FIRST AMENDMENT TO MASTER LEASE AND SECURITY AGREEMENT
EX-10.81.03
NOT TO BE RECORDED IN PUBLIC RECORDS [Project Bond Lease Portfolio #1]
[Dartmouth, Massachusetts - Property #1151]
[Elk Grove, California - Property #1152]
[Baltimore, Maryland - Property #1153]
[Little Rock, Arkansas - Property #1154]
[Hemet, California - Property #1156]
[Hoffman Estates, Illinois - Property #1157]
[Plymouth, Massachusetts - Property #1158]
[Willoughby, Ohio - Property #1159]
[Tulsa, Oklahoma - Property #1160]
[Orland Park, Illinois - Property #1162]
[Palm Springs, California - Property #1168]
[Atlanta, Georgia - Property #1169]
[Edgewood, Kentucky - Property #1170]
[Oklahoma City, Oklahoma - Property #1171]
[Bellevue, Washington - Property #1173]
[Lynnwood, Washington - Property #1174]
[Snohomish, Washington - Property #1175]
FIRST AMENDMENT TO MASTER LEASE AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO MASTER LEASE AND SECURITY AGREEMENT (“Amendment”) is dated as of October 15, 2010 (the “Effective Date”), and is among each of those Persons listed on Schedule A attached hereto and whose signatures also appear on the signature pages hereto under the heading “Lessor” (collectively, as their interests may appear, “Lessor”) and EMERITUS CORPORATION, a Washington corporation (“Lessee” or sometimes “Emeritus”).
RECITALS
X. Xxxxxx is the “Lessor” and Xxxxxx is the “Lessee” pursuant to that certain Master Lease and Security Agreement dated as of October 12, 2010 (the “Lease”). The Lease covers the Leased Property of seventeen (17) senior housing/care Facilities located in the States of Arkansas, California, Georgia, Illinois, Kentucky, Maryland, Massachusetts, Ohio, Oklahoma and Washington, all as more particularly described therein. All capitalized terms used in this Amendment and not otherwise defined herein shall have the meanings given to such terms in the Lease.
X. Xxxxxx and Lessee desire to amend the Lease in accordance with the terms and conditions set forth herein.
AMENDMENT
NOW THEREFORE, in consideration of the mutual covenants contained in this Amendment and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lessor and Xxxxxx hereby agree as follows:
1. New Definition. The following defined term shall be shall be added to Article II of the Lease to read, in its entirety, as follows:
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“Other Master Lease: That certain Master Lease dated as of October 12, 2010 between HCP Camarillo CA, LP, a Delaware limited partnership, HCP MA2 California, LP, a Delaware limited partnership, HCP MA2 Utah, LP, a Delaware limited partnership, HCP MA3 California, LP, a Delaware limited partnership, HCP MA3 South Carolina, LP, a Delaware limited partnership and HCP ST1 Colorado, LP, a Delaware limited partnership, collectively as their interests may appear, as “Lessor,” and Emeritus, as “Lessee,” as the same may be amended, supplemented or modified from time to time in accordance with the terms thereof.”
2. Commencement Date. Section 47.1.3 of the Lease is hereby amended by amending and restating the last sentence of such Section 47.1.3 in its entirety to read as follows:
“Notwithstanding anything to the contrary in this Lease, however, the Commencement Date must occur simultaneous with respect to all of the Facilities and all of the “Facilities” as defined in the Other Master Lease, and Lessee shall not take possession of or commence any use of any Facility hereunder or any “Facility” under the Other Master Lease until all of the conditions to the continued effectiveness of this Lease as provided in Sections 48.1 and 48.2 below and in Section 48.1 and 48.2 of the Other Master Lease have been satisfied or waived with respect to all Facilities hereunder and all “Facilities” under the Other Master Lease.”
3. Due Diligence Period. Notwithstanding anything to the contrary set forth in Section 48.2.1(a) of the Lease, Lessee shall have until 5:00 p.m. (California time) on October 22 2010 to be reasonably satisfied with the results of its review of (a) the physical condition of each Facility as it relates specifically and solely to the presence of mold or conditions conductive to the development of mold and (b) with respect to the Facility in Willoughby, Ohio, evidence of compliance with or available title insurance coverage for the title reservation in favor of Xxxxxx Foundation Health Plan of Ohio (collectively, the “Reserved Due Diligence Matters”). Except for the Reserved Due Diligence Matters, (i) Lessee hereby advises Lessor that Lessee is satisfied with the results of its due diligence review of the Leased Property of each Facility, the Facilities themselves and the operations thereof and the transactions contemplated by the Lease have been approved by the Board of Directors of Lessee and (ii) Lessee hereby waives its right to terminate the Lease pursuant to Section 48.2.2 of the Lease with respect to all other matters set forth in Section 48.2.1(a) of the Lease. With respect to the Reserved Due Diligence Matters, the provisions of Section 48.2.2 shall continue in full force and effect, except that if Lessee elects to terminate the Lease for any of the Reserved Due Diligence Matters notice thereof shall be delivered to Lessor on or before 5:00 p.m. (California time) on October 22, 2010.
4. Other Conditions to the Continued Effectiveness of the Lease.
(a) The references to “October 15, 2010” contained in Section 48.1.1(b) and Section 48.2.1 (b) of the Lease are hereby replaced with references to “October 22, 2010.”
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(b) Section 48.1.1(f) of the Lease is hereby amended and restated in its entirety to read as follows:
“(f) Prior to, or concurrent with, the Commencement Date, a Current Facility Documents Termination (as defined herein and in the Other Master Lease) shall have occurred with respect to each Facility and each “Facility” under the Other Master Lease”.
(c) Section 48.1.1(g) of the Lease is hereby amended and restated in its entirety to read as follows:
“(g) The “closing” or “effective date” of each Operations Transfer Agreement and any Interim Licensure Arrangements (as such terms are defined herein and in the Other Master Lease), and the Commencement Date hereunder and the “Commencement Date” under the Other Master Lease shall have occurred on or before December 1, 2010.”
(d) Section 48.2.1(e) of the Lease is hereby amended and restated in its entirety to read as follows:
“(e) Prior to, or concurrent with, the Commencement Date, a Current Facility Documents Termination (as defined herein and in the Other Master Lease) shall have occurred with respect to each Facility and each “Facility” under the Other Master Lease”.
(e) Section 48.2.1(f) of the Lease is hereby amended and restated in its entirety to read as follows:
“(f) The “closing” or “effective date” of each Operations Transfer Agreement and any Interim Licensure Arrangements (as such terms are defined herein and in the Other Master Lease), and the Commencement Date hereunder and the “Commencement Date” under the Other Master Lease shall have occurred on or before December 1, 2010.”
5. Full Force and Effect. Except as specifically set forth herein, the Lease shall remain in full force and effect as originally executed by Xxxxxx and Xxxxxx.
6. Entire Agreement. The Lease, as hereby amended, constitutes the entire agreement of the parties with respect to the subject matter hereof, and may not be changed or modified except by an agreement in writing signed by the parties.
7. Counterparts; Electronically Transmitted Signatures. This Amendment may be executed in any number of counterparts, all of which shall constitute one and the same instrument. Signatures transmitted via facsimile or other electronic means may be used in place
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of original signatures on this Amendment, and Xxxxxx and Xxxxxx both intend to be bound by the signatures of the document transmitted via facsimile or other electronic means.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed and attested by their respective officers thereunto duly authorized.
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LESSOR:
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HCP DARTMOUTH MA, LP, a Delaware limited partnership
HCP LAGUNA CREEK CA, LP, a Delaware limited partnership
HCP TOWSON MD, LP, a Delaware limited partnership
By:HCP MA1 GP, LLC, a Delaware limited liability company, their general partner
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: EVP
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State of California
County of Los Angeles
On October 18, 2010 before me, Xxxxx X. Xxxxx, notary public, personally appeared Xxxxxx X. Xxxxx who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: /s/ Xxxxx X. Xxxxx (seal)
[Signatures continue on the following page]
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LESSOR (continued):
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HCP MA2 ARKANSAS, LP, a Delaware limited partnership
HCP MA2 CALIFORNIA, LP, a Delaware limited partnership
HCP MA2 ILLINOIS, LP, a Delaware limited partnership
HCP MA2 MASSACHUSETTS, LP, a Delaware limited partnership
HCP MA2 OHIO, LP, a Delaware limited partnership
HCP MA2 OKLAHOMA, LP, a Delaware limited partnership
By:HCP MA2 GP Holding, LLC, a Delaware limited liability company, their general partner
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: EVP
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State of California
County of Los Angeles
On October 18, 2010 before me, Xxxxx X. Xxxxx, notary public, personally appeared Xxxxxx X. Xxxxx who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: /s/ Xxxxx X. Xxxxx (seal)
[Signatures continue on the following page]
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LESSOR (continued):
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HCP PARTNERS, LP, a Delaware limited partnership
By:HCP GP Corp., a Delaware corporation, its general partner
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: EVP
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State of California
County of Los Angeles
On October 18, 2010 before me, Xxxxx X. Xxxxx, notary public, personally appeared Xxxxxx X. Xxxxx who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: /s/ Xxxxx X. Xxxxx (seal)
[Signatures continue on the following page]
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LESSOR (continued):
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HCP MA3 CALIFORNIA, LP, a Delaware limited partnership
HCP MA3 GEORGIA, LP, a Delaware limited partnership
HCP MA3 KENTUCKY, LP, a Delaware limited partnership
HCP MA3 OKLAHOMA, LP, a Delaware limited partnership
HCP MA3 WASHINGTON, LP, a Delaware limited partnership
By:HCP MA3 A Pack GP, LLC, a Delaware limited liability company, their general partner
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: EVP
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State of California
County of Los Angeles
On October 18, 2010 before me, Xxxxx X. Xxxxx, notary public, personally appeared Xxxxxx X. Xxxxx who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: /s/ Xxxxx X. Xxxxx (seal)
[Signatures continue on the following page]
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LESSEE:
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EMERITUS CORPORATION,
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a Washington corporation
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By: /s/ Xxxx Xxxxxxxxxx
Name: Xxxx Xxxxxxxxxx
Title: SVP Corporate Development
State of Washington
ss.
County of King
On this 18th day of October, 2010, before me personally appeared Xxxx Xxxxxxxxxx, to me known to be the SVP Corporate Development of the corporation that executed the within and foregoing instrument, and acknowledged said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute said instrument and that the seal affixed is the corporate seal of said corporation.
In Witness Whereof I have hereunto set my hand and affixed my official seal the day and year first above written.
/s/ Xxxxxxx Xxxx. Xxxxxxxxxx
Notary Public
My commission expires: 07/09/11.
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SCHEDULE A
LIST OF PERSONS COMPRISING LESSOR AND FACILITIES OWNED
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Person Comprising Lessor
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Facility Owned
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HCP Dartmouth MA, LP, a Delaware limited partnership (“HCP Dartmouth”)
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1151 Dartmouth, Massachusetts – Sunrise of Dartmouth
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HCP Laguna Creek CA, LP, a Delaware limited partnership (“HCP Laguna Creek”)
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1152 Elk Grove, California – Sunrise at Laguna Creek
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HCP Towson MD, LP, a Delaware limited partnership (“HCP Towson”)
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1153 Baltimore, Maryland – Brighton Gardens of Towson
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HCP MA2 Arkansas, LP, a Delaware limited partnership (“HCP MA2 Arkansas”)
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1154 Little Rock, Arkansas – Pleasant Hills
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HCP MA2 California, LP, a Delaware limited partnership (“HCP MA2 California”)
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1156 Hemet, California – Sunrise of Hemet
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HCP MA2 Illinois, LP, a Delaware limited partnership (“HCP MA2 Illinois”)
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1157 Hoffman Estates, Illinois – Brighton Gardens of Xxxxxxx Estates
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HCP MA2 Massachusetts, LP, a Delaware limited partnership (“HCP MA2 Massachusetts”)
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1158 Plymouth, Massachusetts – Sunrise of Plymouth
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HCP MA2 Ohio, LP, a Delaware limited partnership (“HCP MA2 Ohio”)
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1159 Willoughby, Ohio – Sunrise of Willoughby
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HCP MA2 Oklahoma, LP, a Delaware limited partnership (“HCP MA2 Oklahoma”)
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1160 Tulsa, Oklahoma – Brighton Gardens of Tulsa
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HCP Partners, LP, a Delaware limited partnership (“HCP Partners”)
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1162 Orland Park, Illinois – Brighton Gardens of Orland Park
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HCP MA3 California, LP, a Delaware limited partnership (“HCP MA3 California”)
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1168 Palm Springs, California – Sunrise of Palm Springs
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HCP MA3 Georgia, LP, a Delaware limited partnership (“HCP MA3 Georgia”)
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1169 Atlanta, Georgia – Brighton Gardens of Vinings
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HCP MA3 Kentucky, LP, a Delaware limited partnership (“HCP MA3 Kentucky”)
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1170 Edgewood, Kentucky – Brighton Gardens of Edgewood
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HCP MA3 Oklahoma, LP, a Delaware limited partnership (“HCP MA3 Oklahoma”)
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1171 Oklahoma City, Oklahoma – Brighton Gardens of Oklahoma City
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HCP MA3 Washington, LP, a Delaware limited partnership (“HCP MA3 Washington”)
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1173 Bellevue, Washington – Brighton Gardens of Bellevue
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HCP MA3 Washington
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000 Xxxxxxxx, Xxxxxxxxxx – Sunrise of Lynnwood
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HCP MA3 Washington
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0000 Xxxxxxxxx, Xxxxxxxxxx – Sunrise of Snohomish
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