FIRST AMENDMENT TO SALE CONTRACT
--------------------------------
THIS FIRST AMENDMENT TO SALE CONTRACT (this "AMENDMENT") is made and
entered into as of the 1st day of May, 2002, by and between SENIOR LIFESTYLE
SHREVEPORT, L.L.C. ("SELLER"), and EMERITUS CORPORATION ("BUYER").
RECITALS
--------
A. Seller and Buyer entered into that certain Sale Contract dated April
17, 2002 (the "SALE CONTRACT"), under which terms and conditions were set forth
for Seller to sell and Buyer to purchase the Facility (capitalized terms not
otherwise defined herein shall have the respective meanings set forth in the
Sale Contract).
B. Lender has not yet delivered the Required Consent, which is a mutual
condition precedent to closing under Section 12 of the Sale Contract, and Seller
and Buyer mutually desire to extend the Closing Date under the terms and
conditions set forth below.
C. Lender is willing to permit HB-ESC I, LLC, a Washington limited liability
company ("HB-ESC I"), the entity to whom Buyer intends to assign the Sale
Contract on the Closing Date, to manage the Facility commencing May 1, 2002
pursuant to an Interim Management Agreement, and for Buyer to sub-manage the
Facility commencing May 1, 2002 in return for a sub-management fee of five
percent (5%) of Gross Revenues pursuant to an Interim Sub-Management Agreement
until such time as the Required Consent is obtained or denied by Lender.
D. Seller leases a vehicle ("VEHICLE") pursuant to a lease ("LEASE") with
Capital Alliance ("LENDER") and Seller and Buyer mutually desire to describe the
actions the parties have agreed to take with respect to such Lease, as more
particularly described below.
AGREEMENT
---------
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
--------
forth herein in their entirety.
2. Amendment to Closing Date. Section 6(a) of the Sale Contract is hereby
---------------------------
amended to provide that the Closing Date 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 June 1, 2002 (provided that in no event shall
either Seller 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). In consideration for HB-ESC I assuming the
economic benefits and burdens of the Facility as of May 1, 2002, pursuant to and
subject to the terms of the Interim Management Agreement, 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.
3. Vehicle Lease. The definition of "Operating Contracts" in the Sale
--------------
Contract is hereby amended to include the Lease. Seller agrees to promptly
request Lender's consent pursuant to the same economic terms under which Seller
leases the Vehicle from Lender to (i) first, the assignment and assumption of
the Lease by Buyer (the "ASSIGNMENT") and, if such request is refused, (ii) the
sublease of the Vehicle from Seller to Buyer (the "SUBLEASE"). If the Lender
does not consent to the Assignment or the Sublease, on or prior to the Closing
Date, Buyer shall nonetheless be permitted to continue to use the Vehicle for
sixty (60) days following the Closing Date, or such shorter period required by
Lender, pursuant to the same economic terms under which Seller leases the
Vehicle from Lender. Payments made for debt service and/or lease or sublease
payments with respect to the Vehicle (regardless of whether such payments are
made to Lender because the Lease has been assigned by Seller to Buyer, or to
Seller because the Vehicle has been subleased by Seller to Buyer), as well as
any one Vehicle leased in substitution for the Vehicle because Lender did not
permit the Assignment or the Sublease, and payments made with respect to the
exercise of a purchase option on the Vehicle 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
------------------------------------
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
------------------------
to the benefit of the parties and their successors and assigns.
6. Ratification. All terms and conditions of the Sale Contract not amended
------------
pursuant to this First 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.
SELLER:
------
SENIOR LIFESTYLE SHREVEPORT, L.L.C.
By: /s/ Xxx X. XxXxxx
Xxx X. XxXxxx
Vice President and Chief Financial Officer
BUYER:
-----
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