SECOND AMENDMENT TO AGREEMENT REGARDING LEASES (“Brookdale Provident Properties”)

Exhibit 10.2.4.5

SECOND AMENDMENT TO AGREEMENT REGARDING LEASES

(“Brookdale Provident Properties”)

THIS SECOND AMENDMENT TO AGREEMENT REGARDING LEASES (this “Amendment”) is made and entered into this 2nd day of March, 2009, by and between PSLT-BLC PROPERTIES HOLDINGS, LLC, a Delaware limited liability company (“PSLT-BLC Holdings”), and BROOKDALE PROVIDENT PROPERTIES, LLC, a Delaware limited liability company (“BLC Holdings”), and is joined herein for certain limited purposes by VENTAS REALTY, LIMITED PARTNERSHIP, a Delaware limited partnership (“Westbury Lessor”), BROOKDALE LIVING COMMUNITIES OF ILLINOIS-DNC, LLC, a Delaware limited liability company (“Westbury Lessee”), BROOKDALE PROVIDENT MANAGEMENT, LLC, a Delaware limited liability company (“Manager”), VENTAS PROVIDENT, LLC, a Delaware limited liability company (“Ventas Provident”), successor-in-interest to Provident Senior Living Trust, a Maryland real estate investment trust, BROOKDALE LIVING COMMUNITIES, INC., a Delaware corporation (“Guarantor”), the Provident Lessors (as defined below), and the Brookdale Lessees (as defined below).

R E C I T A L S:

WHEREAS, PSLT-BLC Holdings, BLC Holdings and, for certain limited purposes, Manager, the Provident Lessors, the Brookdale Lessees and Ventas Provident (through Ventas Provident’s predecessor-in-interest), are parties to that certain Agreement Regarding Leases dated as of October 19, 2004, which has been modified by that certain letter agreement, dated as of October 19, 2004, that certain letter agreement, dated as of March 28, 2005 (the “Second Letter Agreement”), and that certain First Amendment to Agreement Regarding Leases, dated as of February 11, 2009 (as amended, the “Agreement”);

WHEREAS, Westbury Lessor, as landlord, and Westbury Lessee, as tenant, have entered into that certain Property Lease Agreement, dated of even date herewith (the “Westbury Lease”), pursuant to which Westbury Lessor leases to Westbury Lessee, and Westbury Lessee leases from Westbury Lessor, that certain 82-bed skilled nursing facility commonly known as the Westbury Care Center (such facility, including the land on which it is located and any and all improvements thereon, the “Westbury Facility”), which Westbury Facility is located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ in Lisle, Illinois; and

WHEREAS, capitalized terms used and not otherwise defined herein shall have the meanings respectively given to such terms in the Agreement; and

WHEREAS, the parties wish to amend the Agreement as set forth in this Amendment.

NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Recitals. The recitals set forth above are hereby incorporated into the body of this Amendment as if fully restated herein.

2. Definitions. The following defined terms in the Agreement are hereby modified as follows:

2.1. “Provident Lessors” shall be modified to include Westbury Lessor, in addition to those entities already included in the definition of such term. Accordingly, Westbury Lessor shall be a “Provident Lessor” under the Agreement. A revised list of those entities that are “Provident Lessors” is attached hereto as Exhibit A.

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2.2. “Brookdale Lessees” shall be modified to include Westbury Lessee, in addition to those entities already included in the definition of such term. Accordingly, Westbury Lessee shall be a “Brookdale Lessee” under the Agreement. A revised list of those entities that are “Brookdale Lessees” is attached hereto as Exhibit B.

2.3. “Property Leases” shall be modified to include the Westbury Lease, in addition to those leases already included in the definition of such term. Accordingly, the Westbury Lease shall be a “Property Lease” under the Agreement.

2.4. “Facilities” shall be modified to include the Westbury Facility, in addition to those facilities already included in the definition of such term. Accordingly, the Westbury Facility shall be a “Facility” under the Agreement. A revised list of the Facilities is attached hereto as Exhibit C.

3. Rights and Obligations of Westbury Lessor. The parties hereto acknowledge and agree that (a) unlike the other Provident Lessors, PSLT-BLC Holdings does not own a beneficial interest in Westbury Lessor; (b) notwithstanding PSLT-BLC Holdings’ lack of a beneficial interest in Westbury Lessor, Westbury Lessor shall still be deemed to be a “Provident Lessor” for all purposes under the Agreement, in accordance with Paragraph 2.1 above; (c) notwithstanding Westbury Lessor being deemed a “Provident Lessor” under the Agreement, any and all of PSLT-BLC Holdings’ rights (including, without limitation, consent rights) and obligations under the Agreement shall also jointly apply and be extended to Westbury Lessor, which shall exercise such rights and fulfill such obligations with respect to the Westbury Facility, the Westbury Lease, and the Westbury Lessee, in addition to or in lieu of PSLT-BLC Holdings’ exercise or fulfillment thereof; provided, however, the obligations of PSLT-BLC Holdings under the Agreement that shall hereafter apply to Westbury Lessor shall apply with respect to the Westbury Lease, the Westbury Lessee and the Westbury Facility, only, and Westbury Lessor shall have no obligations whatsoever under the Agreement with respect to any other Property Leases or Facilities; and (d) PSLT-BLC Holdings and Westbury Lessor shall each, jointly or independently, be entitled to exercise any of the rights granted to PSLT-BLC Holdings under the Agreement, except in the event the exercise of any such rights would affect or otherwise involve the Westbury Lease, the Westbury Lessee or Westbury Facility, in which case Westbury Lessor must be involved (either independently or together with PSLT-BLC Holdings) in the exercise of any such rights, otherwise any such exercise shall be deemed ineffective. In addition, the parties hereto acknowledge and agree that any notice and cure periods that apply to PSLT-BLC Holdings under the Westbury Lease shall also apply to Westbury Lessor. Subject to the last sentence of this Paragraph 3, if at any time after the date hereof, PSLT-BLC Holdings and Westbury Lessor are no longer Affiliates, then PSLT-BLC Holdings and Westbury Lessor shall, in all instances in which they owe obligations to BLC Holdings hereunder, act jointly in fulfilling such obligations, and neither shall take any position, or refuse to consent, where such position or refusal shall have the effect of depriving BLC Holdings of its rights hereunder solely because PSLT-BLC Holdings and Westbury Lessor are separate entities and PSLT-BLC Holdings does not hold the ownership interests in Westbury Lessor, it being the intent of the parties that BLC Holdings shall not be adversely affected as a result thereof in any manner. Notwithstanding the foregoing, in the event PSLT-BLC Holdings and/or Westbury Lessor have/has any reason, in their/its sole, but reasonable, discretion, for taking a position or refusing to consent with respect to any matters involving the rights of BLC Holdings under the Agreement, PSLT-BLC Holdings and/or Westbury Lessor shall not be prevented from doing so, regardless of the effect, adverse or otherwise, it may have on BLC Holdings under the Agreement.

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4. Facility Management Agreement. The parties hereto acknowledge and agree that (a) the Westbury Facility is not subject to a Facility Management Agreement; and (b) until such time, if ever, as the Westbury Facility is subject to a Facility Management Agreement, (1) there shall be no Facility Management Agreement to terminate for the Westbury Facility in the event of a Management Termination Event, (2) there shall be no payments due and owing to Manager in connection with the Westbury Facility, and (3) BLC Holdings shall have no right to cause Westbury Lessee to terminate the Westbury Lease pursuant to Paragraph 28(c) of the Agreement. The lack of a Facility Management Agreement for the Westbury Facility shall otherwise have no implications with respect to the Agreement. In accordance with the terms of this Paragraph and Paragraph 3 above, notwithstanding that there is no Facility Management Agreement for the Westbury Facility, Westbury Lessor shall be entitled to exercise, either jointly with PSLT-BLC Holdings or independently, all rights and remedies granted to PSLT-BLC Holdings under the Agreement, including, without limitation, those remedies granted to PSLT-BLC Holdings in the event of a Management Termination Event under Paragraph 28(b) of the Agreement.

5. Mandatory Capital Additions. The parties hereto acknowledge and agree that the terms of Paragraph 5 of the Agreement addressing Mandatory Capital Additions and Mandatory Capital Addition Allowances shall not apply to the Westbury Lease or the Westbury Facility and any Capital Additions (and Non-Capital Additions, as defined in the Westbury Lease) made to the Westbury Facility shall be governed by Paragraph 11 of the Westbury Lease (and any other applicable provisions of the Westbury Lease), only.

6. Brookdale Requested Refinancings. The parties hereto acknowledge and agree that Westbury Lessee does not have the right, under the Westbury Lease, the Agreement, or otherwise, to request a Brookdale Requested Refinancing with respect to the Westbury Facility. Accordingly, Paragraph 12(c) shall not apply to the Westbury Facility, and the references to the terms “Brookdale Requested Refinancing,” “Brookdale Requested Refinancing Basis,” and “Brookdale Requested Second Financing Basis” in Paragraphs 12(d) and (e) of the Agreement shall not be relevant to the Westbury Lease or the Westbury Facility.

7. Right of First Refusal. The parties hereto acknowledge and agree that the terms of the Right of First Refusal granted to BLC Holdings under Schedule A of the Second Letter Agreement shall apply to the Westbury Facility. Accordingly, in the event Westbury Lessor shall receive an Offer (as defined in Schedule A of the Second Letter Agreement) to purchase the Westbury Facility, the Westbury Facility shall be deemed a “Purchase Notice Facility” (as defined in Schedule A of the Second Letter Agreement), and Westbury Lessor and BLC Holdings shall thereafter observe all of the terms and conditions required to be followed by PSLT-BLC Holdings and BLC Holdings, respectively, under Schedule A of the Second Letter Agreement.

8. Limitation of Westbury Lessor’s Liability. Without limitation of the terms of Paragraph 11 of the Agreement, if BLC Holdings is awarded a money judgment against Westbury Lessor, then BLC Holdings’ sole recourse for satisfaction of such judgment shall be limited to execution against Westbury Lessor’s ownership interest in the Westbury Facility.

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9. Notices. The addresses for Notices provided in Paragraph 15 of the Agreement are hereby deleted in their entirety and replaced with the following:

 

If to BLC Holdings:		Brookdale Provident Properties, LLC
		c/o Brookdale Senior Living, Inc.
		▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
		▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
		Attention: T. ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
		Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:		Brookdale Senior Living, Inc.
		▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
		▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
		Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
		Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and to:		▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
		▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
		▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
		▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
		Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
		Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to PSLT-BLC Holdings and/or Westbury Lessor:
		PSLT-BLC Properties Holdings, LLC
		c/o Ventas, Inc.
		▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
		▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
		Attention: Lease Administration
		Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:		Ventas, Inc.
		▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
		▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
		Attention: General Counsel
		Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and to:		Barack ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
		▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
		▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
		Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
		Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇

10. Paragraph Numbering in the Westbury Lease. PSLT-BLC Holdings and BLC Holdings acknowledge that the manner in which the subparagraphs are numbered in the Westbury Lease slightly differs from the manner in which the corresponding subparagraphs are numbered in the other Property Leases. In the Westbury Lease, each subparagraph is designated “.1,” “.2,” and so on, as opposed to the other Property Leases, in which each corresponding subparagraph is designated “(a),” (b),” and so on. PSLT-BLC Holdings and BLC Holdings agree that all references in the Agreement to subparagraphs in the Property Leases shall be deemed to refer to the corresponding subparagraph in the Westbury Lease. By way of example, the reference to “Paragraph 25(d) of the Property Leases” in Paragraph 10 of the Agreement shall be deemed to refer, with respect to the Westbury Lease, only, to “Paragraph 25.4” (i.e., the corresponding subparagraph of the Westbury Lease), instead of “Paragraph 25(d).” As a further example, the reference to “Paragraph 18(a)(xiv) of each of the Property Leases” in Paragraph 12(a) of the Agreement shall be deemed to refer, with respect to the Westbury Lease, only, to “Paragraph 18.1(xiv)” (i.e., the corresponding subparagraph of the Westbury Lease), instead of “Paragraph 18(a)(xiv).”

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11. Full Force and Effect. Except as otherwise expressly provided herein, the Agreement shall be and remain in full force and effect in accordance with its terms.

12. Counterparts. This Amendment may be executed in one or more multiple counterparts, all of which, when taken together shall constitute one and the same instrument.

13. Facsimile; Email. Executed versions of this Amendment may be delivered by the parties via facsimile or email, either or both of which shall constitute delivery of an original.

14. Severability. The provisions hereof shall be deemed independent and severable, and the invalidity or enforceability of any one provision shall not affect the validity or enforceability of any other provision hereof.

15. Conflicts. If any of the terms, covenants or conditions of this Amendment conflict with the terms, covenants or conditions of the Agreement, the terms, covenants and conditions of this Amendment shall control. From and after the date of this Amendment, references to the “Agreement” shall mean the Agreement as amended by this Amendment.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed as of the date first above written.

 

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JOINDER BY WESTBURY LESSOR

Westbury Lessor joins into this Amendment for the limited purposes of acknowledging (a) the foregoing terms of this Amendment, and (b) the right of BLC Holdings to exercise the Renewal Terms and agreeing that any exercise of the applicable Renewal Term(s) by BLC Holdings in accordance with the terms of Paragraph 3(b) of the Agreement shall constitute an exercise by Westbury Lessee of such Renewal Term(s) in accordance with the terms of Paragraph 4.2 of the Westbury Lease.

 

 

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JOINDER BY WESTBURY LESSEE

Westbury Lessee joins into this Amendment for the limited purposes of acknowledging (a) the foregoing terms of this Amendment, (b) that if an Event of Default (as defined in the Westbury Lease) has occurred and is continuing, Westbury Lessor and PSLT-BLC Holdings shall have the right to exercise their remedies set forth in the Agreement, and (c) the provisions of Paragraph 3(b) of the Agreement with respect to the right of BLC Holdings to exercise the Renewal Terms and agreeing that any exercise of the applicable Renewal Term(s) by BLC Holdings in accordance with the terms of Paragraph 3(b) of the Agreement shall be binding upon the Westbury Lease and shall constitute an exercise of such Renewal Term(s) in accordance with the terms of Paragraph 4.2 of the Westbury Lease.

 

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JOINDER BY MANAGER

Manager joins into this Amendment for the limited purposes of acknowledging the foregoing terms of this Amendment.

 

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JOINDER BY VENTAS PROVIDENT

Ventas Provident joins into this Amendment for the limited purposes of acknowledging the foregoing terms of this Amendment and, in particular, for acknowledging the impact that the expansion of the defined terms in Paragraph 2 of this Amendment will have on Paragraph (c) of Schedule A to the Second Letter Agreement.

 

 

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JOINDER BY GUARANTOR

Guarantor joins into this Amendment for the limited purposes of acknowledging (a) the foregoing terms of this Amendment including, without limitation, the impact that the expansion of the defined terms in Paragraph 2 of this Amendment will have on the Guaranteed Obligations (as defined in the Guaranty), and (b) that the Guaranteed Obligations shall remain unmodified (except to the extent such Guaranteed Obligations are modified by the foregoing terms of this Amendment) and continue until such time as the Guaranty terminates.

 

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JOINDER BY PROVIDENT LESSORS

In addition to Westbury Lessor, which has already executed this Amendment above, each of the Provident Lessors joins into this Amendment for the limited purpose of acknowledging the foregoing terms of this Amendment.

 

 

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JOINDER BY BROOKDALE LESSEES

In addition to Westbury Lessee, which has already executed this Amendment above, each of the Brookdale Lessees joins into this Amendment for the limited purpose of acknowledging the foregoing terms of this Amendment.

 

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Exhibit A

Provident Lessors

Brookdale Living Communities of Arizona-EM, LLC

Brookdale Living Communities of California-RC, LLC

Brookdale Living Communities of California, LLC

BLC of California-San Marcos, L.P.

Brookdale Living Communities of Connecticut, LLC

PSLT-BLC Properties Holdings, LLC, successor to Brookdale Living Communities of Connecticut-WH, LLC

Brookdale Living Communities of Florida, LLC

Brookdale Living Communities of Illinois-2960, LLC

Brookdale Living Communities of Illinois-HV, LLC

River Oaks Partners

Brookdale Living Communities of Illinois-▇▇▇▇▇▇▇ Estates, LLC

The Ponds of Pembroke Limited Partnership

PSLT-BLC Properties Holdings, LLC, successor to Brookdale Living Communities of Illinois-HLAL, LLC

Brookdale Living Communities of Illinois-II, LLC

PSLT-BLC Properties Holdings, LLC, successor to BLC of Indiana-OL, L.P.

Brookdale Living Communities of Massachusetts-RB, LLC

Brookdale Living Communities of Minnesota, LLC

Brookdale Living Communities of New Jersey, LLC

PSLT-BLC Properties Holdings, LLC, successor to Brookdale Living Communities of New Mexico-SF, LLC

Brookdale Living Communities of New York-GB, LLC

Brookdale Living Communities of Washington-PP, LLC

Ventas Realty, Limited Partnership

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Exhibit B

Brookdale Lessees

BLC-Springs at East Mesa, LLC BLC-Woodside Terrace, L.P.

BLC-Atrium of San ▇▇▇▇, L.P.

BLC-Brookdale of San Marcos, L.P.

BLC-Gables at Farmington, LLC

BLC-▇▇▇▇▇▇▇▇▇, LLC

Brookdale Living Communities of Florida, Inc.

BLC-The Hallmark, LLC

BLC-Kenwood of Lake View, LLC

BLC-The Heritage of Des Plaines, LLC

BLC-Devonshire of ▇▇▇▇▇▇▇ Estates, LLC

BLC-Devonshire of Lisle, LLC

BLC-The Willows, LLC

BLC-Hawthorne Lakes, LLC

BLC-The Berkshires of Castleton, L.P.

BLC-River Bay Club, LLC

BLC-Edina Park Plaza, LLC

BLC-Brendenwood, LLC

BLC-▇▇▇▇▇ de ▇▇▇▇, LLC

BLC-The Gables at Brighton, LLC

BLC-Park Place, LLC

Brookdale Living Communities of Illinois-DNC, LLC

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Exhibit C

Facilities

 

PROPERTY NAME		STATE		CITY		COUNTY
1. The Springs of East Mesa		Arizona		Mesa		Maricopa
2. Woodside Terrace		California		Redwood City		San Mateo
3. The Atrium		California		San ▇▇▇▇		Santa ▇▇▇▇▇
4. Brookdale Place at San Marcos		California		San Marcos		San Diego
5. The Gables at Farmington		Connecticut		Farmington		Hartford
6. ▇▇▇▇▇▇▇▇▇		Connecticut		West Hartford		Hartford
7. The Classic at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇		▇▇▇▇▇▇▇		▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇		▇▇▇▇ ▇▇▇▇▇
8. The Hallmark		Illinois		Chicago		▇▇▇▇
9. The Kenwood of Lake View		Illinois		Chicago		▇▇▇▇
10. The Heritage of Des Plaines		Illinois		Des Plaines		▇▇▇▇
11. The Devonshire of Hoffman Estates		Illinois		▇▇▇▇▇▇▇ Estates		▇▇▇▇
12. The Devonshire of Lisle		Illinois		Lisle		DuPage
13. Westbury Care Center		Illinois		Lisle		DuPage
14. The Willows		Illinois		▇▇▇▇▇▇ Hills		Lake
15. Hawthorn Lakes		Illinois		▇▇▇▇▇▇ Hills		Lake
16. The Berkshire of Castleton		Indiana		Indianapolis		▇▇▇▇▇▇
17. River Bay Club		Massachusetts		Quincy		Norfolk
18. Edina Park Plaza		Minnesota		Edina		Hennepin
19. Brendenwood		New Jersey		Voorhees		Camden
20. ▇▇▇▇▇ ▇▇ ▇▇▇▇		▇▇▇ ▇▇▇▇▇▇		▇▇▇▇▇ ▇▇		▇▇▇▇▇ ▇▇
▇▇. The Gables at Brighton		New York		Rochester		Monroe
22. Park Place		Washington		Spokane		Spokane