anendregrightsagreement.htm












AMENDMENT TO


 


REGISTRATION RIGHTS AGREEMENT


 







 


THIS AMENDMENT  to the Registration Rights Agreement (the “Agreement”) entered into as of March 29, 2007 by and among EMERITUS CORPORATION, a Washington corporation (the “Company”), AP SUMMERVILLE, LLC, a Delaware limited liability company (“AP Summerville”), AP SUMMERVILLE II, LLC, a Delaware limited liability company (“AP Summerville II”), APOLLO REAL ESTATE INVESTMENT FUND III, L.P., a Delaware limited partnership (“AREIF III”), and APOLLO REAL ESTATE INVESTMENT FUND IV, L.P., a Delaware limited partnership (“AREIF IV”, and together with AP Summerville, AP Summerville II and AREIF III, the “Apollo Holders”); Granger Cobb; Daniel R. Baty (“Baty”), CATALINA GENERAL PARTNERSHIP, L.P., a Washington limited partnership (“Catalina”), COLUMBIA SELECT, L.P., a Washington limited partnership (“Columbia”), and B.F., LIMITED PARTNERSHIP, a Washington limited partnership (“B.F.”, and together with Baty, Catalina and Columbia, the “Baty Holders”); and SARATOGA PARTNERS IV, L.P., a Delaware limited partnership, SARATOGA COINVESTMENT IV, LLC, a Delaware limited liability company, and SARATOGA MANAGEMENT COMPANY, LLC, a Delaware limited liability company (the “Saratoga Holders”), is made an entered into as of March 31, 2010 by and among the Company, the Apollo Holders, the Baty Holders, the Saratoga Holders and Granger Cobb (the “Amendment”).


 







 


RECITALS:


 


A. Pursuant to Section 6.2 of the Agreement, the provisions of the Agreement may be amended, modified or waived with (and only with) the written consent of the Company and a majority in interest of each Major Shareholder Group (as defined in the Agreement).


 


B. The purpose of this Amendment is to extend the term for which the Company is obligated to maintain the effectiveness of the Registrable Securities on a shelf registration statement under Section 2.1.1 of the Agreement from April 1, 2010 to April 1, 2012.


 







 


AGREEMENTS:


 


In consideration of the above recitals, the parties agree as follows:


 


1. Amendment Authorizing an Extension of the Company’s Obligation to Maintain the Effectiveness of the Initial Shelf Registration Statement.  Section 2.1.1 of the Agreement is hereby amended and restated in its entirety to reflect the following language:


 


“2.1.1  The Company shall cause to be filed with the Commission on or prior to January 1, 2008 (or such later date as a majority in interest of the Apollo Electing Holders may agree), a shelf registration statement (the “Initial Shelf Registration Statement”) pursuant to






  





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Rule 415 under the Securities Act (the “Initial Shelf Registration”) on Form S-3 to cover resales by the Apollo Electing Holders (as defined below) of Registrable Securities held by them at the time of the filing of the Initial Shelf Registration Statement (the “Apollo Initial Shelf Shares”) and resales by the Saratoga Holders of up to the number of Saratoga Initial Shelf Shares determined under Section 2.1.2. “Apollo Electing Holders” means AP Summerville, AREIF III and/or the limited partners of AREIF III. The Company shall use its commercially reasonable best efforts to cause such Initial Shelf Registration Statement to be declared effective by the Commission on or prior to April 1, 2008 (or such later date as a majority in interest of the Apollo Electing Holders may agree). The Company shall, subject to Section 2.1.5, use its commercially reasonable best efforts to keep the Initial Shelf Registration Statement continuously effective until the earlier of (1) the sale of all Registrable Securities registered under the Initial Shelf Registration; (2) when all of the Registrable Securities covered by the Initial Shelf Registration Statement may be sold or transferred pursuant to Rule 144(k) (or any similar provisions then in force) under the Securities Act or otherwise and (3) April 1, 2012, which date shall be extended by the aggregate number of days of any suspensions by the Company under Section 2.1.5 (such period being referred to herein as the “Effectiveness Period”).”







 


2. Effect of Amendment.  Except as expressly amended by this Amendment, the Agreement shall remain in full force and effect.


 


3. Governing Law.  This Amendment shall be governed by the laws of the State of Washington.


 


4. Counterparts.  This Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.


 







 


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IN WITNESS WHEREOF the parties hereto have caused this Amendment to be duly executed and delivered by their authorized officers or representatives as of the date first written above.


 







EMERITUS CORPORATION

















                                                                 By           /s/ DANIEL R. BATY                                                      


Name:           Daniel R. Baty


Title:           Chairman and Co-Chief Executive Officer


 







AP SUMMERVILLE, LLC


 


By:           KRONUS PROPERTY III, INC.


its Manager


 


 


 


By:           /s/ STUART KOENIG                                                      


Name:           Stuart Koenig   


                                                                 Title:           Vice President, Chief Financial Officer


 


 


                                                                 AP SUMMERVILLE II, LLC


 


                                                                 By:           KRONUS PROPERTY IV, INC.


                                                                            its Manager


 


 


 


By:           /s/ STUART KOENIG                                                      


Name:           Stuart Koenig   


                                                                 Title:           Vice President, Chief Financial Officer


 


  


APOLLO REAL ESTATE INVESTMENTFUND III, L.P.


 


By:           APOLLO REAL ESTATE ADVISORS 


III, L.P., its General Partner






  





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By:           APOLLO REAL ESTATE CAPITAL


ADVISORS III, INC., its General Partner


 


By:           /s/ STUART KOENIG                                                      


Name:           Stuart Koenig   


                                                                 Title:           Vice President, Chief Financial Officer


 


 


APOLLO REAL ESTATE INVESTMENT


FUND IV, L.P.







By:           APOLLO REAL ESTATE ADVISORS 


IV, L.P., its General Partner


 


By:           APOLLO REAL ESTATE CAPITAL


ADVISORS IV, INC., its General Partner


 







By:           /s/ STUART KOENIG                                                      


Name:           Stuart Koenig   


                                                                 Title:           Vice President, Chief Financial Officer












CATALINA GENERAL PARTNERSHIP, L.P.


 


By:           B.F., LIMITED PARTNERSHIP,


its General Partner


 


By:           COLUMBIA PACIFIC GROUP, INC.,


its General Partner


 







By:           /s/ DANIEL R. BATY                                                      


Name:           Daniel R. Baty


                                                                 Title:           President


 







COLUMBIA SELECT, L.P.


 


By:           B.F., LIMITED PARTNERSHIP,


its General Partner


 


By:           COLUMBIA PACIFIC GROUP, INC.,


its General Partner


 






  





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By:           /s/ DANIEL R. BATY                                                      


Name:           Daniel R. Baty


                                                                 Title:           President












B.F., LIMITED PARTNERSHIP


 


By:           Columbia Pacific Group, Inc.,


its General Partner


 







By:           /s/ DANIEL R. BATY                                                      


Name:           Daniel R. Baty


                                                                 Title:           President







 


SARATOGA PARTNERS IV, L.P.


  


By:           SARATOGA ASSOCIATES IV LLC,


 its General Partner


 


By:           SARATOGA MANAGEMENT


COMPANY LLC, as Manager












By:           /s/ RICHARD A. PETROCELLI                                                      


Name:           Richard A. Petrocelli.


                                                                 Title:           Member


 


                                                                 SARATOGA COINVESTMENT IV LLC


 


By:           SARATOGA MANAGEMENT


COMPANY, LLC, its Managing Member


 


 


By:           /s/ RICHARD A. PETROCELLI                                                      


Name:           Richard A. Petrocelli.


                                                                 Title:           Member












SARATOGA MANAGEMENT COMPANY, LLC


 


By:           /s/ RICHARD A. PETROCELLI                                                      


Name:           Richard A. Petrocelli.


                                                                 Title:           Member






  





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GRANGER COBB


 







By:           /s/ GRANGER COBB                                                      


Name:           Granger Cobb


 






  





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