EXHIBIT 10.7.4
THIRD AMENDMENT TO GUARANTY OF LEASE
This Third Amendment to Guaranty of Lease (this "Guaranty Amendment"),
dated as of March 10, 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"), and Ventas Kansas City I, LLC, a Delaware limited
liability company ("VKC" and, together with Initial Beneficiary, "Second
Amendment 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") and that
certain Second Amendment to Guaranty dated as of February 26, 2004 between
Guarantor and Initial Beneficiary (together with the Original Guaranty and the
First Amendment, the "Guaranty"). Initial Beneficiary and certain of its
affiliates (each a "Landlord" and, collectively, "Landlords") are 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 (each a "New Property" and, collectively, the "New Properties") and
leasing the New Properties to the entities identified as Tenant on Schedule C,
attached hereto and made a part hereof (each a "New Tenant" and, collectively,
the "New Tenants"), pursuant to those certain leases identified on Schedule C
attached hereto and made a part hereof (each a "New Lease" and, collectively,
the "New Leases"). Initially capitalized terms used but not defined herein shall
have the meaning ascribed to such term in the Guaranty. Landlords are unwilling
to acquire the New Properties or enter into the New Leases 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
each New Tenant. The acquisition by Landlords of the New Properties and the
lease of the New Properties to New Tenants 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 Second
Amendment Beneficiaries as follows:
1. Certain Amendments. Exhibit A to the Guaranty is hereby amended
to include each of the New Properties 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 Landlords identified on Schedule B to the
Guaranty, as amended hereby, 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 Landlord
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 Second Amendment
Beneficiaries or any other Landlord, 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 Landlord is a party.
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, Landlords and VKC. This Guaranty Amendment shall be binding upon
the Guarantor and shall inure to the benefit of Landlords and their successors
and assigns as permitted under the Guaranty, including, without limitation, any
mortgagee of Landlord'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" and the term "New Tenants" includes their
successors and assigns with respect to the New Leases.
5. Counterparts. This Guaranty Amendment may be executed in two or
more counterparts, including via facsimile, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
[SIGNATURE PAGE FOLLOWS]
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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
EXHIBIT A
LEGAL DESCRIPTION (BELLEVILLE)
A survey of that part of the Southeast Quarter (SE 1/4) of Section 28, in
Township 00 Xxxxx (00X), Xxxxx 00 Xxxx (X00X) of the Third Principal Meridian,
St. Clair County, State of Illinois, in the City of Belleville, more
particularly described as follows:
Commencing at the Northwest corner of Lot 1 as shown on Plat of Subdivision of
part of Lot 6, of said Section 28 in Township 00 Xxxxx (00X), Xxxxx 00 Xxxx
(X00X), as recorded in the Recorder's Office of St. Clair County, Illinois in
Book of Plats "N" on page 5; thence South 10 degrees West, a distance of 85.76
feet along the Southeasterly line of Polk Street; thence South 27 degrees 30'
West, a distance of 91.0 feet, continuing along the Southeasterly line of Polk
Street; thence South 40 degrees West, a distance of 25 feet continuing along the
Southeasterly line of Polk Street to the point of beginning; thence South
39 degrees 39' 34" West (recorded as South 40 degrees West), a distance of 74.17
feet (recorded as 75 feet) continuing along the Southeasterly line of Polk
Street; thence South 13 degrees 18' 38" West (recorded as South 27 West), a
distance of 76.29 feet (recorded as 77 feet) continuing along the Southeasterly
line of Polk Street to a point on the Southerly line of said Polk Street; thence
South 03 degrees 17' 20" West (recorded as Southwesterly), a distance of 126.26
feet (recorded as 157 feet) to a point 50 feet East of and measured at right
angles to the West line of the East 1/2 of the SE 1/4 of said Section 28;
thence South 00 degrees 00' 08" West (recorded as South 0 degrees 14' East), a
distance of 219.65 feet along a line parallel with and 50 feet East of the West
line of the East 1/2 of the SE 1/4 of said Section 28; thence North 88 degrees
56' 58" East (recorded as North 88 degrees 56' 58" East), a distance of 282.15
feet (recorded as 282.06 feet), to point on the West line of South Second
Street; thence North 01 degrees 03 ' 02" West (recorded as North 01 degrees 03'
02" West), a distance of 222.25 feet (recorded as 222.25 feet), along said West
line of South Second Street; thence Northwesterly 266.30 feet( recorded as
265.82 feet) along a 275.00 foot radius curve concave Southwesterly with a long
chord bearing North 28 degrees 39' 59" West 256.02 feet, continuing along the
Southwesterly line of said South Second Street; thence North 56 degrees 43' 29"
West (recorded as North 56 degrees 26' 02" West), a distance of 55.38 feet
(recorded as 55.32 feet), along said Southwesterly line of said South Second
Street; thence South 81 degrees 42' 41" West (recorded as South 81 degrees 37'
31" West), a distance of 37.16 feet (recorded as 37.18 feet), along said
Southerly line of said South Second Street to a point on the Southeasterly line
of said Polk Street and the point of beginning of this description, containing
2.667 acres, more or less.
Except the coal, oil, gas and other minerals underlying said premises and the
right to mine and remove same.
The above description describes the same property as described in the WARRANTY
DEED from FOUR FOUNTAINS ASSOCIATES, a Illinois limited partnership to
BELLEVILLE ASSOCIATES, an Illinois general partnership on February 16, 1993 and
recorded on
February 18, 1993 in Book 2902, Page 1280 of the St. Clair County, Illinois,
County Recorder's Office.
Legal Description as shown in Warranty Deed recorded February 18, 1993 in Book
2902, page 1280, described as follows:
Part of the XX 0/0 xx Xxxxxxx 00 xx X0X X0X of the 3rd P.M., more particularly
described as follows, to-wit:
Beginning the survey thereof at the Northwest corner of Lot 1 as shown on plat
of subdivision of part of Xxx 0, Xxxxxxx 00, X0X X0X recorded in the Recorder's
Office of St. Clair County, Illinois, in Book of Plats "N" on page 5; thence
South 10 degrees West, a distance of 85.76 feet to a pipe; thence South
27 degrees 30' West a distance of 91.0 feet to a pipe; thence South 40 degrees
West a distance of 100 feet to a pipe; thence South 27 degrees West a distance
of 77 feet to a pipe; thence Southwesterly a distance of 157 feet to a pipe 50
feet East of and measured at right angles to the West line of the East 1/2 of
the SE 1/4 of said Section 28; thence South 0 degrees 14' East along a line
parallel with and 50 feet East of the West line of the East 1/2 of the SE 1/4
of said Section 28 to a pipe in the Northerly line of State Bond Issue Xxxxx Xx.
00; thence Eastwardly along the Northerly line of State Bond Issue Route No. 13,
a distance of 984.9 feet to a point in the middle line of Richland Creek; thence
north 30 degrees 34' West along the middle line of said Richland Creek a
distance of 70 feet to a point; thence North 18 degrees 37' West along the
middle line of said Richland Creek a distance of 200.9 feet to a point; thence
North 19 degrees 41' West along the middle line of said Richland Creek a
distance of 173.0 feet to a point; thence North 45' 38" West along the Middle
Line of said Richland Creek a distance of 126.9 feet to a point; thence North
59 degrees 06' West along the Middle line of said Richland Creek a distance of
502.9 feet to a point; thence North 57 degrees 30' West along the Middle line of
said Richland Creek, a distance of 144 feet to a point in the Southerly line of
Xxxxxxxxx Xxxxxx; thence Westwardly along the Southerly line of Cleveland Street
to the point of beginning.
Except that part thereof lying East of the West line of South 2nd Street or
Northeast of the Southwest line of South 2nd Street, and Except further that
part thereof conveyed to the City of Belleville for Street purposes, by
Trustee's Deed from Xxxx Xxxxx, as Trustee dated February 2, 1973, and recorded
February 16, 1977 in Book 2415, on page 1058.
Excepting further the Southerly 160 feet thereof.
Except the coal, oil, gas and other minerals underlying said premises and the
right to mine and remove same.
PPN: 08-28-0-403-065
LEGAL DESCRIPTION (FINDLAY)
Situated in the City of Findlay, County of Xxxxxxx and State of Ohio:
And being part of Lot Number 6 in the Fox Run 1'st Addition (Plat Volume
11, Page 5), together with part of the Northwest Quarter (1/4) of Section 16,
Township One (1) North, Range Eleven (11) East, a tract of land bounded and
described as follows:
Beginning at a concrete monument found marking the Southeast corner of Lot
Number 6 in the Fox Run 1st Addition, as platted in Plat Volume 11, Page 5, of
the Xxxxxxx County Plat Records;
Thence along a Southeasterly extension of the Southwesterly right-of-way
line of Fox Run Road, South 25 deg. 18' 10" East, a distance of 310.36 feet to
an iron stake set;
Thence parallel with the Southeasterly line of Lot Number 6, as platted in
Fox Run 1st Addition, South 71 deg. 38' 58" West, a distance of 554.12 feet to
the centerline of Rush Creek and passing an iron stake set 30.22 feet Northeast
thereof;
Thence along said centerline, North 25 deg. 18'10" West, a distance of
310.36 feet to the Southwest corner of Lot Number 6, as platted in Plat Volume
11, Page 5, of the Xxxxxxx County Plat Records, said corner being, South 71 deg.
38' 58" West, a distance of 30.22 feet from an iron stake set on the South line
of said Lot Number 6;
Thence along the West line of said Xxx Xxxxxx 0, Xxxxx 00 deg. 10' 15"
East, a distance of 99.00 feet to an iron stake set;
Thence parallel with the South line of Xxx Xxxxxx 0, Xxxxx 00 deg. 38' 58"
East, a distance of 500.57 feet to an iron stake found on the Southwesterly
right-of-way line of Fox Run Road;
Thence along said right-of-way line, South 25 deg. 18' 10" East, a
distance of 90.00 feet to the point of beginning, and containing 5.001 acres of
land, more or less, of which 1.082 acres, more or less, lies in Lot Number 6 in
the Fox Run 1st Addition, said tract subject however to all prior easements of
records.
ALSO DESCRIBED AS:
Situated in the City of Findlay, County of Xxxxxxx and State of Ohio:
And being part of Lot Number 6 in the Fox Run 1'st Addition (Plat Volume
11, Page 5), together with part of the Northwest Quarter (1/4) of Section 16,
Township One (1) North, Range Eleven (11) East, a tract of land bounded and
described as follows:
Beginning at a concrete monument found marking the Southeast corner of Lot
Number 6 in the Fox Run 1st Addition, as platted in Plat Volume 11, Page 5, of
the Xxxxxxx County Plat Records;
Thence along a Southeasterly extension of the Southwesterly right-of-way
line of Fox Run Road, South 25 deg. 18' 10" East, a distance of 310.36 feet to
an iron stake set;
Thence parallel with the Southeasterly line of Lot Number 6, as platted in
Fox Run 1st Addition, South 71 deg. 38' 58" West, a distance of 554.12 feet to
the centerline of Rush Creek and passing an iron stake set 30.22 feet Northeast
thereof;
Thence along said centerline, North 25 deg. 18'10" West, a distance of
310.36 feet to the Southwest corner of Lot Number 6, as platted in Plat Volume
11, Page 5, of the Xxxxxxx County Plat Records, said corner being, South 71 deg.
38' 58" West, a distance of 30.22 feet from an iron stake set on the South line
of said Lot Number 6;
Thence along the West line of said Xxx Xxxxxx 0, Xxxxx 00 deg. 10' 15"
East, a distance of 99.00 feet to an iron stake set;
Thence parallel with the South line of Xxx Xxxxxx 0, Xxxxx 00 deg. 38' 58"
East, a distance of 500.57 feet to an iron stake found on the Southwesterly
right-of-way line of Fox Run Road;
Thence along said right-of-way line, South 25 deg. 18' 10" East, a
distance of 90.00 feet to the point of beginning, and containing 5.001 acres of
land, more or less, of which 1.082 acres, more or less, lies in Lot Number 6 in
the Fox Run 1st Addition, said tract subject however to all prior easements of
records.
The above described premises are more fully described as part of Lot
Number 6 in the Fox Run 1st Addition, as platted in Plat Volume 11, Page 5 of
the Xxxxxxx County Plat Records, and all of Lot Number 175 in Fox Run 5th
Addition as platted in Plat Volume 14, Page 29, of the Xxxxxxx County Plat
Records.
000 Xxx Xxx Xxxx
Xxxxxxx, Xxxx
PPN: 570000082100 (as to Part Lot 6)
0 Xxx Xxx Xxxx
Xxxxxxx, Xxxx
PPN: 570001001982 (AS TO LOT 175)
LEGAL DESCRIPTION (SPRINGFIELD)
Situated in the City of Springfield, County of Xxxxx and State of Ohio and being
all of Lot One (1) (5.356 acres) as designated and delineated on the recorded
plat of North Village Square Section 3 in Plat Volume 14, Page 146, Recorder's
Office, Xxxxx County, Ohio.
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; and BLC
Xxxxxxx-GC, 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; and BLC
Xxxxxxx-GC, 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; and BLC
Xxxxxxx-GC, LLC
PROPERTY LANDLORD TENANT LEASE DOCUMENT
------------------------ --------------------------- ------------------- -------------------------
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; and BLC
Xxxxxxx-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
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; and BLC
Xxxxxxx-GC, 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 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
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; and BLC
Xxxxxxx-GC, LLC
SCHEDULE C
PROPERTY LANDLORD TENANT LEASE DOCUMENT
------------------------ --------------------------- ------------------------ -------------------------
Grand Court Belleville, Ventas Belleville, LLC BLC Belleville-GC, LLC Lease Agreement by
Belleville, Illinois Ventas Belleville, LLC
and BLC Belleville-GC,
LLC
Grand Court Findlay Ventas BLC Findlay-GC, LLC Master Lease Agreement
Findlay, Ohio Springfield/Findlay, LLC by Ventas
Springfield/Findlay, LLC
and BLC Findlay-GC,
LLC and BLC Springfield-
GC, LLC
Grand Court Springfield Ventas BLC Springfield-GC, LLC Master Lease Agreement
Springfield, Ohio Springfield/Findlay, LLC by Ventas
Springfield/Findlay, LLC
and BLC Findlay-GC,
LLC and BLC Springfield-
GC, LLC
