Exhibit 2.5
SECOND AMENDMENT TO SALE-PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO SALE-PURCHASE AGREEMENT (this "AMENDMENT") is
made as of March 1, 2002, among ILM II SENIOR LIVING, INC., a Virginia
finite-life corporation ("ILM II"), ILM II HOLDING, INC., a Virginia corporation
("Seller"), and FIVE STAR QUALITY CARE, INC., a Maryland corporation
("PURCHASER").
RECITALS:
ILM II, Seller and Purchaser have entered into a Sale-Purchase
Agreement dated as of January 23, 2002, as amended by a First Amendment to
Sale-Purchase Agreement dated as of February 22, 2002 (the "PURCHASE
AGREEMENT"), and have agreed, subject to the terms and conditions set forth
below, to further amend the Purchase Agreement as provided below.
NOW THEREFORE, in consideration of the foregoing, and the
representations, warranties, covenants and agreements set forth in this
Amendment, the parties agree as follows:
Section 1. DEFINITIONS. Capitalized terms used and not otherwise
defined herein shall have the meanings given such terms in the Purchase
Agreement.
Section 2. AMENDMENTS. Effective as of the date hereof, the Purchase
Agreement shall be amended as follows:
(a) Article 5A of the Purchase Agreement is amended in full to read as
follows:
A. The "CLOSING" shall mean the consummation of each
of the actions enumerated in ARTICLE 8 of this Agreement, or
the waiver of such action by the party in whose favor such
action is intended. The Closing shall take place at 10:00
A.M., Eastern Standard Time, at the offices of Xxxxxxxxx
Traurig, LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on
April 1, 2002; PROVIDED, HOWEVER, that in the event Purchaser
shall have been unable to complete its licensing by April 1,
2002, and so long as Purchaser is proceeding to complete its
licensing in good faith, Purchaser may extend the Closing Date
to a date no later than May 1, 2002 (as the same may be
accelerated or extended as expressly provided herein, the
"CLOSING DATE"), TIME BEING OF THE ESSENCE as to Purchaser's
and Seller's obligation to close on or before the Closing
Date.
In the event that Purchaser shall extend the
Closing Date pursuant to the proceeding clause (ii) of this
Article 5A with respect to any one or more Facilities, Seller
will execute an Interim Management Agreement with Purchaser or
its affiliate with respect to such Facilities, on terms
substantially in accordance with the terms of the Management
Agreement, dated as of July 29, 1996 (the "MANAGEMENT
AGREEMENT"), among ILM II Lease Corporation, as owner, and
Capital Senior Management 2, Inc., as manager, with such
modifications as Purchaser and Seller may mutually agree
(which modifications shall include, without limitations, a
deletion of the provisions of Section 1.02(b)(i) of the
Management Agreement); PROVIDED, HOWEVER, that as to the term
of such Interim Management Agreement, the parties will agree
that the term will expire upon the
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Closing with respect to such Facilities, or if such Closing
does not occur and the this Agreement is terminated for any
reason, the term, at Seller's option, will extend for such
reasonable period after such termination as may be necessary
for Seller to find a replacement manager (not to exceed,
however, one hundred eighty (180) days). In addition, any and
all costs associated with finding and maintaining a
replacement manager during such termination period will be
borne by Purchaser unless such Closing does not occur and the
Agreement is terminated due to Seller's or ILM II's default
thereunder. Purchaser understands that Purchaser's agreement
contained in this paragraph is material to Seller due to its
REIT status, as its ability to actively manage the Facilities
is severely restricted.
Purchaser further agrees that Purchaser will
indemnify and hold harmless Seller, ILM II and ILM II Lease
Corporation from any and all claims and liabilities of any
type or nature arising out of, or related to, the management
or operation of the Facilities during any period that
Purchaser is managing or operating the Facilities pursuant to
the provisions of this Article 5A (including, without
limitation, any claims of personal injury or property damage
arising at the Facilities during such period) but excepting
and excluding in all events any and all claims and liabilities
covered by insurance to the extent provided in the Management
Agreement.
Section 3. MISCELLANEOUS
(a) Except as herein provided, the Purchase Agreement shall remain
unchanged and in full force and effect, and is hereby ratified and confirmed.
(b) Each party hereto represents that is has taken all action required
to authorize, execute and deliver this Amendment, and to make all of the
provisions of this Amendment valid and enforceable and had caused this Amendment
to be executed by a duly authorized officer of such party.
(c) This Amendment may be executed in any number of counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts shall constitute one and the same agreement.
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EXECUTED under seal as of the date first above written.
ILM II:
ILM II SENIOR LIVING, INC.
By: /s/ X.X. Xxxxxxx, Xx.
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Name: X.X. Xxxxxxx, Xx.
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Title: President
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SELLER:
ILM II HOLDING, INC.
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Title: President
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PURCHASER:
FIVE STAR QUALITY CARE, INC.
By: /s/ Xxxxx X. Xxxxxx Xx.
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Name: Xxxxx X. Xxxxxx Xx.
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Title: Chief Financial Officer
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