EXHIBIT 10.24
December 20, 1996
KILICO Realty Corporation and
Xxxxxx Investors Life Insurance Company
c/o ZKS Real Estate Partners LLC
000 X. Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Re: First Amendment to September 17, 1996
Senior Housing Portfolio Letter Agreement
-----------------------------------------
Dear Xxx:
Reference is hereby made to that certain letter agreement (the "Original
Agreement"), dated September 17, 1996, between The Prime Group, Inc., on the one
hand, and KILICO Realty Corporation and Xxxxxx Investors Life Insurance Company,
on the other hand. This letter (this "First Amendment") amends the Original
Agreement. All capitalized terms used in this First Amendment which are not
specifically defined in this First Amendment, but which are defined in the
Original Agreement, shall have the meanings given to such terms in the Original
Agreement.
The Original Agreement provides for the purchase by Prime from Xxxxxx, and
the sale by Xxxxxx to Prime, of the Xxxxxx Senior Housing Interests in
accordance with the terms and subject to the conditions set forth in the
Original Agreement. The parties hereto hereby agree to amend the Original
Agreement as follow:
1. The parties hereto hereby agree and acknowledge that, as of the date
hereof, Xxxxxxx Money in the aggregate amount of Four Million Five Hundred
Thirty-One Thousand Five Hundred Ninety-Five and no/100 Dollars ($4,531,595.00)
has been deposited with Xxxxxx in accordance with Paragraph 3 of the Original
Agreement (the "Original Deposit"). The parties hereto hereby agree that, from
and after the date of this Amendment, except as
KILICO Realty Corporation and
Xxxxxx Investors Life Insurance Company
2
December 20, 1996
provided in paragraph 9(b) of the Original Agreement, as amended by this First
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, commencing on January
2, 1997 and continuing on the first business day of each succeeding month until
Closing, the Net Cash Flow generated by Ponds L.P. and ROP during the preceding
month.
2. Paragraph 4 of the Original Agreement is hereby amended by adding
the following at the end thereof:
"Notwithstanding the foregoing, at the option of Prime (the
"Extension Option"), which Extension Option must be exercised,
if at all, by Prime by the delivery of written notice to Xxxxxx
of such exercise on or before December 20, 1996, the December
30, 1996 date set forth in the immediately preceding sentence
shall be changed to April 11, 1997 (provided that the Closing
Date may not be any date between March 15, 1997 and March 31,
1997, inclusive). In the event Prime exercises the Extension
Option, (a) the Purchase Price shall be increased to an amount
equal to the sum of Five Million One Hundred Fifty-Eight and
no/100 Dollars ($5,158,000.00) plus (i) Two Thousand and no/100
Dollars ($2,000.00) per day for each day after December 30, 1996
to and including the earlier of January 31, 1997 or the Closing
Date, plus (ii) if the Closing Date has not occurred on or
before January 31, 1997, Three Thousand and no/100 Dollars
($3,000.00) per day from February 1, 1997 to and including the
earlier of February 28, 1997 or the Closing Date, plus (iii) if
the Closing Date has not occurred on or before February 28,
1997, Four Thousand and no/100 Dollars ($4,000.00) per day from
March 1, 1997 to and including the earliest of (x) March 31,
1997, (y) the Closing Date (other than between March 15, 1997
and Xxxxx 00, 0000, xxxxxxxxx), xx (x) the IPO Closing Date if
the IPO Closing Date occurs between March 15, 1997 and March 31,
1997, inclusive, in which event the Closing hereunder shall not
occur on the IPO Closing Date, but the parties shall deposit in
escrow on the IPO Closing Date such documents as may be
reasonably required to assure consummation of the Closing in
accordance with the provisions of this Agreement, and (b) the
written notice described in the first sentence of this paragraph
4 must be given, if at all, no later than March 31, 1997.
Notwithstanding the provisions of the preceding sentence, in the
event Prime has exercised the Extension Option and the Closing
occurs
KILICO Realty Corporation and
Xxxxxx Investors Life Insurance Company
3
December 20, 1996
on or before December 31, 1996, the Purchase Price shall be Four
Million Nine Hundred Eight Thousand and no/100 Dollars
($4,908,000.00). For purposes hereof, the "IPO Closing Date" shall
mean the date of consummation of the initial public offering of the
entity that is contemplated to acquire the Xxxxxx Senior Housing
Interests or to operate the Devonshire and the Heritage, which entity
is now known as Brookdale Living Communities, Inc."
3. Xxxxxx hereby reaffirms and reiterates, as of the date of this
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 Amendment, all of the representations and warranties made by Prime
in paragraph 7 of the Original Agreement.
4. Paragraph 9(b) of the Original Agreement is hereby amended by adding
the following after the words "specific performance" in the last line thereof:
"; provided, however, for purposes of this paragraph 9(b), the Xxxxxxx
Money shall only include (i) a portion of the Original Deposit in the
amount of Two Million Six Hundred Sixty-Five Thousand Nine Hundred
Twenty-Two and no/100 Dollars ($2,665,922.00), 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."
5. Expect as amended or modified by this First 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 First Amendment. All references 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 this First Amendment.
6. This First 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.
[signature page follows]
KILICO Realty Corporation and
Xxxxxx Investors Life Insurance Company
4
December 20, 1996
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.
Sincerely,
THE PRIME GROUP, INC.
By:
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Its:
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ACCEPTED AND AGREED TO:
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KILICO REALTY CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Its: Authorized Signatory
Date: December 20, 1996
XXXXXX INVESTORS LIFE INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Its: Authorized Signatory
Date: December 20, 1996
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Its: Authorized Signatory
Date: December 20, 1996
