EX-10.73.02
FIRST
AMENDMENT TO MASTER LEASE AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO MASTER LEASE AND
SECURITY AGREEMENT (“Amendment”) is dated as of the
20th day of October, 2008 (the “Effective
Date”), and is among HCP AUR1 CALIFORNIA A PACK, LLC, a
Delaware limited liability company (“HCP California A
Pack”), HCP AUR1 CALIFORNIA B PACK, LLC, a Delaware limited
liability company (“HCP California B Pack”), HCP AUR1
CONNECTICUT, LLC, a Delaware limited liability company (“HCP
Connecticut”), HCP AUR1 MARYLAND, LLC, a Delaware limited
liability company (“HCP Maryland”), HCP AUR1
MASSACHUSETTS, LLC, a Delaware limited liability company
(“HCP Massachusetts”), HCP AUR1 NEW JERSEY, LLC, a
Delaware limited liability company (“HCP New Jersey”)
and HCP AUR1 VIRGINIA, LLC, a Delaware limited liability company
(“HCP Virginia,” and together with HCP California A
Pack, HCP California B Pack, HCP Connecticut, HCP Maryland, HCP
Massachusetts and HCP New Jersey, as their interests may appear,
“Lessor”) and EMERITUS CORPORATION, a Washington
corporation (“Emeritus” or
“Lessee”).
RECITALS
A. Lessor
is the “Lessor” and Lessee is the “Lessee”
pursuant to that certain Master Lease and Security Agreement dated
as of August 22, 2008 (the “Lease”). The
Lease covers the Leased Property of eleven (11) senior housing/care
Facilities located in the States of California, Connecticut,
Maryland, Massachusetts, New Jersey and Virginia, all as more
particularly described therein. All capitalized terms
used in this Amendment and not otherwise defined herein shall have
the meanings given to such terms in the Lease.
B. Lessor
and Lessee desire to amend the Lease in accordance with the terms
and conditions set forth herein.
AMENDMENT
NOW THEREFORE, in consideration of the mutual
covenants contained in this Amendment and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Lessor and Lessee hereby agree as
follows:
1. Due
Diligence Period. Notwithstanding anything to the
contrary set forth in Section 48.2.1(a) of the Lease, Lessee shall
have until 5:00 p.m. (California time) on October 29, 2008 to be
satisfied with the results of its review of (a) the physical
condition of the Leased Property and the Facilities, (b) the
environmental condition of the Leased Property and the Facilities,
(c) the condition of title to and a review of ALTA surveys of the
Leased Property and the Facilities, (d) the insurance requirements
of the Existing Facility Mortgage Loan Documents and (e) the
following operational issues with respect to each of the
Facilities: (i) September rent rolls and the latest available
occupancy information from the “answers on
demand” or Merlin system reports,
(ii) September financial statements, (iii) workers compensation
loss runs and claims histories, and (iv) the dates of hire,
salaries and benefits of the employees currently employed at the
Facilities (collectively, the “Reserved Due Diligence
Matters”). Except with respect to the Reserved Due
Diligence Matters, (i) Lessee hereby advises Lessor that Lessee
is
satisfied with
the results of its due diligence review of the Leased Property of
each Facility, the Facilities themselves and the operations
thereof, including the terms of the Existing Facility Mortgage Loan
Documents and (ii) Lessee hereby waives its right to terminate the
Lease pursuant to Section 48.2.2 of the Lease with respect to all
other matters set forth in Section 48.2.1(a) of the
Lease. With respect to the Reserved Due Diligence
Matters, the provisions of Section 48.2.2 shall continue in full
force and effect, except that if Lessee elects to terminate the
Lease for any of the Reserved Due Diligence Matters notice thereof
shall be delivered to Lessor on or before 5:00 p.m. (California
time) on October 29, 2008.
2. Existing
Facility Mortgagee Consent. At any time after the date
hereof and prior to the
