EXHIBIT 10.67
Fifth Amendment to
Purchase and Sale Agreement
dated January 20, 2004
FIFTH AMENDMENT
TO
PURCHASE AND SALE AGREEMENT
by and among
Riverchase Assisted Living, Ltd.
Senior Lifestyle Heritage, L.L.C.
Integrated Management - ▇▇▇▇▇▇▇▇▇▇ Pointe, L.L.C.
Integrated Living Communities of West Palm Beach, L.L.C.
Senior Lifestyle Newport Limited Partnership
Senior Lifestyle Pinecrest Limited Partnership
Senior Lifestyle Prosperity Limited Partnership
Integrated Living Communities of Sarasota, L.L.C.
Olympia Fields Senior Housing, L.L.C.
Senior Lifestyle East Bay Limited Partnership
Senior Lifestyle Emerald Bay Limited Partnership
Greenwich Bay, L.L.C.
Senior Lifestyle North Bay Limited Partnership
Senior Lifestyle Sakonnet Bay Limited Partnership
South Bay Manor, L.L.C.
West Bay Manor, L.L.C. and
Integrated Living Communities of Dallas, L.P.
collectively, as Sellers,
and
CNL Retirement Corp., a Florida corporation,
as Purchaser
January 20, 2004
FIFTH AMENDMENT
TO
PURCHASE AND SALE AGREEMENT
THIS FIFTH AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment")
is made effective as of January 20, 2004 by and among (i) (1) Riverchase
Assisted Living, Ltd., a Texas limited partnership, (2) Senior Lifestyle
Heritage, L.L.C, a Delaware limited liability company, (3) Integrated Management
- ▇▇▇▇▇▇▇▇▇▇ Pointe, L.L.C., a Delaware limited liability company, (4)
Integrated Living Communities of West Palm Beach, L.L.C. , a Delaware limited
liability company, (5) Senior Lifestyle Newport Limited Partnership, a Delaware
limited partnership, (6) Senior Lifestyle Pinecrest Limited Partnership, a
Delaware limited partnership, (7) Senior Lifestyle Prosperity Limited
Partnership, a Delaware limited partnership, (8) Integrated Living Communities
of Sarasota, L.L.C., a Delaware limited liability company, (9) Olympia Fields
Senior Housing, L.L.C., a Delaware limited liability company, (10) Senior
Lifestyle East Bay Limited Partnership, a Delaware limited partnership, (11)
Senior Lifestyle Emerald Bay Limited Partnership, a Delaware limited
partnership, (12) Greenwich Bay, L.L.C., a Delaware limited liability company,
(13) Senior Lifestyle North Bay Limited Partnership, a Delaware limited
partnership, (14) Senior Lifestyle Sakonnet Bay Limited Partnership, a Delaware
limited partnership, (15) South Bay Manor, L.L.C., a Delaware limited liability
company, (16) West Bay Manor, L.L.C., and (17) Integrated Living Communities of
Dallas, L.P., a Delaware limited partnership (each a "Seller" and collectively,
"Sellers"), and (ii) CNL Retirement Corp., a Florida corporation ("Purchaser").
W I T N E S S E T H:
WHEREAS, Sellers and Purchaser entered into a Purchase and Sale
Agreement dated as of December 19, 2003 (the "Base Agreement"), as amended by
that certain First Amendment to Purchase and Sale Agreement dated December 30,
2003 (the "First Amendment"), that certain Second Amendment to Purchase and Sale
Agreement dated December 31, 2003 (the "Second Amendment"), that certain Third
Amendment to Purchase and Sale Agreement, dated January 5, 2004 (the "Third
Amendment"), and that certain Fourth Amendment to Purchase and Sale Agreement,
dated January 16, 2004 (the "Fourth Amendment") (collectively with the Base
Agreement, the First Amendment, the Second Amendment, the Third Amendment and
the Fourth Amendment, the "Original Agreement") with respect to the purchase and
sale of nineteen (19) senior living facilities.
WHEREAS, Sellers and Purchaser wish to amend the Original Agreement as
set forth in this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the mutual receipt and
legal sufficiency of which are hereby acknowledged, Sellers and Purchaser hereby
agree as follows:
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SECTION 1. DEFINITIONS.
Capitalized terms used in this Amendment and not defined elsewhere
herein shall have the meanings set forth on the Original Agreement.
SECTION 2. ENVIRONMENTAL AND INSURANCE.
2.1 Environmental Review. Notwithstanding anything herein to the
contrary herein, subject only to the provisions of Section 2.3 relating to
Sakonnet Bay Manor below, Purchaser has completed its environmental (and all
other due diligence) investigations of the Properties and has reviewed, accepted
and approved the results of such investigations, irrespective of any further
information it may receive regarding the Properties, including any information
it may receive as a result of the South Bay Environmental Activities.
2.2 South Bay Environmental Activities. Sellers hereby consent, under
the terms and conditions set forth in this Section 2.2, to Purchaser's
environmental consultant undertaking the South Bay Environmental Activities. All
South Bay Environmental Activities, whether performed before or after Closing,
shall be at Purchaser's sole cost and expense and shall be performed in
accordance with all of the terms and conditions of the Access Agreement,
including the insurance and indemnification provisions thereof. Sellers shall
receive at least twenty-four (24) hours notice of any South Bay Environmental
Activity to allow for a Sellers' Representative to be present for any South Bay
Environmental Activity. If Purchaser's environmental consultant takes any sample
from a Property in connection with any South Bay Environmental Activity,
Purchaser shall provide to Sellers' Representative a portion of such sample so
as to allow, but not require, Sellers to cause its environmental professionals
to perform testing on such sample. Purchaser shall deliver to the applicable
Seller within one (1) Business Day of receipt copies of any reports or
documentation relating to any South Bay Environmental Activity.
2.3 Sakonnet Environmental Condition. It shall be a condition precedent
to Purchaser's and the Sakonnet Bay Manor Seller's obligations to close on
Sakonnet Bay Manor that the Sakonnet Environmental Condition shall be satisfied.
To allow the Sakonnet Environmental Condition to be satisfied, Purchasers and
Sellers hereby extend the Closing Date with respect to Sakonnet Bay Manor only
to a date (the "Sakonnet Extended Closing Date") which is the earlier of (i) the
date which is five (5) Business Days after the date on which the Sakonnet
Environmental Condition is satisfied (or waived in writing by the Sakonnet Bay
Seller and Purchaser), provided that the conditions precedent to Closing set
forth in Sections 4 and 5 of the Original Agreement are satisfied (or waived in
writing by the applicable party pursuant to the provisions of Sections 4 and 5
of the Original Agreement), or (ii) January 20, 2005. The Closing on all
Properties other than Sakonnet Bay Manor shall occur in accordance with the
provisions of the Original Agreement. Purchaser shall proceed to Closing on the
Closing Date in accordance with all the terms and conditions of this Agreement
on the Properties other than Sakonnet Bay Manor, Purchaser shall provide the
Title Company at the initial Closing with a deposit of the Second Security
Amount and the Purchase Price at the initial Closing shall be reduced by the
Sakonnet Bay Manor Allocated Purchase Price ($24,678,951) and the Aggregate
Shortfall Reserve Fund at the initial Closing shall be reduced by the greater of
Two Hundred Forty Eight Thousand Dollars ($248,000) or the portion of the
Aggregate Shortfall Reserve Fund allocated to Sakonnet Bay Manor on Schedule F
of the Original Agreement, such adjustments to reflect that
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Sakonnet Bay Manor is not included in the initial Closing. Purchaser shall
proceed to Closing on Sakonnet Bay Manor on the Sakonnet Extended Closing Date
subject to all of the terms and conditions of the Agreement. If the Closing on
Sakonnet Bay Manor has not occurred by January 20, 2005, then this Agreement
shall terminate and be of no further force and effect except with respect to
provisions hereof which by their express terms survive a termination of the
Agreement, Purchaser shall (subject to the terms of Section 11.2 of the Original
Agreement to the contrary) receive a return of the Second Security Amount, and
each party to the Agreement shall (subject to the terms of Section 11.1 of the
Original Agreement to the contrary), pay for its own out-of-pocket expenses
incurred in respect of the transactions contemplated by the Agreement. At any
time prior to Closing on Sakonnet Bay Manor, Purchaser shall have the right to
waive satisfaction of the Sakonnet Environmental Condition and proceed to
Closing within five (5) Business Days after notice to the Sakonnet Bay Manor
Seller under the terms of the Original Agreement.
2.4 Insurance. Purchaser and Sellers agree that it shall be a condition
of Closing that the Insurance Program Condition shall be satisfied on the
Closing Date. For the sake of clarification, Purchaser and Sellers acknowledge
that (i) the Three Million One Hundred Forty-Nine Thousand Three Hundred Seven
Dollars ($3,149,307) budget in the definition of Insurance Program Condition
does not include worker's compensation insurance and (ii) the Insurance Program
Condition shall be satisfied if Sellers' general liability/professional
liability insurance coverage is on the risk management program currently in
effect with respect to the Properties with all other insurance coverage
satisfying Article 9 (Insurance) of the Lease for each Property provided that
such insurance in the aggregate satisfies the cost parameters set forth in the
definition of Insurance Program Condition.
SECTION 3. AMENDMENTS.
3.1 Amendments to Section 1. Section 1 (Definitions) of the Original
Agreement is hereby amended by adding the following new definitions:
"Sakonnet Environmental Condition" shall mean both the
Sakonnet No-Further Action Condition and the Sakonnet Testing
Condition.
"Sakonnet No-Further Action Condition" shall mean, provided
that the Sakonnet Bay Seller shall first have submitted to the
Rhode Island Department of Environmental Management ("RIDEM")
Purchaser's test results and any other documentation or test
results deemed advisable by the Sakonnet Bay Seller
(collectively, the "RIDEM Submission"), one of the following:
(i) a written RIDEM closure or other RIDEM equivalent of a
no-further action letter dated after the date of the RIDEM
Submission with respect to the 1994 UST Closure, Facility I.D.
#16959 (previously unregistered tank), residual Petroleum
Contamination ("UST Residual Contamination"); or (ii) RIDEM's
written confirmation dated after the date of the RIDEM
Submission that no further testing or remediation is required
with respect to the UST Residual Contamination (such
confirmation shall be deemed to be given if RIDEM fails to
respond to the Sakonnet Bay Manor Seller's request for a
closure or no-further action
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letter within ninety (90) days after RIDEM's receipt of the
last of no fewer than three (3) written requests (which
written requests shall be issued no more frequently than every
15 days) from the Sakonnet Bay Manor Seller, Purchaser, or
their respective Representatives, which letter(s) shall be
pre-approved by all parties; or (iii) a written RIDEM No
Further Action or equivalent letter issued for the Property
dated after the date of the RIDEM Submission upon completion
of any assessment and/or remediation performed as requested by
RIDEM to RIDEM's written satisfaction.
"Sakonnet Testing Condition" shall mean any intrusive
groundwater sampling and laboratory analytical testing results
which do not reveal Petroleum Contamination in excess of
applicable Rhode Island groundwater action standards
promulgated by RIDEM by regulation or as determined by RIDEM
on a site-specific basis, which testing is (i) performed on
behalf of the Sakonnet Bay Seller in accordance with RIDEM's
requirements in conjunction with satisfaction of the Sakonnet
No-Further Action Condition, (ii) performed on behalf of the
Sakonnet Bay Seller following not less than three (3) Business
Days' notice to Purchaser to allow for Purchaser's
environmental consultant to review and reasonably comment on
the scope of work, or (iii) performed on behalf of Purchaser
after approval, not to be unreasonably withheld, of the scope
of work by the Sakonnet Bay Seller and in accordance with the
Access Agreement and all other reasonable requirements of the
Sakonnet Bay Seller.
"South Bay Environmental Activities" shall mean Purchaser's
environmental consultant's performance at the South Bay Manor
Property from the date of this Amendment through Closing (and
after the Closing Date) of the following activities: (i)
excavation of soil to determine if the anomaly detected by
Purchaser's Representatives' ground penetrating radar survey
located approximately ten (10) feet southwest of the southwest
corner of the former greenhouse attached to the manor is an
underground storage tank, (ii) removal of any underground
storage tank found as a result of the excavation of soil in
clause (i) above, and (iii) sampling of soil and/ or
groundwater from the walls and floor of the excavated pit of
any such underground storage tank, and testing of such soil
solely for Petroleum Contamination, such removal and any
related activities to be performed strictly in accordance with
Applicable Laws relating to environmental conditions and
Hazardous Materials.
"Petroleum Contamination" shall mean any contamination caused
by the release of gasoline, diesel fuel, #2 fuel oil, #4 fuel
oil, #6 fuel oil, motor oil, and/or other petroleum products,
by-products, breakdown products, or constituents thereof.
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3.2 Amendments to Section 10 (Apportionments).
(a) Section 10.2 of the Original Agreement is hereby amended
by increasing the amount includable in the determination of rent by Five Hundred
Fifty Thousand Dollars ($550,000) from Five Million Eight Hundred Thousand
Dollars ($5,800,000) to Six Million Three Hundred Fifty Thousand Dollars
($6,350,000).
(b) The definition of Third-Party Costs set forth in Section
10.2(b) is hereby amended by the addition of the following subsections (xv) and
(xvi):
", (xv) a fee to Collateral Mortgage Capital, LLC in
connection with the transfer to Collateral Mortgage Capital,
LLC of the servicing rights to the Berkshire facility loans,
and (xvi) all fees and expenses, including Purchaser's and
Sellers' attorneys' and environmental consultant's fees and
expenses (the foregoing is an exception to the provision of
Section 10.2(b) rendering Sellers responsible for their
attorneys' and other professionals' fees and expenses) and
governmental filing and related fees, of satisfying the
Sakonnet Bay Environmental Condition, excluding any
governmental penalties and remediation costs (neither of which
shall constitute Third Party Costs)."
SECTION 4. ELECTION.
The election and delivery of this Amendment by Purchaser shall
constitute Purchaser's election not to deliver the Insurance Termination Notice
and the Environmental Termination Notice.
SECTION 5. MISCELLANEOUS.
5.1 Notices. Any and all notices, demands, consents, approvals, offers,
elections and other communications required or permitted under this Amendment
shall be delivered as set forth under Section 12.4 of the Original Agreement.
5.2 Counterparts, Etc. This Amendment may be executed in two (2) or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Facsimile signatures
shall be deemed originals for purposes of determining the enforceability of this
Amendment. This Amendment constitutes the entire agreement of the parties hereto
with respect to the subject matter hereof and shall supersede and take the place
of any other instruments purporting to be an agreement of the parties hereto
relating to the subject matter hereof. The Original Agreement as amended by this
Amendment may not be amended or modified in any respect other than by the
written agreement of all of the parties hereto.
5.3 Ratification. Except as amended by this Amendment, the terms of the
Original Agreement are hereby ratified and confirmed in all respects.
[SIGNATURE PAGES FOLLOW]
5
IN WITNESS WHEREOF, the parties have caused this Fifth Amendment to
Purchase and Sale Agreement to be executed as a sealed instrument as of the date
first hereinabove written.
SELLERS:
THE PARK AT RIVERCHASE (AL):
RIVERCHASE ASSISTED LIVING, LTD.,
a Texas limited partnership
By: WXI/Senior Lifestyle Riverchase
Gen-Par, L.L.C.,
a Delaware limited liability
company,
its General Partner
By: Integrated Living Communities,
L.L.C.,
a Delaware limited liability
company,
its Sole Member
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and
Chief Financial Officer
THE HERITAGE PALMERAS (AZ):
SENIOR LIFESTYLE HERITAGE, L.L.C.,
a Delaware limited liability company
By: WHSLA Real Estate Limited
Partnership,
a Delaware limited partnership,
its Sole Member
By: WHSLA Gen-Par, Inc.,
a Delaware corporation,
its General Partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and
Chief Financial Officer
▇▇▇▇▇▇▇▇▇▇ POINTE AND CHERRY HILLS CLUB (CA):
INTEGRATED MANAGEMENT - ▇▇▇▇▇▇▇▇▇▇ POINTE, L.L.C.,
a Delaware limited liability company
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and
Chief Financial Officer
HERON'S RUN (FL):
INTEGRATED LIVING COMMUNITIES OF WEST
PALM BEACH, L.L.C.,
a Delaware limited liability company
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and
Chief Financial Officer
NEWPORT PLACE AND THE POINTE AT NEWPORT PLACE (FL):
SENIOR LIFESTYLE NEWPORT LIMITED PARTNERSHIP,
a Delaware limited partnership
By: SLC Newport, Inc.,
a Delaware corporation,
its General Partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and
Chief Financial Officer
PINECREST PLACE (FL):
SENIOR LIFESTYLE PINECREST LIMITED
PARTNERSHIP,
a Delaware limited partnership
By: SLC Pinecrest, Inc.,
a Delaware corporation,
its General Partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and
Chief Financial Officer
PROSPERITY OAKS (FL):
SENIOR LIFESTYLE PROSPERITY LIMITED
PARTNERSHIP,
a Delaware limited partnership
By: Prosperity Gen-Par, Inc.,
a Delaware corporation,
its General Partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and
Chief Financial Officer
WATERSIDE RETIREMENT ESTATES (FL):
INTEGRATED LIVING COMMUNITIES OF
SARASOTA, L.L.C.,
a Delaware limited liability company
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and
Chief Financial Officer
THE PARK AT OLYMPIA FIELDS (IL):
OLYMPIA FIELDS SENIOR HOUSING, L.L.C.,
a Delaware limited liability company
By: WHSLC Realty, L.L.C.,
a Delaware limited liability
company
By: WHSLH Realty, L.L.C.,
a Delaware limited liability
company,
its member
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and
Chief Financial Officer
EAST BAY MANOR (RI):
SENIOR LIFESTYLE EAST BAY LIMITED
PARTNERSHIP,
a Delaware limited partnership
By: SLC East Bay, Inc.,
a Delaware corporation,
its General Partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and
Chief Financial Officer
EMERALD BAY MANOR (RI):
SENIOR LIFESTYLE EMERALD BAY LIMITED
PARTNERSHIP,
a Delaware limited partnership
By: SLC Emerald Bay, Inc.,
a Delaware corporation,
its General Partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and
Chief Financial Officer
GREENWICH BAY MANOR (RI):
GREENWICH BAY, L.L.C.,
a Delaware limited liability company
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and
Chief Financial Officer
NORTH BAY MANOR (RI)
SENIOR LIFESTYLE NORTH BAY LIMITED
PARTNERSHIP,
a Delaware limited partnership
By: SLC North Bay, Inc.,
a Delaware corporation,
its General Partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and
Chief Financial Officer
SAKONNET BAY MANOR (RI):
SENIOR LIFESTYLE SAKONNET BAY LIMITED
PARTNERSHIP,
a Delaware limited partnership
By: SLC Sakonnet Bay, Inc.,
a Delaware corporation,
its General Partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and
Chief Financial Officer
SOUTH BAY MANOR (RI):
SOUTH BAY MANOR, L.L.C.,
a Delaware limited liability company
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and
Chief Financial Officer
WEST BAY MANOR (RI):
WEST BAY MANOR, L.L.C.,
a Delaware limited liability company
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and
Chief Financial Officer
TREEMONT RETIREMENT COMMUNITY (TX):
INTEGRATED LIVING COMMUNITIES OF
DALLAS, L.P.,
a Delaware limited partnership
By: Integrated Living Communities of
Dallas Gen-Par, L.L.C.,
a Delaware limited liability
company,
its General Partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and
Chief Financial Officer
PURCHASER:
CNL RETIREMENT CORP., A FLORIDA
CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Chief Investment Officer
