[The Prime Group Letterhead]
EXHIBIT 10.35
April 3, 1997
VIA FACSIMILE
AND MESSENGER
(000) 000-0000
KILICO Realty Corporation and
Xxxxxx Investors Life Insurance Company
c/o ZKS Real Estate Partners
000 X. Xxxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Re: Second Amendment to September 17, 1996
Senior Housing Portfolio Letter Agreement
-----------------------------------------
Dear Xxx:
Reference is hereby made to that certain Letter Agreement, dated September
17, 1996 (the "9/17/96 Letter Agreement"), between The Prime Group, Inc.
("Prime"), on the one hand, and KILICO Realty Corporation and Xxxxxx Investors
Life Insurance Company (collectively, "Xxxxxx"), on the other hand, as amended
by that certain Letter Agreement, dated December 20, 1996 (the "First
Amendment"), between Prime and Xxxxxx (the 9/17/96 Letter Agreement, as amended
by the First Amendment, is referred to herein as the "Original Agreement"). This
letter (the "Second Amendment") amends the Original Agreement. All capitalized
terms used in this Second Amendment which are not specifically defined in this
Second Amendment, but which are defined in the Original Agreement, shall have
the meaning given such terms in the Original Agreement.
The parties hereby agree to amend the Original Agreement as follows:
1. The parties hereto hereby agree and acknowledge that, as of the date
hereof, there has been deposited with Xxxxxx in accordance with paragraph 3 of
the Original Agreement an aggregate amount (for purposes of this Second
Amendment, the "Original Deposit") of Five Million Seven Hundred Seventy-Nine
Thousand Five Hundred Seventeen and no/100 dollars ($5,779,517.00), which amount
includes the amount designated as the Original Deposit in the First Amendment.
The parties hereto hereby agree that, from and after the date of this
Amendment, except as provided in paragraph 9(b) of
Xx. Xxxxxx Xxxxxxx
April 3, 1997
Page 2
the Original Agreement, as amended by this Second Amendment: Xxxxxx shall be
the sole owner of the Original Deposit free and clear of any claim or interest
of Prime; the Original Deposit shall not be considered or treated as Xxxxxxx
Money for any purpose under the Original Agreement; and the Original Deposit
shall not be refundable to Prime for any reason; provided, however, that, at the
Closing, the Original Deposit shall be credited against the Purchase Price.
Notwithstanding the foregoing, the provisions of paragraph 3 of the Original
Agreement shall remain in force and obligate Prime to deposit with Xxxxxx as
Xxxxxxx Money under the Original Agreement, on the first business day of each
month after the date hereof until Closing, the Net Cash Flow generated by Ponds
L.P. and ROP during the preceding month.
2. Clause (a) of paragraph 2 of the Original Agreement is hereby deleted
in its entirety and replaced with the following:
"(a) Five Million Four Hundred Twenty-Eight Thousand and no/100 Dollars
($5,428,000.00) plus Six Thousand and no/100 Dollars ($6,000.00) per day
from and after April 1, 1997 until the Closing Date (the "Purchase Price"),
and".
3. Paragraph 4 of the Original Agreement (including that portion of
paragraph 4 of the Original Agreement which was added by the First Amendment) is
hereby deleted in its entirety and replaced with the following:
"4. Closing; Closing Date. The sale and purchase of the Xxxxxx Senior
Housing Interests (the "Closing") shall occur on a date (the "Closing
Date") designated by Prime upon written notice delivered to Xxxxxx on or
before April 8, 1997; provided, however, the Closing Date shall not be
later than April 15, 1997."
4. Xxxxxx hereby reaffirms and reiterates, as of the date of this Second
Amendment, all of the representations and warranties made by Xxxxxx in paragraph
6 of the Original Agreement. Prime hereby reaffirms and reiterates, as of the
date of this Second Amendment, all of the representations and warranties made by
Prime in paragraph 7 of the Original Agreement.
5. Paragraph 9(b) of the Original Agreement is hereby amended (a) by
deleting the amount of "Two Million Six Hundred Sixty-Five Thousand Nine Hundred
Twenty-Two and no/100 Dollars ($2,665,922)" in clause (i) thereof (which was
added by the First Amendment) and replacing such amount with the amount of "Two
Million Three Hundred Sixty-Five Thousand Twenty-Four and no/100
Xx. Xxxxxx Xxxxxxx
April 3, 1997
Page 3
Dollars ($2,365,024)", and (b) deleting therefrom the words ", and (ii) that
portion of the Xxxxxxx Money deposited with Xxxxxx from and after January 2,
1997 that is attributable to Prime's respective percentage interests in
distributions of Ponds L.P. and ROP based on current ownership interests" (which
was added by the First Amendment).
6. The parties hereto acknowledge that the letter, dated March 31, 1997,
from Prime to Xxxxxx which designated April 9, 1997 as the Closing Date is
rescinded.
7. Except as amended or modified by this Second Amendment, the terms and
provisions of the Original Agreement shall remain and continue in full force
and effect. All references to the Agreement shall refer to the Original
Agreement as amended by this Second Amendment. All reference to the Sale
Agreement in that certain letter, dated September 17, 1996, delivered by ROP and
Ponds L.P. to Realty and KILICO in accordance with Paragraph 10 of the Original
Agreement, which letter was confirmed by Realty and KILICO and consented to by
PGI, shall mean the Original Agreement as amended by the Second Amendment.
8. This Second Amendment may be executed in one or more counterparts, each
of which, when executed and delivered, shall be deemed to be an original and all
of which counterparts, taken together, shall constitute one and the same
document with the same force and effect as if the signatures of all of the
parties were on a single counterpart.
If the foregoing corresponds to Xxxxxx'x understanding of the terms of the
agreement between Xxxxxx and Prime to amend the Original Agreement, please so
signify by having a duly authorized officer or duly authorized officers of
Xxxxxx execute the enclosed copy of this letter and returning the executed copy
of this letter to the undersigned.
Very truly yours,
THE PRIME GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
----------------------------
Title: Executive Vice President
---------------------------
Xx. Xxxxxx Xxxxxxx
April 3, 1997
Page 4
ACCEPTED AND AGREED TO:
-----------------------
KILICO REALTY CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
-----------------------------
Title: Authorized Signatory
----------------------------
Date: 4-4-97
-----------------------------
XXXXXX INVESTORS LIFE INSURANCE COMPANY
By: /s/ Xxxxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxxxx Xxxxxxxx
-----------------------------
Title: Authorized Signatory
----------------------------
Date: 4-4-97
-----------------------------
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
-----------------------------
Title: Authorized Signatory
----------------------------
Date: 4-4-97
-----------------------------
