Contract
Exhibit
10.24.7
SIXTH
AMENDMENT TO AMENDED
AND
RESTATED MASTER LEASE
THIS
SIXTH AMENDMENT TO AMENDED AND RESTATED MASTER LEASE (this "Amendment") is
made
and entered into as of August 1, 2006 (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 CY-FAIR 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"),
SUMMERVILLE AT IRVING ASSOCIATES, L.P., a Delaware limited partnership ("Xxxxxx
XX"), XXXXXXXXXXX AT CHESTNUT HILL, LLC, a Delaware limited liability company
("Chestnut Hill LLC"), SUMMERVILLE 9, LLC, a Delaware limited liability company
("Summerville 9"), SUMMERVILLE AT CARROLLWOOD, LLC, a Delaware limited liability
company ("Carrollwood LLC"), SUMMERVILLE AT GAINESVILLE, LLC, a Delaware
limited
liability company ("Gainesville LLC"), and SUMMERVILLE AT FOX RUN, LLC, a
Delaware limited liability company ("Fox Run LLC") (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, Xxxxxx XX, Chestnut Hill LLC, Summerville
9,
Carrollwood LLC, Gainesville LLC, and Fox Run LLC 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, Venice LLC, Lakeland Hills
LP,
Xxxxxx XX, Chestnut Hill LLC, Summerville 9, Carrollwood LLC and Gainesville
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"), that certain Second Amendment to Amended and Restated Master
Lease
dated effective as of December 22, 2005 (the "Second Amendment"), that certain
Third Amendment to Amended and Restated Master Lease dated as of January
31,
2006 (the "Third Amendment"), that certain Fourth Amendment to Amended and
Restated Master Lease and Consolidation and Restatement of Xxxxxxx Lake Facility
Master Lease dated as of May 31, 2006 (the "Fourth Amendment"), and that
certain
Fifth Amendment to Amended and Restated Master Lease dated as of June 1,
2006
(the "Fifth Amendment," and together with the First Amendment, the Second
Amendment, the Third Amendment, and the Fourth Amendment, the "Amendments"),
covering the Leased Property of twenty-five (25) mixed skilled nursing and
assisted living care Facilities located in California, Connecticut, Florida,
Maryland, New Jersey, Ohio, Texas and Virginia. The Original Master Lease,
as
amended by the Amendments, shall hereinafter be referred to, collectively,
as
the "Master Lease." 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.
B. Pursuant
to the teinis 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. HCP,
as Buyer, and Guarantor, as Seller, have entered into to that certain Contract
of Acquisition, dated as of July 31, 2006 (as the same may be amended or
modified in accordance with the terms thereof, the "Fox Run Facility Contract
of
Acquisition"), pursuant to which HCP is purchasing and acquiring from Guarantor
(or pursuant to which Guarantor is causing to be transferred and conveyed
to
HCP) on and effective as of the Effective Date, that certain real property
located in Fairborn, Ohio and more particularly described on Exhibit
A-26 attached hereto, together with all improvements and fixtures
thereon, related rights and certain Personal Property relating thereto (the
"Fox
Run Facility").
D. Effective
immediately upon the Effective Date and the Fox Run Facility Closing Date,
Lessor desires to add to the Leased Property and lease to Lessee, and Lessee
desires to lease from Lessor, the Fox Run Facility 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 the matters
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, 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 Fox Run Facility 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 Fox Run
Facility.
2. Joint
and Several Liability of Lessee. From and after the Effective Date, Fox Run
LLC 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 unless the
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 Amendments) to read, in their entireties,
as
follows:
"Aggregate
Costs of the Fox Run Facility Capital Renovations Project(s): 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 Fox Run Facility
Capital Renovation Project(s), including all costs of design, construction,
installation and obtaining all governmental approvals and permits with respect
to such Fox Run Facility Capital Renovation Project(s), the Fox Run Facility
Capital Renovation Site Review Fees and the Fox Run Facility Capital Renovation
Lessor Costs."
"Fox
Run Facility: That certain Facility located in Fairborn, Ohio."
"Fox
Run Facility Capital Renovation Project(s): Any capital refurbishment to the
Fox Run Facility, the scope, plans and specifications, and a detailed final
cost
budget of which is to be reasonably agreed upon by Lessor and Lessee after
the
Effective Date."
"Fox
Run Facility Capital Renovation Project Allowance: A total aggregate
allowance for the Fox Run Capital Renovation Project(s) equal to the lesser
of
(i) Three Hundred Fifty Thousand and No/100 Dollars ($350,000.00), or (ii)
the
Aggregate Costs of the Fox Run Facility Capital Renovation Project(s).
Notwithstanding anything to the contrary in the Master Lease, as amended
by this
Amendment, the Fox Run Facility Capital Renovation Project Allowance shall
not
count towards the Annual Minimum Capital Project Amount with respect to the
Fox
Run Facility, and Lessee's expenditure and reimbursement, if any, of all
or a
portion of the Fox Run Facility Capital Renovation Project Allowance shall
be in
addition to the Annual Minimum Capital Project Amount with respect to such
Facility."
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"Fox
Run 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 Fox Run Facility Closing Date
and
quoting the rate as of that date which is two (2) Business Days prior to
the Fox
Run Facility Closing Date, plus Three and Thirty Hundredths Percent (3.30%)
and
(b) Eight and One-Half Percent (8.5%)."
"Fox
Run Facility Capital Renovation Site Review Fees: As defined in Section 5 of
this Amendment."
"Fox
Run Facility Closing Date: The "Closing Date" as defined in the Fox Run
Facility Contract of Acquisition.
"Fox
Run Facility Contract of Acquisition: As defined in Recital C of this
Amendment."
"Fox
Run Facility Escalator: An amount equal to Three and One-Half Percent
(3.50%)."
"Fox
Run Facility Partial Lease Year CPI Increase: For purposes of determining
the Fox Run Facility Purchase Price, the percentage increase, if any, in
(i) the
Cost of Living Index published for the month which is two (2) months prior
to
the date of closing of Lessee's purchase of the Leased Property of the Fox
Run
Facility, over (ii) the Cost of Living Index published for the month which
is
two (2) months prior to the commencement of the then current Lease Year in
which
such closing occurs."
"Fox
Run Facility Purchase Price: With respect to the Fox Run Facility at any
given time, the sum of:
(i) the
Allocated Initial Investment with respect to such Facility, as increased
each
Lease Year from and after the applicable Restatement Date for such Facility
by
the greater of (A) the Fixed Adjustment Factor (cumulative and compounded)
for
such Facility (and, as also increased by the Fixed Adjustment Factor on the
date
of closing if Lessee's purchase of the Leased Property of such Facility occurs
on any day other than the first (18) day
of a Lease
Year with respect to such Facility) or (B) the applicable CPI Increase
(cumulative and compounded) for such Facility commencing upon the expiration
of
the first (1st) Lease
Year with
respect to such Facility, and upon the expiration of each Lease Year thereafter
with respect to such Facility (and, as also increased by the Fox Run Facility
Partial Lease Year CPI Increase on the date of closing if Lessee's purchase
of
the Leased Property of such Facility occurs on any day other than the first
(1st) day
of a Lease
Year with respect to such Facility); plus
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(ii) any
Capital Addition Costs paid, funded or accrued by Lessor with respect
to such Facility, as increased from and after the date of each such payment,
funding or accrual by Lessor of any such Capital Addition Costs by the greater
of (A) Fixed Adjustment Factor each Lease Year (cumulative and compounded)
for
such Facility (and, as also increased by the Fixed Adjustment Factor on the
date
of closing if Lessee's purchase of the Leased Property of such Facility occurs
on any day other than the first (1st) day
of a Lease
Year with respect to such Facility) or (B) the applicable CPI Increase
(cumulative and compounded) for such Facility commencing upon the expiration
of
the first (1st) Lease
Year with
respect to such Facility, and upon the expiration of each Lease Year thereafter
with respect to such Facility (and, as also increased by the Fox Run Facility
Partial Lease Year CPI Increase on the date of closing if Lessee's purchase
of
the Leased Property of such Facility occurs on any day other than the first
(Pt) day
of a
Lease Year with respect to such Facility).
For
pm-poses of this definition of "Fox Run Facility Purchase Price," "Fixed
Adjustment Factor" shall mean Three and One-Half Percent (3.50%); provided,
however, that if the closing of Lessee's purchase of the Leased Property
of the
Fox Run Facility occurs on a date other than the first (1st)
day
of a Lease
Year with respect to such Facility, then such "Fixed Adjustment Factor" as
of
the date of such closing shall mean Three and One-Half Percent (3.50%) times
a
fraction, the numerator of which equals the number of days elapsed in the
Lease
Year in which such closing occurs, and the denominator of which is three
hundred
sixty (360)."
"Fox
Run Facility Put Event Price: With respect to the Fox Run 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 Fox Run Facility Escalator per year
on
(A) the Allocated Initial Investment for such Facility accruing from and
after
the applicable Restatement Date for such Facility and (B) any Capital Addition
Costs funded by Lessor for such Facility accruing from and after the date
of
funding; provided, however, that if the closing of Lessee's purchase of the
Leased Property of such Facility occurs on a date other than the first (1st) day
of a Lease
Year with respect to such Facility, then for purposes of determining the
annually compounded return applicable for the Lease Year in which such closing
occurs, the Fox Run Facility Escalator shall be an amount equal to Three
and One
Half Percent (3.5%) times a fraction, the numerator of which equals the number
of days elapsed in the Lease Year in which such closing occurs, and the
denominator of which is three hundred sixty (360)."
"Fox
Run Facility Renovation Lessor Costs: As defined in Section 5 of this
Amendment."
(b) Supplemented
Definitions. The following definitions appearing in Article II of the
Original Master Lease (as amended by the Amendments) shall be supplemented
as
follows:
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Annual
Minimum Capital Project Amount: With respect to the Fox Run Facility, during
each Lease Year with respect to such Facility, an amount equal to Thirty-Five
Thousand Six Hundred Dollars ($35,600.00). Notwithstanding the foregoing,
Lessor
and Lessee acknowledge that the initial Annual Minimum Capital Project Amount
for the Fox Run Facility represents an amount equal to (A) the number of
licensed units located at such Facility times (B) Four Hundred Dollars
($400.00). In the event that the number of licensed units for the Fox Run
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
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 Facility
times (2) Four Hundred Dollars ($400.00).
Annual
Minimum Capital Project Amount Overage: With respect to the Fox Run
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
such
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 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
Facility for such prior two (2) Lease Year period.
Deed:
With respect to the Fox Run Facility, "Deed" as defined in the Fox Run
Facility Contract of Acquisition.
Fair
Market Rental: With respect to the Fox Run Facility, the definition of Fair
Market Rental applicable to the Group 2 Facilities, the Group 3 Facilities,
the
Group 4 Facilities, the Group 5 Facilities, the Chestnut Hill Facility, the
Xxxxxxx Lake Facility, and the Group 8 Facilities, but in each instance relating
to the Fox Run Facility.
Lease
Year: With respect to the Fox Run Facility, the first Lease Year for such
Facility shall be the period commencing on the applicable Restatement Date
with
respect to such Facility and ending July 31, 2007, and each subsequent Lease
Year for such Facility 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 the Fox Run 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 Tenn
for
such Facility.
Restatement
Date: With respect to the Fox Run Facility, the Effective Date of this
Amendment, which shall also be the commencement date of the Master Lease,
as
hereby amended, with respect to such Facility.
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Transaction
Documents: The meaning given to such term in the Original Master Lease (as
amended by the Amendments), together with this Amendment and the Fox Run
Facility 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 Amendments)
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 "6.3%" appearing in the definition of "Letter of Credit Amount"
in
Article II of the Original Master Lease (as amended and restated pursuant
to the
Amendments) shall read "6.1%."
(e) Leased
Property; Term. The phrase "Group 3 Facilities, the Group 4 Facilities, the
Group 5 Facilities, the Chestnut Hill Facility and the Group 8 Facilities,
the
applicable Restatement Date" appearing in the last paragraph of Article I
of the
Original Master Lease (as amended by the Amendments) is hereby amended to
read
"Group 3 Facilities, the Group 4 Facilities, the Group 5 Facilities, the
Chestnut Hill Facility, the Group 8 Facilities and the Fox Run Facility,
the
applicable Restatement Date."
(f) Minimum
Rent. With respect to the Fox Run Facility:
(i) For
the period from the Effective Date through the expiration of the first (1st) Lease
Year with
respect to such Facility, Lessee shall pay to Lessor as monthly "Allocated
Minimum Rent" for such 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 such Facility shall be payable on the
Effective Date (prorated as to any partial calendar month at the beginning
of
the Term with respect to such Facility).
(ii) Commencing
upon the expiration of the first (1st) Lease
Year for
the Fox Run Facility and upon the expiration of each Lease Year thereafter
during the Fixed Term for such Facility, the then current monthly Allocated
Minimum Rent for such Facility for such Lease Year shall be increased by
an
amount equal to the Fox Run Facility Escalator.
(iii) For
the first (1st) Lease
Year of
each Extended Term for the Fox
Run
Facility, if any, the monthly Allocated Minimum Rent for such Facility shall
be
equal to the greater of (a) the then current monthly Fair Market Rental for
such
Facility and (b) the monthly Allocated Minimum Rent payable for such Facility
during the last Lease Year of the immediately preceding Term, as increased
by
the Fox Run Facility Escalator.
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(iv) Commencing
upon the expiration of the first (1st) Lease
Year of
each Extended Term, if any, for the Fox Run Facility and upon the expiration
of
each Lease Year thereafter during such Extended Term, the then current monthly
Allocated Minimum Rent for such Facility shall be increased by an amount
equal
to the Fox Run Facility Escalator.
(v) The
last paragraph of Section 3.1 of the Original Master Lease shall apply with
respect to any adjustment of the Allocated Minimum Rent with respect to the
Fox
Run Facility pursuant to clauses (ii), (iii), and (iv) above.
(vi) 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, as hereby amended.
(g) Condition
of the Leased Property. The phrase "Group 3 Facilities, the
Group
4 Facilities, the Group 5 Facilities, the Chestnut Hill Facility and the
Group 8
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
Amendments) is hereby amended to read "Group 3 Facilities, the Group 4
Facilities, the Group 5 Facilities, the Chestnut Hill Facility, the Group
8
Facilities and the Fox Run Facility, the applicable Restatement Date," in
each
instance.
(h) Maintenance
and Repair. The phrase "Group 3 Facilities, the Group 4 Facilities, the
Group 5 Facilities, the Chestnut Hill Facility and the Group 8 Facilities,
the
applicable Restatement Date" appearing in Section 9.1.1 of the Original Master
Lease (as amended by the Amendments) is hereby amended to read "Group 3
Facilities, the Group 4 Facilities, the Group 5 Facilities, the Chestnut
Hill
Facility, the Group 8 Facilities and the Fox Run Facility, the applicable
Restatement Date."
(i) Capital
Projects. The phrases "Group 3 Facilities, Group 4 Facilities, Group 5
Facilities, Chestnut Hill Facility, Xxxxxxx Lake Facility and Group 8
Facilities" and "Group 3 Facility, Group 4 Facility, Group 5 Facility, Chestnut
Hill Facility, Xxxxxxx Lake Facility or Group 8 Facility" appearing a number
of
times in Section 9.3 of the Original Master Lease (as amended by the Amendments)
are hereby amended to read "Group 3 Facilities, Group 4 Facilities, Group
5
Facilities, Chestnut Hill Facility, Xxxxxxx Lake Facility, Group 8 Facilities
and Fox Run Facility" and "Group 3 Facility, Group 4 Facility, Group 5 Facility,
Chestnut Hill Facility, Xxxxxxx Lake Facility, Group 8 Facility or Fox Run
Facility" respectively, in each instance.
(j) Liens.
The phrase "Group 3 Facilities, the Group 4 Facilities, the Group 5
Facilities, the Chestnut Hill Facility and the Group 8 Facilities, the
applicable Restatement Date, with respect to such Group 3 Facility, Group
4
Facility, Group 5 Facility, the Chestnut Hill Facility and Group 8 Facility"
appearing in Section 11.1 of the Original Master Lease (as amended by the
Amendments) is hereby amended to read "Group 3 Facilities, the Group 4
Facilities, the Group 5 Facilities, the Chestnut Hill Facility, the Group
8
Facilities and the Fox Run Facility, the applicable Restatement Date,
with
respect to such Group 3 Facility, Group 4 Facility, Group 5 Facility, Chestnut
Hill Facility, Group 8 Facility and Fox Run Facility."
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(k) Casualty.
For purposes of Section 14.2.1 and 14.2.2 of the Original Master
Lease (as amended by the Amendments), the purchase price as provided therein
with respect to the Fox Run Facility shall be the Fox Run Facility Purchase
Price immediately prior to such damage or destruction.
(1) Condemnation.
For purposes of Section 15.1.4 of the Original Master
Lease (as amended by the Amendments), Lessor shall be entitled to receive
from
any Award relating to the Fox Run Facility, subject to the rights of Facility
Mortgagees, no less than the Fox Run Facility Purchase Price immediately
prior
to the institution of the Condemnation.
(m) Events
of Default. The phrase "the Group 3 Facility Contract of Acquisition, the
Group 4 Facilities Contract of Acquisition, the Group 5 Facilities Contract
of
Acquisition, the Chestnut Hill Facility Contract of Acquisition, the Xxxxxxx
Lake Facility Contract of Acquisition and/or the Group 8 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 Amendments) is hereby replaced with the phrase
"the Group 3 Facility Contract of Acquisition, the Group 4 Facilities Contract
of Acquisition, the Group 5 Facilities Contract of Acquisition, the Chestnut
Hill Facility Contract of Acquisition, the Xxxxxxx Lake Facility Contract
of
Acquisition, the Group 8 Facilities Contract of Acquisition and/or the Fox
Run
Facility Contract of Acquisition."
(n) Lessee's
Obligation to Purchase. For purposes of Section 16.5 of the Original Master
Lease (as amended by the Amendments), the amount required to be paid by Lessee
upon any exercise of Lessor's rights to require Lessee to purchase the Fox
Run
Facility following a Put Event pursuant to such Section shall be equal to
the
Fox Run Facility Put Event Price, 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
Facility.
(o) Quiet
Enjoyment. The phrase "Group 3 Facilities, the Group 4 Facilities, the Group
5 Facilities, the Chestnut Hill Facility or the Group 8 Facilities, the
applicable Restatement Date" appearing in Section 32.1 of the Original Master
Lease (as amended by the Amendments) is hereby amended to read "Group 3
Facilities, the Group 4 Facilities, the Group 5 Facilities, the Chestnut
Hill
Facility, the Group 8 Facilities or the Fox Run Facility, the applicable
Restatement Date."
(p) Lessee's
Option to Purchase.
(i) Section
35.1.7 of the Original Master Lease (as amended by
the
Amendments) is hereby further amended to read, in its entirety, as
follows:
"35.1.7 Fox
Run Facility. Provided no Event of Default has occurred and
is
continuing hereunder, Lessee shall have the option to purchase the Leased
Property of the Fox Run Facility upon the expiration of the tenth (10th)
Lease Year of the
Fox Run Facility, for an amount equal to the Fox Run Facility Purchase
Price."
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(ii) A
new Section 35.1.8 is added to the Original Master Lease to
read,
in its entirety, as follows:
"35.1.8 General.
Lessee shall exercise the option(s) to purchase the Leased
Property set forth in Sections 35.1.1, 35.1.2, 35.1.3, 35.1.4, 35.1.5, 35.1.6
and/or 35.1.7 above, as applicable, by:
(i) opening
an escrow (the 'Escrow') with and by depositing
either (a) cash or (b) 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 (1) with respect to the Group 1 Facility(ies), the Minimum Repurchase
Price, (2) with respect to the Group 3 Facilities and Group 4 Facilities,
the
sum of (y) the Group 3 Facility Purchase Price for all of the Group 3
Facilities, plus
(z)
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), (3) 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), (4) with respect to the Chestnut
Hill Facility, the Chestnut Hill Facility Purchase Price (as reasonably
estimated by Lessor with respect to such Facility if the Chestnut Hill Facility
Purchase Price has not yet been determined), (5) with respect to the Xxxxxxx
Lake Facility, the Xxxxxxx Lake Facility Purchase Price, (6) with respect
to the
Group 8 Facilities, the Group 8 Facility Purchase Price for all of the Group
8
Facilities (as reasonably estimated by Lessor with respect to any Group 8
Facility for which the Group 8 Facility Purchase Price has not yet been
determined) and (7) with respect to the Fox Run Facility, the Fox Run Facility
Purchase Price (as reasonably estimated by Lessor with respect to such Facility
if the Fox Run 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 (A) with
respect
to the Group 1 Facility(ies), the Fixed Temn or the Extended Term, as
applicable, (B) with respect to the Group 3 Facilities and Group 4 Facilities,
the tenth (10th) Lease
Year of the
Group 4 Facilities, (C) with respect to the Group 5 Facilities, the tenth
(10th) Lease
Year of the Group 5 Facilities, (D) with respect to the Chestnut Hill Facility,
the tenth (10th) Lease
Year of the
Chestnut Hill Facility, (E) with respect to the Xxxxxxx Lake Facility, the
tenth
(10th) Lease
Year of the Xxxxxxx
Lake Facility, (F) with respect to the Group 8 Facilities, the tenth
(10th)
Lease Year of the
Group 8 Facilities, and (G) with respect to the Fox Run Facility, the tenth
(10th) Lease
Year of the Fox Run Facility; and
-
10 -
(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 (a) with respect
to the Group 1 Facility(ies), the Fixed Term or the Extended Term, as
applicable, (b) with respect to the Group 3 Facilities and Group 4 Facilities,
the tenth (10th) Lease
Year of the
Group 4 Facilities, (c) with respect to the Group 5 Facilities, the tenth
(10th) Lease
Year of the Group 5 Facilities, (d) with respect to the Chestnut Hill Facility,
the tenth (10th) Lease
Year of the
Chestnut Hill Facility, (e) with respect to the Xxxxxxx Lake Facility, the
tenth
(10th) Lease
Year of the Xxxxxxx Lake Facility, (f) with respect to the Group 8 Facilities,
the tenth (10th) Lease
Year of the
Group 8 Facilities, and (g) with respect to the Fox Run Facility, the tenth
(10th) Lease
Year of the Fox Run Facility, but in all cases subject to any delays resulting
from (1) a cause described in Section 45.1.16 below or (2) Lessor's breach
of
its obligations set forth in this Section 35 (the 'Outside Closing
Date')."
(q) Exhibits
and
Schedules.
(i) Supplements
to Exhibit A. Exhibit A-26 attached hereto is 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 Amendments) are
hereby
further amended and replaced, in their entirety, with Exhibit C and
Schedule 7.4.1 attached hereto, respectively.
5. Fox
Run Facility Capital Renovation Projects.
(a) Lessor
shall provide to Lessee the Fox Run Facility Capital Renovation
Project Allowance as provided for herein in accordance with and subject to
the
provisions of this Section 5.
-
11 -
(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 Fox Run Facility
Capital Renovation Project Allowance as provided for herein is subject to,
and
conditioned upon, Lessor and Lessee reasonably agreeing upon the scope, plans
and specifications, and a detailed final cost budget (as described in clause
(c)
below) with respect to the Fox Run Facility Capital Renovation Project(s)
following the Effective Date. As of the date hereof, the parties have agreed
upon a preliminary cost budget with respect to the Fox Run 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 Fox Run Facility Capital Renovation
Project(s), 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 Fox Run
Facility Capital Renovation Project(s), (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 Fox Run Facility
Capital Renovation Project(s); 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 perfoilnance
of such Fox Run Facility Capital Renovation Project(s), 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 July 31,
2007
(the "Outside Date").
(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, but in no event more than one (1) visit (except in the event Lessor
reasonably determines that more visits are necessary), made by Lessor for
the
purpose of inspecting such Fox Run Facility Capital Renovation Project(s)
work
(the "Fox Run 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
Fox Run Facility Capital Renovation Project(s), including engineering fees,
accountants and other professional fees (collectively, the "Fox Run Facility
Capital Renovation Lessor Costs"). The Fox Run Facility Capital Renovation
Site
Review Fees and Fox Run Facility Capital Renovation Lessor Costs shall be
deducted from the portion of the Fox Run Facility Capital Renovation Project
Allowance 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 Fox Run Facility Capital
Renovation Project Allowance for such Facility disbursed by Lessor as provided
for herein.
-
12 -
(e) The
Fox Run Facility Capital Renovation Project Allowance (less accrued Fox Run
Facility Capital Renovation Site Review Fees and the Fox Run Facility
Capital
Renovation Lessor Costs, in each case applicable thereto) 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 Fox Run Facility Capital Renovation Project(s); (ii)
completion of all work relating to such Fox Run Facility Capital Renovation
Project(s) 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 Fox Run Facility Capital Renovation
Project(s); 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 the Fox Run 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 Fox Run Facility Capital Renovation Projects. In no
event
shall Lessee be entitled to disbursement of all or any portion of the Fox
Run
Facility Capital Renovation Project Allowance 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 the Fox
Run
Facility Capital Renovation Project Allowance, Lessee shall promptly pay
to
Lessor, as an Additional Charge, all accrued and unpaid Fox Run Facility
Capital
Renovation Site Review Fees and Fox Run Facility Capital Renovation Lessor
Costs
within fifteen (15) days
after Lessor's written request therefor.
6. Covenant
of Lessee With Respect to the Health Care License. Without in any way
diminishing or limiting any of the duties, covenants, and obligations of
Lessee
under the Master Lease, as hereby amended, and notwithstanding anything to
the
contrary in the Master Lease, as hereby amended, or any of the other Transaction
Documents, including the Fox Run Facility Contract of Acquisition, Lessee
hereby
covenants and agrees that, not later than sixty (60) days after the Effective
Date, hereof, Lessee shall obtain from the applicable Government Authority
(as
defined in the Fox Run Facility Contract of Acquisition) and deliver to Lessor
a
validly-issued license to operate the Fox Run Facility for its Primary Intended
Use and for all other uses (if any) contemplated under the Master Lease,
including to operate an assisted living facility at the Fox Run Facility,
in
confoimance with all Governmental Requirements (as defined in the Fox Run
Facility Contract of Acquisition). Notwithstanding anything to the contrary
in
the Master Lease, as hereby amended, or any of the other Transaction Documents,
including the Fox Run Facility Contract of Acquisition, a failure by Lessee
to
fulfill its obligations under this Section 6 of this Amendment shall constitute
an Event of Default and a Put Event with respect to the Fox Run Facility
under
the Master Lease, as hereby amended.
7. 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.
-
13 -
(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.
8. 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 Fox Run
Facility).
9. 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.
10. 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.
-
14 -
11. 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, the Group 4 Facilities,
the
Group 5 Facilities, the Chestnut Hill Facility, the Xxxxxxx Lake Facility,
the
Group 8 Facilities and the Fox Run Facility 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, Group 5 Facilities, Chestnut Hill Facility,
Xxxxxxx Lake Facility, Group 8 Facilities or Fox Run Facility.
[Signature
Pages Follow]
-
15 -
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. Xxxxx
|
||
|
Its:
|
SVP
|
||
|
WITNESSES
|
|||
|
/s/
Xxxxxx Xxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxxx
Xxxx
|
||
|
(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. Xxxxx
|
||
|
Its:
|
SVP
|
||
|
WITNESSES
|
|||
|
/s/
Xxxxxx Xxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxxx
Xxxx
|
||
|
(print)
|
|||
|
/s/
Xxxx Xxxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxx
Xxxxxxx
|
||
|
(print)
|
|||
S-1
|
LESSOR
(Continued):
|
TEXAS
HCP HOLDING, L.P.,
|
||
|
a
Delaware limited partnership
|
|||
|
By:
|
Texas
HCP G.P., Inc.,
|
||
|
a
Delaware corporation
|
|||
|
By:
|
/s/
Xxxxxx X. Xxxxx
|
||
|
Its:
|
SVP
|
||
|
WITNESSES
|
|||
|
/s/
Xxxxxx Xxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxxx
Xxxx
|
||
|
(print)
|
|||
|
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. Xxxxx
|
||
|
Its:
|
SVP
|
||
|
WITNESSES
|
|||
|
/s/
Xxxxxx Xxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxxx
Xxxx
|
||
|
(print)
|
|||
|
/s/
Xxxx Xxxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxx
Xxxxxxx
|
||
|
(print)
|
|||
S-2
|
LESSEE:
|
LH
ASSISTED LIVING, LLC,
|
||
|
a
Delaware limited liability company
|
|||
|
By:
|
/s/
Xxxxxxx Xxxx
|
||
|
Xxxxxxx
Xxxx, 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
|
||
|
Xxxxxxx
Xxxx, President
|
|||
|
WITNESSES
|
|||
|
/s/
Xxxxx Xxxxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxx
Xxxxxxxx
|
||
|
(print)
|
|||
|
/s/
Xxxxxxx Xxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxxxx
Xxxxxx
|
||
|
(print)
|
|||
S-3
|
LESSEE
(Continued):
|
SUMMERVILLE
AT HILLSBOROUGH, L.L.C.,
|
||
|
a
New Jersey limited liability company
|
|||
|
By:
|
/s/
Xxxxxxx Xxxx
|
||
|
Xxxxxxx
Xxxx, 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
|
||
|
Xxxxxxx
Xxxx, President
|
|||
|
WITNESSES
|
|||
|
/s/
Xxxxx Xxxxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxx
Xxxxxxxx
|
||
|
(print)
|
|||
|
/s/
Xxxxxxx Xxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxxxx
Xxxxxx
|
||
|
(print)
|
|||
S-4
|
LESSEE
(Continued):
|
SUMMERVILLE
AT PORT ORANGE, INC.,
|
||
|
a
Delaware corporation
|
|||
|
By:
|
/s/
Xxxxxxx Xxxx
|
||
|
Xxxxxxx
Xxxx, 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
|
||
|
Xxxxxxx
Xxxx, President
|
|||
|
WITNESSES
|
|||
|
/s/
Xxxxx Xxxxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxx
Xxxxxxxx
|
||
|
(print)
|
|||
|
/s/
Xxxxxxx Xxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxxxx
Xxxxxx
|
||
|
(print)
|
|||
S-5
|
LESSEE
(Continued):
|
SUMMERVILLE
AT XXXXXXXX, L.L.C.,
|
||
|
a
New Jersey limited liability company
|
|||
|
By:
|
/s/
Xxxxxxx Xxxx
|
||
|
Xxxxxxx
Xxxx, 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
|
||
|
Xxxxxxx
Xxxx, President
|
|||
|
WITNESSES
|
|||
|
/s/
Xxxxx Xxxxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxx
Xxxxxxxx
|
||
|
(print)
|
|||
|
/s/
Xxxxxxx Xxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxxxx
Xxxxxx
|
||
|
(print)
|
|||
S-6
|
LESSEE
(Continued):
|
SUMMERVILLE
AT WESTMINSTER, INC.,
|
||
|
a
Maryland corporation
|
|||
|
By:
|
/s/
Xxxxxxx Xxxx
|
||
|
Xxxxxxx
Xxxx, 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
|
||
|
Xxxxxxx
Xxxx, President
|
|||
|
WITNESSES
|
|||
|
/s/
Xxxxx Xxxxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxx
Xxxxxxxx
|
||
|
(print)
|
|||
|
/s/
Xxxxxxx Xxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxxxx
Xxxxxx
|
||
|
(print)
|
|||
S-7
|
LESSEE
(Continued):
|
SUMMERVILLE
AT OCALA WEST, LLC,
|
||
|
a
Delaware limited liability company
|
|||
|
By:
|
/s/
Xxxxxxx Xxxx
|
||
|
Xxxxxxx
Xxxx, 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
|
||
|
Xxxxxxx
Xxxx, President
|
|||
|
WITNESSES
|
|||
|
/s/
Xxxxx Xxxxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxx
Xxxxxxxx
|
||
|
(print)
|
|||
|
/s/
Xxxxxxx Xxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxxxx
Xxxxxx
|
||
|
(print)
|
|||
S-8
|
LESSEE
(Continued):
|
SUMMERVILLE
AT FRIENDS WOOD
|
||
|
ASSOCIATES,
L.P., a Delaware limited partnership
|
|||
|
|
By:
|
Summerville
at Friendswood, LLC,
|
|
|
|
a
Delaware limited liability company,
|
||
|
|
Its
General Partner
|
||
|
By:
|
/s/
Xxxxxxx Xxxx
|
||
|
Xxxxxxx
Xxxx, 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
|
||
|
Xxxxxxx
Xxxx, President
|
|||
|
WITNESSES
|
|||
|
/s/
Xxxxx Xxxxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxx
Xxxxxxxx
|
||
|
(print)
|
|||
|
/s/
Xxxxxxx Xxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxxxx
Xxxxxx
|
||
|
(print)
|
|||
S-9
|
LESSEE
(Continued):
|
SUMMERVILLE
AT LAKELAND, LLC,
|
||
|
a
Delaware limited liability company
|
|||
|
By:
|
/s/
Xxxxxxx Xxxx
|
||
|
Xxxxxxx
Xxxx, 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
|
||
|
Xxxxxxx
Xxxx, President
|
|||
|
WITNESSES
|
|||
|
/s/
Xxxxx Xxxxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxx
Xxxxxxxx
|
||
|
(print)
|
|||
|
/s/
Xxxxxxx Xxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxxxx
Xxxxxx
|
||
|
(print)
|
|||
S-10
|
LESSEE
(Continued):
|
SUMMERVILLE
AT OCALA EAST, LLC,
|
||
|
a
Delaware limited liability company
|
|||
|
By:
|
/s/
Xxxxxxx Xxxx
|
||
|
Xxxxxxx
Xxxx, 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
|
||
|
Xxxxxxx
Xxxx, President
|
|||
|
WITNESSES
|
|||
|
/s/
Xxxxx Xxxxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxx
Xxxxxxxx
|
||
|
(print)
|
|||
|
/s/
Xxxxxxx Xxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxxxx
Xxxxxx
|
||
|
(print)
|
|||
S-11
|
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
|
||
|
Xxxxxxx
Xxxx, 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
|
||
|
Xxxxxxx
Xxxx, President
|
|||
|
WITNESSES
|
|||
|
/s/
Xxxxx Xxxxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxx
Xxxxxxxx
|
||
|
(print)
|
|||
|
/s/
Xxxxxxx Xxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxxxx
Xxxxxx
|
||
|
(print)
|
|||
S-12
|
LESSEE
(Continued):
|
SUMMERVILLE
AT CHESTNUT HILL, LLC,
|
||
|
a
Delaware limited liability company
|
|||
|
By:
|
/s/
Xxxxxxx Xxxx
|
||
|
Xxxxxxx
Xxxx, President
|
|||
|
WITNESSES
|
|||
|
/s/
Xxxxx Xxxxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxx
Xxxxxxxx
|
||
|
(print)
|
|||
|
/s/
Xxxxxxx Xxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxxxx
Xxxxxx
|
||
|
(print)
|
|||
|
SUMMERVILLE
9, LLC,
|
|||
|
a
Delaware limited liability company
|
|||
|
By:
|
/s/
Xxxxxxx Xxxx
|
||
|
Xxxxxxx
Xxxx, President
|
|||
|
WITNESSES
|
|||
|
/s/
Xxxxx Xxxxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxx
Xxxxxxxx
|
||
|
(print)
|
|||
|
/s/
Xxxxxxx Xxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxxxx
Xxxxxx
|
||
|
(print)
|
|||
S-13
|
LESSEE
(Continued):
|
SUMMERVILLE
AT XXXXXXX XXXX,
|
||
|
LLC,
a Delaware limited liability company
|
|||
|
By:
|
/s/
Xxxxxxx Xxxx
|
||
|
Xxxxxxx
Xxxx, President
|
|||
|
WITNESSES
|
|||
|
/s/
Xxxxx Xxxxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxx
Xxxxxxxx
|
||
|
(print)
|
|||
|
/s/
Xxxxxxx Xxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxxxx
Xxxxxx
|
||
|
(print)
|
|||
|
SUMMERVILLE
AT GAINESVILLE, LLC,
|
|||
|
a
Delaware limited liability company
|
|||
|
By:
|
/s/
Xxxxxxx Xxxx
|
||
|
Xxxxxxx
Xxxx, President
|
|||
|
WITNESSES
|
|||
|
/s/
Xxxxx Xxxxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxx
Xxxxxxxx
|
||
|
(print)
|
|||
|
/s/
Xxxxxxx Xxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxxxx
Xxxxxx
|
||
|
(print)
|
|||
S-14
|
LESSEE
(Continued):
|
SUMMERVILLE
AT FOX RUN, LLC,
|
||
|
a
Delaware limited liability company
|
|||
|
By:
|
/s/
Xxxxxxx Xxxx
|
||
|
Xxxxxxx
Xxxx, President
|
|||
|
WITNESSES
|
|||
|
/s/
Xxxxx Xxxxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxx
Xxxxxxxx
|
||
|
(print)
|
|||
|
/s/
Xxxxxxx Xxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxxxx
Xxxxxx
|
||
|
(print)
|
|||
S-15
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
|
||
|
Xxxxxxx
Xxxx, President
|
|||
|
WITNESSES
|
|||
|
/s/
Xxxxx Xxxxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxx
Xxxxxxxx
|
||
|
(print)
|
|||
|
/s/
Xxxxxxx Xxxxxx
|
|||
|
(signature)
|
|||
|
Name:
|
Xxxxxxx
Xxxxxx
|
||
|
(print)
|
|||
S-16
