AMENDMENT TO STOCK PURCHASE AGREEMENT (this
"Amendment"), dated as of July 20, 1997, made by
and between ARV Assisted Living, Inc., a
California corporation (the "Company"), Lazard
Freres Real Estate Investors L.L.C., a New York
limited liability company or an Affiliate thereof
(the "Advancing Party") and Prometheus Assisted
Living LLC, a Delaware limited liability company
and an affiliate of the Advancing Party ("Buyer"),
amending that certain Stock Purchase Agreement
dated as of July 14, 1997, made by and between the
parties hereto (the "Agreement")(terms used herein
but not defined have the meanings assigned to such
terms in the Agreement).
WHEREAS, the parties hereto have entered into the Agreement
and now desire to modify certain terms thereof.
NOW, THEREFORE, in consideration of the provisions and
agreements contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, notwithstanding anything to the contrary in the
Agreement and the Transaction Documents, the parties hereto hereby
agree as follows:
1. Section 5.9, Section 6.4, Section 7.1(a) and Section
7.1(c) of the Agreement are hereby deleted.
2. Section 2.3 of the Agreement is hereby replaced in its
entirety as follows:
"Section 2.3 Initial Closing. Subject to the terms and
conditions hereof, immediately following the date on which the
applicable conditions set forth in Sections 7.1, 7.3 and 7.4
shall have been satisfied or duly waived, Buyer will purchase and
acquire (and the Advancing Party shall advance sufficient funds
for such purchase) from the Company, and the Company will sell,
convey, assign, transfer and deliver to Buyer, the Initial Number
of Shares of Company Common Stock, and Buyer will pay to the
Company the Purchase Price for such shares of Company Common
Stock (the "Initial Closing"); provided, however, that if the
applicable conditions set forth in Sections 7.1, 7.3 and 7.4
shall have been duly satisfied or waived prior to July 31, 1997,
Buyer shall have the option, at its sole discretion, to
consummate the Initial Closing by purchasing (i) 1,064,286 of the
Initial Number of Shares on the date such conditions are
satisfied or waived and (ii) 856,726 of the Initial Number of
Shares on a date to be determined at Buyer's election but which
date shall be prior to August 1, 1997 (unless expressly provided
for herein, each such date on which shares are purchased pursuant
to clauses (i) and (ii) of this proviso shall be separately
considered an Initial Closing for purposes of this Agreement)."
3. The last sentence of Section 3.19 of the Agreement is
hereby replaced in its entirety as follows:
"The record date for such vote will be established on or
after the latest date that shares are purchased at the
Initial Closing."
4. The first sentence of Section 3.23 of the Agreement is
hereby replaced in its entirety as follows:
"If Buyer obtains knowledge prior to the first date on which
shares are purchased at the Initial Closing that any of
representations or warranties of the Company set forth in
this Article 3 are untrue in any respect and Buyer
nevertheless elects to acquire Company Common Stock at the
Initial Closing, then such breach shall be deemed to have
been waived by the Buyer and the Company shall have no
liability to Buyer in respect thereof."
5. The last sentence of Section 5.4(c) of the Agreement is
hereby replaced in its entirety as follows:
"This provision shall not survive the first date on which
shares are purchased at the Initial Closing."
6. Section 5.10(ii)(y) of the Agreement is hereby replaced
in its entirety as follows:
"(y) with respect to certain matters to be agreed upon by
the Company and Buyer prior to the latest date which shares
are purchased at the Initial Closing, the affirmative vote
or at least four members of the Executive Committee acting
at a duly convened meeting of the Executive Committee and"
7. Section 9.1(a) of the Agreement is hereby replaced in its
entirety as follows:
"This Agreement may be terminated at any time prior to the
first date on which shares are purchased at the Initial
Closing by:"
8. Section 9.1(b)(iii) of the Agreement is hereby replaced
in its entirety as follows:
"(iii) the Company at any time after the latest date that
shares are purchased at the Initial Closing, if the Board in
compliance with Section 5.6 hereof determines in good faith
to terminate in favor of a Competing Transaction, subject to
the Company's obligation to pay Buyer certain fees pursuant
to Section 9.3 hereof."
9. The first sentence of Section 1.84 of the Agreement is
hereby replaced in its entirety as follows:
"'Remaining Equity Commitment' shall mean, on any given date
after the Initial Closing, the Total Equity Commitment minus
the Purchase Price of the shares acquired at the Initial
Closing and, if any Subsequent Purchases shall have
occurred, minus the Subsequent Purchase Prices."
IN WITNESS WHEREOF, this Amendment has been signed by or on
behalf of each of the parties hereto as of the day first above
written.
ARV ASSISTED LIVING, INC.
by: /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chairman
& Chief Executive Officer
PROMETHEUS ASSISTED LIVING LLC
by: Lazard Freres Real Estate
Investors L.L.C., its sole member
by: /s/ Xxxxx X. Xxxxx
-----------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
LAZARD FRERES REAL ESTATE
INVESTORS L.L.C.
by: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
