EIGHTH AMENDMENT TO AMENDED AND RESTATED MASTER
LEASE
THIS
EIGHTH AMENDMENT TO AMENDED AND RESTATED MASTER LEASE (this
“Amendment”) is made and entered into as of
August 8, 2007 (the “Effective Date”), by and
among HEALTH CARE PROPERTY INVESTORS, INC., a Maryland
corporation (“HCP”), WESTMINSTER HCP, LLC, a
Delaware limited liability company (“Westminster
HCP”), TEXAS HCP HOLDING, L.P., a Delaware limited
partnership (“Texas HCP”), HCP AL OF FLORIDA, LLC,
a Delaware limited liability company
(“HCP AL”), and FAEC HOLDINGS (EP), LLC, a
Delaware limited liability company (“FAEC”)
(HCP, Westminster HCP, Texas HCP, HCP AL and FAEC
shall be referred to herein, collectively, as their interests
may appear, as “Lessor”), on the one hand, and
each of the Persons whose signatures are affixed hereto and
who are identified on Appendix A attached hereto and
incorporated herein by this reference (collectively, and
jointly and severally, referred to herein as
“Lessee”), on the other hand, with respect to the
following:
RECITALS
A. Lessor,
as “Lessor,” and LHAL LLC, Cobbco Inc.,
Hillsborough LLC, Ocoee Inc., Port Orange Inc., Prince William
Inc., Stafford LLC, Voorhees LLC, Westminster Inc., Pinellas
LLC, Ocala West LLC, Cy-Fair LP, Friendswood LP, New Port
Richey LLC, Lakeland LLC, St. Augustine LLC, Ocala East LLC,
Venice LLC, Lakeland Hills LP, Irving LP, Chestnut Hill
LLC, Summerville 9, Carrollwood LLC, Gainesville LLC, Fox Run
LLC, Wekiwa Springs LLC, Oak Park LLC, Lookout Pointe LLC, Oak
Ridge LLC and Oveido LLC (each as described on Appendix
A attached hereto) (collectively, and jointly and
severally, “Lessee”), as “Lessee”, are
parties to that certain Amended and Restated Master Lease
dated as of April 20, 2005 (the “Original Master
Lease”), as amended by that certain First Amendment to
Amended and Restated Master Lease dated as of
September 1, 2005 (the “First Amendment”),
that certain Second Amendment to Amended and Restated Master
Lease dated as of December 22, 2005 (the “Second
Amendment”), that certain Third Amendment to Amended and
Restated Master Lease dated as of January 31, 2006 (the
“Third Amendment”), that certain Fourth to Amended
and Restated Master Lease and Consolidation and Restatement of
Beckett Lake Facility Master Lease dated May 31, 2006
(the “Fourth Amendment”), that certain Fifth
Amendment to Amended and Restated Master Lease dated
June 1, 2006 (the “Fifth Amendment”), that
certain Sixth Amendment to Amended and Restated Master Lease
dated August 1, 2006 (the “Sixth Amendment”)
and that certain Seventh Amendment to Amended and Restated
Master Lease (the “Seventh Amendment,” and
together with the First Amendment, Second Amendment, Third
Amendment, Fourth Amendment, Fifth Amendment and Sixth
Amendment, the “Amendments”), covering the Leased
Property of thirty-one (31) mixed skilled nursing and assisted
living care Facilities located in California, Connecticut,
Florida, Maryland, New Jersey, Ohio, Tennessee, Texas and
Virginia, all as more particularly described
therein. The Original Master Lease, as amended by
the Amendments, shall hereinafter be referred to collectively
as the “Master Lease.” All capitalized
terms used in this Amendment and not otherwise defined or
modified herein shall have the meanings assigned to such terms
in the Master Lease.
B. Pursuant
to the terms of that certain Guaranty of Obligations dated as
of April 20, 2005 (as the same has been or may hereafter be
amended or reaffirmed from time to time in writing, the
“Guaranty”), made by Summerville Senior Living,
Inc., a Delaware corporation (“Guarantor”) in
favor of Lessor, Guarantor guaranteed the obligations of
Lessee under the Master Lease, all as more particularly
described therein.
C. Lessee
desires to construct a Capital Addition to the Chestnut Hill
Facility, and have Lessor fund certain costs associated
therewith.
D. Lessor
is willing to consent and agree to the matters set forth in
Recital C above, and to amend the Lease accordingly, but only
upon the terms and conditions set forth herein.
AMENDMENT
NOW
THEREFORE, in consideration of the foregoing Recitals and for
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Lessor and
Lessee hereby agree as follows:
1.
Modifications to
Terms of the Master
Lease
.
Effective as of the
Effective Date, the Master Lease shall be amended and
supplemented in the following particulars:
(a)
New
Definitions . Except as otherwise
expre ssly
provided or unless the context otherwise requires, for all purposes
of the Master Lease, as hereby amended, the terms defined in this
Section 1 (a) shall have the meanings
assigned to the m as provided below and shall be
added to Article II of the Original Master Lease (as amended by the
Amendments) to read, in their entireties, as
follows:
“
Chestnut Hill Facility Capital Addition Project
: The ‘Capital Addition Project’ as
defined in the Chestnut Hill Facility Work
Letter.”
“
Chestnut Hill Facility Capital Addition Project Completion
Date : The ‘Completion Date’ as
defined in the Chestnut Hill Facility Work
Letter.”
“
Chestnut Hill Facility Capital Addition Project Costs
: The ‘Capital Addition Project Costs’
as defined in the Chestnut Hill Facility Work
Letter.”
“
Chestnut Hill Facility Capital Addition Project Lease
Rate : On and as of the Chestnut Hill Facility
Capital Addition Project Rent Reset Date, the greater of (i)
8.86% or (ii) the then ten-year U.S. Treasury Note rate
published in the Wall Street Journal five (5)
Business Days prior to the Chestnut Hill Facility Capital
Addition Project Rent Reset Date and quoting the rate as of
the immediately prior Business Day, plus
4.25%.”
“
Chestnut Hill Facility Capital Addition Project Rent Reset
Date : The earliest of (i) the Chestnut Hill
Completion Date, or (ii) the Chestnut Hill Capital Addition
Project Outside Completion Date, irrespective of whether the
Chestnut Hill Facility Capital Addition Project has been
commenced or completed.”
“
Chestnut Hill Facility Outside Completion Date
: The ‘Outside Completion Date’ as
defined in the Chestnut Hill Facility Work
Letter.”
“
Chestnut Hill Facility Work Letter : The
Capital Addition Project Work Letter (Chestnut Hill Facility)
of even date herewith by and between Lessor and Lessee, and
attached hereto as Appendix B and incorporated herein
by this reference.”
(b)
Supplemented
Definitions . The following
definitions appearing in Article II of the Original Master Lease
(as amended and supplemented by the Amendments) shall be
supplemented as follows.
“ Capital Addition
s
: Notwithstanding
anything to the contrary in the Master Lease , the Chestnut Hill Facility
Capital Addition Project shall at all times be deemed a Capital
Addition for purposes of the Master Lease , as hereby
amended.”
“
Capital Addition Costs : Notwithstanding
anything to the contrary in the Master Lease, all Chestnut
Hill Facility Capital Addition Project Costs paid, funded or
accrued by Lessor under the Chestnut Hill Facility Work Letter
shall be at all times deemed Capital Addition Costs paid,
funded or accrued by Lessor under the Master Lease, including
for purposes of calculating the Chestnut Hill Facility
Purchase Price and the Chestnut Hill Facility Put Event
Price.”
(c)
Chestnut Hill
Allocated Minimum Rent . In addition to
further increases provided for in Section 4(f) of the Third
Amendment, the following shall apply:
(i)
Effective as of the
Chestnut Hill Facility Capital Addition Project Rent Reset Date,
the then monthly Allocated Minimum Rent with respect to the
Chestnut Hill Facility shall be increased by an amount equal to
One-Twelfth (1/12 th
) of the product of
(i) the Chestnut Hill Facility Capital Addition Project Costs paid,
funded or accrued by Lessor under the Chestnut Hill Facility Work
Letter times (ii) the Chestnut Hill Facility
Capital Project Lease Rate then in effect.
(ii)
Such monthly
Allocated Minimum Rent with respect to the Chestnut Hill Facility
shall also be increased from time to time on the date of any
payment, funding or accrual of any Chestnut Hill Facility Capital
Addition Project Costs pursuant to the Chestnut Hill Facility Work
Letter following the Chestnut Hill Facility Capital Addition Rent
Reset Date by One-Twelfth (1/12) of the product of (A) the amount
of particular payment, funding, or accrual by Lessor, times (B)
Chestnut Hill Facility Capital Project Lease Rate. The
increase in monthly Allocated Minimum Rent with respect to the
Chestnut Hill Facility pursuant to clause (i) or this clause (ii)
shall be prorated based upon the number of days for which the
different rental amounts apply.
(iii)
The increase(s) in
monthly Allocated Minimum Rent with respect the Chestnut Hill
Facility payable for the month(s) during which any increase(s) is
applicable pursuant to clause (i) or (ii) above shall be prorated
based upon the number of days for which the different rental amount
applies.
(iv)
The increase(s) in
monthly Allocated Minimum Rent with respect to the Chestnut Hill
Facility pursuant to clause (i) or (ii) above shall be in addition
to the increase(s) provided for in Section 4(f) of the Third
Amendment for such Facility. Accordingly, for purposes
of determining any future increases in Allocated Minimum Rent with
respect to the Chestnut Hill Facility upon the expiration of each
Lease Year applicable to such Facility as provided for in such
Section 4(f) of the Third Amendment, such future increases shall
take into account the then Allocated Minimum Rent payable with
respect to the Chestnut Hills Facility (i.e., as the same may have
been increased as provided for in clauses (i) and (ii) above
)
.
(d)
Chestnut
Hill
Facility
Work
Letter .
Appendix
B attached hereto is hereby
appended to and shall become part of the Master Lease , as hereby
amended.
2.
Chestnut
Hill Facility
Capital Addition
Project .
Notwithstanding
anything to the
contrary in Section 10.1 of the
Original Master
Lease ,
Lessor has agreed to fund the construction of the
Chestnut Hill
Facility Capital
Addition Project in accordance with and pursuant
to the terms of the Master Lease , as hereby amended, and
the Chestnut
Hill Facility
Work Letter. Lessee hereby covenants, agrees, and is
obligated to commence, complete and perform timely all obligations
of Lessee with respect to the Chestnut Hill
Facility Capital
Addition Project as set forth in and in
accordance with the terms of the Chestnut Hill
Facility Work
Letter.
3.
Reimbursement of
Transaction Costs and Expenses . Lessor’s
costs and expenses, including legal fees and expenses, incurred in
connection with the review, preparation, negotiation and
documentation of this Amendment and the Chestnut Hill Facility
Work Letter and review of diligence in connection with the Chestnut
Hill Facility Capital Addition Project are and shall be reimbursed to
Lessor by Lessee. As of the date hereof, Lessor
estimates such costs and fees to be $ 7,000 , which amount shall be paid to
Lessor concurrently with Lessee’s execution and delivery of
this Amendment. In the event that the actual costs and
fees exceed such amount, such excess shall be paid to Lessor by
Lessee within ten (10) days after Lessor’s delivery to Lessee
of Lessor’s invoice therefore. Such reimbursement
shall be deemed Rent under the Master Lease , as hereby
amended. In the event that such estimate exceeds the
actual costs and fees of Lessor, Lessor shall return such excess to
Lessee.
4.
Representations
and Warranties of Lessee . As of the Effective Date hereof,
each Lessee represents and warrants to the Lessor as
follows:
(a)
Lessee is duly
organized and validly existing under the laws of its state of
organization/formation, is qualified to do business and in good
standing in the State and has full power, authority and legal right
to execute and deliver this Amendment and to perform and observe
the provisions of this Amendment to be observed and/or performed by
Lessee.
(b)
This Amendment has
been duly authorized, executed and delivered by Lessee, and
constitutes and will constitute the valid and binding obligations
of Lessee enforceable against Lessee in accordance with its terms,
except as such enforceability may be limited by creditors rights,
laws and general principles of equity.
(c)
Lessee is solvent,
has timely and accurately filed all tax returns required to be
filed by Lessee, and is not in default in the payment of any taxes
levied or assessed against Lessee or any of its assets, or subject
to any judgment, order, decree, rule or regulation of any
governmental authority which would, in each case or in the
aggregate, adve
