EXHIBIT 10.7.6 FIFTH AMENDMENT TO GUARANTY This Fifth Amendment to Guaranty of Lease (this "Guaranty Amendment"), dated as of May 13, 2004, is made by and between Brookdale Living Communities, Inc., a Delaware corporation (together with any entity...
EXHIBIT 10.7.6
FIFTH AMENDMENT TO GUARANTY
This Fifth Amendment to Guaranty of Lease (this "Guaranty Amendment"),
dated as of May 13, 2004, is made by and between Brookdale Living Communities,
Inc., a Delaware corporation (together with any entity succeeding thereto by
consolidation, merger or acquisition of its assets substantially as an entirety,
"Guarantor"), Ventas Realty, Limited Partnership, a Delaware limited partnership
("Initial Beneficiary"), Ventas Kansas City I, LLC, a Delaware limited liability
company ("VKC"), Ventas Belleville, LLC ("VB"), Ventas Farmington Hills, LLC
("VFH"), and Ventas Springfield/Findlay, LLC ("VSF" and, together with Initial
Beneficiary, VKC, VB, and VFH, the "Beneficiaries").
Guarantor executed that certain Guaranty of Lease in favor of Initial
Beneficiary dated as of January 28, 2004 (the "Original Guaranty"), as amended
by that certain First Amendment to Guaranty dated as of February 20, 2004
between Guarantor and Initial Beneficiary (the "First Amendment"), that certain
Second Amendment to Guaranty dated as of February 26, 2004 between Guarantor and
Initial Beneficiary (the "Second Amendment"), that certain Third Amendment to
Guaranty dated as of March 10, 2004 between Guarantor, Initial Beneficiary and
VKC (the "Third Amendment"), that certain Fourth Amendment to Guaranty dated as
of March 30, 2004 among Guarantor, Initial Beneficiary, VKC, VB and VSF (the
"Fourth Amendment", and, together with the Original Guaranty, the First
Amendment, the Second Amendment, and the Third Amendment, the "Guaranty").
Initial Beneficiary is simultaneously herewith acquiring a fee simple interest
in the parcels of land described on Exhibit A, attached hereto and made a part
hereof, and the improvements located on said land ("New Property") and leasing
the New Property to Brookdale Living Communities of Illinois-GV, LLC ("New
Tenant"), pursuant to that certain Master Lease Agreement by and among Initial
Beneficiary and those certain entities identified in Schedule 1 thereof, dated
as of January 28, 2004, as amended by that certain First Amendment to Master
Lease dated as of January 28, 2004, that certain Second Amendment to Master
Lease dated as of February 20, 2004, and that certain Third Amendment to Master
Lease dated as of the date hereof (as so amended, the "Master Lease", and such
Third Amendment to Master Lease, the "Third Amendment"). Initially capitalized
terms used but not defined herein shall have the meaning ascribed to such term
in the Guaranty. Initial Beneficiary is unwilling to enter into the Third
Amendment unless Guarantor enters into this Guaranty Amendment. Guarantor
directly or indirectly owns all the stock, partnership interests or membership
interests, as the case may be, of New Tenant. The acquisition by Initial
Beneficiary of the New Property and the lease of the New Property to New Tenant
is of direct benefit to Guarantor. This Guaranty Amendment reasonably may be
expected to benefit, directly or indirectly, Guarantor.
NOW, THEREFORE, in consideration of $10 and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Guarantor, intending to be legally bound, covenants and agrees with the
Beneficiaries as follows:
1. Certain Amendments. Exhibit A to the Guaranty is hereby amended
to include the New Property identified on Exhibit A attached hereto. Schedule B
to the Guaranty is hereby deleted in its entirety and replaced with Schedule B
attached hereto. From and after the
date hereof, the Guaranty is (a) for the benefit of all of the Beneficiaries and
Ventas, Inc., a Delaware corporation (only to the extent Ventas, Inc. is liable
pursuant to any guaranty made by Ventas, Inc. in connection with a mortgage loan
related to any Property assumed by a Beneficiary in connection with the
acquisition of such Property) and (b) applicable to (i) all of the Properties
identified on Exhibit A to the Guaranty, as amended hereby, and (ii) all of the
Tenants and Leases identified on Schedule B to the Guaranty, as amended hereby.
2. Full Force and Effect. All other terms, conditions and covenants
contained in the Guaranty remain unchanged and in full force and effect.
Guarantor confirms and ratifies the terms and provisions of the Guaranty and
agrees that the Guaranty remains in full force and effect as of the date hereof,
and nothing contained in this Guaranty Amendment shall be construed to impair,
limit or reduce the security, rights or powers that the Beneficiaries, or any of
their successors, may have under the Guaranty. Guarantor further reaffirms and
ratifies its obligations to be bound by and perform all of the terms of the
Guaranty and any other agreements to which it and any of the Beneficiaries are
parties.
3. Governing Law; Jurisdiction. This Guaranty Amendment shall be
governed by and construed in accordance with the laws of the State of Illinois,
other than its doctrine regarding conflicts of laws. Guarantor irrevocably
submits to the personal jurisdiction of any federal or state court sitting in
the State of Illinois with respect to any matter arising under this Guaranty
Amendment. Guarantor consents to jurisdiction of the courts of the State of
Illinois and of the Federal courts sitting in the State of Illinois, and
consents to venue in the State of Illinois, and Guarantor waives any right to
stay, remove, or otherwise directly or indirectly interfere with such action
based on such jurisdiction.
4. Amendments; Successors. Neither this Guaranty Amendment nor the
Guaranty may be modified or amended except by a written agreement duly executed
by Guarantor and the Beneficiaries. This Guaranty Amendment shall be binding
upon the Guarantor and shall inure to the benefit of the Beneficiaries and their
successors and assigns as permitted under the Guaranty, including, without
limitation, any mortgagee of any Beneficiary's interest in any Property. In the
event any one or more of the provisions contained in this Guaranty Amendment
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Guaranty Amendment, but this Guaranty Amendment shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein. As used herein the term "New Tenant" includes its successors
and assigns with respect to the Master Lease.
5. Counterparts. This Guaranty Amendment may be executed in two or
more counterparts, including via facsimile, each of which shall be deemed an
original, and all of which together shall constitute one and the same
instrument.
[SIGNATURE PAGE FOLLOWS]
- 2 -
IN WITNESS WHEREOF, Guarantor has caused this Guaranty Amendment to be
executed and its corporate seals to be hereunto affixed and attested by its
officers thereunto duly authorized.
BROOKDALE LIVING COMMUNITIES, INC., a
Delaware corporation
By: /s/ R. Xxxxxxx Xxxxx
----------------------------------------
Name: R. Xxxxxxx Xxxxx
Title: Executive Vice-President, Chief
Financial Officer and Treasurer
VENTAS REALTY, LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Ventas, Inc., a Delaware corporation,
its sole general partner
By: /s/ T. Xxxxxxx Xxxxx
--------------------------------------
T. Xxxxxxx Xxxxx
Executive Vice President/General Counsel
VENTAS KANSAS CITY I, LLC,
a Delaware limited liability company
By: /s/ T. Xxxxxxx Xxxxx
--------------------------------------
T. Xxxxxxx Xxxxx
Vice President
VENTAS BELLEVILLE, LLC,
a Delaware limited liability company
By: /s/ T. Xxxxxxx Xxxxx
--------------------------------------
T. Xxxxxxx Xxxxx
Vice President
VENTAS FARMINGTON HILLS, LLC,
a Delaware limited liability company
By: /s/ T. Xxxxxxx Xxxxx
--------------------------------------
T. Xxxxxxx Xxxxx
Vice President
VENTAS SPRINGFIELD/FINDLAY, LLC,
a Delaware limited liability company
By: /s/ T. Xxxxxxx Xxxxx
--------------------------------------
T. Xxxxxxx Xxxxx
Vice President
EXHIBIT A
LEGAL DESCRIPTION (GLENVIEW)
PARCEL 1:
Lot 23 in Glenview Place, being a Resubdivision in the Northwest Quarter of
Section 29 and the Northeast Quarter of Section 30, Township 42 North, Range 12
East of the Third Principal Meridian, according to the plat thereof recorded
November 12, 1997, as Document Number 97-845875, in Xxxx County, Illinois.
PARCEL 2:
Easement for Storm and Water Detention for the benefit of Parcel 1 over that
part of Lots 1 and 2 of County Clerk's Division of Xxxxxxx 00, Xxxxxxxx 00
Xxxxx, Xxxxx 00 Xxxx of the Third Principal Meridian, according to the Plat
thereof recorded October 11, 1876 as Document No. 106468, in Xxxx County,
Illinois,
Described as Follows:
Commencing at the Northeast corner of said Section 30; Thence South 00 Degrees
00 Minutes 05 Seconds West along the east line of said Section 30, 449.38 feet;
Thence South 89 Degrees 41 Minutes 07 Seconds West, 1146.68 feet to a point for
a Place of Beginning; Thence continuing South 89 Degrees 41 Minutes 07 Seconds
West, 235.00 feet to the easterly line of Xxxxxxx Road according to Document No.
21779374, recorded January 18, 1972; Thence North 07 Degrees 27 Minutes 17
Seconds West along said easterly line of Xxxxxxx Road, 341.26 feet; Thence South
89 Degrees 59 Minutes 15 Seconds East, 273.68 feet; Thence South 00 Degrees 57
Minutes 03 Seconds East, 337.07 feet to the Point of Beginning as created by
Instrument dated June 2, 1997 and recorded June 5, 1997 as Document No.
97-400065, and as amended by Instrument recorded July 8, 1997 as Document No.
97-490185.
P.I.N.: 04-29-100-299-0000
04-30-211-023-0000
Address: 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
SCHEDULE B
PROPERTY LANDLORD TENANT LEASE DOCUMENT
------------------------ ---------------------------- --------------------- -------------------------
Grand Court Xxxxxx, Ventas Realty, Limited BLC Xxxxxx-XX, LLC Master Lease Agreement
Adrian, Michigan Partnership by Ventas Realty, Limited
Partnership and BLC
Xxxxxx-XX, LLC; BLC
Albuquerque-GC, LLC;
BLC Bristol-GC, LLC;
BLC Dayton-GC, LLC;
BLC Fort Xxxxx-GC,
LLC; BLC Las Vegas-
GC, LLC; BLC Lubbock-
GC, L.P.; BLC Overland
Park-GC, LLC; BLC
Xxxxxxx-GC, LLC; and
Brookdale Living
Communities of Illinois-
GV, LLC
Grand Court Albuquerque, Ventas Realty, Limited BLC Albuquerque-GC, Master Lease Agreement
Albuquerque, New Mexico Partnership LLC by Ventas Realty, Limited
Partnership and BLC
Xxxxxx-XX, LLC; BLC
Albuquerque-GC, LLC;
BLC Bristol-GC, LLC;
BLC Dayton-GC, LLC;
BLC Fort Xxxxx-GC,
LLC; BLC Las Vegas-
GC, LLC; BLC Lubbock-
GC, L.P.; BLC Overland
Park-GC, LLC; BLC
Xxxxxxx-GC, LLC; and
Brookdale Living
Communities of Illinois-
GV, LLC
Grand Court Belleville, Ventas Belleville, LLC BLC Belleville-GC, Lease Agreement by
Belleville, Illinois LLC Ventas Belleville, LLC
and BLC Belleville-GC,
LLC
Grand Court Bristol, Ventas Realty, Limited BLC Bristol-GC, LLC Master Lease Agreement
Bristol, Virginia Partnership by Ventas Realty, Limited
Partnership and BLC
Xxxxxx-XX, LLC; BLC
Albuquerque-GC, LLC;
BLC Bristol-GC, LLC;
BLC Dayton-GC, LLC;
BLC Fort Xxxxx-GC,
LLC; BLC Las Vegas-
GC, LLC; BLC Lubbock-
PROPERTY LANDLORD TENANT LEASE DOCUMENT
------------------------ ---------------------------- --------------------- -------------------------
GC, L.P.; BLC Overland
Park-GC, LLC; BLC
Xxxxxxx-GC, LLC; and
Brookdale Living
Communities of Illinois-
GV, LLC
Grand Court Dayton, Ventas Realty, Limited BLC Dayton-GC, LLC Master Lease Agreement
Dayton, Ohio Partnership by Ventas Realty, Limited
Partnership and BLC
Xxxxxx-XX, LLC; BLC
Albuquerque-GC, LLC;
BLC Bristol-GC, LLC;
BLC Dayton-GC, LLC;
BLC Fort Xxxxx-GC,
LLC; BLC Las Vegas-
GC, LLC; BLC Lubbock-
GC, L.P.; BLC Overland
Park-GC, LLC; BLC
Xxxxxxx-GC, LLC; and
Brookdale Living
Communities of Illinois-
GV, LLC
Grand Court Farmington Ventas Farmington Hills, LLC BLC Farmington Hills- Lease Agreement by
Hills GC, LLC Ventas Farmington Hills,
Farmington Hills, LLC and BLC
Michigan Farmington Hills-GC,
LLC
Grand Court Findlay Ventas Springfield/Findlay, BLC Findlay-GC, LLC Master Lease Agreement
Findlay, Ohio LLC by Ventas
Springfield/Findlay, LLC
and BLC Findlay-GC,
LLC and BLC
Springfield-GC, LLC
PROPERTY LANDLORD TENANT LEASE DOCUMENT
------------------------ ---------------------------- --------------------- -------------------------
Grand Court Fort Xxxxx, Ventas Realty, Limited BLC Fort Xxxxx-GC, Master Lease Agreement
Fort Xxxxx, Florida Partnership LLC by Ventas Realty, Limited
Partnership and BLC
Xxxxxx-XX, LLC; BLC
Albuquerque-GC, LLC;
BLC Bristol-GC, LLC;
BLC Dayton-GC, LLC;
BLC Fort Xxxxx-GC,
LLC; BLC Las Vegas-
GC, LLC; BLC Lubbock-
GC, L.P.; BLC Overland
Park-GC, LLC; BLC
Xxxxxxx-GC, LLC; and
Brookdale Living
Communities of Illinois-
GV, LLC
Grand Court Kansas City Ventas Kansas City I, LLC BLC Kansas City-GC, Lease Agreement by
I, LLC LLC Ventas Kansas City I,
LLC and BLC Kansas
City-GC, LLC
Grand Court Las Vegas, Ventas Realty Limited BLC Las Vegas-GC, Master Lease Agreement
Las Vegas, Nevada Partnership LLC by Ventas Realty, Limited
Partnership and BLC
Xxxxxx-XX, LLC; BLC
Albuquerque-GC, LLC;
BLC Bristol-GC, LLC;
BLC Dayton-GC, LLC;
BLC Fort Xxxxx-GC,
LLC; BLC Las Vegas-
GC, LLC; BLC Lubbock-
GC, L.P.; BLC Overland
Park-GC, LLC; BLC
Xxxxxxx-GC, LLC; and
Brookdale Living
Communities of Illinois-
GV, LLC
Grand Court Lubbock Ventas Realty, Limited BLC Lubbock-GC, L.P. Master Lease Agreement
Lubbock, Texas Partnership by Ventas Realty, Limited
Partnership and BLC
Xxxxxx-XX, LLC; BLC
Albuquerque-GC, LLC;
BLC Bristol-GC, LLC;
BLC Dayton-GC, LLC;
BLC Fort Xxxxx-GC,
LLC; BLC Las Vegas-
GC, LLC; BLC Lubbock-
GC, L.P.; BLC Overland
Park-GC, LLC; BLC
Xxxxxxx-GC, LLC; and
PROPERTY LANDLORD TENANT LEASE DOCUMENT
------------------------ ---------------------------- --------------------- -------------------------
Brookdale Living
Communities of Illinois-
GV, LLC
Grand Court Overland Park Ventas Realty, Limited BLC Overland Park-GC, Master Lease Agreement
Overland Park, Kansas Partnership LLC by Ventas Realty, Limited
Partnership and BLC
Xxxxxx-XX, LLC; BLC
Albuquerque-GC, LLC;
BLC Bristol-GC, LLC;
BLC Dayton-GC, LLC;
BLC Fort Xxxxx-GC,
LLC; BLC Las Vegas-
GC, LLC; BLC Lubbock-
GC, L.P.; BLC Overland
Park-GC, LLC; BLC
Xxxxxxx-GC, LLC; and
Brookdale Living
Communities of Illinois-
GV, LLC
Grand Court Springfield Ventas Springfield/Findlay, BLC Springfield-GC, Master Lease Agreement
Springfield, Ohio LLC LLC by Ventas
Springfield/Findlay, LLC
and BLC Findlay-GC,
LLC and BLC
Springfield-GC, LLC
PROPERTY LANDLORD TENANT LEASE DOCUMENT
------------------------ ---------------------------- --------------------- -------------------------
Grand Court Tavares, Ventas Realty, Limited BLC Xxxxxxx-GC, LLC Master Lease Agreement
Tavares, Florida Partnership by Ventas Realty, Limited
Partnership and BLC
Xxxxxx-XX, LLC; BLC
Albuquerque-GC, LLC;
BLC Bristol-GC, LLC;
BLC Dayton-GC, LLC;
BLC Fort Xxxxx-GC,
LLC; BLC Las Vegas-
GC, LLC; BLC Lubbock-
GC, L.P.; BLC Overland
Park-GC, LLC; BLC
Xxxxxxx-GC, LLC; and
Brookdale Living
Communities of Illinois-
GV, LLC
The Seasons at Glenview Ventas Realty, Limited Brookdale Living Master Lease Agreement
Place, Partnership Communities of Illinois- by Ventas Realty, Limited
Glenview, Illinois GV, LLC Partnership and BLC
Xxxxxx-XX, LLC; BLC
Albuquerque-GC, LLC;
BLC Bristol-GC, LLC;
BLC Dayton-GC, LLC;
BLC Fort Xxxxx-GC,
LLC; BLC Las Vegas-
GC, LLC; BLC Lubbock-
GC, L.P.; BLC Overland
Park-GC, LLC; BLC
Xxxxxxx-GC, LLC; and
Brookdale Living
Communities of Illinois-
GV, LLC
