EXHIBIT 10.12
SECOND AMENDMENT OF LEASE
SECOND AMENDMENT OF LEASE (this "Amendment"), dated as of May 16, 1994,
between HMC RETIREMENT PROPERTIES, INC., a Delaware corporation ("HMC") and
MARRIOTT SENIOR LIVING SERVICES, INC., a Delaware corporation ("MSLS").
R E C I T A L S:
A. HMC, as landlord, and MSLS, as tenant, are parties to a certain
Lease, dated as of October 8, 1993, which Lease has been amended by First
Amendment to Lease dated January 19, 1994 (said Lease, as so amended, the
"Lease"), relating to certain land and improvements located in Maricopa County,
Scottsdale, Arizona.
B. HMC and MSLS now wish to provide for the amendment of the Lease on
the terms and conditions set forth herein.
NOW, THEREFORE, for TEN DOLLARS and other good and valuable
consideration, the receipt and sufficiency are hereby acknowledged, HMC and MSLS
hereby agree as follows:
1. Defined Terms. Any capitalized term used but not defined herein
shall have the meaning given such term in the Lease.
2. Definition of Applicable Percentage. Article 2 of the Lease shall be
amended by inserting the following definition of "Applicable Percentage" in its
proper alphabetical order:
"Applicable Percentage" shall mean a per annum rate of interest,
expressed as a percentage, equal to the then current yield on United States
treasury obligations having a maturity closest, in Landlord's determination, to
the expiration date of the current term of this Lease (including any Effective
Extended Term)."
3. Leasehold Purchase Price. Article 2 of the Lease shall be amended by
deleting the definition of Leasehold Purchase Price and substituting therefor
the following:
"Leasehold Purchase Price" shall be, at any particular time
during the Term, the dollar amount equal to the present value, as of
the date of any contemplated purchase, of the payments of Minimum
Rental, Alternative Rental, if any, and Expansion Rental, if any, that
would have been payable during the period commencing on the date of
such purchase and ending on the date of the expiration of the current
term of this Lease (including any Effective Extended Term), discounted
to the date of purchase (on a quarterly basis) at an interest rate
equal to the Applicable Percentage. Further, the term "Lease Purchase
Price" shall be synonymous with "Leasehold Purchase Price.
4. Mortgagee's Consent Required for Landlord's Rejection of Irrevocable
Offer. In any instance in which Tenant shall have the right or the obligation
under the Lease to make an irrevocable offer to the Landlord to terminate the
Lease, no purported rejection of such offer shall be effective unless it is in
writing and signed by both Landlord and the Mortgagee. The failure of Landlord
and the Mortgagee to give such notice of rejection within the time periods
provided in the Lease shall be deemed an acceptance of such offer. In the event
that Landlord and the Mortgagee shall provide Tenant with conflicting notices,
the Mortgagee's notice shall control.
5. Uninsurable Loss Requires Either Restoration or Rejectable Offer.
(a) Section 14.06A of the Lease is amended by deleting such section in
its entirety and substituting therefor the following:
"A. If (i) there is a casualty at or to the Premises with
respect to which all or a portion of such loss is an "uninsurable loss"
and (ii) the cost to repair and/or rebuild the Premises (less the
amount of any available insurance proceeds, after taking into account
applicable deductibles and self-insured retentions permitted hereunder)
exceeds forty percent (40%) of the then-fair market value of the
Premises immediately prior to the casualty, then Tenant may elect to
terminate this Lease and make an irrevocable offer to purchase the
Premises on the same terms and conditions as are set forth in Section
14.03 of this Lease as if such casualty were a Major Casualty occurring
after the tenth (10th) anniversary of the Commencement Date. If Tenant
desires to make the election described in the preceding sentence, it
shall give Notice to Landlord not later than the date which is sixty
(60) days after the occurrence of such casualty and, simultaneously
with the delivery of such Notice, shall deliver to Landlord its
irrevocable offer to purchase the Premises for an amount equal to the
Leasehold Purchase Price. If Tenant shall not elect to terminate this
Lease as aforesaid, then Tenant shall be obligated to rebuild and/or
restore the Premises in accordance with the provisions of Section 14.01
of this Lease (without any regard to the reference in the first
sentence thereof to Section 14.06)."
(b) Section 14.06D of the Lease is deleted in its entirety.
6. Tenant Must Make Irrevocable Offer Upon Total Taking. Section 15.04
of the Lease is amended by deleting such section in its entirety and
substituting therefor the following:
"Section 15.04 Total Taking.
A. If, during the Term, Landlord or Tenant shall have received
a Notice of Intended Taking with respect to all or substantially all of
the Premises, then Tenant shall be obligated, within thirty (30) days
after the receipt by Tenant of a Notice of Intended Taking (whether
directly or indirectly (through Landlord)) from the condemning
authority, to deliver to Landlord an irrevocable offer to purchase all
of Landlord's right, title and interest in and to the Premises
(including any condemnation award payable in connection with such
taking) for an amount equal to the Leasehold Purchase Price. As used
herein, "Notice of Intended Taking" shall mean any notice or
notification on which a reasonably prudent person would rely and which
he would interpret as expressing an existing intention of a taking in
or by condemnation or other eminent domain proceedings pursuant to any
law, general or special (as distinguished from a notice representing a
mere preliminary inquiry or proposal), including but not limited to the
service of a condemnation summons and complaint on a party to this
Lease, and such notice shall be considered to have been received when a
party to this Lease receives from the condemning agency or entity a
notice of intent to take, in writing, containing a description or map
of the taking reasonably defining the extent of the taking.
B. Landlord may accept or reject Tenant's irrevocable offer to
purchase the Premises by sending Tenant a Notice of such rejection or
acceptance within thirty (30) days from the date upon which Landlord
received Tenant's irrevocable offer. If Landlord fails to send Tenant a
Notice of rejection or acceptance within thirty (30) days of its
receipt of such irrevocable offer, Landlord shall be deemed to have
accepted such offer. If Landlord accepts or is deemed to have accepted
such offer, this Lease shall terminate on a Minimum Rental payment date
specified by Tenant in its Notice of irrevocable offer which occurs not
earlier than ninety (90) days nor later than one hundred and twenty
(120) days after Landlord's receipt of Tenant's irrevocable offer. Upon
such termination, Tenant shall pay Landlord all Rental due through the
date of termination, and Landlord and the Insurance Trustee shall
assign all their right, title and interest in condemnation proceeds
previously paid to, and then held by, the Insurance Trustee with
respect to such taking and Landlord
shall convey all of its right, title and interest in and to the
Premises to the Tenant in accordance with Section 21.01.
C. If Landlord rejects Tenant's irrevocable offer to purchase
pursuant to Section 15.04B, this Lease shall terminate on a Minimum
Rental payment date specified by Tenant in its Notice of irrevocable
offer, which shall be not earlier than ninety (90) days nor later that
one hundred and twenty (120) days after Landlord's receipt of Tenant's
irrevocable offer to purchase, provided that this Lease shall not
terminate unless and until Tenant shall have paid all sums due
hereunder (including, without limitation, all taxes and insurance
premiums) as of the actual date of termination. Upon such termination,
all condemnation proceeds shall be delivered to Landlord, and Tenant
shall vacate the Premises in accordance with the provisions of Section
3.04."
7. Restoration Upon Substantial Taking. Section 15.06A of the Lease is
amended by deleting the phrase "provided, however, that Tenant shall not be
obligated to expend any sums in excess of the condemnation proceeds" from the
first sentence thereof.
8. Reduction of Rent Upon Substantial Taking. Section 15.06H of the
Lease is amended by deleting such section in its entirety and substituting
therefor the following:
"H. In the event of a condemnation that is an Insubstantial
Taking, there shall be no reduction in or abatement of the Minimum
Rental or Percentage Rental thereafter payable by Tenant. If there
occurs a condemnation that is a Substantial Taking and this Lease is
not terminated pursuant to Section 15.05, there shall be a reduction in
the Minimum Rental payable by Tenant, effective as of the date of the
Substantial Taking, such reduction to be in an amount equal to the
lesser of (i) an amount equal to the Applicable Percentage multiplied
by the portion of the condemnation award so distributed to the Landlord
or (ii) an amount equal to the Minimum Rental multiplied by the Partial
Condemnation Reduction Percentage and there shall be a reduction in the
Alternative Rental or Expansion Rental payable immediately prior to
such condemnation equal to the amount of such rental multiplied by the
Partial Condemnation Reduction Percentage."
9. Discount Rate for Accelerated Rent. Section 20.02.A(6) of the Lease
is amended by deleting such provision in its entirety and substituting therefor
the following:
"(6) Accelerate the Minimum Rentals due under this Lease. The
discount rate (applied on a quarterly basis) to be used in computing
the then- present value of the Minimum Rental due hereunder shall be
equal to the Applicable Percentage.
10. Deletion of Certain Liquidated Damages Upon Failure to Purchaser.
Section 21.01E and 21.01F of the Lease are amended by deleting such sections in
their entirety.
11. Section 22.01A of the Lease is hereby amended by inserting at the
end thereof the sentence "A copy of all notices to Tenant shall be sent to
Guarantor."
12. References to Lease. References herein or in the Lease to the
"Lease" shall mean the Lease as amended hereby, except to the extent the context
shall require otherwise.
13. Effective Time. This Amendment shall be effective upon execution
hereof but shall become void and of no further force or effect upon the
expiration of the Initial Term.
14. Memorandum. Landlord and Tenant shall execute, acknowledge and
deliver a memorandum of this Amendment in recordable form. Said memorandum shall
not be deemed to modify or to change any of the provisions of this Amendment.
15. Miscellaneous. Sections 24.01, 24.02, 24,03, 24.04, 24.05, 24.06,
24.07, 24.08 and 24.22 of the Lease are hereby incorporated by reference, except
that any reference therein to the Lease shall be deemed to refer to this
Amendment.
16. Counterparts. This Amendment may be executed in counterparts.
17. No Amendment. The Lease is in full force and effect and, except as
modified hereby, has not been amended.
IN WITNESS WHEREOF, HMC, as Landlord, and MSLS, as Tenant, have
executed and delivered this Amendment on the date first hereinabove set forth.
HMC RETIREMENT PROPERTIES, INC., a
Delaware corporation
By:/s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
(Vice) President
[SEAL]
ATTEST:
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
(Assistant) Secretary
MARRIOTT SENIOR LIVING SERVICES,
INC., a Delaware corporation
By:/s/
Name:
(Vice) President
[SEAL]
ATTEST:
By:/s/
Name:
(Assistant) Secretary
SCHEDULE TO EXHIBIT 10.12
Pursuant to Instruction 2 to Item 601 of Regulation S-K, the following
Second Amendment of Leases and First Amendment of Lease, which are substantially
identical in all material respects to the Second Amendment of Lease for the
Marriott Senior Living Services Facility at Scottsdale, Maricopa County, Arizona
filed herewith, are omitted. The following list sets forth the material
differences in the leased premises and landlord.
Leased Premises Landlord
Sun City, Maricopa County, AZ HMC Retirement Properties, Inc.
Villa Valencia, Orange County, CA HMC Retirement Properties, Inc.
Xxxxxxxxx Xxxxx/Xxxxxxx Xxxx, Xxxxxxx Xxxxxx, XX HMH Properties, Inc.
Palms Harbor, Pinellas County, FL HMC Retirement Properties, Inc.
Calusa Harbour, Lee County, FL HMC Retirement Properties, Inc.
Bedford Court, Xxxxxxxxxx, MD HMC Retirement Properties, Inc.
Bellaire/Houston, Xxxxxx County, TX HMC Retirement Properties, Inc.
The Jefferson, Arlington County, VA HMC Retirement Properties, Inc.
Xxxxxxxx Xxxxx, Xxxx xx Xxxxxxxx Xxxxx, XX HMC Retirement Properties, Inc.
Church Creek, Xxxx County, IL HMC Retirement Properties, Inc.
Port St. Lucie, St. Lucie County, FL HMC Retirement Properties, Inc.
Boca Pointe, Palm Beach County, FL HMH Properties, Inc.
