EXHIBIT 10.65
Third Amendment to
Purchase and Sale Agreement
dated January 5, 2004
THIRD 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
January 5, 2004
THIRD AMENDMENT
TO
PURCHASE AND SALE AGREEMENT
THIS THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment")
is made effective as of January 5, 2004 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 effective December 30, 2003, and
as amended by that certain Second Amendment to Purchase and Sale Agreement dated
effective December 31, 2003 (collectively the "Original Agreement") with respect
to the purchase and sale of nineteen (19) senior living facilities.
WHEREAS, 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 in the Original Agreement.
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SECTION 2. AMENDMENTS.
2.1 Amendments to Section 1.
(a) Section 1 (Definitions) of the Original Agreement is
hereby amended by adding the following new definition:
"Deed Related Transfer Taxes" shall have the meaning given
such term in Section 10.2(c)."
(b) Section 1 (Definitions) of the Original Agreement is
further amended by deleting the existing definition of "Purchase Price" and in
lieu, in place, and instead thereof is inserted the following:
""Purchase Price" shall mean Five Hundred Two Million One
Hundred Eighty Thousand Dollars ($502,180,000) which is the
amount to be paid by Purchaser to Sellers for the Properties,
which shall be allocated amongst the Properties by their
Allocated Purchase Prices and between Real Property,
Improvements and Assets for each Property, all as set forth on
SCHEDULE B hereto. The Purchase Price also shall be subject to
adjustments, credits and prorations as provided herein."
2.2 Amendments to Schedule B. Schedule B to the Original Agreement is
hereby amended to reflect the Purchase Price set forth in Section 2.1(b) above
by reducing each Property's Allocated Purchase Price pro rata to reflect the
reduction in the Purchase Price to Five Hundred Two Million One Hundred Eighty
Thousand Dollars ($502,180,000). Within one (1) Business Day following the date
of this Amendment, Sellers shall furnish Purchaser with an updated Schedule B to
the Original Agreement reflecting such pro rata reduction on each Property's
Allocated Purchase Price.
2.3 Amendment to Section 8.4. Section 8.4 (Maintenance and Renovation
Contracts) of the Original Agreement is hereby amended by amending and restating
Schedule Z to the Second Amendment to Purchase and Sale Agreement dated December
31, 2003 in the form of Schedule Z attached hereto and incorporated by reference
into this Amendment.
2.4 Amendments to Section 10 (Apportionments).
(a) Section 10.2 (Closing Costs) of the Original Agreement is
hereby amended by deleting subsection (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 of the Leases providing
that the aggregate maximum amount of Third-Party Costs plus
the "Third-Party Costs" under the Niles Sale Agreement which
may be included in the determination of rent of the Original
Agreement is Five Million Eight Hundred Thousand Dollars
($5,800,000),
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excluding any reserves required to be posted by Purchasers,
their Affiliates, any of the Property Transferees, the
purchaser under the Niles Sale Agreement or its Affiliates 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). All Deed Related Transfer Taxes
shall be borne one hundred percent (100%) by Sellers, and the
responsibility of Sellers for payment of all Deed Related
Transfer Taxes shall not be subject to the post-closing
limitations of Sections 11.3 and 11.4 hereof."
(b) Section 10.2 (Closing Costs) of the Original Agreement is
hereby further amended by deleting subsection 10.2(c) and in lieu, in place, and
instead thereof is inserted the following:
"(c) As used herein, the term "Transfer Taxes" shall
mean any transfer, sales, use, recordation or other similar
taxes, impositions, expenses or fees incurred in connection
with the Closing (except for the Deed Related Transfer Taxes)
and the assumption of the Loan for each Property and/or the
recordation or filing of any documents or instruments in
connection therewith (except for the Deed Related Transfer
Taxes) or the sale, transfer or conveyance of the Properties
from Sellers to the Applicable Property Transferees (except
for the Deed Related Transfer Taxes) or the Lease of each
Property from the Applicable Property Transferees to the
applicable Tenant. Transfer Taxes shall not include, and each
Seller shall be solely responsible for any taxes due in
respect of its income, net worth or capital, if any, and any
privilege, sales and occupancy taxes, due or owing to any
Governmental Authority in connection with the operation of its
Property for any period of time prior to the Closing, and the
Applicable Property Transferees, and each Tenant, as
applicable, shall be solely responsible for all such taxes for
any period from and after the Closing, and provided further
that any income tax arising as a result of the sale and
transfer of any Property by Sellers to Purchaser shall be the
sole responsibility of Sellers."
As used herein, the term "Deed Related Transfer
Taxes" shall mean any transfer, sales, use, recordation or
other similar taxes, impositions, expenses or fees owed or
incurred in connection with the transfer of the fee simple
interest in the Properties from Sellers to the Applicable
Property Transferees, including the recordation of the Deed
for each Property from each Seller to the Applicable Property
Transferees and/or the recordation or filing of any documents
or instruments in connection therewith."
2.5 Amendment to Schedule E-1 (Form of Lease). Section 5.2.8 of
Schedule E-1 (Form of Lease) of the Original Agreement is hereby amended to
provide that Landlord shall be obligated to pay from funds in the Reserve, in
accordance with the provisions of Section 5.2 of the Lease, all repairs,
alterations, improvements, renewals or replacements which are required or
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otherwise necessary to cause the Leased Property to comply with the Americans
with Disabilities Act, as amended from time to time. If, at any time, funds in
the Reserve shall be insufficient to pay for such repairs, alterations,
improvements, renewals or replacements, Landlord shall fund the shortfall, if
any, and, upon disbursement by Landlord of such shortfall, Minimum Rent shall be
adjusted as provided in Section 3.3 of the Lease. Within one (1) Business Day
following the date of this Amendment, Sellers shall furnish Purchaser with an
updated Schedule E-1 to the Original Agreement reflecting the amendment to the
form of Lease set forth in the immediately preceding sentence.
SECTION 3. ELECTION.
The execution and delivery of this Amendment by Purchaser shall
constitute Purchaser's election not to deliver the Tax Termination Notice.
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.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have caused this Third 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