RE: Agreement Regarding Leases and Property Lease Agreements
Exhibit 10.2.4.3
April 4, 2008
Brookdale Provident Properties, LLC,
c/o Brookdale Senior Living, Inc.
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: President
c/o Brookdale Senior Living, Inc.
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: General Counsel
RE: Agreement Regarding Leases and Property Lease Agreements
Ladies and Gentlemen:
Reference is hereby made to that certain Agreement Regarding Leases, dated as of October 19, 2004, (as amended by that certain Side Letter Agreement dated March 28, 2005, and that certain Side Letter Agreement dated October 19, 2004, and as may be further amended, modified or supplemented, the “ARL”) by and between PSLT-BLC Properties Holdings, LLC (“PSLT-BLC”; PSLT-BLC, collectively with the Provident Lessors described below shall be known as the “PSLT-BLC Parties”) and Brookdale Provident Properties, LLC (“Brookdale Provident”; Brookdale Provident, collectively with the Brookdale Lessees as described below shall be known as the “Brookdale Provident Parties”). PSLT-BLC Properties Holdings, LLC is the owner of the beneficial interest in those certain entities listed on Exhibit A attached hereto and made apart hereof (each a “Provident Lessor” and collectively referred to herein as the “Provident Lessors”). Brookdale Provident Properties, LLC is the owner of the beneficial interest in those certain entities listed on Exhibit B attached hereto and made a part hereof (each a “Brookdale Lessee” and collectively the “Brookdale Lessees”). Each of the Provident Lessors, as Lessor, has entered into a property lease agreement dated as of October 19, 2004 (each a “Property Lease”, and collectively, the “Property Leases”) with one of the Brookdale Lessees, as Lessee, for senior housing and/or assisted living and/or independent living facilities as more particularly described on Exhibit C attached hereto. Capitalized terms not defined herein shall have the meanings given to them under the Property Leases and the ARL.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the PSLT-BLC Parties and the Brookdale Provident Parties, each intending to be legally bound, hereby agree as follows:
| 1. | Notwithstanding anything to the contrary contained in the Property Leases or the ARL to the contrary, from and after March 31, 2008, the PSLT-BLC Parties and their Affiliates, as applicable, shall have no duty or obligation to hold the Deposited Funds in segregated accounts or invest the Deposited Funds in any manner whatsoever. For the avoidance of doubt, from and after March 31, 2008, the PSLT-BLC Parties and their Affiliates, as applicable, shall be permitted to commingle the Deposited Funds with any of their Affiliates’ other funds and may utilize the funds as, when and in the manner determined in their sole discretion, including without limitation, to pay down indebtedness of the PSLT-BLC Parties or any of their Affiliates. |
| 2. | From and after April 1, 2008, the average aggregate daily amount of the Security Deposit (excluding any cash or other amounts held by any Facility Mortgagee) will be deemed to accrue interest at the Deposited Funds Rate. The “Deposited Funds Rate” with respect to any given calendar month shall mean a per annum rate equal to (a) the yield for the thirty to forty-four (30-44) day commercial paper rate at constant maturities on the last Friday ended in the prior month, as such rate is reported in the Wall Street Journal, plus (b) twenty-five (25) basis points (0.25%). Within fifteen (15) days after the end of each calendar quarter, the PSLT-BLC Parties shall deliver the calculation of the Deposited Funds Rate for each month during that preceding period, which shall be deemed correct, absent manifest error. Such accrued interest shall be paid to Brookdale Provident on the 15th day after the end of each Lease Year. Any such accrued interest shall be prorated with respect to any partial calendar month occurring during the Term. Notwithstanding anything to the contrary contained in this Letter Agreement, any Deposited Funds held by a Facility Mortgagee shall continue to accrue interest as set forth in Section 54 and Section 55 of the Property Leases, and interest on such amounts shall continue to be paid to the Brookdale Provident Parties as provided therein. |
| 3. | Amendment. In the event of a conflict between the Property Leases and the ARL, on the one hand, and this Letter Agreement, on the other hand, this Letter Agreement shall control. |
| 4. | Property Leases and ARL Remain In Effect; No Waiver. Except as expressly modified by this Letter Agreement, all of the terms, covenants, agreements, conditions and other provisions of the Property Leases and ARL shall remain in full force and effect in accordance with their respective terms. No waiver of any of the provisions of the Property Leases or ARL contained herein shall be deemed or shall constitute a waiver of any other provision of the Property Leases (whether or not similar), nor shall any such waiver constitute a continuing waiver unless otherwise expressly provided. |
| 5. | Counterparts; Facsimile. This Letter Agreement may be executed in one or more counterparts, and signature pages may be delivered by facsimile, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. |
| 6. | Governing Law. This Letter Agreement is made pursuant to, and shall be construed and enforced in accordance with, the laws of the State of New York, irrespective of the principal place of business, residence or domicile of the parties hereto, and without giving effect to otherwise applicable principles of conflicts of law. Any legal action, suit or proceeding arising out of or relating to this Letter Agreement shall be instituted in any federal court or in any state court located in the Commonwealth of Kentucky, and each party hereto hereby waives any objection which such party may now or hereafter have to the laying of the venue of any such action, suit or proceeding, and hereby irrevocably and unconditionally submits to the jurisdiction of any such court. Any and all service of process and any other notice in any such action, suit or proceeding shall be effective against any party hereto if given as provided pursuant to the terms of the Property Leases or the ARL, as applicable. Nothing herein contained shall be deemed to affect the right of any party to serve process in any other manner permitted by applicable law. |
Please execute this Letter Agreement where indicated below and return the fully executed copy to c/o Xxxxx Xxxxxx, Ventas Healthcare Properties, Inc., 000 Xxxxx Xxxxxx Xx., Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000.
| Very truly yours, | ||||||||||
| PLST-BLC PROPERTIES HOLDINGS, LLC | ||||||||||
| a Delaware limited liability company | ||||||||||
| By: | PSLT OP, L.P. | |||||||||
| a Delaware limited partnership, | ||||||||||
| its sole member | ||||||||||
| By: | PSLT GP, LLC, | |||||||||
| a Delaware limited liability company, | ||||||||||
| its sold general partner | ||||||||||
| By: | Provident Senior Living Trust, a Maryland real estate investment trust, it sole member | |||||||||
| By: | /S/ T. Xxxxxxx Xxxxx | |||||||||
| T. Xxxxxxx Xxxxx | ||||||||||
| Executive Vice President and | ||||||||||
| General Counsel | ||||||||||
| BROOKDALE PROVIDENT PROPERTIES, LLC | ||||||||||
| a Delaware limited liability company | ||||||||||
| By: | /S/ | |||||||||
| Name: | ||||||||||
| Title: | Executive Vice President | |||||||||
EXHIBIT A
Provident Lessors
Brookdale Living Communities of Arizona-EM, LLC
Brookdale Living Communities of California-RC, LLC
Brookdale Living Communities of California, LLC
BLC of California-San Marcos, L.P.
Brookdale Living Communities of Connecticut, LLC
Brookdale Living Communities of Connecticut-WH, LLC
Brookdale Living Communities of Florida, LLC
Brookdale Living Communities of Illinois-2960, LLC
Brookdale Living Communities of Illinois-HV, LLC
River Oaks Partners
Brookdale Living Communities of Illinois-Xxxxxxx Estates, LLC
The Ponds of Pembroke Limited Partnership
Brookdale Living Communities of Illinois-HLAL, LLC
Brookdale Living Communities of Illinois-II, LLC
BLC of Indiana-OL, L.P.
Brookdale Living Communities of Massachusetts-RB, LLC
Brookdale Living Communities of Minnesota, LLC
Brookdale Living Communities of New Jersey, LLC
Brookdale Living Communities of New Mexico-SF, LLC
Brookdale Living Communities of New York-GB, LLC
Brookdale Living Communities of Washington-PP, LLC
EXHIBIT B
Provident Lessees
BLC-Springs at East Mesa, LLC
BLC-Woodside Terrace, L.P.
BLC-Atrium of San Xxxx, L.P.
BLC-Brookdale Place of San Marcos, L.P.
BLC-Gables at Farmington, LLC
BLC-Xxxxxxxxx, LLC
Brookdale Living Communities of Florida, Inc.
BLC-The Hallmark, LLC
BLC-Kenwood of Lake View, LLC
BLC-The Heritage of Des Plaines, LLC
BLC-Devonshire of Xxxxxxx Estates, LLC
BLC-Devonshire of Lisle, LLC
BLC-The Willows, LLC
BLC-Hawthorne Lakes, LLC
BLC-The Berkshire of Castleton, L.P.
BLC-River Bay Club, LLC
BLC-Edina Park Plaza, LLC
BLC-Brendenwood, LLC
BLC-Xxxxx de Xxxx, LLC
BLC-The Gables at Brighton, LLC
BLC-Park Place, LLC
EXHIBIT C
Facilities
| Property Name |
State |
City |
County | |||||
| 1. | The Springs of East Mesa | Arizona | Mesa | Maricopa | ||||
| 2. | Woodside Terrace | California | Redwood City | San Mateo | ||||
| 3. | The Atrium | California | San Xxxx | Santa Xxxxx | ||||
| 4. | Brookdale Place at San Marcos | California | San Marcos | San Diego | ||||
| 5. | The Gables at Farmington | Connecticut | Farmington | Hartford | ||||
| 6. | Xxxxxxxxx | Connecticut | West Hartford | Hartford | ||||
| 7. | The Classic at Xxxx Xxxx Xxxxx | Xxxxxxx | Xxxx Xxxx Xxxxx | Xxxx Xxxxx | ||||
| 8. | The Hallmark | Illinois | Chicago | Xxxx | ||||
| 9. | The Kenwood of Lake View | Illinois | Chicago | Xxxx | ||||
| 10. | The Heritage of Des Plaines | Illinois | Des Plaines | Xxxx | ||||
| 11. | The Devonshire of Hoffman Estates | Illinois | Xxxxxxx Estates | Xxxx | ||||
| 12. | The Devonshire of Lisle | Illinois | Lisle | DuPage | ||||
| 13. | The Willows | Illinois | Xxxxxx Hills | Lake | ||||
| 14. | Hawthorn Lakes | Illinois | Xxxxxx Hills | Lake | ||||
| 15. | The Berkshire of Castleton | Indiana | Indianapolis | Xxxxxx | ||||
| 16. | River Bay Club | Massachusetts | Quincy | Norfolk | ||||
| 17. | Edina Park Plaza | Minnesota | Edina | Hennepin | ||||
| 18. | Brendenwood | New Jersey | Voorhees | Camden | ||||
| 19. | Xxxxx xx Xxxx | Xxx Xxxxxx | Xxxxx Xx | Xxxxx Xx | ||||
| 00. | The Gables at Brighton | New York | Rochester | Monroe | ||||
| 21. | Park Place | Washington | Spokane | Spokane |
