THIRD AMENDMENT TO PUT AND PURCHASE AGREEMENT
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(AL I - Emeritrust 25 Facilities)
This Third Amendment to Put and Purchase Agreement (this "Amendment") is
effective as of the 1st day of January, 2002 by and between Daniel R. Baty,
individually and on behalf of his marital community ("Obligor") and AL Investors
LLC, a Delaware limited liability company ("AL Investors"), for itself and as
sole managing member of each of the Facility Entities, or in cases where the
Facility Entity is a limited partnership, as sole managing member on behalf of
the general partner thereof, set forth on Exhibit A to the Put and Purchase
Agreement (as hereinafter defined).
Recitals
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A. Obligor and AL Investors entered into that certain Put and Purchase
Agreement dated December 30, 1998, as amended by First Amendment to Put and
Purchase Agreement dated March 26, 1999, and as amended by Second Amendment to
Put and Purchase Agreement ("Second Amendment") dated March 22, 2001 (as
amended, the "Put Agreement"), pursuant to which, among other things, Al
Investors has an option to require Obligor to purchase certain Facilities upon
the occurrence of a Triggering Event, as defined therein.
B. In connection with the transaction described in the Put Agreement,
AL Investors and/or its affiliates entered into that certain Management
Agreement with Option to Purchase (Emeritrust 25) dated December 30, 1998, as
amended by First Amendment to Management Agreement with Option to Purchase dated
March 22, 2001, and as amended by Second Amendment to Management Agreement with
Option to Purchase dated on or about the date hereof (as amended, the
"Management Agreement').
C. The Senior Loan (as defined in the Put Agreement) and the Management
Agreement are being extended, and the Senior Loan is being resized to eliminate
Tranche B.
D. In connection with the extension of the Senior Loan and the
Management Agreement, the parties now desire to amend the Put Agreement on the
terms and conditions contained herein.
NOW, THEREFORE, in consideration of Ten and No/100 Dollars, the agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. Defined Terms. All terms capitalized herein but not defined shall have
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the meanings given them in the Put Agreement.
2. Exercise of Put. The second and third sentences of the second to the
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last paragraph of Section 3.1 of the Put Agreement (after taking into account
the additional paragraph added under the First Amendment to the Put Agreement)
is hereby deleted in its entirety and replaced with the following: Upon the
occurrence of any one or more of the Triggering Events, AL Investors may require
Obligor to purchase a total of ten (10) Facilities with respect to
Triggering Events (a), (b), (c) and (d) or twelve (12) Facilities with respect
to Triggering Event (e), all on the terms and conditions of this Agreement and
subject to the provisions of paragraph 5 of the Second Amendment permitting the
transfer of certain put rights to and from that certain Put and Purchase
Agreement by and between Obligor, AL II Holdings LLC, AL Investors II LLC, and
AL Investors Development LLC, dated March 26, 1999, as amended by First
Amendment dated March 27, 2000, by Second Amendment dated March 22, 2001, and
Third Amendment effective January 1, 2002 (as amended, the "AL II Put
Agreement"), it being the intention of the parties that the total number of
facilities under this Put Agreement and the AL II Put Agreement that Obligor may
be required to purchase shall not exceed 10 in the aggregate with respect to
Triggering Events (a), (b), (c) and (d), or 12 in the aggregate with respect to
Triggering Event (e). The designation of which 10 or 12 Facilities (as
applicable, in the aggregate under both this Put Agreement and the AL II Put
Agreement) Obligor shall be obligated to purchase shall be in AL Investors'
sole, absolute and unfettered discretion.
3. Notices. All notices to be given by either party to this Agreement to
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the other party hereto shall be in writing, and shall be sent to the parties at
the addresses and in the manner set forth in the Put Agreement.
4. Ratification. The Put Agreement, as amended by this Agreement, is hereby
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ratified and confirmed.
5. Headings. The headings contained herein are for convenience of reference
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only and are not intended to define, limit or describe the scope or intent
of any provision of this Agreement.
6. Applicable Law. This Agreement shall be construed and interpreted and be
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governed by the laws of the State of Washington.
7. Counterparts. This Agreement may be signed in counterparts, each of
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which when taken together shall constitute one original.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date and year first above written.
AL INVESTORS
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AL INVESTORS LLC, a Delaware limited liability company, for itself and as sole
managing member on behalf of each of the Owners, or in the case where the Owner
is a limited partnership, as sole managing member on behalf of the general
partner thereof
By: /s/ Norman L. Brendan
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Name Norman L. Brendan
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Title Manager
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OBLIGOR
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/s/ Daniel R. Baty
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Daniel R. Baty, individually and on behalf of his
marital community
The undersigned lender in connection with the Junior Loan has executed this
Agreement for the sole purpose of consenting to the foregoing Amendment.
Senior Housing Partners I, L.P.,
a Delaware limited partnership
By: /s/ Noah R. Levy
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Name Noah R. Levy
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Title Vice President
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