Treemont Seller's Representations. Treemont
Seller represents and warrants that (i) Section 5.2(a)(i) of
the Treemont Shared Services Agreement (cross default
provision relating to the Terminated Subleases) and Section
5.2(a)(ii) of the Treemont Shared Services Agreement (cross
default provision relating to the Texas Shared Services
Agreement) are no longer effective because Treemont Seller's
affiliates do not retain an interest as landlord or tenant in
the Terminated Subleases and Treemont Seller's affiliate is no
longer a party to the Texas Shared Services Agreement, (ii)
Paragraph 7(a)(4) of the Agreement of Settlement has no
further force and effect because it addresses issues arising
from the Terminated Subleases, which are now terminated, and
(iii) Cambridge Group of Texas, Inc. no longer has the right
to terminate the Treemont Shared Services Agreement pursuant
to Section 5.2(a) of the Treemont Shared Services Agreement as
a result of Integrated Living Communities of Dallas, Inc.'s
(or its affiliates') breach of payment obligations under
Paragraph 7(a)(4) of the Agreement of Settlement.
(d) Heron's Run Seller's Representations. Heron's Run
Seller represents and warrants that (i) Section 6.2(a)(i) of
the Heron's Run Shared Services Agreement (cross default
provision relating to the Terminated Subleases) and Section
6.2(a)(ii) of the Heron's Run Shared Services Agreement (cross
default provision relating to the Texas Shared Services
Agreement) are no longer effective because Heron's Run
Seller's affiliates do not retain an interest as landlord or
tenant in the Terminated
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Subleases and Heron's Run Seller's affiliate is no longer a
party to the Texas Shared Services Agreement, (ii) Paragraph
7(a)(4) of the Agreement of Settlement has no further force
and effect because it addresses issues arising from the
Terminated Subleases, which are now terminated, and (iii)
Central Park Lodges of West Palm Beach, Inc. no longer has the
right to terminate the Heron's Run Shared Services Agreement
pursuant to Section 6.2(a) of the Heron's Run Shared Services
Agreement as a result of Integrated Living Communities of West
Palm Beach, Inc.'s (or its affiliates') breach of payment
obligations under Paragraph 7(a)(4) of the Agreement of
Settlement.
The representations and warranties made in this Agreement by
Riverchase Seller, Newport Seller, Treemont Seller and Heron's
Run Seller respectively, in Sections 6.4(a), (b), (c) and (d)
are made as of the Effective Date and shall be deemed remade
by Riverchase Seller, Newport Seller, Treemont Seller and
Heron's Run Seller, respectively, as of the Closing Date, with
the same force and effect as if made on, and as of, the
Closing Date. Notwithstanding the foregoing, Riverchase
Seller, Newport Seller, Treemont Seller and Heron's Run
Seller, respectively, shall have the right, from time to time
prior to the Closing Date, to modify the representations and
warranties made in Sections 6.4(a), (b), (c) and (d) as a
result of changes in applicable conditions beyond the control
of Riverchase Seller, Newport Seller, Treemont Seller and
Heron's Run Seller, as applicable, by delivery of a Change
Notice."
3.5 Amendment to Section 8.4. Section 8.4 (Maintenance and Renovation
Contracts) is hereby deleted in its entirety, and the following is hereby
substituted in its place:
"Maintenance and Renovation Contracts; Required Repairs;
Indemnification.
(a) Between the Effective Date and the Closing Date,
each Seller shall (i) maintain the applicable Property in
substantially the same manner as prior hereto pursuant to each
Seller's normal course of business, subject to reasonable wear
and tear and further subject to the occurrence of any damage
or destruction to the Property by casualty or other causes or
events beyond the control of such Seller; provided, however,
that, except as expressly provided in the other subsections of
this Section 8.4, each Seller's maintenance obligations under
this subsection shall not include any obligation to make
capital expenditures not incurred in such Seller's normal
course of business or any other expenditures not incurred in
such Seller's normal course of business; and (ii) perform its
obligations under the Renovation Contracts, including timely
payment of all amounts due thereunder. On the Closing Date,
the applicable Sellers shall provide the Title Company
pursuant to an escrow agreement acceptable to such Sellers and
the Title Company with an amount equal to one hundred and ten
percent (110%) of any amounts not yet due and payable by the
applicable
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Sellers under the Renovation Contracts to be held in escrow in
an interest-bearing account (the "RC Escrow Account") by the
Title Company and disbursed by the Title Company from time to
time pursuant to written instructions from Sellers in
accordance with the provisions of the Renovation Contracts.
Upon the completion of the work under each Renovation Contract
and Title Company receiving appropriate lien waivers from the
contractor(s) under such Renovation Contract, Title Company
shall disburse to the applicable Seller any remaining funds in
the RC Escrow Account relating to such Renovation Contract.
(b) Within the later of ninety (90) days after the
Closing Date or such longer time as may reasonably be required
consistent with Applicable Laws, each applicable Seller shall
cause the property repairs described in Schedule Z attached
hereto (the "Required Property Repairs") to be performed, at
its sole expense, in a good and workmanlike manner in
accordance with all Applicable Laws. Prior to the Closing
Date, each applicable Seller shall enter into any third-party
contracts which may be necessary for completion of the
Required Property Repairs. At Closing, Sellers shall provide
each applicable Tenant with a credit in the amount of One
Hundred Ten Percent (110%) of the amount which Sellers
reasonably estimate to be the cost for such Tenant to complete
the Required Property Repairs. Upon giving such credit,
Sellers, in their capacity as sellers under the Agreement,
shall have no further liability with respect to the Required
Property Repairs, subject only to their indemnification
obligation with respect to third party contracts executed by
any Seller prior to the Closing Date to perform Required
Property Repairs. Upon completion of the Required Property
Repairs, the applicable Tenants shall be entitled to
distribute to their members or partners, as applicable, any
remaining funds with respect to which they were credited at
Closing in connection with the Required Property Repairs.
(c) The applicable Seller shall be responsible to
timely complete and pay all costs of and shall indemnify
Purchaser and its assigns against any cost, loss, damage or
liability relating to any failure of the applicable Seller to
pay all amounts due under the applicable Renovation Contract,
the applicable Environmental Contract, or under any contract
executed by an applicable Seller prior to the Closing Date to
perform Required Property Repairs."
3.6 Amendments to Section 10 (Apportionments).
(a) Section 10.2 (Closing Costs) is hereby amended by deleting
section (a) and in lieu, in place, and instead thereof is inserted the
following:
"(a) All Third-Party Costs (hereinafter defined)
shall be borne one hundred percent (100%) by Purchaser. All
Third-Party Costs are included in the determination of rent
under the Leases (subject to the terms
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of the Leases providing that the maximum amount of Third-Party
Costs which may be included in the determination of rent is
Seven Million Three Hundred Thousand Dollars ($7,300,000)
excluding any reserves required to be posted by Purchaser, its
Affiliates, or the Property Transferee on the Closing Date to
satisfy the requirements of the Lenders or the lender with
respect to the property which is the subject of the Niles Sale
Agreement)."
(b) The definition of Third-Party costs set forth in Section
10.2(b) is hereby amended by the addition of the following subsection (xiv):
", and (xiv) any reserves required to be posted by Purchaser,
its Affiliates, or the Property Transferee on the Closing Date
to satisfy the requirements of the Lenders or the lender with
respect to the Property which is subject of the Niles Sale
Agreement."
(c) Section 10 is hereby amended by adding the following new
Section 10.3:
"10.3 Pointe at Newport Place Property Related Credit. At
Closing, Newport Seller, as seller, shall credit to Newport
Seller, as tenant under the Pointe at Newport Place Property
Lease, the Newport Credit. The Newport Credit shall be used by
Newport Seller, as the tenant under the Pointe at Newport
Place Property Lease, for the payment of the amounts owed to
Newport Place Associates, Ltd. and its successors and assigns
under the Existing Newport Deed. Upon receipt of a claim from
Newport Place Associates, Ltd. or its successors or assigns
under the Existing Newport Deed with respect to the Newport
Credit (the "Newport Claim"), or if the Purchaser or the
Applicable Property Transferee purchasing the Pointe at
Newport Place Property notifies the Newport Seller of any
Newport Claim made to the Purchaser or such Applicable
Property Transferee, as the case may be, Newport Seller, as
tenant under the Pointe at Newport Place Property Lease shall
promptly deliver the amount of the Newport Credit to Newport
Place Associates, Ltd. or its successor or assign, as
applicable, and shall deliver to the Applicable Property
Transferee appropriate evidence of the payment. If by February
29, 2005 (the fifth anniversary of the Certificate of
Occupancy issuance date) Newport Place Associates, Ltd. or its
successors or assigns shall have not made a Newport Claim,
then Newport Seller shall have the right to distribute the
Newport Credit to its partners, but shall remain liable if a
Newport Claim is made which is not otherwise terminated by
court action or otherwise. If the Newport Seller shall have
not been notified by the Purchaser or the Applicable Property
Transferee about a Newport Claim made to the Purchaser or such
Property Transferee, then Newport Seller's obligation to make
the payments to Newport Place Associates, Ltd. or its
successors or assigns pursuant to the Existing Newport Deed
shall terminate and Newport Seller shall have the right to
distribute the Newport Credit to its partners."
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3.7 Amendment to Sections 12.4(a), (b) and (c). Section 12.4 (Notices)
of the Original Agreement is hereby amended by deleting Sections 12.4(a), (b)
and (c) and substituting the following new Sections 12.4(a), (b) and (c)
therefor:
"(a) Any and all notices, demands, consents,
approvals, offers, elections and other communications required
or permitted under this Agreement shall be deemed adequately
given if in writing addressed to the recipient of the notice
at the addresses set forth below (or to such other addresses
as the parties may specify by due notice to the others) and
the same shall be delivered either (i) in hand, (ii) by mail,
postage prepaid and registered or certified with return
receipt requested, (iii) by Federal Express or similar
expedited commercial carrier, with all freight charges
prepaid, or (iv) by facsimile transmission or email with a
hard copy to follow by Federal Express or similar expedited
commercial carrier. If a notice or other communication is sent
to a party by facsimile transmission or email, then copies of
such notice under Section 12.4(c) shall also be sent by the
same delivery method to the copy recipients.
(b) All notices required or permitted to be sent
hereunder shall be deemed to have been given for all purposes
of this Agreement upon the date of acknowledged receipt or
upon the date of receipt of refusal. Notices or other
communications (i) given by mail will be presumed received on
the fifth Business Day after they are mailed, (ii) given by
Federal Express or similar expedited commercial carrier will
be presumed received on the next Business Day after they are
sent, (iii) given by facsimile transmission will be presumed
received at the time indicated in the recipient's automatic
acknowledgment, and (iv) given by email will be presumed
received on the day the email is sent. Whenever under this
Agreement a notice is either received on a day which is not a
Business Day or is required to be delivered on or before a
specific day which is not a Business Day, the day of receipt
or required delivery shall automatically be extended to the
next Business Day.
(c) All such notices shall be addressed,
if to Sellers or any Seller, to:
c/o Horizon Bay Senior Communities
0000 X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Thilo D. Best and Xxx X. XxXxxx
Emails: xxxxx@xxxxxxxxxx.xxx
xxxxxxx@xxxxxxxxxx.xxx
Phone: (000) 000-0000
Fax: (000) 000-0000
11
with a copy to:
c/o Goldman Sachs & Co.
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Email: Xxxxxx.Xxxxxxxx@xx.xxx
Phone: (000) 000-0000
Fax: (000) 000-0000
and
Arent Fox Xxxxxxx Xxxxxxx & Xxxx, PLLC
0000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Email: Xxxxx.Xxxxxxx@xxxxxxxx.xxx
Phone: (000) 000-0000
Fax: (000) 000-0000
if to Purchaser, to:
c/o CNL Retirement Corp.
CNL Center at City Commons
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx Xxxxxxx
Email: xxxxxxxx@xxxxxxxxx.xxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Lowndes, Drosdick, Doster,
Xxxxxx & Xxxx, P.A.
000 Xxxxx Xxxx Xxxxx
Post Office Box 2809
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. XxXxxxxx, Esq.
Email: xxx.xxxxxxxx@xxxxx.xxx
Phone: (000) 000-0000
Fax: (000) 000-0000
12
If to Title Company, to:
Fidelity National Title Insurance Company
000 X. Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxx Xxxxx
Email: xxxxxx@xxx.xxx
Phone: (000) 000-0000
Fax: (000)000-0000
3.8 Amendment to Schedule G. The references to the Six Million Dollar
($6,000,000) letter of credit for the Berkshire facility and the Two Million
Dollar ($2,000,000) additional collateral for the Collateral facility are hereby
deleted.
SECTION 4. MISCELLANEOUS.
4.1 Notices. Any and all notices, demands, consents, approvals, offers,
elections and other communications required or permitted under this Amendment
shall be delivered as set forth under Section 12.4 of the Original Agreement.
4.2 Counterparts, Etc. This Amendment may be executed in two (2) or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Facsimile signatures
shall be deemed originals for purposes of determining the enforceability of this
Amendment. This Amendment constitutes the entire agreement of the parties hereto
with respect to the subject matter hereof and shall supersede and take the place
of any other instruments purporting to be an agreement of the parties hereto
relating to the subject matter hereof. The Original Agreement as amended by this
Amendment may not be amended or modified in any respect other than by the
written agreement of all of the parties hereto.
4.3 Ratification. Except as amended by this Amendment, the terms of the
Original Agreement are hereby ratified and confirmed in all respects.
4.4 Niles Sale Agreement. It is understood and agreed that Sellers and
Purchaser contemplated that simultaneously with the execution and delivery of
this Amendment, Purchaser and the seller under the Niles Sale Agreement would
enter into a substantially similar amendment to the Niles Sale Agreement with
respect to the matters in this Amendment applicable to the Niles Sale Agreement.
The execution version of the said amendment to the Niles Sale Agreement has not
been prepared but the parties agree to negotiate in good faith an amendment to
the Niles Sale Agreement substantially in accordance with the foregoing terms
which shall be dated as of the date of this Amendment. If the parties fail to
execute such Amendment by 5:00 p.m. Eastern Standard Time on January 5, 2004,
any Purchaser Tax Termination Notice shall also terminate the Niles Sale
Agreement and entitle Purchaser to a return of the deposit thereunder.
[SIGNATURE PAGES FOLLOW]
13
IN WITNESS WHEREOF, the parties have caused this Second Amendment to
Purchase and Sale Agreement to be executed as a sealed instrument as of the date
first hereinabove written.
SELLERS:
THE PARK AT RIVERCHASE (AL):
RIVERCHASE ASSISTED LIVING, LTD.,
a Texas limited partnership
By: WXI/Senior Lifestyle Riverchase Gen-Par, L.L.C.,
a Delaware limited liability company,
its General Partner
By: Integrated Living Communities, L.L.C.,
a Delaware limited liability company,
its Sole Member
By: /s/ Xxx X. XxXxxx
-----------------------------------
Xxx X. XxXxxx
Vice President and
Chief Financial Officer
THE HERITAGE PALMERAS (AZ):
SENIOR LIFESTYLE HERITAGE, L.L.C.,
a Delaware limited liability company
By: WHSLA Real Estate Limited Partnership,
a Delaware limited partnership,
its Sole Member
By: WHSLA Gen-Par, Inc.,
a Delaware corporation,
its General Partner
By: /s/ Xxx X. XxXxxx
-----------------------------------
Xxx X. XxXxxx
Vice President and
Chief Financial Officer
S-1
XXXXXXXXXX POINTE AND CHERRY HILLS CLUB (CA):
INTEGRATED MANAGEMENT - XXXXXXXXXX POINTE, L.L.C.,
a Delaware limited liability company
By: /s/ Xxx X. XxXxxx
-----------------------------------
Xxx X. XxXxxx
Vice President and
Chief Financial Officer
HERON'S RUN (FL):
INTEGRATED LIVING COMMUNITIES OF WEST
PALM BEACH, L.L.C.,
a Delaware limited liability company
By: /s/ Xxx X. XxXxxx
-----------------------------------
Xxx X. XxXxxx
Vice President and
Chief Financial Officer
X-0
XXXXXXX XXXXX AND THE POINTE AT NEWPORT PLACE (FL):
SENIOR LIFESTYLE NEWPORT LIMITED PARTNERSHIP,
a Delaware limited partnership
By: SLC Newport, Inc.,
a Delaware corporation,
its General Partner
By: /s/ Xxx X. XxXxxx
-----------------------------------
Xxx X. XxXxxx
Vice President and
Chief Financial Officer
PINECREST PLACE (FL):
SENIOR LIFESTYLE PINECREST LIMITED PARTNERSHIP,
a Delaware limited partnership
By: SLC Pinecrest, Inc.,
a Delaware corporation,
its General Partner
By: /s/ Xxx X. XxXxxx
-----------------------------------
Xxx X. XxXxxx
Vice President and
Chief Financial Officer
S-3
PROSPERITY OAKS (FL):
SENIOR LIFESTYLE PROSPERITY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Prosperity Gen-Par, Inc.,
a Delaware corporation,
its General Partner
By: /s/ Xxx X. XxXxxx
-----------------------------------
Xxx X. XxXxxx
Vice President and
Chief Financial Officer
WATERSIDE RETIREMENT ESTATES (FL):
INTEGRATED LIVING COMMUNITIES OF SARASOTA, L.L.C.,
a Delaware limited liability company
By: /s/ Xxx X. XxXxxx
-----------------------------------
Xxx X. XxXxxx
Vice President and
Chief Financial Officer
X-0
XXX XXXX XX XXXXXXX XXXXXX (XX):
OLYMPIA FIELDS SENIOR HOUSING, L.L.C.,
a Delaware limited liability company
By: WHSLC Realty, L.L.C.,
a Delaware limited liability company
By: WHSLH Realty, L.L.C.,
a Delaware limited liability company,
its member
By: /s/ Xxx X. XxXxxx
-----------------------------------
Xxx X. XxXxxx
Vice President and
Chief Financial Officer
S-5
EAST BAY MANOR (RI):
SENIOR LIFESTYLE EAST BAY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: SLC East Bay, Inc.,
a Delaware corporation,
its General Partner
By: /s/ Xxx X. XxXxxx
-----------------------------------
Xxx X. XxXxxx
Vice President and
Chief Financial Officer
EMERALD BAY MANOR (RI):
SENIOR LIFESTYLE EMERALD BAY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: SLC Emerald Bay, Inc.,
a Delaware corporation,
its General Partner
By: /s/ Xxx X. XxXxxx
-----------------------------------
Xxx X. XxXxxx
Vice President and
Chief Financial Officer
GREENWICH BAY MANOR (RI):
GREENWICH BAY, L.L.C.,
a Delaware limited liability company
By: /s/ Xxx X. XxXxxx
-----------------------------------
Xxx X. XxXxxx
Vice President and
Chief Financial Officer
S-6
NORTH BAY MANOR (RI)
SENIOR LIFESTYLE NORTH BAY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: SLC North Bay, Inc.,
a Delaware corporation,
its General Partner
By: /s/ Xxx X. XxXxxx
-----------------------------------
Xxx X. XxXxxx
Vice President and
Chief Financial Officer
SAKONNET BAY MANOR (RI):
SENIOR LIFESTYLE SAKONNET BAY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: SLC Sakonnet Bay, Inc.,
a Delaware corporation,
its General Partner
By: /s/ Xxx X. XxXxxx
-----------------------------------
Xxx X. XxXxxx
Vice President and
Chief Financial Officer
SOUTH BAY MANOR (RI):
SOUTH BAY MANOR, L.L.C.,
a Delaware limited liability company
By: /s/ Xxx X. XxXxxx
-----------------------------------
Xxx X. XxXxxx
Vice President and
Chief Financial Officer
S-7
WEST BAY MANOR (RI):
WEST BAY MANOR, L.L.C.,
a Delaware limited liability company
By: /s/ Xxx X. XxXxxx
-----------------------------------
Xxx X. XxXxxx
Vice President and
Chief Financial Officer
TREEMONT RETIREMENT COMMUNITY (TX):
INTEGRATED LIVING COMMUNITIES OF
DALLAS, L.P.,
a Delaware limited partnership
By: Integrated Living Communities of Dallas
Gen-Par, L.L.C.,
a Delaware limited liability company,
its General Partner
By: /s/ Xxx X. XxXxxx
-----------------------------------
Xxx X. XxXxxx
Vice President and
Chief Financial Officer
S-8
PURCHASER:
CNL RETIREMENT CORP., A FLORIDA CORPORATION
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Xxxxxx Xxxxxxx
Chief Investment Officer
S-9
SCHEDULE Y
CURRENT RISK MANAGEMENT PROGRAM
Our current general and professional liability policy commenced
12/31/02 and expires 12/31/05. The policy covers general and professional claims
on a claims made basis and has a retrospective date of 1/1/01. The current
limits of the policy include a $5 million SIR and $5 million policy aggregate
for claims in excess of $5 million and less than $10 million. The primary
insurance carrier did not require any additional deposits or letters of credits;
however, Xxxxxx Xxx required that we post a $2 million deposit due to the SIR
amount.
Currently, all Project Waterfall assets except The Park at Golf Mill
are named insureds on this policy. In addition, the following assets managed by
Horizon Bay Senior Communities are also named insureds on this policy:
Xxxxxxxx'x, Regency Park (closed location), Xxxxxxxx Place at Lincoln Square
(closed location), and The Park at Xxxxxx Hills (professional liability only).
The Park at Xxxxxx Hills has a separate general liability policy. The
policy has a $1,000,000 per occurrence limit with a $2,000,000 aggregate limit.
There is no deductible. There is a separate umbrella policy over the primary
coverage with limits of $25,000,000 per occurrence and a $ 25,000,000 aggregate.
Both the primary and umbrella are occurrence based policies. The policy dates
are 3/24/2003 to 3/23/2004.
The Park at Golf Mill has a separate general liability policy. The
policy has a $1,000,000 per occurrence limit with a $2,000,000 aggregate. There
is no deductible. There is a separate umbrella policy over the primary coverage
with limits of $ 25,000,000 per occurrence and $ 25,000,000 aggregate. Both the
primary and umbrella are occurrence based policies. The policy dates are
4/15/2003 to 4/14/2004.
For all other descriptions of Insurance coverage please refer to
certificates of insurance provided to Buyer.