FIRST AMENDMENT TO
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
FIRST AMENDMENT TO AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
dated April 18, 2000 (this "Amendment"), among CAPITAL SENIOR LIVING
CORPORATION, a Delaware corporation ("CSLC"); CAPITAL SENIOR LIVING
ACQUISITION, LLC, a Delaware limited liability company, all of the
outstanding membership interests in which are wholly-owned by CSLC ("Sub");
and ILM II SENIOR LIVING, INC., a Virginia finite-life corporation (the
"Company").
W I T N E S S E T H :
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WHEREAS, CSLC, Sub and the Company entered into an Amended and Restated
Agreement and Plan of Merger dated October 19, 1999 (the "Original Agreement");
WHEREAS, the parties to the Original Agreement desire to amend certain
terms of the Original Agreement as hereinafter set forth;
WHEREAS, the respective Boards of Directors of CSLC and the Company have
determined that it is fair to and in the best interests of their respective
stockholders to consummate the acquisition of the Company by CSLC, by means of a
cash out merger of the Company with and into Sub, upon the terms and subject to
the conditions set forth in the Original Agreement as amended by this Amendment
(the "Merger");
WHEREAS, the respective Boards of Directors of CSLC and the Company, and
CSLC as sole member of Sub, have approved the Merger and the Original Agreement
as amended by this Amendment and the transactions contemplated hereby and
thereby;
NOW, THEREFORE, in consideration of the mutual premises and the
representations, warranties, agreements and covenants herein contained, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. The Original Agreement is hereby amended as follows:
(a) The Merger Consideration set forth in Section 2.1(c) of the
Original Agreement is hereby amended by deleting the number "$14.471836" and
inserting in its place $13.041483";
(b) The termination fee (to CSLC) set forth in both the second and
third paragraphs of Section 5.6(b) of the Original Agreement is hereby amended
by deleting the number "$2,964,400" in each of such second and third paragraphs
and inserting in its place "$1,858,200";
(c) The tern4nation fee (to the Company) set forth in Section 5.6(e) of
The Original Agreement is hereby amended by deleting the number "$850,000" and
inserting in its place "$1,540,000";
(d) Section 3.1(m) of the Original Agreement is hereby amended by
deleting therefrom the words "October 6, 1999" and inserting is their place
"April 17, 2000."
(e) Section 3.2(j) of the Original Agreement is hereby amended by
deleting the provisions thereof in their entirety and inserting in their place;
"(j) Receipt of Financing Commitment. CSLC has paid
for and obtained, and heretofore has provided the
Company with true and complete executed copies of
that certain commitment letter of GMAC Commercial
Mortgage Corporation ("GMAC") dated April 14, 2000
and addressed to CSLC, pursuant to which GMAC has
committed, upon the terms and subject to the
conditions specified therein, to provide to CSLC an
aggregate sum in cash which, together with funds
segregated by CSLC, will be sufficient in amount to
pay, in full at the Effective Time, but not later
than July 31, 2000, to the holders of Company Common
Stock, the Exchange Funds (the "Financing
Commitment")."
(f) Section 5.6(c) of the Original Agreement is hereby amended by
deleting the second sentence thereof in its entirety.
(g) Section 5.17 of the Original Agreement is hereby amended by
deleting the provisions thereof in their entirety.
(h) Section 6.3(d) of the Original Agreement is hereby amended by
deleting the provisions thereof in their entirety and inserting in their place,
(d) payment of Exchange Funds. CSLC shall have
received the proceeds of the Financing Commitment, or
otherwise shall have obtained and segregated for
payment to the Company sufficient cash funds, to pay
in full at the Effective Time to the holders of the
Company Common Stock, the Exchange Funds."
(i) All references to the Original Agreement shall hereafter
refer to the Original Agreement as amended by this Amendment.
2. Except as amended is this Amendment, the Original Agreement remains in
full force and effect. All capitalized terms used in this Amendment which are
not otherwise defined in this Amendment shall be as defined in the Original
Agreement.
3. This Amendment may be executed in one or more counterparts (including
by facsimile transmission), all of which shall be considered one and the same
agreement and shall
become effective when one or more counterparts have been signed by all of the
parties hereto and delivered to the other parties; it being hereby understood
that all parties need not sign the same counterpart.
IN WITNESS WHEREOF, CSLC, Sub, and the Company have caused this
Agreement to be executed and delivered by their respective officers thereunto
duly authorized, all on this 18th day of April 2000.
CAPITAL SENIOR LIVING CORPORATION
By: /s/JAMES A. STROUD
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Name: JAMES A. STROUD
Title: Chairman of the Company
CAPITAL SENIOR LIVING ACQUISITION, LLC
By: /s/LAWRENCE A. COHEN
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Name: LAWRENCE A. COHEN
Title: Chief Executive Officer
ILM II SENIOR LIVING, INC.
By: /s/J. WILLIAM SHARMAN, JR.
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Name: J. WILLIAM SHARMAN, JR.
Title: Chairman of the Board of Directors,
President and Chief Executive Officer