FIRST AMENDMENT TO LEASE
This First Amendment to Lease (the
"Amendment") is entered into as of December 31,
1996, by and between AHP OF WASHINGTON, INC., a
Washington corporation ("Landlord") and EMERITUS
CORPORATION, a Washington corporation ("Tenant").
The Amendment is effective as of July 24, I 996.
RECITALS
A. Landlord and Tenant have heretofore
entered into the Lease, dated as of Jul 24 1996
(the "Lease") whereby Tenant leased from Landlord
that certain real property located in the City of
Walla Walla, County of Walla Walla, State of
Washington more particularly described in Exhibit
A attached hereto.
B. Landlord and Tenant desire to amend the
Lease by deleting Tenant's option to purchase and
replacing such option with a right of first
refusal and for other purposes, and to ratify and
confirm the Lease as so amended.
AGREEMENT
NOW, THEREFORE, in consideration of the
following mutual covenants and agreements, and for
other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged,
Landlord and Tenant agree as follows:
1. Defined Terms. Unless otherwise defined in
this Amendment, capitalized terms used herein
which are defined in the Lease shall have the same
meanings as the meanings assigned to such terms in
the Lease.
2. Article I of the Lease is hereby amended
by adding the following definitions in
alphabetical order thereto:
"Emeritus Properties" shall mean any Property
defined in and subject to an Additional Lease.
"Offer of Purchase" shall mean any bona fide
offer received by Landlord to purchase one,
several or all of the Emeritus Properties on terms
and conditions satisfactory to Landlord.
"Sale Properties" shall mean the Emeritus
Properties designated for sale by Landlord in its
sole discretion.
3. Section 26.2 of the Lease is hereby
amended by deleting such section in its entirety
and replacing it with the following:
26.2 TENANT'S RIGHT OF FIRST REFUSAL.
Provided that no Event of Default specified in
Sections 17.1 (a), (e), (f) or (g) hereof has
occurred and is continuing, and if at any time
during the Fixed Term or the Extended Term of this
Lease, Landlord receives an Offer of Purchase for
or if Landlord decides to sell all, several or any
of the Emeritus Properties, Landlord shall first
give Tenant the privilege to purchase such Sale
Properties. Landlord shall give to Tenant written
notice of Landlord's decision to sell the Sale
Properties or of Landlord's receipt of an Offer of
Purchase for the Sale Properties, together with
the terms and conditions contained in any such
Offer of Purchase. To exercise this right of first
refusal, Tenant must give Landlord written notice
that Tenant intends to purchase all of the Sale
Properties within thirty (30) days after receipt
of Landlord's notice. If Tenant does not notify
Landlord of its intent to purchase all of the Sale
Properties within the thirty (30) day time period,
Landlord will have the right to market and sell
the Sale Properties, and Landlord's right to
market and sell will be free and clear of any
rights, claims or interest of Tenant under this
Section 26.2.
If Tenant provides to Landlord its written
notice of intent to purchase the Sale Properties
within thirty days, the sale of the Sale
Properties will be consummated through an escrow
to be opened with a mutually acceptable title or
escrow company, and will close within ninety (90)
days following the date of Tenant's written notice
to Landlord.
If Tenant chooses to purchase the Sale
Properties in response to an Offer of Purchase,
the purchase price for each Sale Property will be
the greater of (a) the purchase price contained in
the Offer of Purchase or (b) Landlord's Total
Investment, and Tenant must comply with reasonably
equivalent terms and conditions acceptable to
Landlord. If
Tenant chooses to purchase the Sale Properties in
response to Landlord's unsolicited decision to
sell, the purchase price for each Sale Property
will be the greater of(a) Fair Market Value or (b)
Landlord's Total Investment. The purchase price of
each Sale Property (net of the principal balance
of any Facility Mortgages placed on such Property
by Landlord and expressly assumed by Tenant and
the amount of any damages owing by Landlord to
Tenant) shall be deposited into escrow by wire
transfer of Federal Funds at least two business
days prior to close of escrow and shall be paid to
Landlord at close of escrow by wire transfer of
Federal Funds to such account as Landlord shall
designate. Each Sale Property will be transferred
by statutory warranty deed.
Tenant acknowledges and agrees that it shall
purchase each of the Sale Properties from Landlord
"AS IS" and subject to all faults, defects in
title and other matters whatsoever, including, but
not limited to, all matters of record, other than
(a) Facility Mortgages not expressly assumed by
Tenant and (b) any other liens, encumbrances,
attachments, levies or claims encumbering, at the
instance of Landlord, such Sale Property, all of
which shall be removed of record prior to
purchase. Landlord will make no warranty or
representation regarding the title, condition or
other status of any of the Sale Properties
whatsoever, except that it has removed all liens
and encumbrances referenced in clauses (a) and (b)
in the preceding sentence. All title insurance
premiums and other closing costs associated with
the purchase of the Sale Properties by Tenant
pursuant to this Section 26.2 shall be paid by
Tenant.
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4. MISCELLANEOUS.
a. This Amendment is an amendment to the
Lease, and the Lease, as hereby amended, is
ratified, approved and confirmed by Landlord and
Tenant in each and every respect. All references
to the Lease in any other agreement, document,
instrument or writing shall hereafter be deemed to
refer to the Lease as amended hereby.
b. Captions used in this Amendment are for
convenience of reference only and shall not affect
the construction of this Amendment.
c. This Amendment shall be binding upon
Landlord and Tenant and their respective
successors and permitted assigns, and shall inure
to the benefit of Landlord and Tenant and their
respective successors and permitted assigns.
d. This Amendment may be executed in
counterparts, and when a copy hereof has been
executed by Landlord and Tenant, each such
counterpart shall constitute an original copy
hereof.
THE REMAINDER OF
THIS PAGE INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the undersigned parties
have executed this Amendment as of the date first
above written.
LANDLORD:
AHP OF WASHINGTON, INC.,
a Washington corporation
/s/ Xxxxxx X. Xxxxxxx,
-
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Xxxxxx X. Xxxxxxx
Vice President
TENANT:
EMERITUS CORPORATION,
a Washington corporation
/s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Brandstom
President
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