Exhibit 10.8
FIRST AMENDMENT TO OPERATING AGREEMENT
This First Amendment to Operating Agreement (the "First Amendment") is
effective as of the ____ day of ____ (Effective Date) by _____________________
with a mailing address of 00000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 (Owner)
and MARRIOTT SENIOR LIVING SERVICES, INC. (Operator), a Delaware corporation
with a mailing address of 00000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000.
RECITALS:
A. Owner and Operator entered into that certain Operating Agreement (the
"Operating Agreement") effective the 21st day of June 1997;
B. Owner and Operator desire to amend Section 6.05 of the Operating
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the parties hereto agree as follows:
1. Section 6.05B of the Operating Agreement shall be deleted in its
entirety and replaced with the following:
B. Notwithstanding Section 6.05A, Owner agrees that in connection with
obtaining any Qualified Loan, it will obtain from each prospective Holder
or Holders thereof, a Non-Disturbance Agreement pursuant to which
Operator's rights under this Agreement will not be disturbed as a result of
a loan default stemming from non-monetary factors which (i) relate to Owner
and do not relate solely to the Retirement Community, and (ii) are not
Defaults by Operator under Article 16 of this Agreement. Furthermore, such
Non-Disturbance Agreement shall provide that in the event of a monetary
default by Owner under a Secured Loan(s), prior to and as a condition of
any resulting Foreclosure, the Holder(s) shall provide Operator with
written notice of Owner's monetary default and, thereafter, afford Operator
an opportunity to cure such monetary default within a reasonable time
period, and the Holder(s) shall accept such performance by Operator in
place of performance by Owner. If Owner desires to obtain a Qualified Loan,
Operator, on written request from Owner, shall promptly identify those
provisions in the proposed loan documents which fall within the categories
described in clauses (i) and (ii) above, and Operator shall otherwise
assist in expediting the preparation of an agreement between the
prospective Holder(s) and Operator, which will implement the provisions of
this Section 6.05B.
2. Section 6.05 of the Operating Agreement is further amended by the
insertion of the following additional subparagraph:
SECTION 6.05 NON-DISTURBANCE AGREEMENT
C. In the event Operator elects to cure a monetary default by Owner
under a Secured Loan, pursuant to the provisions of a Non-Disturbance
Agreement (and otherwise pursuant to the provisions of subparagraph 6.05B
above) all such payments made by Operator shall constitute a loan to Owner
and shall accrue interest at a rate equal to the Prime Rate (compounded
annually) and shall be repaid to Operator out of first available Operating
Profit due Owner after deducting that portion of Operating Profit necessary
to pay then current Debt Service.
3. New Section 6.11 shall be added as follows:
SECTION 6.11 COVENANT TO PAY DEBT SERVICE
Notwithstanding anything contained herein to the contrary, Owner
covenants that during the Term of this Agreement, Owner shall first apply all
Owner's Priority and Net Operating Profit that it receives to the payment of
Debt Service.
4. Any capitalized term used but not defined herein shall have the
meaning given such term in the Operating Agreement.
5. The Operating Agreement is in full force and effect and except as
modified hereby has not been amended.
IN WITNESS WHEREOF, Marriott Senior Living Services, Inc., as Operator and
______________________ as Owner, have executed and delivered this First
Amendment on the date first herein above set forth.
OPERATOR:
By:
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Vice President
Marriott Senior Living Services, Inc.
OWNER:
By:
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Vice President,
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