EXHIBIT 10.13
FIRST AMENDMENT OF GUARANTY
FIRST AMENDMENT OF GUARANTY (this "Amendment"), dated as of May 16,
1994 between MARRIOTT INTERNATIONAL, INC., a Delaware corporation ("Guarantor"),
in favor of HMC RETIREMENT PROPERTIES, INC., a Delaware corporation ("HMC").
R E C I T A L S:
A. HMC, as landlord, and Marriott Senior Living Services, Inc., a
Delaware corporation ("MSLS"), as tenant, are parties to a certain Lease, dated
as of October 8, 1993, which Lease has been amended by First Amendment to Lease,
dated January 19, 1994, relating to certain land and improvements located in
Maricopa County, Scottsdale, Arizona.
B. Said Lease has been guaranteed by Guarantor in favor of HMC pursuant
to a Guaranty, dated as of October 8, 1993 (the "Guaranty").
C. Concurrently herewith, HMC and MSLS are further amending the Lease
pursuant to a Second Amendment of Lease, dated as of the date hereof (the
"Amendment", and said Lease, as so amended through the Amendment, the "Lease").
D. Guarantor and HMC desire to provide for the amendment of the
Guaranty on the terms and conditions set forth herein.
NOW, THEREFORE, for TEN DOLLARS and other good and valuable
consideration, the receipt and sufficiency are hereby acknowledged, Guarantor
and HMC hereby agree as follows:
1. Defined Terms. Any capitalized terms used but not defined herein
shall have the meaning given such term in the Guaranty.
2. Lease Amendment. Guarantor hereby consents to and approves the
Amendment and acknowledges that the Guaranty shall extend to the Lease as
amended through the Amendment.
3. No Right of Setoff, Counterclaim, Etc. Guarantor hereby expressly
waives any right of set-off, counter claim or offset against Landlord or in
respect of Rental or any other amounts due and payable under the Lease or
hereunder. Further, Guarantor hereby waives any suretyship defenses it might
have under the laws of California or of any other state or foreign jurisdiction.
In the event that Guarantor at any time pledges (or is deemed to have pledged)
any real property as security for the Guaranty, whether by mortgage, deed of
trust or otherwise, Guarantor hereby expressly agrees to waive and does hereby
waive the benefits of California code of Civil Procedure Sections 580a, 580d and
726 and any other provisions of state, federal or foreign law relating to such
real property security or the judicial or non-
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judicial enforcement thereof.
4. Limited Conditions to Guarantor's Obligations. Paragraph 22 of the
Guaranty is hereby amended by deleting such provision in its entirety and
substituting therefor the following:
"22. As an inducement to Guarantor to make this Guaranty,
Landlord has agreed to the provisions set forth in Sections 22.01 A and
20.02, B and C of the Lease, which provisions provide certain rights
and privileges to Guarantor. Nothing in this Guaranty is intended to,
or shall be so construed as to, modify, lessen, cancel or waive any
such Guarantor rights under the Lease. The enforcement of this Guaranty
and Guarantor's obligations hereunder are specifically contingent upon
Landlord's full compliance with said Sections 22.01 A and 20.02, B and
C (it being agreed, however, that at such time as Landlord shall comply
with said Sections 22.01 A and 20.02, B and C, Guarantor shall be
obligated to perform under this Guaranty, notwithstanding any prior
failure of Landlord to so comply). Notwithstanding any other provision
of this Guaranty to the contrary, Landlord agrees that it will not,
without the consent of Guarantor, consent to or make any material
modification or amendment to the Lease, and any such action by
Landlord, without Guarantor's consent when required by this provision,
shall not be binding upon Guarantor and shall not have any force and
effect with respect to Guarantor's obligations under this Guaranty.
5. Successors. This Amendment, as well as the Guaranty, shall bind, and
inure to the benefit of, the successor and permitted assigns of Landlord and
Guarantor.
6. No Amendment. The Guaranty is in full force and effect and, except
as modified hereby, has not been amended.
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IN WITNESS WHEREOF, Guarantor has executed and delivered, and Landlord
has accepted, this Amendment on the date first hereinabove set forth.
MARRIOTT INTERNATIONAL, INC.,
a Delaware corporation
By: /s/
Name:
(Vice) President
[SEAL]
ATTEST:
By: /s/
Name:
(Assistant) Secretary
ACCEPTED:
HMC RETIREMENT PROPERTIES, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
(Vice) President
[SEAL]
ATTEST:
By: /s/ Xxxxx X. Xxxxxxx
Name Xxxxx X. Xxxxxxx
(Assistant) Secretary
SCHEDULE TO EXHIBIT 10.13
Pursuant to Instruction 2 to Item 601 of Regulation S-K, the following
First Amendment of Guarantees, which are substantially identical in all material
respects to the First Amendment of Guaranty filed herewith, are omitted. The
following list sets forth the material differences in the premises and landlord.
Leased Premises Landlord
Sun City, Maricopa County, AZ HMC Retirement Properties, Inc.
Villa Valencia, Orange County, CA HMC Retirement Properties, Inc.
Xxxxxxxxx Xxxxx/Xxxxxxx Xxxx, Xxxxxxx Xxxxxx, XX HMH Properties, Inc.
Palms Harbor, Pinellas County, FL HMC Retirement Properties, Inc.
Calusa Harbour, Lee County, FL HMC Retirement Properties, Inc.
Bedford Court, Xxxxxxxxxx, MD HMC Retirement Properties, Inc.
Bellaire/Houston, Xxxxxx County, TX HMC Retirement Properties, Inc.
The Jefferson, Arlington County, VA HMC Retirement Properties, Inc.
Xxxxxxxx Xxxxx, Xxxx xx Xxxxxxxx Xxxxx, XX HMC Retirement Properties, Inc.
Church Creek, Xxxx County, IL HMC Retirement Properties, Inc.
Port St. Lucie, St. Lucie County, FL HMC Retirement Properties, Inc.
Boca Pointe, Palm Beach County, FL HMH Properties, Inc.
The Colonnades, Albemarle County, VA HMC Retirement Properties, Inc.
