ASSIGNMENT AND AMENDMENT TO
ASSET PURCHASE AGREEMENT
BY AND AMONG
NHP RETIREMENT HOUSING PARTNERS I LIMITED PARTNERSHIP,
CAPITAL SENIOR LIVING PROPERTIES, INC., AND
CAPITAL SENIOR LIVING PROPERTIES 2 - NHPCT, INC.
Effective September 29, 1998
THIS ASSIGNMENT AND AMENDMENT (this "Assignment and Amendment") TO
ASSET PURCHASE AGREEMENT is entered into by and among NHP RETIREMENT HOUSING
PARTNERS I LIMITED PARTNERSHIP, a Delaware limited partnership ("Seller"),
CAPITAL SENIOR LIVING PROPERTIES, INC., a Texas corporation (herein "Assignor")
and CAPITAL SENIOR LIVING PROPERTIES 2 - NHPCT, INC., a Delaware corporation
("Assignee").
Recitals
WHEREAS, Seller and Assignor, as purchaser, entered into that certain
Asset Purchase Agreement dated July 24, 1998 (the "Agreement"), a copy of which
is attached hereto as Exhibit "A" and incorporated herein by reference;
WHEREAS, Assignor desires to assign, and Assignee desires to accept,
all of Assignor's rights as purchaser under the Agreement;
WHEREAS, Seller desires to acknowledge and accept such assignment of
purchaser's interest from Assignor to Assignee; and
WHEREAS, Seller, Assignor and Assignee desire to amend certain
provisions contained within the Agreement;
NOW, THEREFORE, in consideration of the foregoing, and the sum of Ten
and no/100 ($10.00), and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller, Assignor and Assignee do
hereby agree as follows:
Agreements
1. Defined Terms. All terms not defined herein shall have the meanings
ascribed to them in the Agreement.
2. Assignor does hereby SELL, ASSIGN, TRANSFER, SET OVER, and CONVEY unto
Assignee, all of Assignor's right, title and interest, as purchaser,
in, to, and under the Agreement (as hereinafter amended). Assignee (i)
does hereby assume all obligations of purchaser under the Agreement,
and (ii) does hereby agree to indemnify and hold harmless Assignor from
and against any and all loss sustained by Assignor and any and all
liability, claims or causes of action (including without limitation,
all attorneys' fees, costs and expenses) asserted against Assignor
arising under the Agreement from and after the date hereof.
Assignor hereby represents and warrants to Assignee that prior to the
date hereof, it has complied with all of its obligations under the
Agreement, that it is not in default under the Agreement, and that on
the date hereof, the Agreement is in full force and effect and has not
been modified or amended except as hereinafter set forth. Assignor will
reimburse Assignee for and indemnify, defend and hold harmless Assignee
from and against any and all loss sustained by Assignee and any and all
liability, claims or causes of action (including without limitation,
all attorneys' fees, costs and expenses) asserted against Assignee
arising from Assignor's failure to have complied with any of its
obligations under the Agreement or any of its defaults under the
Agreement prior to the date hereof, or any termination or amendment of
the Agreement prior to the date hereof except as shown on Exhibit "A".
Seller hereby acknowledges and accepts the assignment by and between
Assignor and Assignee of purchaser's interest under the Agreement.
3. Section 2.1 of the Agreement shall be amended so that as amended it
shall read as follows:
"Purchase Price. The aggregate purchase price for the Assets
shall be Forty Million Six Hundred Fifty Thousand and 00/100
Dollars ($40,650,000.00) (herein referred to as the "Purchase
Price"), payable by delivery by Purchaser to Seller of a
promissory note (the "Note"), in the amount of Thirty Two
Million Five Hundred Twenty Thousand and 00/100 Dollars
($32,520,000.00), and the remainder payable by Purchaser to
Seller in cash at Closing."
The form of the Note is attached to this Assignment and Amendment as
Exhibit "B".
4. The second sentence of Section 2.2 of the Agreement shall be amended so
that as amended it shall read as follows:
"Notwithstanding anything to the contrary contained herein,
the liens and other related security regarding the Pension
Notes secured by the Facilities (the "Mortgage") shall be
released simultaneously with and utilizing the proceeds from
the payment of the Note by Purchaser."
3. Section 11.1 of the Agreement shall be amended so that as amended it
shall read as follows:
"Closing Date. The closing of the transaction contemplated
herein (the "Closing") shall be conducted at the offices of
Purchaser's counsel in Dallas, Texas, on or before September
30, 1998 (the "Closing Date")."
6. The last sentence of Section 11.4 of the Agreement shall be amended so
that as amended it shall read as follows:
"All Taxes shall be prorated on the accrual basis, Seller
being responsible for all Taxes accruing up to and including
the Closing Date regardless of whether such Taxes are then due
and payable."
7. The first paragraph of Section 11.5 of the Agreement shall be amended
so that as amended it shall read as follows:
"All expenses attributable to the operation of each Facility
(measured on an accrual basis) through 11:59 p.m. on the day
of the Closing shall be paid for by Seller. Thereafter, such
expenses shall be paid for by Purchaser. All income not
received by Seller as of the Closing, including, but not
limited to, all payments under Occupancy Agreements, including
Medicare and Medicaid reimbursement and other insurance
payments or advances shall be for Seller's account and any
amount collected from tenants or patients and third party
payors with accounts owing to Seller shall, if collected by
Purchaser, be paid over to Seller. Except as otherwise
expressly provided in this Agreement, Seller shall remain
responsible for all accounts payable through 11:59 p.m. on the
day of the Closing. As of the Closing, Seller shall calculate
and pay wages, payroll taxes, and any employee bonuses based
upon attendance record or other criteria accrued through 11:59
p.m. on the day of the Closing. In effecting the proration,
Seller shall be credited for items of expense paid for as of
the Closing Date. In addition, on or about the Closing, Seller
shall cause final utility meter readings to be made for all
utilities serving the Premises and Seller shall pay or cause
to be paid all final bills rendered from such meter readings.
To the extent that all items of income and expenses to be
transferred, prorated, or assumed cannot be determined at the
Closing, then Seller and Purchaser shall cooperate with each
other to revise the settlement statements within thirty (30)
days after Closing."
8. Multiple Counterparts. This Assignment and Amendment may be signed by
the parties in counterparts, and when taken together shall be deemed an
original Assignment and Amendment.
9. Full Force and Effect. Except as amended and/or modified herein, the
Agreement shall remain unchanged and in full force and effect.
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IN WITNESS THEREOF, the parties hereto have executed this Assignment
and Amendment effective as of the day and year first above written.
SELLER
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NHP RETIREMENT HOUSING
PARTNERS I LIMITED PARTNERSHIP
By: Capital Realty Group Senior Housing, Inc.,
its general partner
By: /s/ Robert Lankford
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Name: Robert Lankford
Title: President
ASSIGNOR:
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CAPITAL SENIOR LIVING PROPERTIES, INC.,
a Texas corporation
By: /s/ David R. Brickman
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Name: David R. Brickman
Title: Vice President
ASSIGNEE:
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CAPITAL SENIOR LIVING
PROPERTIES 2 - NHPCT, INC.,
a Delaware corporation
By: /s/ David R. Brickman
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Name: David R. Brickman
Title: Vice President