FIRST AMENDMENT TO SALE CONTRACT
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THIS FIRST AMENDMENT TO SALE CONTRACT (this "AMENDMENT") is made and
entered into as of the 1st day of May, 2002, by and between (i) INTEGRATED
LIVING COMMUNITIES OF ALEXANDRIA, L.L.C., INTEGRATED LIVING COMMUNITIES OF LAKE
XXXXXXX, L.L.C., INTEGRATED LIVING COMMUNITIES OF LAFAYETTE, L.L.C., INTEGRATED
LIVING COMMUNITIES OF XXXXXXXXX, X.X., INTEGRATED LIVING COMMUNITIES OF OAKWELL,
L.P., INTEGRATED LIVING COMMUNITIES OF SAN ANTONIO, L.P., AND INTEGRATED LIVING
COMMUNITIES OF XXXXXXXX, X.X. (each a "SELLER" and collectively, the "SELLERS"),
and (ii) EMERITUS CORPORATION ("BUYER").
RECITALS
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A. Sellers and Buyer entered into that certain Sale Contract dated
April 4, 2002 (the "SALE CONTRACT"), under which terms and conditions were set
forth for Sellers to sell and Buyer to purchase Sellers' interest in the
Facility Leases and the Facilities (capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Sale Contract).
B. HRT has not delivered the Required Consent as of the date hereof, which
is a mutual condition precedent to closing under Section 12 of the Sale
Contract, and Sellers and Buyer mutually desire to extend the Closing Date with
respect to the Facilities leased from HRT under the terms and conditions set
forth below.
C. An affiliate of Sellers, Integrated Living Communities, L.L.C., a
Delaware limited liability company ("ILC"), leases nine vehicles pursuant to a
Motor Vehicle Lease Agreement dated March 11, 1998 by and between ILC and
NationsBanc Leasing Corporation ("LEASE AGREEMENT"). Seven of the vehicles (the
"LEASED FACILITY VEHICLES") benefit the Facilities (one vehicle is allocated to
each Facility), and Sellers and Buyer mutually desire to describe the accounting
treatment which will be accorded to the Leased Facility Vehicles under the terms
and conditions set forth below.
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth, and of other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. Recitals. The recitals set forth above are hereby incorporated as if set
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forth herein in their entirety.
2. Amendment to Closing Date. Section 6(a) of the Sale Contract is hereby
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amended to provide that the Closing Date with respect to the Facilities leased
from HRT shall mean the earlier to occur of the date on which the conditions
precedent to closing set forth in Section 12 of the Sale Contract are satisfied
or May 10, 2002 (provided that in no event shall either Sellers or Buyer be
required to close unless the conditions precedent in Section 12 of the Sale
Contract which are applicable to each of their obligations to close are
satisfied). Provided that the Closing Date for the Facilities leased from HRT
shall occur on or before May 10, 2002, for purposes of determining Sellers'
obligation to fund Operating Losses, as described in Section 4 of the Sale
Contract, and determining prorations, as described in Section 6(d) of the Sale
Contract, the Closing Date shall be deemed to have occurred on May 1, 2002
("DEEMED CLOSING DATE"). Notwithstanding the immediately preceding sentence,
the Closing Documents shall be dated as of the actual Closing Date, not the
Deemed Closing Date; and the term "Closing Date", for all purposes other than
those described in the immediately preceding sentence, shall be the actual
Closing Date and not the Deemed Closing Date. If the Closing Date shall not
have occurred on or before May 10, 2002, then the Closing Date shall be further
extended to June 1, 2002.
3. Leased Facility Vehicles. Payments made for debt service and/or lease or
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sublease payments with respect to the Leased Facility Vehicles (regardless of
whether such payments are made to the lender under the Lease Agreement because
the Lease Agreement has been assigned by ILC to Buyer or to ILC because the
Leased Facility Vehicles have been subleased by ILC to Buyer), as well as any
vehicles leased in substitution for a Leased Facility Vehicle because the lender
under the Lease Agreement did not permit the assignment of the Lease Agreement
with respect to the Leased Facility Vehicles or the sublease of the Leased
Facility Vehicles, and payments made with respect to the exercise of a purchase
option on the Leased Facility Vehicles shall each be considered a facility
expense, which may be included in calculating Operating Losses as described in
Section 4(a) of the Sale Contract.
4. Counterparts; Facsimile Signatures. This Amendment may be executed in
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counterparts which together will constitute one agreement. For purposes of
determining the enforceability of this Amendment, facsimile signatures shall be
deemed originals.
5. Successors and Assigns. This Amendment shall be binding upon and inure
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to the benefit of the parties and their successors and assigns.
6. Ratification. All terms and conditions of the Sale Contract not amended
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pursuant to this Amendment are hereby ratified and confirmed and remain in full
force and effect.
[SIGNATURES FOLLOW ON NEXT PAGE]
IN WITNESS WHEREOF, the undersigned parties have executed this First
Amendment as of the day and year first above stated.
SELLERS:
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INTEGRATED LIVING COMMUNITIES OF ALEXANDRIA, L.L.C.
By: /s/ Xxx X. XxXxxx
Xxx X. XxXxxx
Vice President and Chief Financial Officer
INTEGRATED LIVING COMMUNITIES OF LAKE XXXXXXX, L.L.C.
By: /s/ Xxx X. XxXxxx
Xxx X. XxXxxx
Vice President and Chief Financial Officer
INTEGRATED LIVING COMMUNITIES OF LAFAYETTE, L.L.C.
By: /s/ Xxx X. XxXxxx
Xxx X. XxXxxx
Vice President and Chief Financial Officer
INTEGRATED LIVING COMMUNITIES
OF XXXXXXXXX, X.X.
By: Integrated Living Communities of Xxxxxxxxx Gen-Par, L.L.C.
General Partner
By: /s/ Xxx X. XxXxxx
Xxx X. XxXxxx
Vice President and Chief Financial
Officer
[signatures continue on next page]
INTEGRATED LIVING COMMUNITIES
OF OAKWELL, L.P.
By: Integrated Living Communities of Oakwell Gen-Par, L.L.C.
General Partner
By: /s/ Xxx X. XxXxxx
Xxx X. XxXxxx
Vice President and Chief Financial
Officer
INTEGRATED LIVING COMMUNITIES
OF SAN ANTONIO, L.P.
By: Integrated Living Communities of San Antonio Gen-Par, L.L.C.
General Partner
By: /s/ Xxx X. XxXxxx
Xxx X. XxXxxx
Vice President and Chief Financial
Officer
INTEGRATED LIVING COMMUNITIES
OF XXXXXXXX, X.X.
By: Integrated Living Communities of XxXxxxxx Gen-Par, L.L.C.
General Partner
By: /s/ Xxx X. XxXxxx
Xxx X. XxXxxx
Vice President and Chief Financial
Officer
[signatures continue on next page]
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BUYER:
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EMERITUS CORPORATION
By: /s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
Chairman and Chief Executive Officer
The undersigned is executing this First Amendment for the sole purpose of
evidencing its agreement to the provisions hereof.
HORIZON BAY MANAGEMENT, L.L.C.
By: /s/ Xxx X. XxXxxx
Xxx X. XxXxxx
Vice President and Chief Financial Officer
