EXHIBIT 10.74
Fourth Amendment to
Purchase and Sale Agreement
dated February 6, 0000
XXXXXX XXXXXXXXX
TO
PURCHASE AND SALE AGREEMENT
by and between
Niles Lifestyle Limited Partnership,
as Seller,
and
CNL Retirement Corp., a Florida corporation,
as Purchaser
February 6, 0000
XXXXXX XXXXXXXXX
TO
PURCHASE AND SALE AGREEMENT
THIS FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment")
is made effective as of February 6, 2004, by and between Niles Lifestyle Limited
Partnership, an Illinois limited partnership (the "Seller"), and CNL Retirement
Corp., a Florida corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller and Purchaser entered into a Purchase and Sale
Agreement dated as of December 19, 2003 and amended by that certain First
Amendment to Purchase and Sale Agreement dated effective December 31, 2003, by
that certain Second Amendment to Purchase and Sale Agreement dated effective
January 5, 2004, and by that certain Third Amendment to Purchase and Sale
Agreement dated as of January 20, 2004 (collectively, the "Original Agreement")
with respect to the purchase and sale of a senior living facility located on the
land more particularly described on Schedule A to the Original Agreement.
WHEREAS, Seller 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, Seller 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. AMENDMENTS.
2.1 Amendment to Schedules. The List of Schedules and all of the
Schedules to the Original Agreement are hereby deleted in their entirety and the
revised Schedules attached hereto are substituted therefor.
2.2 Amendment to Definition of "Intangible Property." Section 1
(Definitions) of the Original Agreement is hereby amended by deleting the
definition of "Intangible Property" and substituting the following therefor:
""Intangible Property" shall mean all transferable or assignable (i)
Permits, (ii) certificates, licenses, warranties, and guarantees held
by Seller, as owner, and/or its Affiliates relating to the Property,
(iii) all trade names relating to the Property, (iii) all trade names
relating to the Property's name, specifically
excluding the trade name Horizon Bay or any derivation or replacement
thereof or addition thereto applied by Affiliates of Horizon Bay to
other facilities, and (iv) all occupancy agreements, to the extent they
are not an interest in real property, other than (x) the Excluded
Assets and (y) such Permits which are to be held by, or transferred to,
Tenant and/or Manager in order to permit Tenant and/or Manager,
respectively, to operate or manage, as the case may be, the Property in
accordance with the terms of the Lease and the Management Agreement."
2.3 Amendment to Definition of "Pooling Agreement." Section 1
(Definitions) of the Original Agreement is hereby amended by deleting the
definition of "Pooling Agreement" and substituting the following therefor:
""Pooling Agreement" shall mean, collectively, the following
agreements, each dated as of the Closing Date:
(A) the Horizon Bay B5 Pooling Agreement, entered into by
and among (i) CNL Retirement HB2, LP, a Delaware
limited partnership ("CNL RHB"), (ii) Manager, (iii)
Senior Lifestyle Heritage, L.L.C, a Delaware limited
liability company, Senior Lifestyle Newport Limited
Partnership, a Delaware limited partnership, Senior
Lifestyle Prosperity Limited Partnership, a Delaware
limited partnership and Niles Lifestyle Limited
Partnership, an Illinois limited partnership,
(collectively, as tenants), and (iv) XXX Xxxxxxxxxx
XX0 Xxx Xxxx XX, LP, a Delaware limited partnership,
CNL Retirement HB2 Boynton Beach FL, LP, a Delaware
limited partnership, XXX Xxxxxxxxxx XX0 Xxxx Xxxxx
XX, LP, a Delaware limited partnership, and CNL
Retirement HB2 Niles, LP, a Delaware limited
partnership (collectively, as landlords); and
(B) the Horizon Bay Upper Tier Pooling Agreement, among
the CNL RHB, WHSLC Realty, L.L.C., a Delaware limited
liability company, and Manager, and each
substantially in the form attached hereto as
SCHEDULES G-3 AND G-4."
2.4 Amendment to Section 3.1. The first sentence of Section 3.1
(Closing) to the Original Agreement is hereby deleted in its entirety and the
following sentence is substituted therefor:
The purchase, sale and lease of the Property and other
transactions contemplated hereby shall be consummated on a
date (the "Closing Date") that is mutually agreeable to the
parties but no later than February 6, 2004, as such date may
be extended pursuant to the express terms and conditions of
this Agreement (the "Closing").
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2.5 Amendment to Section 8.4. Section 8.4(c) of the Original
Agreement is hereby deleted in its entirety, and the following is hereby
substituted in its place:
"(c) 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 Seller to pay all amounts due under the applicable
Renovation Contract or any contract executed by Seller/Tenant
either prior to or after the Closing Date to perform Required
Property Repairs."
2.6 Amendments to Section 10.2(a) (Apportionments). Section 10.2
of the Original Agreement is hereby amended by increasing the amount includable
in the determination of rent by Twenty-Seven Thousand Three Hundred Dollars
($27,300) from Six Million Three Hundred Fifty Thousand Dollars ($6,350,000) to
Six Million Three Hundred Seventy-Seven Thousand Three Hundred Dollars
($6,377,300).
SECTION 3. MISCELLANEOUS.
3.1 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.
3.2 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.
3.3 Ratification. Except as amended by this Amendment, the terms
of the Original Agreement are hereby ratified and confirmed in all respects.
[SIGNATURE PAGES FOLLOW]
3
IN WITNESS WHEREOF, the parties have caused this Fourth Amendment to
Purchase and Sale Agreement to be executed as a sealed instrument as of the date
first hereinabove written.
SELLER:
NILES LIFESTYLE LIMITED PARTNERSHIP,
an Illinois limited partnership
By: Niles Lifestyle 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
PURCHASER:
CNL RETIREMENT CORP., A FLORIDA CORPORATION
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------------
Xxxxxx Xxxxxxx
Senior Vice President
S-1
REVISED SCHEDULES
LIST OF SCHEDULES ATTACHED HERETO
Schedule A Legal Description of Property
Schedule B List of Due Diligence Materials
Schedule C FF& E Schedule
Schedule D Form of Lease
Schedule E Form of Memorandum of Lease
Schedule F Name of Lender and List of Loan Documents, together with
Estimated Principal Balance as of December 31, 2003 and
Required Reserve/Escrow Balances and Required Additional
Security
Schedule G-1 Form of Management Agreement
Schedule G-2 Form of Manager Subordination
Schedule G-3 Form of B5 Pooling Agreement
Schedule G-4 Form of Upper Tier Pooling Agreement
Schedule H List of Motor Vehicles and Description of Motor Vehicle Leases
Schedule I Form of Special Warranty Deed
Schedule J List of Renovation Contracts
Schedule K Form of Assignment and Assumption of Contracts
Schedule L Form of Assignment and Assumption of Occupancy Agreements
Schedule M Form of Xxxx of Sale
Schedule N Schedule of Non-Terminable Contracts
Schedule O Litigation Matters
Schedule P List of Environmental Reports
Schedule Q Form of Assignment and Assumption of Intangible Property
Schedule R Purchaser and Property Transferee Organizational Chart
