SECOND AMENDMENT TO MASTER LEASE
Exhibit
10.26.3
SECOND
AMENDMENT TO MASTER LEASE
This
SECOND AMENDMENT TO MASTER LEASE (the "Amendment")
is entered into as of January 2, 2007 (the
"Effective Date")
by and among NATIONWIDE HEALTH
PROPERTIES, INC., a
Maryland corporation, and NHP XxXXXXX, LLC, a Delaware limited
liability company (collectively, "Landlord"); SUMMERVILLE AT
CAMELOT PLACE LLC, a Delaware limited liability
company, SUMMERVILLE AT XXXXXX VALE LLC, a
Delaware limited liability company, SUMMERVILLE AT LAKEVIEW LLC,
a Delaware limited liability company, and SUMMERVILLE AT
RIDGEWOOD GARDENS LLC, a Delaware limited liability
company (individually and collectively, "Existing Tenant"); SUMMERVILLE
AT NORTH HILLS LLC, a Delaware limited liability company, and
THE INN AT XXXXXX LLC, a Delaware limited liability company
(collectively, the "Additional Tenant" and, together with
Existing Tenant, "Tenant"); and SUMMERVILLE SENIOR
LIVING, INC., a Delaware corporation
("Guarantor").
RECITALS
A. Landlord,
as
lessor, and Existing Tenant, as lessee, are parties to that certain Master
Lease
dated as of October 2, 2006, as amended by that certain First Amendment to
Master Lease (the "First Amendment") dated as of December 1,
2006 (as amended, the "Master Lease"),
pursuant to which, among other things,
Landlord leases to Existing
Tenant the "Premises" described therein. Initially capitalized terms used but
not otherwise defined in this Amendment shall have the meanings given to them
in
the Master Lease.
B. In
connection
with the Master Lease, Landlord and Existing Tenant are also parties to that
certain Letter of Credit Agreement dated as of October 2, 2006, as amended
by
the First Amendment (as amended, the "LC Agreement"), pursuant
to which, among other things, Existing Tenant posted with Landlord the Letter
or
Letters of Credit described therein as partial collateral for the performance
of
its obligations under the Master Lease.
C. Pursuant
to
that certain Amended and Restated Guaranty of Lease dated as of October 2,
2006,
as amended by the First Amendment (as amended, the "Guaranty"),
Guarantor, among other things, guaranteed to Landlord the
performance
by Existing Tenant of its obligations under the Master Lease and LC
Agreement.
D. Additional
Tenant, as buyer, and North Hills Management Co., Inc., an Ohio corporation,
The
Inn at Medina Management Company, Inc., an Ohio corporation, and The Inn at
Medina Limited, an Ohio limited liability company (collectively,
"Seller"), have entered into that certain Residential Facility
Purchase Agreement dated as of December 7, 2006 (the "Purchase
Agreement"), pursuant to the terms and conditions of
which Additional Tenant has agreed to acquire, among other things, fee title
to
(i) that certain real property located at 0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxx
and
all improvements thereon, which is presently operated as a one hundred-three
(103) unit assisted living facility, and (ii) that certain real property located
at 000 Xxxx Xxxxx Xxxxx, Xxxxxx, Xxxx and all improvements thereon, which is
presently operated as a ninety (90) unit assisted living facility (collectively,
the "Additional Facilities").
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E. Additional
Tenant has agreed to assign its rights to purchase the Additional Facilities
to
Landlord pursuant to the terms and conditions of that certain Assignment of
Purchase Agreement dated of even date herewith between Additional Tenant and
Landlord.
F. Additional
Tenant desires to lease the Additional Facilities from Landlord upon the closing
of Landlord's acquisition thereof Accordingly, Landlord and Tenant desire to
amend the Master Lease to, among other things: (i) join Additional Tenant to
the
Master Lease, (ii) add the Additional Facilities to the Premises demised
thereunder, and (iii) make certain other revisions and modifications, all as
more particularly set forth herein. In connection therewith, Guarantor desires
to affiim to Landlord its obligations under the Guaranty notwithstanding the
amendment of the Master Lease set forth in this Amendment.
AGREEMENT
NOW,
THEREFORE, taking into account the foregoing Recitals, and in
consideration of the mutual covenants and agreements contained herein, and
for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, the parties hereto agree as follows:
1. Joinder
of Additional Tenant; Addition of Additional Premises. Additional
Tenant is hereby joined to the Master Lease as a Tenant thereunder. The
Additional Facility and associated Landlord Personal Property are hereby added
to the Premises demised under the Master Lease.
2. Amendments
to Master Lease. The Master Lease is hereby specifically amended as
set forth in this Section 2.
(a) Exhibit
A, Exhibits B-1 and B-2 and Exhibit F attached hereto are hereby
added to and incorporated into Exhibit A, Exhibit B and Exhibit F
respectively, of the Master Lease.
(b) Schedule
1 and Schedule 2 of the Master Lease are hereby deleted in their
entirety and substituted with Schedule 1 and Schedule 2 attached
hereto.
(c) Section
2.1(a), and f_cj of the Master Lease are hereby deleted and
substituted with
the
following:
"2.1 Initial
Term Rent.
(a) During
the Initial Term, the annual "Minimum Rent" shall be an
amount
equal to the sum of (i) Landlord's Camelot Investment multiplied by
eight and sixty one-hundredths percent (8.60%),
(ii) Landlord's Lakeview/HillenVale Investment multiplied by
eight and seventy one-hundredths percent (8.70%),
(iii)
Landlord's Ridgewood Investment multiplied by eight
and seventy one-hundredths percent (8.70%), and
Landlord's North Hills/Medina Investment multiplied by eight
and fifty one-hundredths percent (8.50%) (each rate,
the "Lease Rate" for such Facility), payable in advance in
twelve (12) equal monthly installments. Commencing with the second
(2nd) Lease Year and continuing thereafter during the Term (excluding the first
Lease Year of any Renewal Term), Tenant agrees to pay "Additional Rent"
to Landlord monthly in advance together with the payment
of Minimum
Rent. Such Additional Rent (which shall be expressed as an annual amount but
shall be payable in equal monthly installments) shall be equal to the sum of
(i)
the Additional Rent for the immediately preceding Lease Year and (ii) the
product of (A) the Minimum Rent and Additional Rent due for the immediately
preceding Lease Year and (B) the lesser of (x) three percent (3.0%) or (y)
a
percentage equal to five (5) times the percentage increase (the "CPI
Increase") in the United States Department of Labor, Bureau of
Labor Statistics Consumer Price Index for All Urban Wage Earners and Clerical
Workers, United States Average, Subgroup "All Items" (1982 –1984 = 100) (the
"CPI"). In no event shall the CPI Increase be a negative number. The applicable
CPI Increase shall be calculated annually for each Lease Year by comparing
the
CPI in effect on the first calendar day of the Lease Year for which Additional
Rent is being calculated to the first calendar day of the immediately preceding
Lease Year.
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(b) As
used herein, (i) "Landlord's Camelot Investment" means
Landlord's
investment in the Facility located at 00-X Xxxxxxx Xxxx, Xxxxxx, Xxxx (the
"Camelot Facility") in the amount of Ten Million Six Hundred
Sixty-Five Thousand Dollars ($10,665,000), plus any
amounts advanced by Landlord pursuant to Section 8.6 with
respect to the Camelot Facility, plus any other amount that, in
accordance with any other term or provision of this Master Lease, is to be
added
to Landlord's Camelot Investment, and minus any amount that, in
accordance with any term or provision of this Master Lease, is to be subtracted
from Landlord's Camelot Investment; (ii) "Landlord's
Lakeview/HillenVale Investment" means Landlord's
investment in (A) the Facility located at 0000 Xxxxxxxx Xxxxxxxx, Xxxxxxxxx,
Xxxx (the "Lakeview Facility"), and (B) the
Facility located at 0000 Xxxxxx Xxxx, Xx. Xxxxxx, Xxxx (the "HillenVale
Facility"), in the aggregate amount of Twenty-Two Million Two Hundred
Eighty Thousand Dollars ($22,280,000), plus any
amounts advanced by Landlord pursuant to Section 8.6 with respect to the
Lakeview Facility and/or HillenVale Facility, plus any other amount
that, in accordance with any other term or provision of this Master Lease,
is to
be added to Landlord's Lakeview/HillenVale Investment, and minus any
amount that, in accordance with any term or provision of this Master Lease,
is
to be subtracted from Landlord's Lakeview/HillenVale Investment; (iii)
"Landlord's Ridgewood Investment" means Landlord's investment in the
Facility located at 0000 Xxxxxxxxx Xxxxx, Xxxxx, Xxxxxxxx (the
"Ridgewood Facility") in the amount of Eleven Million Two
Hundred Thousand Dollars ($11,200,000), plus any
amounts advanced by Landlord pursuant to Section 8.6 with
respect to the Ridgewood Facility, plus any other amount that, in
accordance with any other term or provision of this Master Lease, is to be
added
to Landlord's Ridgewood Investment, and minus any amount that, in
accordance with any term or provision of this Master Lease, is to be subtracted
from Landlord's Ridgewood Investment, and (iv)
"Landlord's North Hills/Medina Investment" means
Landlord's investment in (X) the Facility located at 0000 Xxxxxx Xxxx,
Xxxxxxxxxx, Xxxx (the "North Hills Facility"), and (Y) the
Facility located at 000 Xxxx Xxxxx Xxxxx, Xxxxxx, Xxxx (the "Xxxxxx
Facility"), in the aggregate amount of Twenty-Five Million Six Hundred
Thirteen Thousand Dollars ($25,613,000), plus any
amounts advanced by Landlord pursuant to Section 8.6 with respect to the
North Hills Facility and/or the Medina Facility, plus any other amount
that, in accordance with any other term or provision of this Master Lease,
is to
be added to Landlord's North Hills/Medina Investment, and minus any
amount that, in accordance with any term or provision of this Master Lease,
is
to be subtracted from Landlord's North Hills/Medina Investment.
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(c) Concurrently
with any increase or decrease in Landlord's Camelot Investment,
Landlord's Lakeview/HillenVale Investment, Landlord's Ridgewood Investment
and/or Landlord's North Hills/Medina Investment during the Term as described
in
Section 2.1(b), the Rent then due and payable for the balance of the
applicable Lease Year and Term shall be recalculated and reset based on the
adjusted amount of Landlord's Camelot Investment, Landlord's Lakeview/HillenVale
Investment, Landlord's Ridgewood Investment and/or Landlord's North Hills/Medina
Investment, as the case may be."
(d) Section
4 of the Master Lease is hereby deleted in its entirety and substituted with
the
following:
"4. Security
Deposit: Guaranty.
(a) Pursuant
to the parties' concurrent Letter of Credit Agreement, Tenant
shall deposit with Landlord and maintain during the Term one (1) or more letters
of credit in an undrawn face amount equal to Seven Hundred Fifty-Four
Thousand Seven Hundred Fifty Dollars ($754,750) as a
"Security Deposit" against the faithful performance
by Tenant
of its obligations under this Master Lease.
(b) Notwithstanding
the foregoing, (i) at the end of the first Lease Year the amount of the Security
Deposit shall be increased by the amount of $325,960 if the
Lakeview/HillenVale Rent Coverage Ratio is less than 1.01 to 1; and (ii) at
the
end of the second Lease Year the amount of the Security Deposit shall be
increased by the amount of $162,980 if the Lakeview/HillenVale
Rent Coverage Ratio is less than 1.26 to 1. As used herein,
"Lakeview/HillenVale Rent Coverage Ratio" means, as of the date
of determination, the ratio of (i) the EBITDARM (as hereinafter defined) for
the
Lakeview Facility and HillenVale Facility for the immediately preceding two
calendar quarters (a "Measuring Period"), minus (A) an
assumed management fee equal to five percent (5%) of the Gross Revenues
(as hereinafter defined) generated during such Measuring
Period from
the Lakeview Facility and HillenVale Facility, and (B) one-half of the
applicable annual CapEx Amount (as defined in Section 8.3 below) for the
Lakeview Facility and HillenVale Facility at the commencement of the Measuring
Period, multiplied by the aggregate number of assisted living units at
the Lakeview Facility and HillenVale Facility, to (ii) the total amount of
the
Minimum Rent and Additional Rent due with respect to the Lakeview Facility
and
HillenVale Facility for the Measuring Period pursuant to the terms of this
Master Lease.
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(c) If
at any time following January 31, 2011, the Camelot Rent Coverage Ratio is
less
than 1.20 to 1, Tenant shall from time to time make deposits, which may be
in
the form of cash or supplemental letters of credit meeting the requirements
of
the Letter of Credit Agreement (the "Camelot Supplemental Deposits"),
to Landlord pursuant to Section 4(1) until such time as the
total amount of the Security Deposit is increased as a result of such Camelot
Supplemental Deposits by the amount of One Hundred Fifty-One Thousand
Four Hundred Thirty-Five Dollars ($151,435); provided, however,
Tenant's obligation to make such Camelot Supplemental Deposits shall not apply
with respect to any Measuring Period for which the Camelot Rent Coverage Ratio
equals or exceeds 1.20 to 1. As used herein, "Camelot Rent Coverage
Ratio" means, as of the date of determination,
the
ratio of (i) the EBITDARM for the Camelot Facility for the Measuring Period,
minus (A) an assumed management fee equal to five percent (5%) of the
Gross Revenues generated during such Measuring Period from the Camelot Facility,
and (B) one-half of the applicable annual CapEx Amount for the Camelot Facility
at the commencement of the Measuring Period, multiplied by the
aggregate number of assisted living units at the Camelot Facility, to (ii)
the
total amount of the Minimum Rent and Additional Rent due with respect to the
Camelot Facility for the Measuring Period pursuant to the terms of this Master
Lease.
(d) If
at any time following June 30, 2010, the Ridgewood Rent Coverage Ratio is less
than 1.20 to 1, Tenant shall from time to time make deposits, which may be
in
the form of cash or supplemental letters of credit meeting the requirements
of
the Letter of Credit Agreement (the "Ridgewood Supplemental
Deposits"), to Landlord pursuant to Section 4(f)
until such time as the total amount
of the Security Deposit is increased as
a result of such Ridgewood Supplemental Deposits by the amount of
Eighty-Four Thousand Seven Hundred Fifty Dollars ($84,750);
provided, however, Tenant's obligation to make such Ridgewood
Supplemental Deposits shall not apply with respect to any Measuring Period
for
which the Ridgewood Rent Coverage Ratio equals or exceeds 1.20 to 1. As used
herein, "Ridgewood Rent Coverage Ratio" means,
as of the date of determination, the ratio of (1) the EBITDARM for the Ridgewood
Facility for the Measuring Period, minus (A) an assumed management fee
equal to five percent (5%) of the Gross Revenues generated during such Measuring
Period from the Ridgewood Facility, and (B) one-half of the applicable annual
CapEx Amount for the Ridgewood Facility at the commencement of the Measuring
Period, multiplied by the aggregate number of assisted living units at
the Ridgewood Facility, to (ii) the total amount of the Minimum Rent and
Additional Rent due with respect to the Ridgewood Facility for the Measuring
Period pursuant to the terms of this Master Lease.
(e) If
at any time following June 30, 2010, the North Hills/Medina Rent
Coverage Ratio is less than 1.20 to 1, Tenant shall from time to time make
deposits, which may be in the form of cash or supplemental letters of credit
meeting the requirements of the Letter of Credit Agreement (the
"NH/Medina Supplemental Deposits"), to
Landlord pursuant to Section 4(1) until such time as the total amount of
the Security Deposit is increased as a result of such NH/Medina Supplemental
Deposits by the amount of Three Hundred Sixty-Two Thousand Eight Hundred
Fifty Dollars ($362,850); provided, however, Tenant's obligation to
make such NH/Medina Supplemental Deposits shall not apply with respect to any
Measuring Period for which the North Hills/Medina Rent Coverage Ratio equals
or
exceeds 1.20 to 1. As used herein, "North Hills/Medina Rent Coverage
Ratio" means, as of the date of determination, the ratio of (i) the
EBITDARM for the North Hills Facility and the Medina Facility for the Measuring
Period, minus (A) an assumed management fee equal to five percent (5%)
of the Gross Revenues generated during such Measuring Period from the North
Hills Facility and the Medina Facility, (B) one-half of the applicable annual
CapEx Amount for the North Hills Facility at the commencement of the Measuring
Period, multiplied by the aggregate number of assisted living units at
the North Hills Facility, and (C) one-half of the applicable annual CapEx Amount
for the Medina Facility at the commencement of the Measuring Period,
multiplied by the aggregate number of assisted living units at the
Medina Facility, to (ii) the total amount of the Minimum Rent and Additional
Rent due with respect to the North Hills Facility and the Medina Facility for
the Measuring Period pursuant to the tellas of this Master
Lease.
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(0 The
Supplemental Deposits to be made by Tenant in accordance with
Section 4(c), (d) and (e) above shall be due on the thirtieth
(30th) day of
each calendar month (or last day of the month, in the case of February)
following the Measuring Period in which the actual Camelot Rent Coverage Ratio,
Ridgewood Rent Coverage Ratio or North Hills/Medina Rent Coverage Ratio, as
applicable, fails to equal or exceed 1.20 to 1. The Supplemental Deposits shall
be equal to five percent (5%) of the Gross Revenues from the Camelot Facility,
Ridgewood Facility or North Hills and Medina Facilities, as applicable, for
the
calendar month immediately preceding the date on which each Supplemental Deposit
is due or such lesser amount as is required to fulfill the requirements of
Section 4(c), (d) and (e) above.
(g) As
used herein, "Gross Revenues" means all of the revenues of
the
applicable Facility or Facilities other than the proceeds of the sale of any
of
the applicable Facility's or Facilities' equipment which has become worn out
or
obsolete, all insurance awards and condemnation proceeds, sales, use and
occupancy or other taxes on receipts required to be accounted for by Tenant
to
governmental authorities and nonrecurring revenues as reasonably approved
by Landlord. As used herein, "EBITDARM" means, for any
Measuring Period, the net income (or loss) of Tenant for such Measuring Period
to the extent derived from the operation of the applicable Facility or
Facilities, adjusted to add thereto any amounts deducted in determining such
net
income (or loss) for (v) interest expense, (w) income tax expense, (x)
depreciation and amortization expense, (y) rental expense, and (z) management
fee expense, in each case determined in conformity with generally accepted
accounting principles, consistently applied."
(e) Section
6.1(a) of the Master Lease is hereby deleted and substituted with the
following:
"(a)
Fire and Extended Coverage with respect to each Facility against loss
or damage from all causes under standard "all risk" property insurance coverage
with an agreed amount endorsement (such that the insurance carrier has accepted
the amount of coverage and has agreed that there will be no co-insurance
penalty), without exclusion for fire, lightning, windstorm, explosion, smoke
damage, vehicle damage, sprinkler leakage, flood (if located in a 100-year
or
less flood zone), vandalism, earthquake (if located in an area known for risk
of
loss due to seismic activity), malicious mischief or any other risks normally
covered under an extended coverage endorsement, in amounts that are not less
than the actual replacement value of such Facility and all Tenant Personal
Property associated therewith (including the cost of compliance with changes
in
zoning and building codes and other laws and regulations, demolition and debris
removal and increased cost of construction);"
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(f) The
following is hereby added at the beginning of the second paragraph of Section
8.3 of the Master Lease:
"For
purposes of determining the Applicable Annual Reserve with respect to the
Ridgewood Facility, the Ridgewood Facility shall be deemed to have eighty (80)
units."
(g) The
third sentence of Section 13.4 of the Master Lease is hereby deleted and
substituted with the following:
"All
sums
so paid by Landlord and all necessary and incidental costs and expenses
(including reasonable attorneys' fees and expenses) incurred in connection
with
the performance of any such act by it, together with interest at the Agreed
Rate
from the date of the making of such payment or the incurring of such costs
and
expenses, shall at Landlord's option either be payable by Tenant to Landlord
on
demand or added to Landlord's Camelot Investment, Landlord's Lakeview/HillenVale
Investment, Landlord's Ridgewood Investment, and/or Landlord's North
Hills/Medina Investment, as the case may be."
(h) The
forth sentence of Section 18 of the Master Lease is hereby deleted and
substituted
with the following:
"In
the
event this Master Lease is terminated as to any Facility under this Section
18, then the Minimum Rent and Additional Rent due hereunder shall be shall
be reduced by the product of (x) the amount of the then current Minimum Rent
and
Additional Rent, and (y) a fraction, the numerator of which is the amount
received by Landlord as a result of the Complete Taking and the denominator
of
which is the sum of Landlord's Camelot Investment, Landlord's
Lakeview/HillenVale Investment, Landlord's Ridgewood Investment and Landlord's
North Hills/Medina Investment."
(1) Section
23 of the Master Lease is hereby deleted in its entirety and substituted
with
the
following:
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"Option
to Purchase. Provided no
Event of Default exists on the Call Exercise Date or the closing date, Tenant
shall have the option to purchase all but not less than all the Premises
(excluding the Ridgewood Facility) by giving Landlord written notice thereof
(the "Call Exercise Date") not more than fifteen (15) days
before or after the date which is_ fifteen (15) months prior to
the end of the then current Term. The purchase price shall be the greater of
(a)
Landlord's Camelot Investment, Landlord's Lakeview/HillenVale Investment and
Landlord's
North Hills/Medina Investment, compounded each Lease Year (including any partial
Lease Year if the closing does not occur on the last day of a Lease Year) after
the commencement date of this Master Lease at a rate of three percent
(3%) per Lease Year, or (b) Landlord's Camelot Investment, Landlord's
Lakeview/HillenVale Investment and Landlord's North Hills/Medina Investment,
compounded each Lease Year (including any partial Lease Year if the closing
does
not occur on the last day of a Lease Year) after the commencement date of this
Master Lease at a rate equal to the actual percentage increase in the CPI each
Lease Year during the period of determination. Once the purchase price is so
established: (i) the parties shall sign the standard sale escrow instructions
of
a national title company (selected by Landlord and reasonably approved by
Tenant) that are in form and substance reasonably satisfactory to Landlord
and
Tenant and without representations or warranties, due diligence or other
contingencies in favor of Tenant except as otherwise provide for herein; (ii)
Tenant shall deposit three percent (3%) of the purchase price
with the title company, which may be retained by Landlord as liquidated damages
as a result of the failure of escrow to close solely for any breach by Tenant
of
these terms or the escrow instructions (and which in no way shall liquidate
or
limit Landlord's damages by reason of any other breach of this Master Lease);
(iii) the escrow shall close on the last day of the then current Term, at which
time Tenant shall pay the purchase price in cash and Landlord shall deliver
title to each of the Facilities subject only to those title exceptions shown
in
Exhibit D by customary limited warranty deed and other
customary conveyancing documents; and (iv) Tenant shall pay all transaction
costs. If Tenant fails to close the escrow for any reason other than a breach
by
Landlord, then Landlord shall have the right to extend the Term for an
additional one (1) year period during which the Rent shall be
calculated as if on the Call Exercise Date Tenant had instead exercised its
right to extend the Term for a Renewal Term."
Section
25 of the Master Lease is hereby deleted in its entirety and substituted
with the following:
"1031
Exchange. Tenant acknowledges that Nationwide Health Properties,
Inc. ("NHP") elected to consummate the purchase of the Lakeview Facility and
HillenVale Facility as a reverse like-kind exchange within the meaning of
Section 1031 of Code (the "Exchange"). Accordingly, NHP entered
into a Qualified Exchange Accommodation Agreement (the "QEAA") with an "Exchange
Accommodation Titleholder" as that teim is defined in Internal Revenue Service
Revenue Procedure 2000-37, 2000-40 I.R.B. 1 (September 15, 2000) for the purpose
of effectuating such Exchange. Tenant acknowledges that NHP XxXxxxx, LLC, a
Delaware limited liability company ("NHP XxXxxxx"), rather than
NHP, took title to the Lakeview Facility and HillenVale Facility and leased
the
Lakeview Facility and HillenVale Facility to NHP pursuant to a written lease
(the "Exchange Lease"). NHP XxXxxxx and Landlord acknowledge
and agree that Tenant has no obligations under such Exchange Lease and Tenant's
only duties, covenants, obligations and liabilities shall be those set forth
in
this Master Lease and the transaction documents relating thereto to which Tenant
is a party. Effective as of December 1, 2006, Landlord completed the Exchange,
acquired all of the membership interest in NHP XxXxxxx and terminated the
Exchange Lease. Accordingly, NHP XxXxxxx is hereby joined as a "Landlord" under
this Master Lease, for the purposes of continuing the lease of the Lakeview
Facility and HillenVale Facility to Tenant pursuant to the terms of this Master
Lease. Tenant hereby agrees to attorn to and recognize NHP XxXxxxx as a
"Landlord" under this Master Lease with respect to the Lakeview Facility and
HillenVale Facility."
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2. Tax
Impound and CapEx Expenditures. From and after the date Landlord
acquires fee title to the North Hills Facility and the Medina Facility, the
North Hills Facility and Medina Facility shall be added as a portion of the
Premises leased to Tenant under the terms of the Master Lease. Accordingly,
with
each payment of Minimum Rent payable by Tenant with respect to the North Hills
Facility and the Medina Facility, Tenant shall make tax impound deposits and
CapEx Reserve deposits for the North Hills Facility and the Medina Facility
in
accordance with the terms of Section 5.2 and Section 8.3 of the
Master Lease.
3. Amendment
to LC Agreement. In the LC Agreement and Exhibit A to the LC
Agreement, all references to "Five Hundred Seventy-Three Thousand Three Hundred
Twenty-Five Dollars ($573,325)" as the Letter of Credit Amount are hereby
deleted and replaced with "Seven Hundred Fifty-Four Thousand Seven Hundred
Fifty
Dollars ($754,750)".
4. Enforcement
of Rights. Landlord has the right to enforce the covenants,
representations and warranties of Seller under the Purchase Agreement with
respect to the Additional Facilities; provided, however, Landlord agrees upon
request of Tenant either to enforce the same against Seller at Tenant's cost
and
expense or, to the extent assignable, to assign its rights thereto in order
to
enable Tenant to enforce the same against Seller.
5. Reaffirmation
of Obligations.
(a) Notwithstanding
the amendments to the Master Lease contained herein, Tenant and Landlord each
hereby acknowledges and reaffillus its respective obligations under the Master
Lease (as modified hereby), the LC Agreement and all other documents executed
by
such party in connection therewith.
(b) Notwithstanding
the amendments to the Master Lease contained herein, Guarantor hereby
acknowledges and reaffirms its obligations under the Guaranty and all documents
executed by Guarantor in connection therewith, and further agrees that any
reference made in the Guaranty to the Master Lease or any terms or conditions
contained therein shall mean such Master Lease or such terms or conditions
as
amended by this Amendment.
6. Interpretation.
This Amendment shall be construed as a whole and in accordance
with
its fair meaning. Headings are for convenience only and shall not be used in
construing meaning.
7. Further
Instruments. Each party will, whenever and as often as it shall be
reasonably requested so to do by another party, cause to be executed,
acknowledged or delivered any and all such further instruments and documents
as
may be necessary or proper, in the reasonable opinion of the requesting party,
in order to carry out the intent and purpose of this Amendment.
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8. Incorporation
of Recitals. The Recitals to this Amendment are incorporated hereby
by reference.
9. Counterparts.
This Amendment may be executed in counterparts, all of which
executed counterparts shall together constitute a single document. Signature
pages may be detached from the counterparts and attached to a single copy of
this document to physically form one document.
10. Attorneys'
Fees. In the event of any dispute or litigation concerning the
enforcement, validity or interpretation of this Amendment, or any part thereof,
the losing party shall pay all costs, charges, fees and expenses (including
reasonable attorneys' fees) paid or incurred by the prevailing party, regardless
of whether any action or proceeding is initiated relative to such dispute and
regardless of whether any such litigation is prosecuted to
judgment.
11. Effect
of Amendment. Except as specifically amended pursuant to the terms
of this Amendment, the terms and conditions of the Master Lease shall remain
unmodified and in full force and effect. In the event of any inconsistencies
between the terms of this Amendment and any terms of the Master Lease, the
terms
of this Amendment shall govern and prevail.
12. Entire
Agreement. This Amendment contains the entire agreement between the
parties
relating to the subject matters contained herein. Any oral representations
or
statements concerning the subject matters herein shall be of no force or
effect.
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IN
WITNESS WHEREOF, the parties have executed this Amendment as of
the date first above written.
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TENANT:
|
||||
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SUMMERVILLE
AT CAMELOT PLACE LLC,
|
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a
Delaware limited liability company
|
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By:
|
/s/
Xxxxxxx Xxxx
|
|||
|
Xxxxxxx
Xxxx
|
||||
|
President
|
||||
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SUMMERVILLE
AT XXXXXX VALE LLC,
|
||||
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a
Delaware limited liability company
|
||||
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By:
|
/s/
Xxxxxxx Xxxx
|
|||
|
Xxxxxxx
Xxxx
|
||||
|
President
|
||||
|
SUMMERVILLE
AT LAKEVIEW LLC,
|
||||
|
a
Delaware limited liability company
|
||||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|||
|
Xxxxxxx
Xxxx
|
||||
|
President
|
||||
|
SUMMERVILLE
AT RIDGEWOOD GARDENS LLC,
|
||||
|
a
Delaware limited liability company
|
||||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|||
|
Xxxxxxx
Xxxx
|
||||
|
President
|
||||
|
SUMMERVILLE
AT NORTH HILLS LLC,
|
||||
|
a
Delaware limited liability company
|
||||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|||
|
Xxxxxxx
Xxxx
|
||||
|
President
|
||||
|
THE
INN AT XXXXXX
LLC,
|
||||
|
a
Delaware limited liability company
|
||||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|||
|
Xxxxxxx
Xxxx
|
||||
|
President
|
||||
11
|
GURANTOR:
|
||||
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SUMMERVILLE
SENIOR LIVING, INC.,
|
||||
|
a
Delaware corporation
|
||||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|||
|
Xxxxxxx
Xxxx
|
||||
|
President
|
||||
|
LANDLORD:
|
||||
|
NATIONWIDE
HEALTH PROPERTIES, INC.,
|
||||
|
a
Maryland corporation
|
||||
|
By:
|
/s/Xxxxx
Xxxxxx
|
|||
|
Name:
|
Xxxxx
Xxxxxx
|
|||
|
Title:
|
Vice
President & Controller
|
|||
|
NHP
XxXXXXX,LLC,
|
||||
|
a
Delaware limited liability company
|
||||
|
BY:
|
NATIONWIDE
HEALTH PROPERTIES,INC.,
|
|||
|
a
Maryland corporation,
|
||||
|
its
sole member
|
||||
|
By:
|
/s/Xxxxx
Xxxxxx
|
|||
|
Name:
|
Xxxxx
Xxxxxx
|
|||
|
Title:
|
Vice
President & Controller
|
|||
12
