Exhibit 10.38
FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Agreement"),
dated as of the 30th day of July, 1997, is made by and between GABLES AT
FARMINGTON ASSOCIATES, a Connecticut general partnership ("Seller"), with an
office in care of Allegis Realty Investors, LLC, 000 Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000-0000 and BROOKDALE LIVING COMMUNITIES, INC., a Delaware
corporation ("Purchaser") with an office at 00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000.
RECITALS:
Seller and Purchaser have entered into that certain Purchase and Sale
Agreement dated as of June 11, 1997 with respect to that certain improved real
property commonly known as The Gables at Farmington located at 00 Xxxxxxxxx
Xxxxx, Xxxxxxxxxx, Xxxxxxxxxxx along with certain related personal and
intangible property, as amended by First Amendment to Purchase and Sale
Agreement dated as of July 3, 1997, as further amended by Second Amendment to
Purchase and Sale Agreement dated as of July 16, 1997 and as further amended by
Third Amendment to Purchase and Sale Agreement dated as of July 23, 1997 (as
amended, the "Purchase Agreement").
NOW, THEREFORE, in consideration of the foregoing, of the covenants,
promises and undertakings set forth herein, and for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Seller and Purchaser agree to amend the Purchase Agreement as follows:
1. Sections 2.2.1(b), 3.1.3, 3.3, 5.2.4, 5.2.5 and 10.4(b) of the Purchase
Agreement are hereby amended to delete the words "Approval Date" in all places
appearing therein and to substitute therefor the following: "Final Approval
Date".
2. Section 3.2 of the Purchase Agreement is hereby amended to add the
following text after the words "until the Approval Date" appearing therein:
"(until the Final Approval Date with respect to the matter described in Section
3.5(a))".
3. Section 3.2 of the Purchase Agreement is hereby further amended to add
the following text after the words "prior to the Approval Date" appearing
therein: "(prior to the Final Approval Date with respect to the matter described
in Section 3.5(a))".
4. Section 3.2 of the Purchase Agreement is hereby further amended to add
the following text after the words "on or before the Approval Date" appearing
therein: "(on or before the Final Approval Date with respect to the matter
described in Section 3.5(a))".
5. The Purchase Agreement is hereby amended to delete Section 3.5 thereof
in its entirety and to substitute therefor the following:
-2-
3.5 Purchaser's Right to Terminate. Purchaser shall have the right,
in Purchaser's sole and absolute discretion and for any reason or for no
reason, by giving Seller written notice ("Termination Notice") on or before
July 30, 1997 ("Approval Date") to terminate its obligation to purchase the
Property.
Purchaser shall have the right, in its sole and absolute discretion,
by giving Seller written notice ("New Termination Notice") on or before
August 6, 1997 ( "Final Approval Date"), to terminate its obligation to
purchase the Property if Purchaser and Seller shall have failed to reach a
mutually satisfactory agreement with respect to (a) addressing the fact
that a portion of the Improvements is located within a special flood hazard
area, (b) the security deposit discrepancy currently under review, or (c)
transfer of the existing certificate of need applicable to the Property to
Purchaser or any assignee of Purchaser permitted hereunder.
If the Termination Notice or the New Termination Notice is timely
given, Seller shall direct the Title Company promptly to return the Deposit
to Purchaser and neither party shall have any further liability hereunder
except for Purchaser's Indemnity Obligations set forth in Section 3.1.2
hereof.
6. The Term Sheet included in the Purchase Agreement is hereby amended to
add the following term thereto: "Final Approval Date: August 6, 1997".
7. All references in the Purchase Agreement to "this Agreement" or "the
Agreement" shall mean the Purchase Agreement, as amended by this Agreement.
8. This Agreement shall be construed and enforced in accordance with the
laws of the State of Connecticut.
9. This Agreement shall be binding upon and inure to the benefit of
Purchaser and Seller and their successors and permitted assigns.
10. This Agreement may be executed and delivered in any number of
counterparts, each of which so executed and delivered shall be deemed to be an
original and all of which shall constitute one and the same instrument.
11. The Purchase Agreement, as amended hereby, remains in full force and
effect and is hereby ratified and confirmed.
-3-
IN WITNESS WHEREOF, Purchaser and Seller have executed this Agreement on
the date set forth below, effective as of the date set forth above.
SELLER: GABLES AT FARMINGTON ASSOCIATES
By: Aetna Life Insurance Company, a general
partner
By: Day, Xxxxx & Xxxxxx
Its Attorneys
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------
Printed name: Xxxxxxxx X. Xxxxx
Date: July 30, 1997
PURCHASER: BROOKDALE LIVING COMMUNITIES, INC.
By:/s/ Xxxxxx X. Xxxxxxxx, Xx
----------------------------------
Printed name: Xxxxxx X. Xxxxxxxx, Xx
------------------------
Its: Executive Vice President
--------------------------------
Date: July 30, 1997
--------------------------------
An original, fully executed copy of this Agreement, has been received by
the Title Company this ___ day of _____, 1997, and by execution hereof the Title
Company hereby covenants and agrees to be bound by the terms of this Agreement.
CHICAGO TITLE INSURANCE COMPANY
By:/s/ Xxxxxx X. Xxxxxxx
-----------------------------
Printed name: Xxxxxx X. Xxxxxxx
-------------------
Its: Associate Regional Counsel
----------------------------
