SECOND AMENDMENT TO AMENDED AND RESTATED MASTER LEASE
Exhibit
10.24.3
[Twelve
Oaks East, Texas]
[Twelve
Oaks Irving, Texas]
SECOND
AMENDMENT TO AMENDED
AND
RESTATED MASTER LEASE
THIS
SECOND AMENDMENT TO AMENDED AND RESTATED MASTER LEASE (this "Amendment") is
made
and entered into as of December 21, 2005, and deemed effective as of December
22, 2005 (the "Effective Date"), by and among HEALTH CARE PROPERTY INVESTORS,
INC., a Maryland corporation ("HCP"), WESTMINSTER HCP, LLC, a Delaware limited
liability company ("Westminster HCP"), TEXAS HCP HOLDING, L.P., a Delaware
limited partnership ("Texas HCP"), HCP AL OF FLORIDA, LLC, a Delaware limited
liability company ("HCP AL") (HCP, Westminster HCP, Texas HCP, and HCP AL shall
be referred to herein, collectively, as their interests may appear, as
"Lessor"), on the one hand, and LH ASSISTED LIVING, LLC, a Delaware limited
liability company ("LHAL LLC"), SUMMERVILLE AT COBBCO, INC., a California
corporation ("Cobbco Inc."), SUMMERVILLE AT HILLSBOROUGH, L.L.C., a New Jersey
limited liability company ("Hillsborough LLC"), SUMMERVILLE AT OCOEE, INC.,
a
Delaware corporation ("Ocoee Inc."), SUMMERVILLE AT PORT ORANGE, INC., a
Delaware corporation ("Port Orange Inc."), SUMMERVILLE AT PRINCE XXXXXXX, INC.,
a Delaware corporation ("Prince Xxxxxxx Inc."), SUMMERVILLE AT XXXXXXXX, L.L.C.,
a New Jersey limited liability company ("Xxxxxxxx LLC"), SUMMERVILLE AT
VOORHEES, L.L.C., a New Jersey limited liability company ("Voorhees LLC"),
SUMMERVILLE AT WESTMINSTER, INC., a Maryland corporation ("Westminster Inc."),
SUMMERVILLE AT PINELLAS PARK, LLC, a Delaware limited liability company
("Pinellas LLC"), SUMMERVILLE AT OCALA WEST, LLC, a Delaware limited liability
company ("Ocala West LLC"), SUMMERVILLE AT CYFAIR ASSOCIATES, L.P., a
Delaware limited partnership ("Cy-Fair LP"), SUMMERVILLE AT FRIENDSWOOD
ASSOCIATES, L.P., a Delaware limited partnership ("Friendswood LP"), SUMMERVILLE
AT NEW PORT XXXXXX, LLC, a Delaware limited liability company ("New Port Xxxxxx
LLC"), SUMMERVILLE AT LAKELAND, LLC, a Delaware limited liability company
("Lakeland LLC"), SUMMERVILLE AT ST. AUGUSTINE LLC, a Delaware limited liability
company ("St. Augustine LLC"), SUMMERVILLE AT OCALA EAST, LLC, a Delaware
limited liability company ("Ocala East LLC"), SUMMERVILLE AT VENICE, LLC, a
Delaware limited liability company ("Venice LLC"), SUMMERVILLE AT LAKELAND
HILLS
ASSOCIATES, L.P., a Delaware limited partnership ("Lakeland Hills LP"), and
SUMMERVILLE AT IRVING ASSOCIATES, L.P., a Delaware limited partnership ("Xxxxxx
XX") (LHAL LLC, Cobbco Inc., Hillsborough LLC, Ocoee Inc., Port Orange Inc.,
Prince Xxxxxxx Inc., Xxxxxxxx LLC, Voorhees LLC, Westminster Inc., Pinellas
LLC,
Ocala West LLC, Cy-Fair LP, Friendswood LP, New Port Xxxxxx LLC, Lakeland LLC,
St. Augustine LLC, Ocala East LLC, Venice LLC, Lakeland Hills LP, and Xxxxxx
XX
shall be collectively, and jointly and severally, referred to herein as
"Lessee"), on the other hand, with respect to the following:
RECITALS
A. Lessor,
as "Lessor," and LHAL LLC, Cobbco Inc., Hillsborough LLC,Ocoee Inc., Port Orange
Inc., Prince Xxxxxxx Inc., Xxxxxxxx LLC, Voorhees LLC, Westminster Inc.,
Pinellas LLC, Ocala West LLC, Cy-Fair LP, Friendswood LP, New Port Xxxxxx LLC,
Lakeland LLC, St. Augustine LLC, Ocala East LLC, and Venice LLC (collectively,
and jointly and severally, "Current Lessee"), as "Lessee", are parties to that
certain Amended and Restated Master Lease dated as of April 20, 2005 (the
"Original Master Lease"), as amended by that certain First Amendment to Amended
and Restated Master Lease dated as of September 1, 2005 (the "First Amendment,"
and together with the Original Master Lease, the "Master Lease"), covering
the
Leased Property of nineteen (19) mixed skilled nursing and assisted living
care
Facilities located in California, Connecticut, Florida, Maryland, New Jersey,
Texas and Virginia. All capitalized terms used in this Amendment and not
otherwise defined or modified herein shall have the meanings assigned to such
terms in the Master Lease.
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B. Pursuant
to the terms of that certain Guaranty of Obligations dated as of April 20,
2005
(as the same has been or may hereafter be amended or reaffirmed from time to
time in writing, the "Guaranty"), made by Summerville Senior Living, Inc.,
a
Delaware corporation ("Guarantor") in favor of Lessor, Guarantor guaranteed
the
obligations of Current Lessee under the Master Lease, all as more particularly
described therein.
C. Texas
HCP, as Buyer, and Guarantor, as Seller, have entered into to that certain
Contract of Acquisition of even date herewith (as the same may be amended or
modified in accordance with the terms thereof, the "Group 5 Facilities Contract
of Acquisition"), pursuant to which Texas HCP is purchasing and acquiring from
Guarantor (or pursuant to which Guarantor is causing to be transferred and
conveyed to Texas HCP) on and effective as of the Effective Date, the
following:
(i) the
real property located in Dallas, Texas and more particularly described on
Exhibit A-20 attached hereto, together with all improvements and fixtures
thereon, related rights and certain Personal Property relating thereto (the
"Twelve Oaks East Facility"); and
(ii) the
real property located in Irving, Texas and more particularly described on
Exhibit A-21 attached hereto, together with all improvements and fixtures
thereon, related rights and certain Personal Property relating thereto (the
"Twelve Xxxx Xxxxxx Facility").
The
Twelve Oaks East Facility and the Twelve Xxxx Xxxxxx Facility are sometimes
referred to herein, individually, as a "Group 5 Facility," and collectively,
as
the "Group 5 Facilities."
D. Effective
immediately upon the Effective Date and Closing Date (as defined in the Group
5
Facilities Contract of Acquisition), Lessor desires to add to the Leased
Property and lease to Lessee, and Lessee desires to lease from Lessor, the
Group
5 Facilities, and each of them, upon the terms and conditions set forth in
the
Master Lease, as amended by this Amendment.
X. Xxxxxx
and Lessee desire to enter into this Amendment to effectuate thematters set
forth in the above Recitals, all as more particularly described
herein.
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AMENDMENT
NOW
THEREFORE, in consideration of the foregoing Recitals and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Lessor and Lessee hereby agree as follows:
1. Leasing.
Lessor hereby leases to Lessee and Lessee hereby leases from Lessor, the
Leased Property of the Group 5 Facilities upon all of the terms and conditions
set forth in the Master Lease, as amended by this Amendment. All references
herein and in the Master Lease to a "Facility" or "Facilities" shall mean each
Facility (as defined in the Master Lease) together with the Group 5 Facilities,
and each of them.
2. Joint
and Several Liability of Lessee. From and after the Effective Date, Lakeland
Hills LP and Xxxxxx XX shall (i) be jointly and severally liable for all of
the
obligations of the "Lessee" under the Master Lease, as hereby amended, and
(ii)
assume jointly and severally with Current Lessee, all obligations of "Lessee"
arising under the Master Lease, as hereby amended, on, prior to or after the
Effective Date.
3. [Intentionally
Omitted]
4. Modifications
to Terms of the Master Lease. Effective as of the Effective Date, the Master
Lease shall be amended and supplemented in the following
particulars:
(a) New
Definitions. Except as otherwise expressly provided or unlessthe context
otherwise requires, for all purposes of the Master Lease, as hereby amended,
the
terms defined in this Section 4(a) shall have the meanings assigned to them
as
provided below and shall be added to Article II of the Original Master Lease
(as
amended by the First Amendment) to read, in their entireties, as
follows:
"Aggregate
Costs of the Group 5 Facility Capital Renovation Project(s): With respect to
the Group 5 Facilities, the actual out-of-pocket costs actually incurred by
Lessee pursuant to the provisions of the Master Lease, as hereby amended, in
connection with the Group 5 Facility Capital Renovation Project(s) for such
Facilities, including all costs of design, construction, installation and
obtaining all governmental approvals and permits with respect to such Group
5
Facility Capital Renovation Project(s) for such Facilities, the Group 5 Facility
Capital Renovation Site Review Fees for such Facilities and the Group 5 Facility
Capital Renovation Lessor Costs with respect to such Facilities."
"Allocated
Group 5 Buyer's Contribution to Seller's Costs: With respect to each Group 5
Facility, an amount equal to the total Group 5 Buyer's Contribution to Seller's
Costs, multiplied by the following applicable percentages relating such
Facility:
(a) Twelve
Oaks East Facility: 39.33%
(b) Twelve
Xxxx Xxxxxx
Facility:
60.67%
Total: 100%
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"Allocated
Group 5 Buyer's Transaction Costs: With respect to each Group 5 Facility, an
amount equal to the total Group 5 Buyer's Transaction Costs, multiplied by
the
following applicable percentages relating such Facility:
(a) Twelve
Oaks East Facility: 39.33%
(b) Twelve
Xxxx Xxxxxx
Facility:
60.67%
Total: 100%
"Group
5 Buyer's Contribution to Seller's Costs: The 'Buyer's Contribution to
Seller's Costs' as defined in the Group 5 Facilities Contract of
Acquisition."
"Group
5 Buyer's Transaction Costs: The 'Buyer's Transaction Costs' as defined in
the Group 5 Facilities Contract of Acquisition."
"Group
5 Facilities: Each of those Facilities identified as a Group 5 Facility on
Exhibit C attached hereto."
"Group
5 Facilities Contract of Acquisition: As defined in Recital C of this
Amendment."
"Group
5 Facility Capital Renovation Project(s): With respect to the Group 5
Facilities, any capital refurbishment to either or both such Facilities, the
scope, plans and specifications, and a detailed final cost budget of which
is to
be mutually agreed upon by Lessor and Lessee after the Effective
Date.
"Group
5 Facility Capital Renovation Project Allowance: With respect to the Group 5
Facilities, a total aggregate allowance for all Group 5 Facility Capital
Renovation Project(s) equal to the lesser of (i) Six Hundred Thousand and No/100
Dollars ($600,000.00), or (ii) the Aggregate Costs of the Group 5 Facility
Capital Renovation Project(s) with respect to such Facilities. The Group 5
Facility Capital Renovation Project Allowance shall be allocated to the Group
5
Facility Capital Renovation Project(s) at each of the Group 5 Facilities as
reasonably determined by Lessee. Lessee shall deliver to Lessor written
confirmation of such allocation prior to Lessor's disbursement of the Group
5
Facility Capital Renovation Project Allowance, or any portion thereof.
Notwithstanding anything to the contrary in the Master Lease, as amended by
this
Amendment, the portion of the Group 5 Facility Capital Renovation Project
Allowance allocated to each of the Group 5 Facilities shall not count towards
the Annual Minimum Capital Project Amount with respect to each such Facility,
and Lessee's expenditure and reimbursement, if any, of all or a portion of
the
Group 5 Facility Capital Renovation Project Allowance shall be in addition
to
the Annual Minimum Capital Project Amount with respect to each such
Facility."
"Group
5 Facility Capital Renovation Project Allowance Lease Rate: A percentage
equal to the greater of (a) the average of the ten-year U.S. Treasury Note
rate
published in the Wall Street Journal for each of the five (5) Business
Days prior to that date which is two (2) Business Days prior to the Closing
Date
and quoting the rate as of that date which is two (2) Business Days prior to
the
Closing Date, plus Three and Ninety Hundredths Percent (3.90%) and (b) Eight
and
One-Half Percent (8.5%)."
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"Group
5 Facility Capital Renovation Site Review Fees: As defined in Section 5 of
this Amendment."
"Group
5 Facility Escalator: An amount equal to the greater of (i) Seventy-Five
Percent (75%) of the applicable CPI Increase or (ii) Two and Three-Quarters
Percent (2.75%).
"Group
5 Facility Purchase Price: With respect to each Group 5 Facility at any
given time, the sum of (1) the Minimum Repurchase Price for such Facility,
plus (2) an amount which, upon the closing or the applicable
date, equals an annually compounded return equal to Three Percent (3%) per
year
on (A) the Allocated Initial Investment for such Facility accruing from and
after the applicable Restatement Date and (B) any Capital Addition Costs funded
by Lessor for such Facility accruing from and after the date of
funding.
"Group
5 Facility Put Event Price: With respect to any Group 5 Facility at any
given time, the sum of (i) the Minimum Repurchase Price for such Facility,
plus (ii) an amount which, upon the closing, equals an annually
compounded return equal to the applicable Group 5 Facility Escalator for such
Facility per year on (A) the Allocated Initial Investment for such Facility
accruing from and after the applicable Restatement Date and (B) any Capital
Addition Costs funded by Lessor for such Facility accruing from and after the
date of funding.
"Group
5 Facility Renovation Lessor Costs: As defined in Section 5 of this
Amendment."
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Texas."
|
"Twelve
Oaks East Facility: That certain Facility located in
Dallas,
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|
Texas."
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"Twelve
Xxxx Xxxxxx Facility: That certain Facility located in
Irving,
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(b) Supplemented
Definitions. The following definitions appearing inArticle II of the
Original Master Lease (as amended by the First Amendment) shall be supplemented
as follows:
Annual
Minimum Capital Project Amount: With respect to each Group 5 Facility,
during each Lease Year with respect to such Group 5 Facility, the following
amounts:
(i) With
respect to the
Twelve Oaks East Facility, $68,000.00; and
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(ii) With
respect
to the Twelve Xxxx Xxxxxx Facility, $80,800.00.
Notwithstanding
the foregoing, Lessor and Lessee acknowledge that the initial Annual Minimum
Capital Project Amount for each Group 5 Facility represents an amount equal
to
(A) the number of licensed units located at such Group 5 Facility
times (B) Four Hundred Dollars ($400.00). In the event that
the number of licensed units for any Group 5 Facility is increased or decreased
in accordance with the terms of the Master Lease, as hereby amended, the Annual
Minimum Capital Project Amount for such Group 5 Facility shall be increased,
or
decreased, as applicable, by an amount equal to (1) the number of such licensed
units increased or decreased at such Group 5 Facility times (2) Four
Hundred Dollars ($400.00).
Annual
Minimum Capital Project Amount Overage: With respect to each Group 5
Facility for any Lease Year, an amount equal to (a) the sum of (i) the Capital
Project Costs incurred and paid by Lessee in funding Capital Projects for each
Group 5 Facility in the immediately preceding two (2) Lease Years and for which
Lessor has received paid invoices, receipts or other commercially reasonable
evidence or supporting information as is customary to evidence such
expenditures, verifying the cost and payment of funding such Capital Projects,
and an Officer's Certificate certifying that the applicable item(s) of Capital
Projects have been completed, less (ii) the amounts disbursed by Lessor to
Lessee from any Replacement Reserve on account of such Capital Projects to
such
Group 5 Facility in accordance with the terms of Section 9.3.1 of the Master
Lease, as hereby amended, in excess of (b) the Annual Minimum Capital Project
Amount for such Group 5 Facility for such prior two (2) Lease Year
period.
Capital
Additions. With respect to each of the Group 5 Facilities, the applicable
Group 5 Facility Capital Renovation Project shall at all times be deemed a
Capital Addition for purposes of the Master Lease, as hereby amended, for such
Facility.
Capital
Addition Costs. With respect to each of the Group 5 Facilities, the
applicable portion of the Group 5 Facility Capital Renovation Project Allowance
allocated to each such Facility as provided for herein shall be treated for
all
purposes as Capital Addition Costs financed and paid for by Lessor under the
Master Lease, as hereby amended, for such Facility.
Deeds:
With respect to each Group 5 Facility, "Deeds" as defined in the Group
5
Facilities Contract of Acquisition.
Fair
Market Rental: With respect to each Group 5 Facility, the definition of Fair
Market Rental applicable to the Group 2 Facilities, Group 3 Facilities, and
Group 4 Facilities, but in each instance relating to such Group 5
Facility.
Lease
Year: With respect to the Group 5 Facilities, the first Lease Year for such
Facilities shall be the period commencing on the applicable Restatement Date
with respect to such Facilities and ending November 30, 2006, and each
subsequent Lease Year for such Facilities shall be each period of twelve (12)
full calendar months after the last day of the prior Lease Year; provided,
however, that the last Lease Year for any Group 5 Facility during the Term
may
be a period of less than twelve (12) full calendar months and shall end on
the
last day of the Term for such Facility.
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Restatement
Date: With respect to the Group 5 Facilities, the Effective Date of this
Amendment, which shall also be the commencement date of the Master Lease, as
hereby amended, with respect to each Group 5 Facility.
Transaction
Documents: The meaning given to such term in the Original Master Lease (as
amended by the First Amendment), together with this Amendment and the Group
5
Facilities Contract of Acquisition.
(c) Definition
of Lessee. The definition of "Lessee" appearing in Article II of the
Original Master Lease (as amended and restated pursuant to the First Amendment)
shall be further amended and restated to have the meaning given to such term
in
the preamble of this Amendment.
(d) Amendment
to Letter of Credit Amount. From and after the Effective Date hereof, the
percentage "8.8%" appearing in the definition of "Letter of Credit Amount"
in
Article II of the Original Master Lease (as amended and restated pursuant to
the
First Amendment) shall read "8.02%".
(e) Leased
Property; Term. The phrase "Group 3 Facilities and the Group 4 Facilities,
the applicable Restatement Date" appearing in the last paragraph of Article
I of
the Original Master Lease (as amended by the First Amendment) is hereby amended
to read "Group 3 Facilities, Group 4 Facilities and the Group 5 Facilities,
the
applicable Restatement Date."
(f) Minimum
Rent. With respect to the Group 5 Facilities:
(i) Subject
to upward adjustments as provided in clause (ii) below, for the period from
the
Effective Date through the expiration of the first (1st) Lease
Year with
respect to such Group 5 Facilities, Lessee shall pay to Lessor as monthly
"Allocated Minimum Rent" for each Group 5 Facility at the times and in the
manner provided in Section 3.1 of the Master Lease, as hereby amended, the
amount allocated to and set forth or determined pursuant to the formula opposite
such Facility on Exhibit C to the Master Lease, as hereby amended. The
first monthly payment of Allocated Minimum Rent for each such Group 5 Facility
shall be payable on the Effective Date (prorated as to any partial calendar
month at the beginning of the Term with respect to each such Facility);
and
(ii) The
Allocated Minimum Rent with respect to each Group 5Facility shall be increased
automatically upon the date of disbursement (if any) of the portion of the
Group
5 Facility Capital Renovation Project Allowance allocated to such Facility,
to
be equal to the sum of (1) the monthly Allocated Minimum Rent in effect
immediately prior to such disbursement date, plus (2) that amount equal
to one-twelfth (1/12th) of the
product of
(x) the portion of the Group 5 Facility Capital Renovation Project Allowance
allocated to such Facility, times (y) the Group 5 Facility Capital
Renovation Project Allowance Lease Rate. Such monthly Allocated Minimum Rent
as
so increased for such Facility shall remain in effect for the balance of the
then current Lease Year with respect to such Facility. To the extent such
increase does not occur on the first (1st) day
of a
calendar month, then such increase for the applicable month in which the same
occurs shall be prorated for such month.
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(iii) Subject
to upward adjustments as provided in clause (ii) above, commencing upon the
expiration of the first (1st) Lease
Year for
such Group 5 Facilities and upon the expiration of each Lease Year thereafter
during the Fixed Tenn for such Group 5 Facilities, the then current monthly
Allocated Minimum Rent for such Group 5 Facilities for such Lease Year shall
be
increased by an amount equal to the applicable Group 5 Facility
Escalator.
(iv) For
the first (1St) Lease
Year of
each Extended Term for the Group 5 Facilities, if any, the monthly Allocated
Minimum Rent for each Group 5 Facility shall be equal to the greater of (a)
the
then current monthly Fair Market Rental for such Group 5 Facility and (b) the
monthly Allocated Minimum Rent payable for such Group 5 Facility during the
last
Lease Year of the immediately preceding Tenn, as increased by the applicable
Group 5 Facility Escalator.
(v) Commencing
upon the expiration of the first (1st) Lease
Year of
each Extended Tenn, if any, for the Group 5 Facilities and upon the expiration
of each Lease Year thereafter during such Extended Tenn, the then current
monthly Allocated Minimum Rent for each Group 5 Facility shall be increased
by
an amount equal to the applicable Group 5 Facility Escalator.
(vi) The
last paragraph of 3.1 of the Original Master Lease shall apply with respect
to
any adjustment of the Allocated Minimum Rent with respect to the Group 5
Facilities pursuant to clauses (iii), (iv) and (v) above.
(vii) Lessee
shall continue to pay all Minimum Rent with respect to the balance of the
Facilities at the times, in the manner and in the amounts set forth in or
determined by the Master Lease.
(g) Condition
of the Leased Property. The phrase "Group 3 Facilities and the Group 4
Facilities, the applicable Restatement Date" appearing in clause (ii) and in
clause (b) of Section 7.1 of the Original Master Lease (as amended by the First
Amendment) is hereby amended to read "Group 3 Facilities, the Group 4
Facilities, and the Group 5 Facilities, the applicable Restatement Date," in
each instance.
(h) Capital
Projects. The phrases "Group 3 Facilities and Group 4 Facilities" and "Group
3 Facility or Group 4 Facility" appearing a number of times in Section 9.3
of
the Original Master Lease (as amended by the First Amendment) is hereby amended
to read "Group 3 Facilities, Group 4 Facilities and Group 5 Facilities" and
"Group 3 Facility, Group 4 Facility or Group 5 Facility," respectively, in
each
instance.
(i) Liens.
The phrase "Group 3 Facilities and the Group 4 Facilities, the applicable
Restatement Date with respect to such Group 3 Facility" appearing in Section
11.1 of the Original Master Lease (as amended by the First Amendment) is hereby
amended to read "Group 3 Facilities, the Group 4 Facilities, and the Group
5
Facilities, the applicable Restatement Date, with respect to such Group 3
Facility, Group 4 Facility and Group 5 Facility."
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(j) Casualty.
For purposes of Section 14.2.1 and 14.2.2 of the Original Master Lease
(as
amended by the First Amendment), the purchase price as provided therein with
respect to any Group 5 Facility shall be the applicable Group 5 Facility
Purchase Price for such Facility immediately prior to such damage or
destruction.
(k) Condemnation.
For purposes of Section 15.1.4 of the Original Master Lease (as amended
by
the First Amendment), Lessor shall be entitled to receive from any Award
relating to any Group 5 Facility, subject to the rights of Facility Mortgages,
no less than the applicable Group 5 Facility Purchase Price for such Group
5
Facility immediately prior to the institution of the Condemnation.
(1) Events
of Default. The phrase "the Group 3 Facility Contract of Acquisition and/or
the Group 4 Facilities Contract of Acquisition" is replaced with the phrase
"the
Group 3 Facility Contract of Acquisition, Group 4 Facilities Contract of
Acquisition and/or Group 5 Facilities Contract of Acquisition" appearing in
each
of Sections 16.1(a) and 16.1(k)
of the Original Master Lease (as amended by the First Amendment).
(m) Lessee's
Obligation to Purchase. For purposes of Section 16.5 of the Original Master
Lease (as amended by the First Amendment), the amount required to be paid by
Lessee upon any exercise of Lessor's rights to require Lessee to purchase a
Group 5 Facility following a Put Event pursuant to such Section shall be equal
to the applicable Group 5 Facility Put Event Price for such Facility, plus,
in
any event, all Rent then due and payable (excluding the installment of Minimum
Rent due on the purchase date) under the Master Lease, as hereby amended, with
respect to such Group 5 Facility.
(n) Quiet
Enjoyment. The phrase "Group 3 Facilities or the Group 4 Facilities, the
applicable Restatement Date" appearing in Section 32.1 of the Original Master
Lease (as amended by the First Amendment) is hereby amended to read "Group
3
Facilities, Group 4 Facilities or the Group 5 Facilities, the applicable
Restatement Date."
(o) Lessee's
Option to Purchase.
(i) Section
35.1.3 of the Original Master Lease (as amended by the First Amendment) is
hereby further amended to read, in its entirety, as follows:
"35.1.3 Group
5 Facilities. Provided no Event of Default has occurred and is continuing
hereunder, Lessee shall have the option to purchase the Leased Property of
all
(but not less than all) of the Group 5 Facilities upon the expiration of the
tenth (10th)
Lease Year of the Group 5 Facilities, for an amount equal to the sum of the
Group 5 Facility Purchase Price for all of the Group 5
Facilities."
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(ii) A
new Section 35.1.4 is added to the Original Master Lease to read, in its
entirety, as follows:
"35.1.4 General.
Lessee shall exercise the option(s) to purchase the Leased Property set
forth in Sections 35.1.1, 35.1.2 and/or 35.1.3 above, as applicable, by (i)
opening an escrow (the 'Escrow') with and by depositing either (1) cash or
(2) a
letter of credit from a financial institution and in form in each case
acceptable to Lessor, the sum of Two and One-Half Percent (2.5%) of (A) with
respect to the Group 1 Facility(ies), the Minimum Repurchase Price, (B) with
respect to the Group 3 Facilities and Group 4 Facilities, the sum of (x) the
Group 3 Facility Purchase Price for all of the Group 3 Facilities, plus
(y) the Group 4 Facility Purchase Price for all of the Group 4 Facilities
(as reasonably estimated by Lessor with respect to any Group 4 Facility for
which the Group 4 Facility Purchase Price has not yet been determined), and
(C)
with respect to the Group 5 Facilities, the Group 5 Facility Purchase Price
for
all of the Group 5 Facilities (as reasonably estimated by Lessor with respect
to
any Group 5 Facility for which the Group 5 Facility Purchase Price has not
yet
been determined) (the 'Opening Deposit') and a copy of this Lease with a
national title company reasonably acceptable to Lessor ("Escrow Holder") and
giving written notice to Lessor of such deposit with Escrow Holder no earlier
than fifteen (15) months and not less than twelve (12) months prior to the
expiration of (x) with respect to the Group 1 Facility(ies), the Fixed Term
or
the Extended Term, as applicable, (y) with respect to the Group 3 Facilities
and
Group 4 Facilities, the tenth (10th) Lease
Year of the
Group 4 Facilities, and (z) with respect to the Group 5 Facilities, the tenth
(10th) Lease
Year of the Group 5 Facilities, and (ii) delivering to Lessor concurrent with
such notice a reaffirmation of the Guaranty executed by Guarantors stating,
in
substance, that Guarantors' obligations under the Guaranty shall extend to
the
purchase contract formed by Lessor and Lessee upon proper and timely exercise
of
such option. If Lessee shall not be entitled to exercise such option (e.g.,
by
reason of an Event of Default) or shall be entitled to exercise the same but
shall fail to do so within the time and in the manner herein provided, such
option shall lapse and thereafter not be exercisable by Lessee. No failure
by
Lessor to notify Lessee of any defect in any attempted exercise of the foregoing
option shall be deemed a waiver by Lessor of the right to insist upon Lessee's
exercise of such option in strict accordance with the provisions hereof. In
the
event that Lessee shall properly and timely exercise such option, then such
transaction shall be consummated on or within ten (10) days after the expiration
of (i) with respect to the Group 1 Facility(ies), the Fixed Term or the Extended
Term, as applicable, (ii) with respect to the Group 3 Facilities and Group
4
Facilities, the tenth (10th) Lease
Year of the
Group 4 Facilities, and (iii) with respect to the Group 5 Facilities, the tenth
(10th) Lease
Year of the Group 5 Facility, but in either case subject to any delays resulting
from (A) a cause described in Section 45.1.16 below or (B) Lessor's
breach of its obligations set forth in this Section 35 (the 'Outside Closing
Date')."
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(p) Financial
Statements Requirements. Without limiting the provisions of Section 25.12 of
the Original Master Lease (as amended by the First Amendment), Lessee shall
be
required to cause Lessee and Guarantor to furnish to Lessor, no less frequently
than each January 1st and July 1st of every Lease Year, projected financial
statements of each, projecting at least twelve (12) months in advance, without
limitation, Lessee's and Guarantor's income statement, balance sheet, and cash
flow statement, all in a reasonable level of detail and prepared consistent
with
the accounting principles applied in the preparation of each entity's annual
financial statements and prepared in accordance with GAAP.
(q) Exhibits
and Schedules.
(i) Supplements
to Exhibit A. Exhibits A-20 and A-21 attached hereto are
hereby appended to and shall become part of Exhibit A to the Master
Lease.
(ii) Replacement
of Exhibit C and Schedule 7.4.1. Exhibit C and Schedule 7.4.1
to the Original Master Lease (as amended by the First Amendment)
are hereby
further amended and replaced, in their entirety, with Exhibit C and
Schedule 7.4.1 attached hereto, respectively.
5. Group
5 Facility Capital Renovation Projects.
(a) Lessor
shall provide to Lessee the portion of the Group 5 Facility Capital Renovation
Project Allowance allocated to each of the Group 5 Facilities as provided for
herein in accordance with and subject to the provisions of this Section
5.
(b) Without
limiting the conditions set forth in clauses (c) through (e) below, Lessor's
obligation to provide to Lessee any portion or all of the Group 5 Facility
Capital Renovation Project Allowance allocated to a Group 5 Facility as provided
for herein is subject to, and conditioned upon, Lessor and Lessee agreeing
upon
the scope, plans and specifications, and a detailed final cost budget (as
described in clause (c) below) with respect to the Group 5 Facility Capital
Renovation Project(s) for such Group 5 Facility following the Effective Date.
As
of the date hereof, the parties have agreed upon a preliminary cost budget
with
respect to the Group 5 Facility Capital Renovation Project(s) which is set
forth
on Appendix A hereto. Such preliminary budget shall not, however, be a
substitute for the final budget which is subject to Lessor's approval as
provided below.
(c) Prior
to commencing any work relating to the Group 5 Facility Capital Renovation
Project for either applicable Facility, Lessee shall provide Lessor with the
following, each of which shall be subject to Lessor's reasonable approval:
(i)
detailed plans and specifications for the work to be performed in connection
with such Group 5 Facility Capital Renovation Project for such Facility, (ii)
a
detailed final budget to be prepared by or for Lessee, which budget shall also
provide a detailed cost breakdown of all construction costs, (iii) any other
detailed budget information as Lessor may reasonably request and approve from
Lessee; (iv) copies of all building permits and other authorizations from any
applicable governmental authorities with jurisdiction required in connection
with such Group 5 Facility Capital Renovation Project for such Facility; and
(v)
evidence that Lessee has filed, recorded or posted a notice of
non-responsibility in favor of Lessor. Lessee covenants and agrees that from
and
after commencement of construction and/or performance of such Group 5 Facility
Capital Renovation Project with respect to such Facility, Lessee shall
diligently prosecute the same to completion in accordance with the terms of
the
Master Lease, as hereby amended, and this Section 5 and satisfy all Disbursement
Conditions (as defined below) with respect thereto on or before September 20,
2006 (the "Outside Date").
11
(d) The
budget described in subsection (c) above shall include, and Lessee shall be
responsible for paying to Lessor, (i) an amount equal to $1,650.00 for each
site
visit per Facility, but in no event more than one (1) visit (except in the
event
Lessor reasonably determines that more visits are necessary) per Facility,
made
by Lessor for the purpose of inspecting such Group 5 Facility Capital Renovation
Project work with respect to such Facility (with respect to each Facility,
the
"Group 5 Facility Capital Renovation Site Review Fees") and (ii) all legal
fees,
expenses and disbursements incurred by Lessor in connection with the review
of
diligence materials, documents and other information relating to the applicable
Group 5 Facility Capital Renovation Project for such Facility, including
engineering fees, accountants and other professional fees (collectively, with
respect to each Facility, the "Group 5 Facility Capital Renovation Lessor
Costs"). The Group 5 Facility Capital Renovation Site Review Fees with respect
to each of the Group 5 Facilities and Group 5 Facility Capital Renovation Lessor
Costs with respect to each of the Group 5 Facilities shall be deducted from
the
portion of the Group 5 Facility Capital Renovation Project Allowance allocated
to such Facility prior to disbursement of any portion thereof to Lessee as
provided in Section 5(d) hereof, but for all purposes of the Master Lease,
as
hereby amended, shall be deemed part of the portion of the Group 5 Facility
Capital Renovation Project Allowance for such Facility disbursed by Lessor
and
allocated to each such Facility as provided for herein.
(e) The
portion of the Group 5 Facility Capital Renovation Project Allowance (less
accrued Group 5 Facility Capital Renovation Site Review Fees and the Group
5
Facility Capital Renovation Lessor Costs, in each case applicable thereto)
allocated to each of the Group 5 Facilities as provided for herein shall be
disbursed to Lessee within fifteen (15)
days after the last to occur of (the "Disbursement Conditions"): (i)
delivery by Lessee to Lessor of evidence satisfactory to Lessor as to the
Aggregate Costs of the Group 5 Facility Capital Renovation Project for such
Facility; (ii) completion of all work relating to such Group 5 Facility Capital
Renovation Project for such Facility in accordance with the approved plans
and
specifications therefor, including all punch-list items; (iii) delivery by
Lessee to Lessor of (A) a copy of all building permits and/or other
authorizations from any applicable governmental authorities with jurisdiction,
(B) if applicable, a copy of the certificate of occupancy (or local equivalent)
and (C) if applicable, a copy of a notice of completion showing thereon the
recording stamp of the County recorder, in each case with respect to such Group
5 Facility Capital Renovation Project for such Facility; and (iv) delivery
by
Lessee to Lessor of evidence reasonably satisfactory to Lessor that all of
the
work performed by Lessee has been paid in full and that no claim of any mechanic
or materialman may become a lien on the Leased Property of such Facility, or
any
portion thereof, including delivery to Lessor of unconditional lien releases
executed by all contractors, subcontractors and suppliers performing work or
supplying materials in connection with such Group 5 Facility Capital Renovation
Project for such Facility. In no event shall Lessee be entitled to disbursement
of all or any portion of the portion of the Group 5 Facility Capital Renovation
Project Allowance allocated to such Facility unless and to the extent that
Lessee has satisfied the Disbursement Conditions on or prior to the Outside
Date. In the event that Lessee is not entitled to disbursement of a Group 5
Facility Capital Renovation Project Allowance for such Facility, Lessee shall
promptly pay to Lessor, as an Additional Charge, all accrued and unpaid Group
5
Facility Capital Renovation Site Review Fees and Group 5 Facility Capital
Renovation Lessor Costs for such Facility within fifteen (15) days after Lessor's
written request therefor.
12
6. Representations
and
Warranties of Lessee. As of the Effective Date hereof, each Lessee
represents and warrants to the Lessor as follows:
(a) Lessee
is duly organized and validly existing under the laws of its state of
organization/formation, is qualified to do business and in good standing in
the
State and has full power, authority and legal right to execute and deliver
this
Amendment and to perform and observe the provisions of this Amendment to be
observed and/or performed by Lessee.
(b) This
Amendment has been duly authorized, executed and delivered by Lessee, and
constitutes and will constitute the valid and binding obligations of Lessee
enforceable against Lessee in accordance with its terms, except as such
enforceability may be limited by creditors rights, laws and general principles
of equity.
(c) Lessee
is solvent, has timely and accurately filed all tax returns required to be
filed
by Lessee, and is not in default in the payment of any taxes levied or assessed
against Lessee or any of its assets, or subject to any judgment, order, decree,
rule or regulation of any governmental authority which would, in each case
or in
the aggregate, adversely affect Lessee's condition, financial or otherwise,
or
Lessee's prospects or the Leased Property.
(d) No
consent, approval or other authorization of, or registration, declaration or
filing with, any governmental authority is required for the due execution and
delivery of this Amendment, or for the performance by or the validity or
enforceability of this Amendment against Lessee.
(e) The
execution and delivery of this Amendment and compliance with the provisions
hereof will not result in (i) a breach or violation of (A) any Legal Requirement
applicable to Lessee or any Facility now in effect; (B) the organizational
or
charter documents of such party; (C) any judgment, order or decree of any
governmental authority binding upon Lessee; or (D) any agreement or instrument
to which Lessee is a counterparty or by which it is bound; or (ii) the
acceleration of any obligation of Lessee.
13
7. Financing
Statement Amendments. Lessee hereby authorizes Lessor to file such financing
statement amendments and other documents as may be necessary or desirable to
perfect or continue the perfection of Lessor's security interest in the
Collateral (including the Collateral relating to the Group 5
Facilities).
8. Reaffirmation
of Master Lease and Treatment Thereof. Lessor and Lessee hereby acknowledge,
agree and reaffirm that (a) except as otherwise expressly provided in the Master
Lease, as hereby amended, the Master Lease, as hereby amended, is and the
parties intend the same for all purposes to be treated as a single, integrated
and indivisible agreement, and (b) the Master Lease, as hereby amended, shall
be
treated as an operating lease for all purposes and not as a synthetic lease,
financing lease or loan, and the Lessor shall be entitled to all of the benefits
of ownership of the Leased Property, including depreciation for all federal,
state and land tax purposes.
9. Full
Force and Effect; Counterparts; Facsimile Signatures. Except as hereby
amended, the Master Lease shall remain in full force and effect. This Amendment
may be executed in any number of counterparts, all of which shall constitute
one
and the same instrument. Telecopied signatures may be used in place of original
signatures on this Amendment, and Lessor and Lessee both intend to be bound
by
the signatures of the telecopied document.
10. Transfer
Consideration. Lessor and Lessee acknowledge that (a) the Transfer
Consideration Facilities currently consist of the Group 1 Facilities and the
Group 2 Facilities only, (b) the Group 3 Facilities, Group 4 Facilities and
Group 5 Facilities are not deemed Transfer Consideration Facilities, and (c)
Lessee shall have no obligation to pay Transfer Consideration in connection
with
any Transfer relating to such Group 3 Facilities, Group 4 Facilities or Group
5
Facilities.
11. Scrivener's
Corrections.
(a) The
references to "Allocated Minimum Capital Project Amount" in the definition
of
"Annual Minimum Capital Project Amount" in Section 2.1 of the Original Master
Lease (as amended by the First Amendment) shall be replaced with references
to
"Annual Minimum Capital Project Amount."
(b) The
reference in the first sentence of Section 4(f)(i)(B) of the First Amendment
to
"Section 4.1 of the Master Lease" shall be replaced with a reference to "Section
3.1 of the Master Lease."
(c) All
references in the Original Master Lease (as amended by the First Amendment)
to
"2005 Capital Renovation Site Review Costs" shall be replaced with references
to
"2005 Capital Renovation Site Review Fees."
[Signatures
on Next Page]
14
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
as
of the day and year first written above.
|
LESSOR:
|
HEALTH
CARE PROPERTY INVESTORS, INC.,
|
|
|
a
Maryland corporation
|
||
|
By:
|
/s/
Xxxxxx X. Xxxxxxx
|
|
|
Xxxxxx
X. Xxxxxxx
|
||
|
Its:
|
Senior
Vice President
|
|
|
WITNESSES
|
||
|
/s/
Xxxx Xxxxxxxx
|
||
|
(signature.)
|
||
|
Name:
|
Xxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxx Xxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxx
Xxxxxxx
|
|
|
(print)
|
||
|
WESTMINSTER
HCP, LLC,
|
||
|
a
Delaware limited liability company
|
||
|
By:
|
HCPI/Tennessee,
LLC,
|
|
|
a
Delaware limited liability company,
|
||
|
its
Sole Member
|
||
|
By:
|
Health
Care Property Investors, Inc.,
|
|
|
a
Maryland corporation,
|
||
|
its
Managing Member
|
||
|
By:
|
/s/
Xxxxxx X. Xxxxxxx
|
|
|
Xxxxxx
X. Xxxxxxx
|
||
|
Its:
|
Senior
Vice President
|
|
|
WITNESSES
|
||
|
/s/
Xxxx Xxxxxxxx
|
||
|
(signature.)
|
||
|
Name:
|
Xxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxx Xxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxx
Xxxxxxx
|
|
|
(print)
|
||
15
|
LESSOR
(Continued):
|
TEXAS
HCP HOLDING, L.P.,
|
|
|
a
Delaware limited partnership
|
||
|
By:
|
Texas
HCP G.P., Inc.,
|
|
|
a
Delaware corporation
|
||
|
By:
|
/s/
Xxxxxx X. Xxxxxxx
|
|
|
Xxxxxx
X. Xxxxxxx
|
||
|
Its:
|
Senior
Vice President
|
|
|
WITNESSES
|
||
|
/s/
Xxxx Xxxxxxxx
|
||
|
(signature.)
|
||
|
Name:
|
Xxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxx Xxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxx
Xxxxxxx
|
|
|
(print)
|
||
|
HCP
AL OF FLORIDA, LLC,
|
||
|
a
Delaware limited liability company
|
||
|
By:
|
Health
Care Property Investors, Inc.,
|
|
|
a
Maryland corporation,
|
||
|
its
Managing Member
|
||
|
By:
|
/s/
Xxxxxx X. Xxxxxxx
|
|
|
Xxxxxx
X. Xxxxxxx
|
||
|
Its:
|
Senior
Vice President
|
|
|
WITNESSES
|
||
|
/s/
Xxxx Xxxxxxxx
|
||
|
(signature.)
|
||
|
Name:
|
Xxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxx Xxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxx
Xxxxxxx
|
|
|
(print)
|
||
16
|
LESSEE::
|
LH
ASSISTED LIVING, LLC,
|
|
|
a
Delaware limited liability company
|
||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|
|
Its:
|
President
|
|
|
WITNESSES
|
||
|
/s/
Xxxxx Xxxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxxxxx Xxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|
(print)
|
||
|
SUMMERVILLE
AT COBBCO, INC.,
|
||
|
a
California corporation
|
||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|
|
Its:
|
President
|
|
|
WITNESSES
|
||
|
/s/
Xxxxx Xxxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxxxxx Xxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|
(print)
|
||
17
|
LESSEE
(Continued):
|
SUMMERVILI.E
AT HILLSBOROUGH, L.L.C.,
|
|
|
a
New Jersey limited liability company
|
||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|
|
Its:
|
President
|
|
|
WITNESSES
|
||
|
/s/
Xxxxx Xxxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxxxxx Xxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|
(print)
|
||
|
SUMMERVILLE
AT OCOEE. INC.,
|
||
|
a
Delaware corporation
|
||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|
|
Its:
|
President
|
|
|
WITNESSES
|
||
|
/s/
Xxxxx Xxxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxxxxx Xxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|
(print)
|
||
18
|
LESSEE
(Continued):
|
SUMMERVIILLE
AT PORT ORANGE, INC.,
|
|
|
a
Delaware corporation
|
||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|
|
Its:
|
President
|
|
|
WITNESSES
|
||
|
/s/
Xxxxx Xxxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxxxxx Xxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|
(print)
|
||
|
SUMMERVILLE
AT PRINCE XXXXXXX, INC.,
|
||
|
a
Delaware corporation
|
||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|
|
Its:
|
President
|
|
|
WITNESSES
|
||
|
/s/
Xxxxx Xxxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxxxxx Xxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|
(print)
|
||
19
|
LESSEE
(Continued):
|
SUMMERVILLE
AT XXXXXXXX, L.L.C,
|
|
|
a
New Jersey limited liability company
|
||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|
|
Its:
|
President
|
|
|
WITNESSES
|
||
|
/s/
Xxxxx Xxxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxxxxx Xxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|
(print)
|
||
|
SUMMERVILLE
AT VOORHEES, L.L.C,
|
||
|
a
New Jersey limited liability company
|
||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|
|
Its:
|
President
|
|
|
WITNESSES
|
||
|
/s/
Xxxxx Xxxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxxxxx Xxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|
(print)
|
||
20
|
LESSEE
(Continued):
|
SUMMERVILLE
AT WESTMINSTER, INC.,
|
|
|
a
Maryland corporation
|
||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|
|
Its:
|
President
|
|
|
WITNESSES
|
||
|
/s/
Xxxxx Xxxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxxxxx Xxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|
(print)
|
||
|
SUMMERVILLE
AT PINELLAS PARK, LLC,
|
||
|
a
Delaware limited liability company
|
||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|
|
Its:
|
President
|
|
|
WITNESSES
|
||
|
/s/
Xxxxx Xxxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxxxxx Xxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|
(print)
|
||
21
|
LESSEE
(Continued):
|
SUMMERVILLE
AT OCALA WEST, LLC,
|
|
|
a
Delaware limited liability comnany
|
||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|
|
Its:
|
President
|
|
|
WITNESSES
|
||
|
/s/
Xxxxx Xxxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxxxxx Xxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|
(print)
|
||
|
SUMMERVILLE
AT CY-FAIR ASSOCIATES, L.P.,
|
||
|
a
Delaware limited partnership
|
||
|
By:
|
Summerville
at CY-Fair, LLC,
|
|
|
a
Delaware limited liability company,
|
||
|
Its
General Partner
|
||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|
|
Its:
|
President
|
|
|
WITNESSES
|
||
|
/s/
Xxxxx Xxxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxxxxx Xxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|
(print)
|
||
22
|
LESSEE
(Continued):
|
SUMMERVILLE
AT FRIENDSWOOD
|
|
|
ASSOCIATES,
L.P.,
|
||
|
a
Delaware limited partnership
|
||
|
By:
|
Summerville
at Friendswood, LLC,
|
|
|
a
Delaware limited liability company,
|
||
|
Its
General Partner
|
||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|
|
Its:
|
President
|
|
|
WITNESSES
|
||
|
/s/
Xxxxx Xxxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxxxxx Xxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|
(print)
|
||
|
SUMMERVILLE
AT NEW PORT XXXXXX, LLC,
|
||
|
a
Delaware limited liability company
|
||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|
|
Its:
|
President
|
|
|
WITNESSES
|
||
|
/s/
Xxxxx Xxxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxxxxx Xxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|
(print)
|
||
23
|
LESSEE
(Continued):
|
SUMMERVILLE
AT LAKELAND, LLC.
|
|
|
a
Delaware limited liability company
|
||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|
|
Its:
|
President
|
|
|
WITNESSES
|
||
|
/s/
Xxxxx Xxxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxxxxx Xxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|
(print)
|
||
|
SUMMERVILLE
AT ST. AUGUSTINE LLC,
|
||
|
a
Delaware limited liability company
|
||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|
|
Its:
|
President
|
|
|
WITNESSES
|
||
|
/s/
Xxxxx Xxxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxxxxx Xxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|
(print)
|
||
24
|
LESSEE
(Continued):
|
SUMMERVILLE
AT OCALA EAST, LLC,
|
|
|
a
Delaware limited liability company
|
||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|
|
Its:
|
President
|
|
|
WITNESSES
|
||
|
/s/
Xxxxx Xxxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxxxxx Xxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|
(print)
|
||
|
SUMMERVILLE
AT VENICE, LLC,
|
||
|
a
Delaware limited liability company
|
||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|
|
Its:
|
President
|
|
|
WITNESSES
|
||
|
/s/
Xxxxx Xxxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxxxxx Xxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|
(print)
|
||
25
|
LESSEE
(Continued):
|
SUMMERVILLE
AT LAKELAND HILLS
|
|
|
ASSOCIATES,
L.P.,
|
||
|
a
Delaware limited partnership
|
||
|
By:
|
Summerville
at Lakeland Hills, LLC,
|
|
|
a
Delaware limited liability company,
|
||
|
Its
General Partner
|
||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|
|
Its:
|
President
|
|
|
WITNESSES
|
||
|
/s/
Xxxxx Xxxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxxxxx Xxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|
(print)
|
||
|
SUMMERVILLE
AT IRVING ASSOCIATES, L.P.,
|
||
|
a
Delaware limited partnership
|
||
|
By:
|
Summerville
at Irving, LLC,
|
|
|
a
Delaware limited liability company,
|
||
|
Its
General Partner
|
||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|
|
Its:
|
President
|
|
|
WITNESSES
|
||
|
/s/
Xxxxx Xxxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxxxxx Xxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|
(print)
|
||
26
CONSENT,
REAFFIRMATION AND AGREEMENT OF GUARANTOR
The
undersigned Guarantor hereby (i) reaffirms all of its obligations under the
Guaranty, (ii) consents to the foregoing Amendment and (iii) agrees that (A)
its
obligations under the Guaranty shall extend to Lessee's duties, covenants and
obligations pursuant to the Master Lease, as hereby amended, and (B) the
Guaranty as hereby reaffirmed and extended shall be for the benefit of each
party comprising Lessor under the Master Lease, as hereby amended.
|
SUMMERVILLE
SENIOR LIVING, INC.,
|
||
|
a
Delaware corporation
|
||
|
By:
|
/s/
Xxxxxxx Xxxx
|
|
|
Its:
|
President
|
|
|
WITNESSES
|
||
|
/s/
Xxxxx Xxxxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxx
Xxxxxxxx
|
|
|
(print)
|
||
|
/s/
Xxxxxxx Xxxxxx
|
||
|
(signature)
|
||
|
Name:
|
Xxxxxxx
Xxxxxx
|
|
|
(print)
|
||
27
