SECOND AMENDMENT TO MASTER LEASE (Phase III)
Exhibit
10.9
[Tucson,
Arizona]
[Sun
City, Florida - Sun City Facility]
[Sun
City, Florida - Homewood Facility]
[Lexington,
Kentucky]
[Holland,
Michigan]
[Austin,
Texas]
[Ft.
Worth, Texas]
SECOND
AMENDMENT TO MASTER LEASE
(Phase
III)
THIS
SECOND AMENDMENT TO MASTER LEASE (this “Amendment”)
is
made and entered into as of this 30th day of June, 2005 (the “Effective
Date”),
by
and between HEALTH CARE PROPERTY INVESTORS, INC., a Maryland corporation
(“HCP”),
TEXAS
HCP HOLDING, L.P., a Delaware limited partnership, for itself and as
successor-by-merger to Texas HCP REVX, L.P., a Delaware limited
partnership
(“Texas
HCP”),
ARC
RICHMOND PLACE REAL ESTATE HOLDINGS, LLC, a Delaware limited liability company
(“Richmond
RealCo”),
ARC
HOLLAND REAL ESTATE HOLDINGS, LLC, a Delaware limited liability company
(“Holland
RealCo”),
ARC
SUN CITY CENTER REAL ESTATE HOLDINGS, LLC, a Delaware limited liability company
(“Sun
City RealCo”)
and
ARC LABARC REAL ESTATE HOLDINGS, LLC, a Delaware limited liability company
(“Homewood
RealCo”)
(collectively, as their interests may appear, “Lessor”),
on
the one hand, and FORT AUSTIN LIMITED PARTNERSHIP, a Texas limited partnership
(“Fort
Austin Lessee”),
ARC
SANTA CATALINA, INC., a Tennessee corporation (“Santa
Catalina Lessee”),
ARC
RICHMOND PLACE, INC., a Delaware corporation (“Richmond
Lessee”),
FREEDOM VILLAGE OF HOLLAND, MICHIGAN, a Michigan general partnership
(“Holland
Lessee”),
FREEDOM VILLAGE OF SUN CITY CENTER, LTD., a Florida limited partnership
(“Sun
City Lessee”),
and
LaBARC, L.P., a Tennessee limited partnership (“Homewood
Lessee”)
(collectively, and jointly and severally, “Lessee”),
on
the other hand.
RECITALS
A. Lessor
is
the current “Lessor,” and Lessee is the current “Lessee,” pursuant to that
certain Master Lease dated September 23, 2003 (the “Original
Lease”)
between ARC Santa Catalina Real Estate Holdings, LLC, a Delaware limited
liability company (“Santa
Catalina RealCo”)
and
Fort Austin Real Estate Holdings, LLC, a Delaware limited liability company
(“Fort
Austin RealCo”),
collectively as the original “Lessor,” and Fort Austin Lessee and Santa Catalina
Lessee, as the original “Lessee,” as amended by that certain First Amendment to
Master Lease and Guaranty and Option to Purchase Certain Facilities dated
as of
July 15, 2004 (the “First
Amendment,”
and
together with the Original Lease, the “Lease”).
The
Lease covers the “Leased Property” of seven (7) separate congregate care
retirement facilities, located in Tucson, Arizona, Austin, Texas, Ft. Worth,
Texas, Sun City, Florida (Homewood), Sun City Florida (Sun City), Lexington,
Kentucky and Holland, Michigan, all as more particularly described in the
Lease.
B. The
Lessee’s obligations under the Lease are guaranteed by (i) ARCPI Holdings, Inc.,
a Delaware corporation (“ARCPI”)
pursuant to a written Guaranty of Obligations dated as of September 23, 2003,
as
amended by the First Amendment (as defined above) and that certain Second
Amendment to Guaranty of Obligations (Phase III) of even date herewith (the
“Second
Amendment to Guaranty”)
(and
as the same may be further amended and/or reaffirmed from time to time in
accordance with the terms thereof, the “ARCPI
Guaranty”),
and
(ii) by American Retirement Corporation, a Tennessee corporation (“ARC”),
pursuant to that certain Guaranty of Obligations (Phase III Master Lease)
dated
of even date herewith (as the same may be amended and/or reaffirmed from
time to
time in accordance with the terms thereof, the “ARC
Guaranty”).
ARCPI
and ARC shall sometimes be referred to herein and in the Lease, collectively,
as
“Guarantors,”
and
individually as “Guarantor”
and the
ARCPI Guaranty and the ARC Guaranty shall sometimes be referred to herein
and in
the Lease, collectively, as “Guarantors,” and individually as a
“Guaranty.”
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C. The
Lessor and Lessee desire to amend the Lease, but only upon the terms and
conditions set forth herein.
D. Capitalized
terms used herein and not defined herein shall have the meanings given such
terms in the Lease.
AMENDMENT
IN
CONSIDERATION OF the foregoing recitals, the mutual promises contained herein,
and other good and valuable consideration, the receipt and adequacy of which
are
hereby acknowledged, Lessor and Lessee hereby agree as follows:
1. Modifications
to Certain Definitions of the Lease.
The following definitions appearing in Article II of the Original Lease shall
be
amended and restated, in their entireties, as indicated:
“Guarantor”:
ARCPI
and ARC, and any further guarantors of Lessee’s obligations pursuant to this
Lease.
“Guaranty”:
(i)
The Guaranty of Obligations (Phase III) of even date herewith executed by
ARCPI
(as the same may be amended, modified or reaffirmed from time to time in
accordance with the terms thereof); (ii) that certain Guaranty of Obligations
(Phase III) dated as of June 30, 2005, executed by ARC (as the same may be
amended, modified or reaffirmed from time to time in accordance with the
terms
thereof); and (iii) any further written guaranty of Lessee’s obligations
hereunder executed by another Person.
2. Reaffirmation
of Master Lease.
Lessor
and Lessee hereby acknowledge, agree and reaffirm that the Lease, as hereby
amended, is and the parties intend the same for all purposes to be treated
as a
single, integrated and indivisible agreement. Lessee acknowledges that in
order
to induce Lessor to lease the Leased Property of each Facility to Lessee
and as
a condition thereto, Lessor insisted that the parties execute the Lease,
as
hereby amended, covering all of the Facilities in a single, integrated and
indivisible agreement.
3. Governing
Law.
THIS
AMENDMENT WAS NEGOTIATED IN THE STATE OF CALIFORNIA, WHICH STATE THE PARTIES
AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING
TRANSACTION EMBODIED HEREBY. ACCORDINGLY, IN ALL RESPECTS THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH,
THE INTERNAL LAWS OF THE STATE OF CALIFORNIA (WITHOUT REGARD OF PRINCIPLES
OR
CONFLICTS OF LAW) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
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4. Full
Force and Effect; Counterparts; Facsimile Signatures.
Except
as hereby amended, the 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.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
day
and year first above written.
“Lessor”
|
WITNESSED:
_________________________
Witness
_________________________
Witness
|
HEALTH
CARE PROPERTY INVESTORS, INC., a Maryland corporation
By:
Title:
|
|
WITNESSED:
_________________________
Witness
_________________________
Witness
|
TEXAS
HCP HOLDING, L.P., a Delaware limited partnership, for itself and
as
successor-by-merger to
Texas
HCP REVX, L.P., a Delaware limited
partnership
By: TEXAS
HCP G.P., INC., a Delaware corporation, its sole general
partner
By:
Title:
|
[Signature
pages continue]
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|
ARC
RICHMOND PLACE REAL ESTATE HOLDINGS, LLC, a Delaware limited liability
company
|
|
|
WITNESSED:
_________________________
Witness
_________________________
Witness
|
By: Health
Care Property Investors, Inc., a Maryland corporation, its sole
member
By:
Title:
|
|
ARC
HOLLAND REAL ESTATE
HOLDINGS,
LLC
ARC
SUN CITY CENTER REAL ESTATE
HOLDINGS,
LLC
ARC
LABARC REAL ESTATE HOLDINGS, LLC
each,
a Delaware limited liability company
|
|
|
WITNESSED:
_________________________
Witness
_________________________
Witness
|
By: Health
Care Property Investors, Inc., a Maryland corporation, its managing
member
By:
Title:
|
[Signature
pages continue]
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|
“Lessee”
|
|
|
WITNESSED:
_________________________
Witness
_________________________
Witness
|
FORT
AUSTIN LIMITED PARTNERSHIP, a Texas limited partnership
By:
ARC Fort Austin Properties, LLC, its general partner
By:
Title:
|
|
WITNESSED:
_________________________
Witness
_________________________
Witness
|
ARC
RICHMOND PLACE, INC., a Delaware
corporation
ARC
SANTA CATALINA, INC., a Tennessee
corporation
By:
Title:
|
|
WITNESSED:
_________________________
Witness
_________________________
Witness
|
FREEDOM
VILLAGE OF HOLLAND,
MICHIGAN,
a Michigan general partnership
FREEDOM
VILLAGE OF SUN CITY CENTER,
LTD.,
a Florida limited partnership
By: ARC
Freedom, LLC, managing partner
By:
Title:
|
|
[Signature
pages continue]
|
|
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|
WITNESSED:
_________________________
Witness
_________________________
Witness
|
LABARC,
L.P., a Tennessee limited partnership
By: ARC
Sun City Center, Inc., general partner
By:
Title:
|
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