EXHIBIT 10.7.7
SIXTH AMENDMENT TO GUARANTY OF LEASE
This Sixth Amendment to Guaranty of Lease (this "GUARANTY AMENDMENT"),
dated as of June 18, 2004, is made by and between Brookdale Living Communities,
Inc., a Delaware corporation ("OLD GUARANTOR"), BLC Senior Holdings, Inc., a
Delaware corporation (together with any entity succeeding thereto by
consolidation, merger or acquisition of its assets substantially as an entirety,
"NEW GUARANTOR"), Ventas Realty, Limited Partnership, a Delaware limited
partnership ("INITIAL BENEFICIARY"), Ventas Kansas City I, LLC, a Delaware
limited liability company ("VKC"), Ventas Belleville, LLC a Delaware limited
liability company ("VB"), Ventas Springfield/Findlay, LLC a Delaware limited
liability company ("VSF"), Ventas Farmington Hills, LLC a Delaware limited
liability company ("VFH", and, together with Initial Beneficiary, VKC, VB, VSF
and any parties becoming Landlords after the date hereof, "BENEFICIARIES").
WHEREAS, Old Guarantor executed that certain Guaranty of Lease in favor of
Initial Beneficiary dated as of January 28, 2004 (the "ORIGINAL GUARANTY"), as
amended by that certain First Amendment to Guaranty dated as of February 20,
2004 between Old Guarantor and Initial Beneficiary (the "FIRST AMENDMENT"), that
certain Second Amendment to Guaranty dated as of February 26, 2004 between Old
Guarantor and Initial Beneficiary (the "SECOND AMENDMENT"), that certain Third
Amendment to Guaranty dated as of March 10, 2004 between Old Guarantor, Initial
Beneficiary and VKC (the "THIRD AMENDMENT"), that certain Fourth Amendment to
Guaranty dated as of March 30, 2004 between Old Guarantor, Initial Beneficiary,
VKC, VB and VSF (the "FOURTH AMENDMENT"), and that certain Fifth Amendment to
Guaranty dated as of May 13, 2004 between Old Guarantor and the Beneficiaries
(the "FIFTH AMENDMENT", together with the Original Guaranty, the First
Amendment, the Second Amendment, the Third Amendment, and the Fourth Amendment,
the "GUARANTY").
WHEREAS, Old Guarantor has advised the Beneficiaries that it desires to
enter into a transaction (the "PROVIDENT TRANSACTION") as outlined on the chart
attached as EXHIBIT E, which would make it desirable for a newly-formed entity,
New Guarantor, to assume the obligations of Guarantor under the Guaranty; and
WHEREAS, in connection with the Provident Transaction, Old Guarantor and
New Guarantor have requested that Beneficiaries agree to amend the Guaranty as
provided herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Old Guarantor, New Guarantor and
the Beneficiaries agree as follows:
1. DEFINITIONS. Initially capitalized terms used but not defined herein
shall have the meanings ascribed to such terms in the Guaranty. For all purposes
hereunder except as otherwise expressly provided in this Guaranty Amendment or
the Guaranty or unless the context otherwise requires, the following terms have
the following meanings assigned to them and include the plural as well as the
singular:
"EFFECTIVE DATE" has that meaning ascribed to it in SECTION 7.
"EQUITY INTERESTS" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent or similar ownership interests in a Person that is not a
corporation and any and all warrants or options to purchase any of the
foregoing.
"FACILITY" shall mean the facility or facilities located on the applicable
Properties.
"FIXED RENT" shall, with respect to any Tenant, Facility or Lease, have
that meaning ascribed to it under the applicable Lease.
"GUARANTOR" means (i) Old Guarantor prior to the Effective Date and (ii)
New Guarantor on and after the Effective Date.
"GUARANTOR SECURITY AMOUNT" means (subject to adjustment as described in
SECTIONS 3.2.3 and 3.2.4), as of a date, an amount equal to (A) the product of
(x) Total Fixed Rent, and (y) six, minus (B) the aggregate amount of Security
Deposits held by Landlord under the Leases as of such date, but excluding any
interest or other earnings on such Security Deposits.
"GUARANTOR SECURITY EVENT OF DEFAULT" means anything (including the
occurrence of any event) that constitutes either an Event of Default under the
Guaranty or an Event of Default (as defined in any of the Leases).
"MASTER LEASE" has the meaning ascribed to it in the Fifth Amendment.
"PARENT" means Fortress Brookdale Acquisition, LLC.
"PERSON" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization.
"POTENTIAL GUARANTOR SECURITY EVENT OF DEFAULT" means any event that, if
uncured, with the passage of time, the giving of notice or both would be a
Guarantor Security Event of Default.
"RATING AGENCIES" has the meaning ascribed to it in the Master Lease.
"SUBSIDIARY" means any corporation or other entity, (i) any of the Equity
Interests of which are directly or indirectly owned by Parent or Guarantor
(including ownership by any direct or indirect subsidiary of Parent or
Guarantor), or (ii) which is consolidated with Parent or Guarantor in accordance
with GAAP.
"TOTAL FIXED RENT" means, as of a date, (i) the aggregate monthly amount
of Fixed Rent due under the all of the Leases as of such date.
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2. ASSUMPTION BY NEW GUARANTOR. As of the Effective Date: (i) New
Guarantor shall become the Guarantor under the Guaranty and shall become liable
for all of the obligations and liabilities of Guarantor under the Guaranty no
matter when such obligations and liabilities arose or accrued; and (ii) Old
Guarantor shall be released and forever discharged from any obligations or
liabilities accruing under the Guaranty, no matter when such obligations arose
or accrued. The Beneficiaries acknowledge that as of the date hereof,
collectively, they constitute all of the landlords under all of the Leases. From
and after the Effective Date, any reference in the Leases to "Guarantor" shall
be deemed solely a reference to New Guarantor.
3. MODIFICATION OF NET WORTH COVENANT.
3.1. NET WORTH COVENANT. Section 16 of the Guaranty is replaced in
its entirety by the following provisions of this Guaranty Amendment:
Guarantor shall maintain for each fiscal quarter a Net Worth of not less
than $100,000,000. The failure to maintain such Net Worth shall, at the
Beneficiaries' election, constitute an immediate Event of Default. "Net
Worth" shall mean, at any date, an amount equal to, as determined in
accordance with GAAP, (x) the consolidated assets of Guarantor at such
date MINUS (y) the total consolidated liabilities of Guarantor at such
date PLUS (z) the deferred gain shown at such date on the Guarantor's GAAP
balance sheet that was originally booked as a direct result of the
Provident Transaction. As soon as available, and in any event within 90
days after the end of each fiscal quarter (based on the fiscal year of
Guarantor), Guarantor shall deliver to Landlord, in hard copy and
electronic format, an Officer's Certificate certifying (i) that the Net
Worth covenant contained in this Section 16 has been satisfied; (ii) the
calculations on which such determination was made; and (ii) supporting
documentation demonstrating the accuracy of the calculations on which such
determination was made.
3.1.1. Clauses (h)(1) and (i)(1) of Section 3 of the Guaranty
are amended by deleting the words "Guarantor has a net worth equal to or greater
than $250,000,000 (or such lesser amount (but not less than $100,000,000) as may
be permitted under Section 16 hereof provided Guarantor has deposited with
Landlord the required Net Worth Deposit pursuant to Section 16)" and replacing
same with "Guarantor has a Net Worth equal to or greater than $100,000,000."
3.2. GUARANTOR SECURITY DEPOSITS.
3.2.1. CASH GUARANTOR SECURITY DEPOSIT; APPLICATION. Unless
Guarantor has made the Guarantor LC Election (as defined below), Guarantor shall
pay (when paid, the "GUARANTOR SECURITY DEPOSIT") to Landlord upon the Effective
Date an amount equal to the Guarantor Security Amount. The Guarantor Security
Deposit shall secure payment and performance of the Guaranteed Obligations and,
upon the occurrence of any Guarantor Security Event of Default any Landlord may
apply all or any portion of the Guarantor Security Deposit to any Guaranteed
Obligations in such order and manner as it may determine in its sole discretion
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(whether by drawing upon the Guarantor Letter of Credit or applying the cash
Guarantor Security Deposit held by it), including for the payment of any Rent
(as defined in any Lease) in default or for any other sum that Landlord may
expend or be required to expend by reason of such Guarantor Security Event of
Default, including any damages or deficiency in the reletting of the Premises
(as defined in any of the Leases), whether such damages or deficiency accrue
before or after summary proceedings or other re-entry by Landlord. Each Tenant
shall be entitled to its proportionate share of any interest on the Guarantor
Security Deposit and Landlord shall hold the Guarantor Security Deposit in a
segregated account (which account may include other amounts held by the Landlord
pursuant to the Leases). Provided no Guarantor Security Event of Default exists,
interest earned thereon shall be distributed to Guarantor annually or, at
Landlord's option, used to increase the Guarantor Security Deposit as may be
contemplated hereunder pursuant to SECTION 3.2.3. In case of a sale or transfer
of the any of the Premises (as defined in any of the Leases) by Landlord, or any
cessation of Landlord's interest therein, whether in whole or in part, Landlord
shall (i) pay over any unapplied part of the Guarantor Security Deposit (or, in
the case of any such partial transfer or cessation, such portion as Landlord
allocates to such part of the Premises, in its reasonable discretion) or (ii)
transfer the Guarantor Letter of Credit if the Guarantor LC Election has been
made, with any fees incident to such transfer being paid by Guarantor (which
transfer, in the case of any such partial transfer or cessation, shall require
Guarantor to cause the Guarantor Letter of Credit to be reissued as separate
Letters of Credit satisfying the requirements of SECTION 3.2.2 as to the
remaining Leased Properties (as defined in each the Leases)), to the successor
owner of the Premises, and from and after such payment or transfer, Landlord and
the Beneficiaries shall be relieved of all liability with respect thereto. The
provisions of the preceding sentence shall apply to every subsequent sale or
transfer of the Premises or any part thereof.
The Guarantor Security Deposit shall not be deemed an advance payment of
Rent (as defined in any of the Leases) or a measure of Landlord's damages for
any default by any Tenant, nor shall it be a bar or defense to any action that
Landlord may at any time commence against any Tenant.
3.2.2. GUARANTOR LC ELECTION. At any time, and from time to
time, Guarantor may elect (such election, a "GUARANTOR LC ELECTION"), in its
sole discretion and by written notice to Landlord, to post the Guarantor
Security Deposit in the form of an irrevocable, standby Guarantor Letter of
Credit with a face value of the full Guarantor Security Amount (the "GUARANTOR
LETTER OF CREDIT"). Within 10 days after notice of a Guarantor LC Election,
Guarantor shall deliver to the Landlord a Guarantor Letter of Credit satisfying
the requirements of this SECTION 3.2.2 in the place and stead of the cash
Guarantor Security Deposit, whereupon Landlord shall return any unapplied
portion of a cash Guarantor Security Deposit then held by Landlord. The
Guarantor Letter of Credit shall: (a) be in form and substance reasonably
acceptable to Landlord; (b) name Landlord as its sole beneficiary; (c) expressly
allow Landlord to draw upon it at any time, or from time to time, in whole or in
part, by delivering to the issuer, at an office of the issuer located in New
York, New York, Louisville, Kentucky or Chicago, Illinois, the original letter
of credit together with a written notice that Landlord is entitled to draw
thereon pursuant to the terms of the Guaranty; (d) be issued by an FDIC-insured
Lending
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Institution that is reasonably satisfactory to Landlord and Guarantor, but shall
in all events have a credit rating of "AA" (or the equivalent) or higher from
one of the Rating Agencies; and (e) be expressly unconditional, irrevocable and
fully transferable subject to such reasonable and customary fees and conditions
specified in the approved Guarantor Letter of Credit as the issuer may impose.
The Guarantor Letter of Credit (and any renewals or replacements thereof) shall
be for a term of not less than one year. Guarantor agrees that it shall from
time to time, as necessary, (i) renew or replace the original and any subsequent
Guarantor Letter of Credit not less than 30 days prior to its stated expiration
date so that it will remain in full force and effect until the later of 30 days
after the final performance and satisfaction of all of the Guaranteed
Obligations or (ii) deliver a cash Guarantor Security Deposit in the Guarantor
Security Amount not less than 30 days prior to the stated expiration date of
such Guarantor Letter of Credit. If Guarantor fails to furnish such renewal or
replacement at least 30 days prior to the stated expiration date of the
Guarantor Letter of Credit or the issuer fails to maintain an "AA" or higher
rating and Guarantor Letter of Credit is not replaced within 10 days of
Landlord's notice, Landlord, or its successor, may immediately draw upon such
Guarantor Letter of Credit and, hold the proceeds thereof as a cash Guarantor
Security Deposit pursuant to the terms of this Lease. Any renewal of or
replacement for the original or any subsequent Guarantor Letter of Credit shall
be in an amount not less than the Guarantor Security Amount and shall otherwise
meet the requirements for the original Guarantor Letter of Credit as set forth
above.
3.2.3. CHANGE IN GUARANTOR SECURITY AMOUNT.
3.2.3.1. UPON CHANGE IN FIXED RENT. As of the date of
any change in Fixed Rent payable under any Lease, the Guarantor Security Amount
shall be recalculated.
3.2.3.2. UPON CHANGE IN SECURITY DEPOSITS UNDER LEASES.
The Guarantor Security Amount shall be increased as of the date any Tenant would
be entitled to have its Security Deposit or Letter of Credit (each as defined in
the Leases) returned to it as a result of the Portfolio Coverage Ratio (as
defined in the Leases) being 1.40:1.00 or greater for 12 consecutive months and
meeting the other conditions set forth in the applicable Leases with respect to
such return (e.g., pursuant to Section 3.4.3.1 of the Master Lease). Immediately
upon such event, clause (B) of the definition of each of Guarantor Security
Amount will no longer be applicable.
3.2.4. INCREASE, REPLACEMENT AND RETURN OF GUARANTOR SECURITY
DEPOSIT.
3.2.4.1. INCREASE. Guarantor shall deposit with Landlord
cash in, or increase the face amount of the Guarantor Letter of Credit by, the
amount necessary to ensure that the amount of the Guarantor Security Deposit
hereunder (exclusive of any interest accrued thereon) continues to be equal to
the Guarantor Security Amount (i) concurrent with any increase in the Guarantor
Security Amount that would result from the operation of SECTION 3.2.3.2, or (ii)
otherwise within five Business Days after any increase in the Guarantor Security
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Amount. Notwithstanding anything to the contrary herein or in any Lease, no
Landlord shall be required to return any Security Deposit or Letter of Credit
under any Lease unless Guarantor concurrently increases the amount of the
Guarantor Security Deposit or Guarantor Letter of Credit by an amount equal to
the amount of the Security Deposit or Letter of Credit to be returned.
3.2.4.2. UPON APPLICATION. In the event the Guarantor
Security Deposit (or any portion thereof) is applied (or drawn upon from time to
time in full or partial amounts in the case of the Guarantor Letter of Credit
and any renewals or replacements thereof) by Landlord on account of any
Guarantor Security Event(s) of Default or as otherwise expressly provided in
this SECTION 3.2, Guarantor shall replenish said Guarantor Security Deposit in
full, within five Business Days after demand therefor, by paying to Landlord the
amount so applied or, in the case of the Guarantor Letter of Credit, restoring
the Guarantor Letter of Credit to its full amount. Guarantor's failure to timely
replenish and restore the Guarantor Security Deposit as aforesaid shall be an
Event of Default.
3.2.4.3. RETURN. If: (a) the Tenants have fully
performed and satisfied all of their obligations under the Leases (including,
without limitation and as applicable, their obligations relative to any
Operational Transfer(s)(as defined in the Leases)), and (b) all of the
Guaranteed Obligations have been fully and finally performed, then the Guarantor
Security Deposit, or the remaining unapplied portion thereof, shall be paid or
returned to Guarantor within 35 days after all of the foregoing conditions have
been satisfied.
4. PROJECTIONS PROVIDED. Guarantor represents and warrants that: (i)
Guarantor has delivered to the Beneficiaries under a certificate referencing
this SECTION 4, certain projections and other materials (the "PROJECTIONS AND
MATERIALS") consisting, in part, of balance sheets, income statements and cash
flows, together with a statement of the underlying assumptions; and (ii) such
Projections and Materials are based on good faith estimates and assumptions
believed to be reasonable at the time made, it being recognized by the
Beneficiaries that such projections as to future events included therein are not
to be viewed as facts and that actual results during the period or periods
covered by any such projections may differ from the projected results.
5. CROSS DEFAULT. It shall be an Event of Default if: (i) there occurs any
default, beyond the expiration of any applicable grace of cure periods, by any
obligor under the primary unsecured credit facility under which Guarantor and
any Subsidiaries have obligations as of the Effective Date (Guarantor warrants
as of the Effective Date that such primary facility will be the only material
unsecured credit facility under which Guarantor and the Subsidiaries have
obligations), all amendments thereto, restatements thereof, replacements thereof
(partial or total), refinancings thereof (partial or total) and/or substitutions
therefore; (ii) Guarantor or any Subsidiary (including the Tenants) is in
default, beyond the expiration of any applicable grace or cure periods, under or
breaches (v) any Tax Matters Agreement (or agreement similar to any draft
thereof delivered to Beneficiaries prior to the date hereof), (w) any Stock
Purchase Agreement (or agreement similar to any draft thereof delivered to
Beneficiaries prior to the date hereof), (x) any Agreement Regarding Leases (or
agreement similar to any draft thereof
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delivered to Beneficiaries prior to the date hereof), (y) any Lease, (z) any
lease being entered into in connection with Provident Transaction, as the
foregoing (v) through (z) may be amended, extended, replaced or restated, that
in the aggregate result in obligations of $2,000,000 or more becoming due and
payable; or (iii) (a) Guarantor is in default under or breaches any other any
contracts or other agreements (including guarantees and indemnities) that in the
aggregate result in obligations of Guarantor of $10,000,000 or more becoming due
and payable, and (b) the obligees with respect thereto have taken actions to
enforce (including initiating or commencing any action to enforce any remedies
or to collect any amounts owing, but provided that "actions to enforce" shall be
deemed to exclude sending a default notice or notice of acceleration without any
other action being taken) such obligations of Guarantor. Guarantor shall notify
the Beneficiaries within five Business Days of any of the events described in
the preceding sentence.
6. AMENDMENT CONTROLS. In the event of any conflict between the provisions
of this Guaranty Amendment and any other provisions of the Guaranty on the
Effective Date, the provisions of this Guaranty Amendment shall control.
7. EFFECTIVENESS. All Sections of this Guaranty Amendment other than
SECTIONS 2 through 6 shall be binding as of the date hereof. SECTIONS 2 through
6 of this Guaranty Amendment shall not be of any force or effect unless and
until the date (the "EFFECTIVE DATE") that the following conditions (the
"CONDITIONS PRECEDENT") have been satisfied to the satisfaction of the
Beneficiaries:
(a) Old Guarantor and New Guarantor have certified to the Beneficiaries
that the Provident Transaction has been consummated substantially in accordance
with the most recent versions of draft documents delivered to the Beneficiaries
prior to the date hereof, the Projections and Materials and the description of
the Provident Transaction attached as EXHIBIT E.
(b) The Tenants and Guarantors have duly executed and delivered to the
Beneficiaries all of the Lease Amendments (the "LEASE AMENDMENTS") in the form
of EXHIBIT F attached hereto (and the Beneficiaries agree to promptly
countersign and return same to the Tenants and the Guarantors).
(c) New Guarantor has certified to the Beneficiaries that the lenders
under the credit facilities identified on EXHIBIT B have consented to this
Guaranty Amendment and the Lease Amendments (and delivered evidence thereof to
Beneficiaries) to the extent such consent is required under such credit
facilities.
(d) Old Guarantor and New Guarantor have delivered to the Beneficiaries a
legal opinion with respect to the enforceability of their obligations with
respect to this Guaranty Amendment together with customary execution, delivery
and authority opinions.
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(e) New Guarantor has delivered to the Beneficiaries the Guarantor
Security Deposit or the Guarantor Letter of Credit and paid all amounts to
Beneficiaries and Landlord required to be paid pursuant to this Guaranty
Amendment, including all amounts payable under SECTION 8.1 (for which
Beneficiaries have previously delivered to New Guarantor or Old Guarantor
invoices or notices with respect thereto).
(f) Evidence of the authority of the Tenants, the New Guarantor and the
Old Guarantor to enter into this agreement and to consummate the transactions
contemplated hereby, including certified organizational documents, resolutions
and good standing certificates.
(g) All of the certifications constituting Conditions Precedent are
accurate.
(h) Such other documents and materials as Beneficiaries may reasonably
request with respect to Provident Transaction and/or this Guaranty Amendment.
Guarantor shall notify Beneficiaries when it believes the Conditions Precedent
have all been satisfied and such notice shall contain and be deemed to
constitute a warranty that the fully executed copies of all documents necessary
to consummate the Provident Transaction will have been entered into in
substantially the form and substance of the most recent drafts delivered to
Beneficiary at least one Business Day prior to the date hereof (with such
modifications as may have been approved by Beneficiaries in writing).
Notwithstanding anything to the contrary in this SECTION 7, if the Conditions
Precedent have not been satisfied on or before December 15, 2004, then, at the
election of the Beneficiaries at any time thereafter, SECTIONS 2 through 6 this
Guaranty Amendment shall not be of any force or effect whether or not such
requirements are later satisfied. On or after the Effective Date the
Beneficiaries shall deliver a notice of the date that is the Effective Date to
Guarantor and, absent manifest error, such date shall be deemed to be the
Effective Date. Under no circumstances shall the Effective Date be deemed to
have occurred prior to the delivery of such notice. Upon Beneficiaries' request,
Guarantor shall counterexecute such notice to confirm its agreement with such
notice, but the failure to so counterexcecute such notice shall not affect the
validity or binding nature thereof. Within 10 Business Days of consummation of
the Provident Transaction, New Guarantor shall deliver to the Beneficiaries
fully executed copies of the stock purchase agreement, leases, agreement
regarding leases and guarantees entered into in connection with the Provident
Transaction, all such deliveries certified by New Guarantor to be complete and
correct.
8. MISCELLANEOUS.
8.1. COSTS. Whether or not the Effective Date occurs, promptly
following any Beneficiary's request, Guarantor shall pay all reasonable fees,
costs and expenses incurred by the Beneficiaries in connection with the this
Guaranty Amendment and/or the Provident Transaction, including all costs and
expenses incurred by Beneficiaries (including the fees, out-of-pocket expenses
and other reasonable expenses of counsel, payments to lenders) in connection
with the review and analysis of the Provident Transaction and the preparation,
execution and delivery of
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this Guaranty Amendment and any other agreements or documents referred to herein
or therein and any amendments hereto or thereto.
8.2. GUARANTY IN FULL FORCE AND EFFECT. Until the Effective Date,
all of the terms, conditions and covenants contained in the Guaranty remain
unchanged and in full force and effect except to the extent modified by
provisions of this Guaranty Amendment other than SECTIONS 2 through 6. As of the
Effective Date, all terms, conditions and covenants contained in the Guaranty
remain unchanged and in full force and effect except to the extent modified by
this Guaranty Amendment. Effective as of the Effective Date and the date hereof,
Guarantor confirms and ratifies the terms and provisions of the Guaranty as
amended by this Guaranty Amendment (to the extent then effective with respect to
SECTIONS 2 through 6) and agrees that the Guaranty, as so amended, shall remain
in full force and effect and nothing contained in this Guaranty Amendment shall
be construed to impair, limit or reduce the security, rights or powers that
Beneficiaries or any of their successors, may have under the Guaranty.
8.3. UNDERLYING LEASE OBLIGATIONS IN FULL FORCE AND EFFECT. The
Leases are valid, binding and in full force and effect. No Tenant has any
defenses, counterclaims, liens or claim of offset or credit under any of the
Leases or against rents, or any other claims against Landlord, including with
respect to the condition of any Facility or the surrounding area. No Tenant is
the subject of any bankruptcy, insolvency or similar proceeding in any federal,
state or other court or jurisdiction. No Tenant has subleased any portion of the
Premises or assigned any of its rights under any Lease. Each Tenant hereby
acknowledges and agrees that each party that is a signatory to the Leases and
the Guaranty has performed all of its duties and obligations thereunder and
under any and all instruments or agreements executed or delivered in connection
therewith.
8.4. CONSTRUCTION. Whenever used in this Agreement, the singular
shall be construed to include the plural and vice versa, where applicable, and
the use of the masculine, feminine or neuter gender shall include the other
genders. "Including" means "including, without limitation." The subject matter
and language of this Agreement has been the subject of negotiations between the
parties and their respective counsel, and this Agreement has been jointly
prepared by their respective counsel. Accordingly, this Agreement shall not be
construed against any party on the basis that this Agreement was drafted by such
party or its counsel. Headings of section and subsections are for convenience of
reference only, and shall not be construed as a part of this Agreement, or as
limiting or defining the scope of any term or provision hereof. Terms herein
defined by parentheticals following a noun or verb are deemed to refer to such
noun or verb as well as any noun or verb phrase modifying such noun or verb.
8.5. 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
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of Illinois, and Guarantor waives any right to stay, remove, or otherwise
directly or indirectly interfere with such action based on such jurisdiction.
8.6. AMENDMENTS; SUCCESSORS. Neither this Guaranty Amendment nor the
Guaranty may be modified or amended except by a written agreement duly executed
by Guarantor and the Beneficiaries. This Guaranty Amendment shall be binding
upon the New Guarantor, the Old Guarantor and the Guarantor and shall inure to
the benefit of and be binding upon the Beneficiaries 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.
8.7. 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 PAGES FOLLOW]
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IN WITNESS WHEREOF, Guarantor and the Beneficiaries have caused this
Guaranty Amendment to be executed and its corporate seals to be hereunto affixed
and attested by its officers thereunto duly authorized.
OLD GUARANTOR:
BROOKDALE LIVING COMMUNITIES,
INC., a Delaware corporation
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice-President, Chief
Financial Officer and Treasurer
NEW GUARANTOR:
BLC SENIOR HOLDINGS, INC., a Delaware
corporation
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice-President
BENEFICIARIES:
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
VENTAS KANSAS CITY I, LLC,
a Delaware limited liability company
By: /s/ T. ▇▇▇▇▇▇▇ ▇▇▇▇▇
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T. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
VENTAS BELLEVILLE, LLC,
a Delaware limited liability company
By: /s/ T. ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------
T. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
VENTAS SPRINGFIELD/FINDLAY, LLC,
a Delaware limited liability company
By: /s/ T. ▇▇▇▇▇▇▇ ▇▇▇▇▇
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T. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
VENTAS FARMINGTON HILLS, LLC,
a Delaware limited liability company
By: /s/ T. ▇▇▇▇▇▇▇ ▇▇▇▇▇
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T. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
EXHIBIT A
OMITTED
A-1
EXHIBIT B
CREDIT FACILITIES AFFECTING PROPERTIES
1. Mortgage Loan in the Original Principal Amount of $7,000,00, dated as of
June 13, 2002, covering Grand Court - Farmington Hills - ▇▇▇▇▇▇▇ Mac Loan
No. 002743817
2. Mortgage Loan in the Original Principal Amount of $2,500,000, dated as of
March 22, 1996, covering Grand Court - Springfield and Grand Court -
Findlay
3. Mortgage Loan in the Original Principal Amount of $2,650,000, dated as of
March 8, 1996, covering The Grand Court Belleville
4. $8,800,000 The Industrial Development Authority of the City of Kansas
City, Missouri Variable Rate Demand Multifamily Housing Refunding Bonds
(The Grand Court Kansas City f/k/a Cloverset Apartments Project) Series
2002/▇▇▇▇▇▇ Financial Group, Inc.
B-1
EXHIBIT C
PROJECTIONS CERTIFICATE
The undersigned hereby certifies and agrees that the attached documents shall
constitute the Projections and Materials referred to in Section 4 of that
certain Sixth Amendment to Guaranty of Lease dated as of June 18, 2004 between
Brookdale Living Communities, Inc., BLC Senior Holdings, Inc., Ventas Realty,
Limited Partnership, a Delaware limited partnership, Ventas Kansas City I, LLC,
a Delaware limited liability company, Ventas Belleville, LLC a Delaware limited
liability company, Ventas Springfield/Findlay, LLC a Delaware limited liability
company, Ventas Farmington Hills, LLC a Delaware limited liability company.
BROOKDALE LIVING COMMUNITIES,
INC., a Delaware corporation
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice-President, Chief
Financial Officer and Treasurer
BLC SENIOR HOLDINGS, INC., a Delaware
corporation
By: /s/ R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice-President
C-1
EXHIBIT D
OMITTED
EXHIBIT E
DESCRIPTION OF SALE OF OLD GUARANTOR TO PROVIDENT
- Old Guarantor will be sold to Provident Senior Living Trust (NEWREIT),
pursuant to the terms of that Stock Purchase Agreement, dated as of June
__, 2004 (the "SPA").
- The current chief executive officer of NEWREIT is a former executive of
Fortress Investment Group LLC (or an affiliate thereof).
- Old Guarantor will transfer to New Guarantor the Excluded Assets (as
defined in the SPA) and New Guarantor will assume the Excluded Liabilities
(as defined in the SPA), in accordance with recital D and Section 5.08 of
the SPA and Fortress Brookdale Acquisition LLC will then sell Old
Guarantor to NEWREIT in accordance with the terms of the SPA.
- Subsidiaries of New Guarantor will lease back the real property assets
held by Old Guarantor, at the closing, from subsidiaries of the operating
partnership of NEWREIT.
- Fortress Brookdale Acquisition LLC (and its constituent members) will not
have any interest in NEWREIT at the time of closing of the transactions
contemplated under the SPA and do not currently anticipate having any
interest in NEWREIT in the future.
- The owners of Old Guarantor, at the time of closing of the transactions
contemplated under the SPA, will own 100% of New Guarantor immediately
following such transactions and the management of New Guarantor,
immediately following such transactions will be the same as the management
of Old Guarantor immediately prior to the consummation of such
transactions.
- Operations at the properties leased under the Leases will not be adversely
affected by the transaction.
- Exhibit E-1 shows the existing ownership structure of Old Guarantor.
- Exhibit E-2 shows what the ownership structure of New Guarantor and
NEWREIT will be as of the consummation of the Provident Transaction.
E-2-1
EXHIBIT E-1
EXISTING OWNERSHIP STRUCTURE
E-2-1
EXHIBIT E-2
NEW OWNERSHIP STRUCTURE
E-3-1
EXHIBIT F
LEASE AMENDMENTS
F-1
