FIRST AMENDEMENT TO PURCHASE AND
SALE AGREEMENT
This Agreement is made and entered
into this 11th day of July, 1996, by and
between SUNDAY ESTATES, Inc., a Nevada
("Seller"), and EMERITUS CORPORATION, a
Washington corporation ("Purchaser").
RECITALS
A. Seller and Purchaser are parties to
that Purchase and Sale Agreement dated
July 9, 1996 (the "Purchase Agreement")
with respect to the purchase and sale of
that 116 unit assisted-living facility
currently under construction by Seller in
Las Vegas, Nevada and to be known as
Concorde Senior Citizen Residence (the
"Facility").
B. After the execution of the Purchase
Agreement the Seller requested that
certain amendments be made to the Purchase
Agreement to which Purchaser had agreed.
C. The Purchase Agreement provides that
it may only be amended by written
instrument signed by the parties thereto.
D. Seller and Purchase are desirous of
documenting the terms of said amendments.
NOW, THEREFORE, in consideration of
the foregoing premises and the mutual
covenants of the parties set forth herein,
IT IS HEREBY AGREED AS FOLLOWS:
AGREEMENT
1. Section 2(a) is hereby deleted in its
entirety and the following inserted
instead:
a. Two Hundred Fifty Thousand and
no/100 Dollars ($250,000) on execution of
this Agreement (the "Xxxxxxx Money
Payment") shall be delivered by Purchaser
to Fidelity National Title Insurance
Company, 0000 Xxxxxxxxx, Xxxxx 000, Xxx
Xxxxx, XX 00000 (the "Escrow Agent"). In
the event the purchase and sale
contemplated by this Agreement is
consummated, then the Xxxxxxx Money will
be credited against the Purchase Price at
Closing. In the event the purchase and
sale contemplated by this Agreement fails
to occur, the Xxxxxxx Money shall be
remitted to Seller or Purchaser, as
appropriate, in accordance with the
provisions of Paragraph 17 hereof. The
Escrow Agent shall be authorized, at
Purchaser's option, to invest the Xxxxxxx
Money in such manner as Purchaser may
direct with Seller's reasonable written
approval; provided, however, that the
Escrow Agent shall invest the Xxxxxxx
Money only in such manner as will allow
Escrow Agent to disperse the Xxxxxxx Money
on two (2) days' notice; and provide,
further, that the Escrow Agent shall be
authorized to release the Xxxxxxx Money to
Seller prior to closing upon Seller's
delivery to Purchase
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of security for the repayment thereof, in
the event Purchaser is entitled to the
return thereof in accordance with the
terms of this Agreement, which security
shall be in the form of a second lien on
the Real Property evidenced by a Deed of
Trust in form and substance reasonable
acceptable to Purchaser. All interest or
other earnings on the Xxxxxxx Money shall
become part of the Xxxxxxx Money and shall
be dispersed to the party who becomes
entitled to the Xxxxxxx Money pursuant to
the provisions of this Agreement;
provided, however, that in the event
Seller requests an early release of the
Xxxxxxx Money in accordance with the terms
hereof and Seller is thereafter required
by the terms of this Agreement to return
the same to Purchaser, Seller shall be
required to pay Purchaser interest thereon
at the same rate of interest that
Purchaser was earning or would have earned
had the Xxxxxxx Money been held by Escrow
Agent;
2. Section 2(c) is hereby deleted in its
entirety and the following inserted
instead:
The balance by execution and delivery
at Closing of Purchaser's Promissory Note
in the face amount of Six Million and
no/100 Dollars ($6,000,000) which Note
shall (i) be in form and substance
acceptable to Purchaser and Seller, (ii)
shall be due and payable in full 18 months
after the Closing Date, (iii) shall bear
no interest during the first six months of
the term thereof, (iv) shall bear interest
at the annual rate of 10% per annum during
the second six month period, (v) shall
bear interest at the rate of 11% per annum
during the last six months of the term
thereof, with interest only due and
payable monthly during the said six month
period and (vi) shall be secured by a
first lien on the Seller's Assets, with
the documents evidencing such lien to be
in form and substance acceptable to Seller
and Purchaser, provided, however, Seller
shall have the right, subject to
purchaser's consent, to place a first lien
of the Seller's assets prior to Closing,
to transfer title to the Seller's Assets
to Purchase subject to said first lien and
to enter into an All-inclusive Note and
Deed of Trust with Purchaser which would
"wrap" the obligations of Purchaser to
Seller around the obligations of Seller to
said lender, provided, however, that
Purchaser shall have no obligation to
consent thereto unless it is fully
satisfied with the terms of the underlying
loan and lien documents and its loan and
lien documents with Seller and, in
particular, with the protections afforded
to Purchaser thereunder to ensure that it
will be provided with notice of and an
opportunity to cure a default by Seller
with respect to the underlying loan and
that such cure rights may be exercised by
Purchaser without any additional cost to
Purchaser under the terms hereof.
3. Section 3 is hereby deleted in its
entirely and the following inserted
instead:
The closing of the purchase and sale
under this Agreement (the "Closing") shall
take place on or before September 1,1996
(provided all of the conditions to closing
set forth in paragraphs 13 and 14 have
been satisfied or waived) (the "Closing
Date"); provided, however, that either
Purchaser or Seller shall have the right
on written notice to the other
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delivered on or prior to the Closing Date
to extend the Closing Date for a period of
up to thirty (30) days. Closing shall
occur at the offices of Escrow Agent or at
such other place as Purchaser and Seller
may mutually agree. Time is of the
essence hereto.
4. Section 17(a)(v) is hereby deleted in
its entirety and the following inserted
instead:
If the Closing has not occurred by
October 1, 1996 (the "Outstanding Closing
Date"), unless extended by mutual
agreement of the parties; provided,
however, that in the event all of the
conditions to Closing provided for in
Paragraphs 13 and 14 have been satisfied
or waived by the Outside Closing Date
other than either the Purchaser's receipt
of the License pursuant to Paragraph 13(i)
or Seller's completion of the construction
of the Facility pursuant to Paragraph
13(j), provided, (A) in the case of the
condition set forth in Paragraph 13(i),
Purchaser is diligently pursuing the
issuance of the License by the Nevada
State Division of Health or, (B) in the
case of the condition set forth in
Paragraph 13(j), seller is diligently
pursuing the completion of the
construction of the Facility and the delay
in the completion thereof is due solely to
either a delay in the issuance of any
permits or licenses necessary to evidence
the completion thereof or the design
modifications requested by the Purchaser
as reflected in Exhibit G, the Outside
Closing Date shall automatically be
extended for such additional period of
time as may be necessary to permit
Purchaser to secure the License and/or
Seller to complete construction of the
Facility; provided, further that in the
event Purchaser has not secured the
License by December 1, 1996 and/or Seller
has not completed construction of the
Facility, this Agreement shall thereafter
terminate in accordance with the terms
hereof and the parties shall have no
further rights or obligations hereunder
other than Purchaser's right to the return
of its Xxxxxxx Money.
5. Except as specifically set forth
herein, the Purchase Agreement shall
remain in full force and effect as
originally executed by Seller and
Purchaser.
6. This Agreement may be executed in
counterparts, each of which shall be
deemed to be an original, but all of which
taken together shall constitute but one
and the same instrument.
IN WITNESS WHEREOF, the parties
hereby execute this Agreement as of the
day and year first set forth above.
SELLER:
SUNDAY ESTATES, INC.
By: /s/ Xxxxx Jariv
---------------------------
Xxxxx Jariv
---------------------------
Its: Vice President
---------------------------
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PURCHASER:
EMERITUS CORPORATION
By: /s/ Xxxxxxx X. Brandstom
---------------------------------
Xxxxxxx X. Xxxxxxxxxx
---------------------------------
Its: President
---------------------------------
