EXHIBIT 10.7.2
FIRST AMENDMENT TO GUARANTY OF LEASE
This First Amendment to Guaranty of Lease (this "Guaranty Amendment"),
dated as of February 20, 2004, is made by and between Brookdale Living
Communities, Inc., a Delaware corporation (together with any entity succeeding
thereto by consolidation, merger or acquisition of its assets substantially as
an entirety, "Guarantor") and Ventas Realty, Limited Partnership, a Delaware
limited partnership ("Initial Beneficiary").
Guarantor executed that certain Guaranty of Lease in favor of Initial
Beneficiary dated as of January 28, 2004 (the "Guaranty"). Initial Beneficiary
and certain of its affiliates (each a "Landlord" and, collectively, "Landlords")
are simultaneously herewith acquiring a fee simple interest in the parcels of
land described on Exhibit A, attached hereto and made a part hereof, and the
improvements located on said land (each a "New Property" and, collectively, the
"New Properties") and leasing the New Properties to the entities identified as
Tenant on Schedule C, attached hereto and made a part hereof (each a "New
Tenant" and, collectively, the "New Tenants"), pursuant to those certain leases
identified on Schedule C attached hereto and made a part hereof (each a "New
Lease" and, collectively, the "New Leases"). Initially capitalized terms used
but not defined herein shall have the meaning ascribed to such term in the
Guaranty. Landlords are unwilling to acquire the New Properties or enter into
the New Leases unless Guarantor enters into this Guaranty Amendment. Guarantor
directly or indirectly owns all the stock, partnership interests or membership
interests, as the case may be, of each New Tenant. The acquisition by Landlords
of the New Properties and the lease of the New Properties to New Tenants is of
direct benefit to Guarantor. This Guaranty Amendment reasonably may be expected
to benefit, directly or indirectly, Guarantor.
NOW, THEREFORE, in consideration of $10 and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Guarantor, intending to be legally bound, covenants and agrees with Initial
Beneficiary as follows:
1. Certain Amendments. Exhibit A to the Guaranty is hereby amended
to include each of the New Properties identified on Exhibit A attached hereto.
Schedule B to the Guaranty is hereby deleted in its entirety and replaced with
Schedule B attached hereto. From and after the date hereof, the Guaranty is (a)
for the benefit of all of the Landlords identified on Schedule B to the
Guaranty, as amended hereby, and Ventas, Inc., a Delaware corporation (only to
the extent Ventas, Inc. is liable pursuant to any guaranty made by Ventas, Inc.
in connection with a mortgage loan related to any Property assumed by a Landlord
in connection with the acquisition of such Property) and (b) applicable to (i)
all of the Properties identified on Exhibit A to the Guaranty, as amended
hereby, and (ii) all of the Tenants and Leases identified on Schedule B to the
Guaranty, as amended hereby.
2. Portfolio Coverage Ratio. Section 8(k) of the Lease Guaranty is
hereby deleted in its entirety and replaced with the following:
If Tenants shall fail to maintain as of the end of each fiscal
quarter a Portfolio Coverage Ratio (as defined below) of not less
than 1.10 to
1.00 in breach of Section 8.2.8 of any of the Leases, subject to
Tenant's rights to cure such "Event of Default" as provided in
Section 8.2.8 of such Leases.
3. Full Force and Effect. All other terms, conditions and covenants
contained in the Guaranty remain unchanged and in full force and effect.
Guarantor confirms and ratifies the terms and provisions of the Guaranty and
agrees that the Guaranty remains in full force and effect as of the date hereof,
and nothing contained in this Guaranty Amendment shall be construed to impair,
limit or reduce the security, rights or powers that Initial Beneficiary or any
other Landlord, or any of their successors, may have under the Guaranty.
Guarantor further reaffirms and ratifies its obligations to be bound by and
perform all of the terms of the Guaranty and any other agreements to which it
and any Landlord is a party.
4. Governing Law; Jurisdiction. This Guaranty Amendment shall be
governed by and construed in accordance with the laws of the State of Illinois,
other than its doctrine regarding conflicts of laws. Guarantor irrevocably
submits to the personal jurisdiction of any federal or state court sitting in
the State of Illinois with respect to any matter arising under this Guaranty
Amendment. Guarantor consents to jurisdiction of the courts of the State of
Illinois and of the Federal courts sitting in the State of Illinois, and
consents to venue in the State of Illinois, and Guarantor waives any right to
stay, remove, or otherwise directly or indirectly interfere with such action
based on such jurisdiction.
5. Amendments; Successors. Neither this Guaranty Amendment nor the
Guaranty may be modified or amended except by a written agreement duly executed
by Guarantor and Landlord. This Guaranty Amendment shall be binding upon the
Guarantor and shall inure to the benefit of Landlords and their successors and
assigns as permitted under the Guaranty, including, without limitation, any
mortgagee of Landlord's interest in any Property. In the event any one or more
of the provisions contained in this Guaranty Amendment shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Guaranty Amendment, but this Guaranty Amendment shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein. As
used herein the term "New Tenant" and the term "New Tenants" includes their
successors and assigns with respect to the New Leases.
6. Counterparts. This Guaranty Amendment may be executed in two or
more counterparts, including via facsimile, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Guarantor has caused this Guaranty Amendment to be
executed and its corporate seals to be hereunto affixed and attested by its
officers thereunto duly authorized.
BROOKDALE LIVING COMMUNITIES, INC., a
Delaware corporation
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice-President, Chief
Financial Officer and Treasurer
VENTAS REALTY, LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Ventas, Inc., a Delaware corporation,
its sole general partner
By: /s/ T. ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
T. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Executive Vice President/General Counsel
EXHIBIT A
LEGAL DESCRIPTION (BRISTOL)
TRACT 1: BEGINNING at a point on the southern right-of-way line of Bristol
View Drive, corner to property of ▇▇▇▇▇▇; thence with the right-of-way line of
Bristol View Drive N 60 degrees 01' E 597.63 feet to a point, corner to property
of ▇▇▇▇▇▇▇; thence with the line of ▇▇▇▇▇▇▇ S 48 degrees 58' E 301.07 feet to a
point, corner to Tract 2; thence with the line of Tract 2 S 47 degrees 51' 30" E
121.48 feet to a point marked by an axle, corner to property of Cuba; thence
with the line of the property of Cuba the following two courses: (1) S 62
degrees 54' W 117.46 feet to an iron pin, then (2) S 27 degrees 41' 30" E 49.78
feet to an iron pin, corner to property of Blacky; thence with the line of
property of Blacky S 60 degrees 43; 40" W 78.53 feet to an iron pin, corner to
property of ▇▇▇▇▇; thence with the line of property of ▇▇▇▇▇ on two courses (1)
S 62 degrees 22' 20" W 107.12 feet to an axle, then (2) S 38 degrees 14' 20" E
50.60 feet to an iron pin, corner to property of ▇▇▇▇▇▇, the same being ▇▇▇ ▇,
▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇; thence with the northwestern line of ▇▇▇▇ ▇, ▇,
▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ Subdivision S 61 degrees 58' 10" W 216.53 feet to a
pin, corner to ▇▇▇▇ ▇ ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇; thence with the
northwestern line of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇ 62 degrees 18' 30"
W 51.94 to a post, common corner to ▇▇▇▇ ▇ ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ Subdivision
and corner to property of ▇▇▇▇▇▇; thence with the line of property of ▇▇▇▇▇▇ N
49 degrees 11' 10" W 507.63 feet to a point, the same being the point of
Beginning, containing 269,200.8 square feet (6.18 acres +/-).
TRACT 2: BEGINNING at a point on the northeastern line of Tract 1, corner
to property of ▇▇▇▇▇▇▇; thence with the line of the property of ▇▇▇▇▇▇▇ N 50
degrees 03' 30" E 133.03 feet to an iron pin, corner to Tract 3; thence with the
line of Tract 3 the following three courses: (1) S 19 degrees 36' 40" E 187.00
feet to a point, then (2) N 50 degrees 03' 30" E 74.00 feet to an iron pin, then
(3) S 49 degrees 36' 49" E 92.88 feet to a point, the northern corner of ▇▇▇ ▇▇,
▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇; thence with the northwestern line of said ▇▇▇ ▇▇
▇ ▇▇ degrees 38' 40" W 76.00 feet to a point, common corner to Lots 12 and 13,
Block 1 of said subdivision; thence with the northwestern line of Lots 11 and
12, Block 1 of said subdivision S 63 degrees 00' 50" W 152.06 feet to a point,
common corner to ▇▇▇▇ ▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇;
thence with the line of Cuba and with the line of Tract 1 N 47 degrees 51' 30" W
228.00 feet (passing an axle at 106.52 feet) to a point, the same being the
point of Beginning, containing 45, 563.76 square feet (1.046 acres +/-).
TRACT 3: BEGINNING at an iron pin, corner to Lot 2 and in the line of
▇▇▇▇▇▇▇, thence with the line of ▇▇▇▇▇▇▇, N 50 degrees 03' 30" E 140.00 feet to
an iron pin, corner to ▇▇▇▇▇▇▇ and in the line of ▇▇▇▇▇▇▇; thence with the line
of ▇▇▇▇▇▇▇ S 49 degrees 36' 40" E 290.00 feet to a locust ▇▇▇▇▇ in the
northwestern line of ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇; thence with the line
of said Lot 1 S 58 degrees 25' W 18.54 feet to an iron pin, corner to the
terminus of a 50 feet street; thence with the line of the terminus of said 50
feet street S 59 degrees 16' 25" W 50.00
feet to a point, corner to Tract 2 and the northern corner of ▇▇▇ ▇▇, ▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇; thence with the line of said Tract 2 the following three
courses: (1) N 49 degrees 36' 40" W 92.88 feet to an iron pin, then (2) S 50
degrees 03' 30" W 74.00 feet to a point, then (3) N 49 degrees 36' 40" W 187.00
feet to an iron pin, the same being the point of Beginning, containing 25,847.64
square feet (0.594 acres +/-).
Of Tract 3 above described, a certain portion thereof has been and is
hereby dedicated as a 50 foot right-of-way for the use and benefit of Tracts 1
and 2 above described, which right-of-way area shall constitute a non-exclusive
easement for ingress, egress and regress, including the right to maintain
roadways and landscaping thereon together with the installation and maintenance
of utilities, both above and below ground, which right-of-way area is more
specifically described as follows:
BEGINNING at a point, corner to Tract 2 and the northern corner of ▇▇▇ ▇▇,
▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ Subdivision and the northwestern terminus of a 50 foot
street, thence with the line of Tract 2 N 49 degrees 36' 40" W 92.88 feet to an
iron pin; thence leaving the line of Tract 2 and a new line bi-secting Tract 3
as follows: (1) N 59 degrees 16' 25" E 50.00 feet to a point, thence (2) S 49
degrees 36' 40" E 92.88 feet to an iron pin, corner to ▇▇▇▇ ▇, ▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇▇ Subdivision and the northeastern corner of the terminus of a 50 foot
street; thence with the line of terminus of said 50 foot street S 59 degrees 16'
25" W 50.00 feet to a point, the same being the point of Beginning.
The above descriptions were taken from a plat prepared by ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, Certified Land Surveyor, said plat being entitled "Bristol House,
Bristol Virginia" and being dated September 8, 1984.
TRACT 1 being the same property conveyed to Bristol House, Ltd. by deed
from ▇.▇. ▇▇▇▇▇▇, et al. dated September __, 1984, recorded in the Office of the
Circuit Court Clerk for the City of Bristol, Virginia in Deed Book 242, at page
46.
TRACTS 2 and 3 being the same property conveyed to Bristol House, Ltd. by deed
of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, et ux. dated September 6, 1984 and recorded in the
Office of the Clerk of the Circuit Court for the City of Bristol, Virginia in
Deed Book 241, page 419.
LEGAL DESCRIPTION (TAVARES)
Lots 16 and 17, less: Begin at the Northwesterly corner of Lot 17, run
thence East along the North line of Lot 17, for 80 feet, run thence
Southeasterly for 520.52 feet to a point on the South line of said Lot 17 that
is 164.3 feet East of the Southwest corner of said ▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ line of said Lot 17 for 164.3 feet to the Southwest corner of said Lot 17,
run thence Northerly along Westerly line of Lot 17, for 513.19 feet to the Point
of Beginning, also less: Begin at the Southeast corner of Lot 16 and run West
along the South line thereof 60 feet, thence North and parallel to the East line
of Lot 16 for 42.82 feet, thence East and parallel to the South line of Lot 16
for 60 feet to the East line of Lot 16, thence South along said East line 42.82
feet to the Point of Beginning, all lying and being in Alex St. ▇▇▇▇▇ ▇▇▇▇▇'▇
Extension to the City of Tavares, Florida, according to the plat thereof
recorded in Plat Book 1, page 53, Public Records of Lake County, Florida. Said
Lots 16 and 17 are sometimes referred to as Blocks 16 and 17.
Said property is also described as follows:
Commence at the Southwest corner of ▇▇▇ ▇▇, ▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇'▇
Extension to the City of Tavares, Florida as recorded in Plat Book 1, Page 53,
Public Records of Lake County, Florida; thence S89 degrees 18'00"E along the
South line of said Lot 17 and the North right of way line of East ▇▇▇▇▇▇▇▇
Street, a distance of 164.30 feet for a Point of Beginning; thence N08 degrees
39'03"W a distance of 519.98 feet to a point on the North line of said Lot 17,
being 80.00 feet, S89 degrees 02'15"E of the Northwesterly corner of said Lot
17; thence S89 degrees 02'15"E along the North line of said ▇▇▇ ▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇'▇ Extension to the City of ▇▇▇▇▇▇▇, a distance of
693.77 feet to the Northeast corner of said Lot 16; thence S00 degrees 40'25"W
along the East line of said Lot 16, a distance of 467.08 feet; thence N89
degrees 18'00"W a distance of 60.00 feet; thence S00 degrees 40'25"W a distance
of 42.82 feet to a point on the South line of said Lot 16 and the North right of
way line of East ▇▇▇▇▇▇▇▇ Street; thence N89 degrees 18'00"W along the South
line of said Lots 16 and 17 and the North right of way line of East ▇▇▇▇▇▇▇▇
Street, a distance of 549.51 feet to the Point of Beginning.
Containing 7.59 acres, more or less.
SCHEDULE B
PROPERTY LANDLORD TENANT LEASE DOCUMENT
------------------------ ---------------------- ----------------------- -------------------------
Grand Court Adrian, Ventas Realty, Limited BLC ▇▇▇▇▇▇-▇▇, LLC Master Lease Agreement by
Adrian, Michigan Partnership Ventas Realty, Limited
Partnership and BLC
▇▇▇▇▇▇-▇▇, LLC; BLC
Albuquerque-GC, LLC; BLC
Bristol-GC, LLC; BLC
Dayton-GC, LLC; BLC Fort
▇▇▇▇▇-GC, LLC; and BLC
▇▇▇▇▇▇▇-GC, LLC
Grand Court Albuquerque, Ventas Realty, Limited BLC Albuquerque-GC, LLC Master Lease Agreement by
Albuquerque, New Mexico Partnership Ventas Realty, Limited
Partnership and BLC
▇▇▇▇▇▇-▇▇, LLC; BLC
Albuquerque-GC, LLC; BLC
Bristol-GC, LLC; BLC
Dayton-GC, LLC; BLC Fort
▇▇▇▇▇-GC, LLC; and BLC
▇▇▇▇▇▇▇-GC, LLC
Grand Court Bristol, Ventas Realty, Limited BLC Bristol-GC, LLC Master Lease Agreement by
Bristol, Virginia Partnership Ventas Realty, Limited
Partnership and BLC
▇▇▇▇▇▇-▇▇, LLC; BLC
Albuquerque-GC, LLC; BLC
Bristol-GC, LLC; BLC
Dayton-GC, LLC; BLC Fort
▇▇▇▇▇-GC, LLC; and BLC
▇▇▇▇▇▇▇-GC, LLC
Grand Court Dayton, Ventas Realty, Limited BLC Dayton-GC, LLC Master Lease Agreement by
Dayton, Ohio Partnership Ventas Realty, Limited
Partnership and BLC
▇▇▇▇▇▇-▇▇, LLC; BLC
Albuquerque-GC, LLC; BLC
Bristol-GC, LLC; BLC
Dayton-GC, LLC; BLC Fort
▇▇▇▇▇-GC, LLC; and BLC
▇▇▇▇▇▇▇-GC, LLC
PROPERTY LANDLORD TENANT LEASE DOCUMENT
------------------------ ---------------------- ----------------------- -------------------------
Grand Court Fort ▇▇▇▇▇, Ventas Realty, Limited BLC Fort ▇▇▇▇▇-GC, LLC Master Lease Agreement by
Fort ▇▇▇▇▇, Florida Partnership Ventas Realty, Limited
Partnership and BLC
▇▇▇▇▇▇-▇▇, LLC; BLC
Albuquerque-GC, LLC; BLC
Bristol-GC, LLC; BLC
Dayton-GC, LLC; BLC Fort
▇▇▇▇▇-GC, LLC; and BLC
▇▇▇▇▇▇▇-GC, LLC
Grand Court Tavares, Ventas Realty, Limited BLC ▇▇▇▇▇▇▇-GC, LLC Master Lease Agreement by
Tavares, Florida Partnership Ventas Realty, Limited
Partnership and BLC
▇▇▇▇▇▇-▇▇, LLC; BLC
Albuquerque-GC, LLC; BLC
Bristol-GC, LLC; BLC
Dayton-GC, LLC; BLC Fort
▇▇▇▇▇-GC, LLC; and BLC
▇▇▇▇▇▇▇-GC, LLC
SCHEDULE C
PROPERTY LANDLORD TENANT LEASE DOCUMENT
------------------------ ---------------------- ----------------------- -------------------------
Grand Court Bristol, Ventas Realty, Limited BLC Bristol-GC, LLC Master Lease Agreement by
Bristol, Virginia Partnership Ventas Realty, Limited
Partnership and BLC
▇▇▇▇▇▇-▇▇, LLC; BLC
Albuquerque-GC, LLC; BLC
Bristol-GC, LLC; BLC
Dayton-GC, LLC; BLC Fort
▇▇▇▇▇-GC, LLC; and BLC
▇▇▇▇▇▇▇-GC, LLC
Grand Court Tavares, Ventas Realty, Limited BLC ▇▇▇▇▇▇▇-GC, LLC Master Lease Agreement by
Tavares, Florida Partnership Ventas Realty, Limited
Partnership and BLC
▇▇▇▇▇▇-▇▇, LLC; BLC
Albuquerque-GC, LLC; BLC
Bristol-GC, LLC; BLC
Dayton-GC, LLC; BLC Fort
▇▇▇▇▇-GC, LLC; and BLC
▇▇▇▇▇▇▇-GC, LLC
