Exhibit 10.4


 


FOURTH AMENDMENT TO PURCHASE AND SALE
AGREEMENT


 


THIS FOURTH AMENDMENT
TO PURCHASE AND SALE AGREEMENT (this "Amendment") is made effective as of the 21St day of July, 2014,
by and between ERB PROPCO SAV LLC, a Delaware limited liability company ("Seller"), and SENTIO STAY LANDLORD, LLC, a
Delaware limited liability company ("Buyer").


 


RECITALS


 


WHEREAS, Seller and
Buyer are parties to that certain Purchase and Sale Agreement dated May 22, 2014, as amended by that certain First Amendment to
Purchase and Sale Agreement dated July 6, 2014, as amended by that certain Second Amendment to Purchase and Sale Agreement dated
July 7, 2014, and as amended by that certain Third Amendment to Purchase and Sale Agreement (the "Third Amendment")
dated July 14, 2014 (as amended, the "Purchase and Sale Agreement"), pursuant to which Seller agreed to sell,
and Buyer agreed to purchase, certain real property located at 13801 East Yale Avenue, Aurora, Colorado, as more particularly described
in the Purchase and Sale Agreement.


 


WHEREAS, Seller and
Buyer desire to make certain amendments to the Purchase and Sale Agreement.


 


NOW, THEREFORE, in
consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Buyer hereby agree as follows:


 


1.          Capitalized
Terms. Capitalized terms used herein and not otherwise defined shall have the respective meanings given such terms in the Purchase
and Sale Agreement.


 


2.          ADA
and FHA Issues. With respect to certain non-compliance or potential noncompliance with the American with Disabilities Act,
and the regulations promulgated thereunder (collectively, the "ADA"), or the Fair Housing Act, and the regulations promulgated
thereunder (collectively, the "FHA"), alleged by Buyer with respect to the Property which are set forth on Exhibit
A hereto (items on Exhibit A addressing compliance with the ADA hereinafter referred to as "ADA Issues"
and items on Exhibit A addressing compliance with the FHA hereinafter referred to as "FHA Issues"; provided,
however, that an FHA Issue shall refer only to one individual "Unit" of each "Quantity" of such issue as such
terms are set forth in Exhibit A as opposed to such issues viewed in the aggregate), the parties hereby agree as follows:


 


		a.	ADA Issues. Seller shall undertake to use commercially
reasonable efforts to cure the ADA Issues prior to Closing. To the extent that any of the ADA Issues are not cured prior to Closing,
an amount equal to the difference when subtracting (1) all costs incurred by Seller after the date hereof in connection with curing
the ADA Issues until and including the Closing Date from (2) Seller's estimated total cost to cure such ADA Issues as set forth
on Exhibit A of that certain ADA/FHA Issues Notice received by Seller on July 17, 2014 (the "Issues Notice"),
shall be credited against the Purchase Price in favor of Buyer at Closing.



 




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		b.	FHA Issues. From Closing until the Expiration Date (as such term is defined in the Holdback
Escrow Agreement), to the extent that (i) a resident subject to an active Resident Agreement (each a "Resident")
of the Property registers a bona fide complaint regarding an FHA Issue directly affecting such Resident, or Tenant and/or
Existing Manager otherwise has actual knowledge of such a complaint (an "FHA Complaint"), (ii) Tenant and/or Existing
Manager, pursuant to operational changes or adjustments or otherwise, is unable to resolve such FHA Complaint, and (iii) the FHA
Complaint, in Buyer's commercially reasonable judgment, can only be resolved by making physical modifications to the Property (collectively,
a "Qualified FHA Issue"), Seller agrees to indemnify Buyer against the reasonable and actual out-of-pocket costs
of physical modifications to the Property necessary to cure such Qualified FHA Issue which costs, in each case, shall not exceed
the estimated unit cost for such FHA Issue set forth on Exhibit A hereto; provided, however, as to each Qualified
FHA Issue, the scope thereof shall be limited to the FHA Issue present within the units designated exclusively for the Resident
(pursuant to such Resident's respective Resident Agreement) bringing such FHA Complaint.



 


		c.	FHA Indemnity Limited. Notwithstanding anything to the contrary herein or in the Purchase
and Sale Agreement, except for Seller's obligations expressly set forth in this Amendment, (i) Buyer hereby waives any and all
rights of termination, extension, notice or consent and any other rights of Buyer that would otherwise accrue in favor of Buyer
pursuant to the Purchase and Sale Agreement (including, without limitation, any right of Buyer to assert a claim for breach of
any representation or warranty contained in Section 4.9 of the Purchase and Sale Agreement and any right to indemnification
from Seller pursuant to Article X of the Purchase and Sale Agreement) by reason of, arising from, or in connection with any ADA
and FHA Issues (as defined in the Third Amendment), any ADA Issues and any FHA Issues, and (ii) any ongoing ADA and FHA Issue (as
defined in the Third Amendment), ADA Issues or FHA Issues on the Closing Date shall not cause the failure to satisfy any condition
precedent to Closing.



 


		d.	Waiver of Termination Right. In consideration of Seller's undertakings and obligations under
this Amendment, Buyer hereby waives any right to terminate the Purchase and Sale Agreement or receive a refund of the Earnest Money
Deposit pursuant to the terms of Section 6.b of the Third Amendment.



 


		e.	No Implicit Acknowledgement. Notwithstanding anything to the contrary, Buyer hereby acknowledges
and agrees that none of the foregoing shall be deemed, construed or in any way interpreted to be an acknowledgement by Seller of
any non-compliance or potential non-compliance of the Property with the ADA or the FHA.



 




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3.          Closing
Date. Buyer will have the right to adjourn the Closing Date either (i) to a date which is no later than August 29, 2014 ("Buyer's
Adjourned Closing Date") provided, and on the express condition, that prior to 5:00 P.M. Eastern Standard Time on August
8, 2014, Buyer delivers written notice of adjournment, accompanied by an additional Earnest Money Deposit to Escrow Agent of Six
Hundred and Twenty-Five Thousand Dollars ($625,000.00) (the "Additional Deposit"), in which case, the Additional
Deposit shall be applied to the Purchase Price upon Closing in accordance with Section 2.4  of the Purchase and Sale Agreement,
or (ii) by increments of one (1) calendar week each, provided, and on the express condition, that prior to 5:00 P.M. Eastern Standard
Time of the then current latest Closing Date set forth in the Purchase and Sale Agreement (after taking into account any previous
adjournments of the Closing Date), Buyer delivers written notice of such one-week adjournment, accompanied by a deposit to Escrow
Agent of One Hundred Thousand Dollars ($100,000.00), to be paid to Seller upon Closing, which deposit shall be non-refundable and
shall not be applied to the Purchase Price upon Closing notwithstanding anything to the contrary including Section 2.4 of
the Purchase and Sale Agreement.


 


4.          Force
and Effect. Except as hereby amended and modified, the Purchase and Sale Agreement shall remain in full force and effect in
accordance with its terms. To the extent any provisions contained herein conflict with the Purchase and Sale Agreement or any other
agreements between Seller and Buyer, the provisions contained herein shall supersede such conflicting provisions contained in the
Purchase and Sale Agreement or other agreements.


 


5.          Counterparts.
This Amendment may be executed in two or more counterparts, all of which shall be considered one and the same instrument. Delivery
of signature by e-mail or facsimile shall be valid and binding.


 


[Signature Page Follows]


 




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IN WITNESS WHEREOF, Seller and
Buyer have caused this Amendment to be executed as of the date first written above.


 


	 	BUYER:
	 	 
	 	SENTIO STAV LANDLORD, LLC
	 	 
	 	By:	/s/ John Mark Ramsey
	 	Name: John Mark Ramsey
	 	Its:  Authorized Signatory
	 	 
	 	SELLER:
	 	 
	 	ERB PROPCO SAV LLC
	 	 
	 	By: ERB PROPCO HOLDCO I LLC
	 	Its: Sole Member
	 	 
	 	By: ERB SENIOR LIVING, L.L.C.
	 	Its: Sole Member
	 	 
	 	By: EVERGREENSLP, LLC
	 	Its: Manager
	 	 
	 	By:	/s/ Brian E. Dowd
	 	Name: Brian E. Dowd
	 	Title: Chief Financial Officer


 




    	 



    	 



    

 


EXHIBIT A


 


	 	 	Description	 	Quantity	 	 	Unit	 	jEst. Unit Cost	 	 	Total	 
	ADA Issues
	1.	 	Remove and replace select areas
    of concrete pavement in the path of travel where the cross slope exceeds the allowable maximum of1:48	 	 	400	 	 	sf	 	$	8.50	 	 	$	3,400	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2.	 	Remove and replace the
    toilet tanks at the common area restrooms where the flush control is not on the open side of the room.	 	 	8	 	 	each	 	$	75.	 	 	$	600	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	FHA Issues
	3.	 	Modify the kitchens in
    the Independent Living units to allow for clear floor space of 15" on center for a forward approach at the sink and provide
    removable cabinets with a finished floor below. The current measurement was noted to be approximately 14" on center of the
    sink to the opposing cabinets.	 	 	151	 	 	each	 	$	550	 	 	$	83,050	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	4.	 	Modify the kitchens at
    the IL units where the counter does not allow for clear floor space at the range due to the adjacent peninsula counter.	 	 	35	 	 	each	 	$	750	 	 	$	26,250	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	5.	 	Modify bathrooms at the
    IL and AL units to allow for clear floor space at the showers to be flush with the control walls.	 	 	202	 	 	each	 	$	2,500	 	 	$	505,000	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	6.	 	Reverse the swing of the door a the second
    bathrooms within the IL units to allow for clear floor space outside the swing of the door.	 	 	93	 	 	each	 	$	350	 	 	$	32,550	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	7.	 	Provide for a 1:2 bevel at the threshold of
    the balcony doors at the IL units	 	 	151	 	 	each	 	$	150	 	 	$	22,650	 
	Total	 	 	 	 	 	 	 	 	 	 	 	 	 	$	673,500