Exhibit 10.13


    Exhibit
      10.13

     

    


    FIRST
      AMENDMENT TO

    LEASE
      AND SECURITY AGREEMENT

    (Heritage
      Club)

     

    THIS
      FIRST
      AMENDMENT TO LEASE AND SECURITY AGREEMENT (Heritage Club)
      (the
“Amendment”)
      is
      entered into as of June 30, 2005 by and among NHP
      HERITAGE CLUB, LLC,
      a
      Colorado limited liability company (“Landlord”),
      ARC
      HERITAGE CLUB, INC.,
      a
      Tennessee corporation (“Tenant”),
      and
AMERICAN
      RETIREMENT CORPORATION,
      a
      Tennessee corporation (“Guarantor”).

     

    R
      E C I T A L S

     

    A. Landlord
      and Tenant have entered into: (i) that certain Lease and Security Agreement
      (Heritage Club) dated as of July 1, 2003 (the “Original
      Lease”);
      and
      (ii) that certain Letter of Credit Agreement dated as of July 1, 2003 (the
      “LC
      Agreement”).
      Additionally, Guarantor has executed that certain Guaranty of Lease and Security
      Agreement and Letter of Credit Agreement dated as of July 1, 2003 (the
“Guaranty”).
      Initially capitalized terms used but not otherwise defined in this Amendment
      shall have the meanings given to them in the Original Lease. The Original Lease,
      as amended, modified and revised by this Amendment, may be hereinafter referred
      to as the “Lease”
      herein.

     

    B. Certain
      Affiliates of Landlord, as landlord (collectively, “Pool
      1 Landlord”),
      and
      certain Affiliates of Tenant, as tenant (collectively “Pool
      1 Tenant”),
      have
      entered into that certain Master Lease and Security Agreement (Pool 1) dated
      as
      of July 9, 2002, as amended by (i) that certain First Amendment to Master Lease
      and Security Agreement (Pool 1) dated to be effective as of July 9, 2002, (ii)
      that certain Second Amendment to Master Lease and Security Agreement (Pool
      1)
      dated as of July 1, 2003, (iii) that certain Third Amendment to Master
      Lease and Security Agreement (Pool 1) dated as of July 7, 2004, and (iv) that
      certain Fourth Amendment to Master Lease and Security Agreement (Pool 1) of
      even
      date herewith (the “Pool
      1 Fourth Amendment”)
      (the
“Pool
      1 Lease”).
      

     

    C. Certain
      Affiliates of Landlord, as landlord (collectively, “Pool
      2 Landlord”)
      and
      certain Affiliates of Tenant, as tenant (collectively, “Pool
      2 Tenant”),
      have
      entered into that certain Master Lease and Security Agreement (Pool 2) dated
      as
      of July 9, 2002, as amended by (i) that certain First Amendment to Master Lease
      and Security Agreement (Pool 2) dated to be effective as of July 9, 2002, (ii)
      that certain Second Amendment to Master Lease and Security Agreement (Pool
      2)
      dated as of July 1, 2003, and (iii) that certain Third Amendment to Master
      Lease
      and Security Agreement (Pool 2) of even date herewith (the “Pool
      2 Third Amendment”)
      (the
“Pool
      2 Lease”).
      

     

    D. Landlord
      and Tenant desire to amend and modify the Original Lease, as more particularly
      described herein, to address certain matters related to the Pool 1 Fourth
      Amendment and the Pool 2 Third Amendment.

     

    
      
        
          
          

        

        
          1

          
            

          

        

        
          
          

        

      

    

     

    A
      G R E E M E N T

     

    NOW,
      THEREFORE,
      in
      consideration of the foregoing Recitals, which by this reference are
      incorporated herein, and of other good and valuable consideration, the receipt
      and adequacy of which are hereby acknowledged, Landlord and Tenant agree as
      follows:

     

    1. Amendment
      to Original Lease.
      The
      Original Lease is amended, modified and revised as follows:

     

    (a) Section
      4.10
      of the
      Original Lease is hereby deleted in its entirety and the following substituted
      therefor:

     

    “4.10 Reimbursement
      of Landlord’s Insurance Costs.
      During
      any Lease Year or portion thereof in which Tenant is not in compliance with
      the
      other provisions of this Section
      4,
      Tenant
      shall reimburse Landlord, within ten (10) days of Landlord’s demand therefor,
      for the costs of the premiums of the general liability and environmental
      insurance policies maintained by Landlord, or contributions to self-insurance
      in
      lieu thereof, in connection with the Premises, which amount shall not exceed
      in
      any Lease Year the amount of One Hundred Thousand Dollars ($100,000) when
      aggregated with such amounts as may be due under the Pool 1 Lease and the Pool
      2
      Lease, as adjusted at the end of each Lease Year for increases in the CPI since
      July 1, 2005. Tenant shall have no right to receive any proceeds or other
      benefits from any such insurance. The foregoing shall not in any way imply
      that
      Landlord shall, or impose any duty on Landlord to: (a) waive any Event of
      Default that may arise as a result of Tenant’s failure to comply with the other
      provisions of this Section
      4,
      or (b)
      obtain or maintain any such general liability or environmental insurance with
      respect to the Premises.”

     

    (b) The
      following is hereby added to and incorporated into the Original Lease as Section
      5.9 thereof:

     

    “5.9 Capital
      Improvements.
      Commencing upon the first release of any Security Deposit and Collateral
      pursuant to Section 11.3 (the “CapEx
      Reserve Commencement Date”),
      Tenant, Pool 1 Tenant and Pool 2 Tenant shall make, in the aggregate, annual
      expenditures for capital improvements to the Facility, the “Facilities” (as
      defined in the Pool 1 Lease) and the “Facilities” (as defined in the Pool 2
      Lease) equal to one and three-fourths percent (1.75%) of the “Gross
      Revenues”, as calculated in the aggregate under this Lease, the Pool 1 Lease and
      the Pool 2 Lease (the “Aggregate
      Gross Revenues”),
      for
      the applicable “Lease Year” under this Lease, the Pool 1 Lease and/or the Pool 2
      Lease, as applicable, or the applicable portion thereof in the case of the
      first
“Lease Year” hereunder or thereunder in which this obligation commences (the
“Required Tenant
      Capital Expenditures”).
      Concurrently with each payment of Additional Rent due on October 1, January
      1,
      April 1 and July 1 of each Lease Year after the CapEx Reserve Commencement
      Date,
      Tenant shall deliver to Landlord in a form mutually agreed upon by Landlord
      and
      Tenant, a certificate, certified by an officer of Tenant, setting forth the
      actual year-to-date expenditures for capital improvements to the Facility,
      the
“Facilities” (as defined in the Pool 1 Lease) and the “Facilities” (as defined
      in the Pool 2 Lease) made by Tenant, Pool 1 Tenant and Pool 2 Tenant as of
      the
      end of the applicable quarter. If such actual year-to-date expenditures for
      capital improvements are less than one and three-fourths percent (1.75%)
      of
      year-to-date Aggregate Gross Revenues for such “Lease Year” under this Lease,
      the Pool 1 Lease and/or the Pool 2 Lease, as applicable, or such applicable
      portion thereof in the case of the first “Lease Year” hereunder or thereunder in
      which this obligation commences, Tenant, Pool 1 Tenant Pool 2 Tenant shall,
      in
      the aggregate, deposit with Landlord, Pool 1 Landlord and Pool 2 Landlord an
      amount equal to such deficiency, and such funds (the “CapEx
      Funds”)
      shall
      be impounded with Landlord, Pool 1 Landlord and Pool 2 Landlord, in the
      aggregate, in accordance with Section 5.10 of this Lease, the Pool 1
      Lease
      and the Pool 2 Lease. Each and every capital improvement funded by Tenant,
      Pool
      1 Tenant and Pool 2 Tenant in accordance with this Section 5.9 or with use
      of
      CapEx Funds, as provided under Section 5.10 of this Lease, the Pool 1 Lease
      and
      the Pool 2 Lease, shall immediately become a part of the Premises, the
“Premises” (as defined in the Pool 1 Lease) or the “Premises” (as defined in the
      Pool 2 Lease), as the case may be, and shall belong to Landlord, Pool 1 Landlord
      or Pool 2 Landlord, as the case may be, subject to the terms and conditions
      of
      this Lease, the Pool 1 Lease or the Pool 2 Lease, as applicable. Notwithstanding
      the foregoing, if, at any time after the CapEx Reserve Commencement Date, the
      Security Deposit and Collateral is restored to one hundred percent (100%) of
      its
      original requirement under this Lease, the Pool 1 Lease and the Pool 2 Lease
      in
      accordance with the provisions of Section 11.3 under this Lease, the Pool 1
      Lease and the Pool 2 Lease, the obligations under Section 5.9 of this Lease,
      the
      Pool 1 Lease and the Pool 2 Lease shall be suspended until any Security Deposit
      and Collateral is thereafter released under this Lease, the Pool 1 Lease and/or
      the Pool 2 Lease in accordance with such Section 11.3. 

     

    
      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

    

    (c) The
      following is hereby added to and incorporated into the Original Lease as Section
      5.10 thereof:

     

    “5.10
      CapEx Funds. Any
      CapEx
      Funds shall be held by Landlord, Pool 1 Landlord and Pool 2 Landlord and shall
      be applied for the purposes of making capital improvements to the Facility,
      the
“Facilities” (as defined in the Pool 1 Lease) and/or the “Facilities” (as
      defined in the Pool 2 Lease) (the “CapEx
      Reserve”).
      From
      time to time, but not more often than twice in any calendar month and provided
      that no Event of Default is then continuing, Landlord, Pool 1 Landlord and/or
      Pool 2 Landlord, as the case may be, will disburse to Tenant, Pool 1 Tenant
      and/or Pool 2 Tenant amounts from the CapEx Reserve, subject to the following
      conditions: (A)
      the
      costs incurred by Tenant, Pool 1 Tenant and/or Pool 2 Tenant, as the case may
      be, shall be for the purposes of making capital improvements to the Facility,
      the “Facilities” (as defined in the Pool 1 Lease) and/or the “Facilities” (as
      defined in the Pool 2 Lease); and (B)
      the
      request for disbursement shall be accompanied with such invoices or purchase
      orders evidencing the expenditure by Tenant, Pool 1 Tenant and/or Pool 2 Tenant,
      as the case may be, as Landlord, Pool 1 Landlord or Pool 2 Landlord, as
      applicable, may reasonably require. Landlord, Pool 1 Landlord and/or Pool 2
      Landlord, as the case may be, shall make the reimbursements to Tenant, Pool
      1
      Tenant and Pool 2 Tenant, as applicable, required hereunder within fourteen
      (14)
      days after satisfaction of all conditions to such disbursement. Upon reasonable
      advance request, Landlord, Pool 1 Landlord and/or Pool 2 Landlord, as the case
      may be, may require Tenant, Pool 1 Tenant and/or Pool 2 Tenant, as applicable,
      to procure mechanic’s lien waivers, in form and substance reasonably
      satisfactory to Landlord, Pool 1 Landlord and/or Pool 2 Landlord, as the case
      may be, (if such waivers are then available in the applicable State in which
      the
      subject “Facility” is located), in connection with any capital improvements in
      excess of One Hundred Thousand Dollars ($100,000). Any amount remaining in
      the
      CapEx Reserve at the expiration of the “Term” (as such term is defined
      hereunder, under the Pool 1 Lease and under the Pool 2 Lease) under all of
      this
      Lease, the Pool 1 Lease and the Pool 2 Lease, and/or the earlier termination
      hereof or thereof, shall be retained by Landlord, Pool 1 Landlord or Pool 2
      Landlord, as the case may be, as additional or supplemental “Total Rent” (as
      such term is defined hereunder, under the Pool 1 Lease and under the Pool 2
      Lease) hereunder or thereunder.”

     

    
      
        
          
          

        

        
          3

          
            

          

        

        
          
          

        

      

    

    (d) The
      following is hereby added to and incorporated into the Original Lease as Section
      9.7 thereof:

     

    “9.7 Financial
      Covenants Calculations.
      Within
      forty-five (45) days of the end of each of the first three quarters of the
      fiscal year of Guarantor and Tenant, and within ninety (90) days of the end
      of
      the fiscal year of Guarantor and Tenant, Tenant shall deliver to Landlord the
      calculations of the “Rent Coverage Ratio”, the “Fixed Charge Coverage Ratio” and
“Book Net Worth” (all as defined in Section 11.3), together with all necessary
      support documentation with respect to such calculations as reasonably required
      by Landlord, and accompanied by an Officer’s Certificate (collectively, the
“Financial
      Covenants Calculations”).”

     

    (e) The
      following is hereby added to and incorporated into the Original Lease as
      Section 11.3 thereof:

     

    “11.3 Security
      Deposit and Collateral Release.
      Provided the threshold Financial Covenants (as hereinafter defined) set forth
      below with respect to a particular Level (i.e., Level 1, Level 2, Level 3 or
      Level 4) have been met, the amount of the original Security Deposit and
      Collateral required hereunder shall be released in twenty-five
      percent (25%) increments, as set forth below, for any fiscal quarter
      in
      which the threshold Financial Covenants pertaining to a particular Level have
      been satisfied; provided however,
      that
      if, at any time after the release of any Security Deposit and Collateral at
      a
      particular Level, the requisite threshold of Financial Covenants pertaining
      to
      such Level is not maintained, as evidenced by the most recent Financial
      Covenants Calculations, then the Security Deposit and Collateral shall be
      restored by Tenant, Pool 1 Tenant and Pool 2 Tenant, within thirty (30) days
      of
      the delivery of the Financial Covenants Calculations to Landlord, to the amount
      that was held by Landlord, Pool 1 Landlord and Pool 2 Landlord prior to any
      release of the Security Deposit and Collateral in accordance with such Level
      until such future time, if any, that the applicable threshold Financial
      Covenants pertaining to such Level are once again satisfied. The “Financial
      Covenants”
      shall
      mean the satisfaction of all of the following with respect to any particular
      Level release threshold:

     

    
      	
              Level

            	 	
              Threshold
                Rent 

              Coverage
                Ratio

            	 	
              Threshold
                

              Fixed
                Charge 

              Coverage

              Ratio

            	 	
              Threshold
                

              Book
                Net 

              Worth

            	 	
              %
                of Original 

              Security
                

              Deposit
                and 

              Collateral
                

              required
                

              hereunder
                to 

              be
                released

            
	
              1

              2

              3

              4

            	 	
              1.25x

              1.35x

              1.40x

              1.45x

            	 	
              1.35x

              1.35x

              1.40x

              1.40x

            	 	
              $100
                Million

              $100
                Million

              $100
                Million

              $100
                Million

            	 	
              25%

              50%

              75%

              100%

            


    

    


     

    
      
        
          
          

        

        
          4

          
            

          

        

        
          
          

        

      

    

    Upon
      the
      exercise by Tenant of any Renewal Term in accordance with Section 1.2 of this
      Lease, Tenant shall increase the amount of the Security Deposit and Collateral
      to the amount required by Section 1.2.3 of this Lease, and such amount shall
      thereafter be deemed to be the “original Security Deposit and Collateral”
      required under the Lease; provided,
      however,
      that
      Landlord shall immediately release to Tenant (or excuse Tenant from depositing
      with Landlord) that portion of the new amount that would have theretofore been
      released if the increased “original Security Deposit and Collateral” amount had
      initially been the “original Security Deposit and Collateral” amount required
      under such Section 1.2.3.

     

    As
      used
      herein, (i) “Rent
      Coverage Ratio”
      shall
      mean, as of the end of any fiscal quarter of Tenant, Pool 1 Tenant and Pool
      2
      Tenant, the ratio of (A) “Portfolio
      EBITDAR-X”
      to (B)
“Portfolio
      Rent Expense”
      with
      use of the following defined terms:

     

    “Portfolio
      EBITDAR-X”
      shall
      be calculated as (a) the trailing six (6)-month Portfolio EBITDARM
minus
      (b) an
      amount equal to six percent (6%) of the trailing six (6)-month
      Portfolio Gross Revenues; 

     

    “Portfolio
      EBITDARM”
      shall
      mean, as of the end of any fiscal quarter, the aggregate net income of Tenant,
      Pool 1 Tenant and Pool 2 Tenant for such trailing six (6)-month period to the
      extent derived from the collective operation of the Premises as defined herein,
      the “Premises” as defined under the Pool 1 Lease (the “Pool
      1 Premises”)
      and
      the “Premises” as defined under the Pool 2 Lease (the “Pool
      2 Premises”),
      adjusted to add thereto, to the extent allocable to the Premises, the Pool
      1
      Premises or the Pool 2 Premises, as applicable, without duplication, (a)
      interest expense, (b) income tax expense, (c) depreciation and
      amortization expense, (d) rental expense, and (e) management
      fee
      expenses, in each case determined in accordance with GAAP; 

     

    
      
        
          
          

        

        
          5

          
            

          

        

        
          
          

        

      

    

    “Portfolio
      Gross Revenues”
      shall
      mean, as of the end of any fiscal quarter, the aggregate amount of “Gross
      Revenues” as defined in the Pool 1 Lease and/or the Pool 2 Lease with respect to
      the Premises, the “Gross Revenues” as defined in the Pool 1 Lease with respect
      to the Pool 1 Premises and the “Gross Revenues” as defined in the Pool 2 Lease
      with respect to the Pool 2 Premises, in each case, for the trailing six
      (6)-month period; 

     

    “Portfolio
      Rent Expense”
      shall
      mean, as of the end of any fiscal quarter, the aggregate amount of “Total Rent”
      (as defined herein or therein) payable by Tenant under this Lease, by Pool
      1
      Tenant under the Pool 1 Lease and by Pool 2 Tenant under the Pool 2 Lease,
      in
      each case, during the trailing six (6)-month period. 

     

    (ii)“Fixed
      Charge Coverage Ratio”
      shall
      mean, as of the end of any fiscal quarter of Guarantor, the ratio of (A)
“Portfolio
      EBITDAR”
      to (B)
“Portfolio
      Fixed Charges”
      with
      use of the following defined terms:

     

    “Portfolio
      EBITDAR”
      shall
      mean, as of the end of any fiscal quarter of Guarantor, the aggregate net income
      of Guarantor and its subsidiaries, as determined in accordance with GAAP on
      a
      consolidated basis, during the trailing six (6)-month period, adjusted to add
      thereto, without duplication, (a) interest expense, (b) income tax expense,
      (c)
      depreciation and amortization expense, and (d) rental expense, as determined
      in
      accordance with GAAP on a consolidated basis, during such trailing six (6)-month
      period, and as further adjusted to add thereto or subtract therefrom (I) any
      gains or losses arising from the sale of assets or (II) any items of income
      or
      expense which are deemed to be “extraordinary” in accordance with GAAP, and any
      other non-cash, non-recurring charges and expenses. As used herein,
“non-recurring charges and expenses” means expenditures or charges that (i) have
      not been incurred within the prior two years, and (ii) are not reasonably likely
      to recur within the subsequent two year period.

     

    “Portfolio
      Fixed Charges”
      shall
      mean, as of the end of any fiscal quarter of Guarantor, the sum of (a) all
      net
      lease expenses, (b) all interest expenses (including the interest component
      of
      rentals under capitalized leases), exclusive of prepayment fees or one-time
      loan
      fees or similar expenses, (c) all scheduled principal amortization payments
      under indebtedness or capitalized leases, exclusive of balloon payments due
      on
      maturity or expiration, as applicable, (d) all dividends paid on preferred
      stock, and (e) all mandatory distributions of earnings to shareholders, for
      Guarantor and its subsidiaries, as determined on a consolidated basis in
      accordance with GAAP, during the trailing six (6)-month period.

     

    
      
        
          
          

        

        
          6

          
            

          

        

        
          
          

        

      

    

    (iii)
      “Book Net
      Worth”
      shall
      mean, as of the end of any fiscal quarter of Guarantor, as determined on a
      consolidated basis in accordance with GAAP with respect to Guarantor and its
      subsidiaries, (a) the total assets of such parties, minus
      (b) the
      total liabilities of such parties.

     

    2. Reaffirmation
      of Obligations.

     

    (a) Notwithstanding
      the modifications to the Original Lease contained herein, Tenant and Landlord
      each hereby acknowledges and reaffirms its obligations under the Lease and
      all
      other documents executed by such party in connection therewith.

     

    (b) Notwithstanding
      the modifications to the Original Lease contained herein, Guarantor hereby
      acknowledges and reaffirms its obligations under the Guaranty and all documents
      executed by Guarantor in connection therewith, and further agrees that any
      reference made in the Guaranty to the Original Lease or any terms or conditions
      contained therein, shall mean such Original Lease or such terms or conditions
      as
      modified by this Amendment.

     

    3. Interpretation;
      Governing Law.
      This
      Amendment shall be construed as a whole and in accordance with its fair meaning.
      Headings are for convenience only and shall not be used in construing meaning.
      This Amendment shall be governed by and construed in accordance with the
      internal laws of the State of California without regard to rules concerning
      the
      choice of law. 

     

    4. Further
      Instruments.
      Each
      party will, whenever and as often as it shall be reasonably requested so to
      do
      by another party, cause to be executed, acknowledged or delivered, any and
      all
      such further instruments and documents as may be necessary or proper, in the
      reasonable opinion of the requesting party, in order to carry out the intent
      and
      purpose of this Amendment.

     

    5. Incorporation
      of Recitals.
      The
      Recitals to this Amendment are incorporated hereby by reference.

     

    


    6. Counterparts.
      This
      Amendment may be executed in counterparts, all of which executed counterparts
      shall together constitute a single document. Signature pages may be detached
      from the counterparts and attached to a single copy of this document to
      physically form one document.

     

    


    7. Attorneys'
      Fees.
      In
      the
      event of any dispute or litigation concerning the enforcement, validity or
      interpretation of this Amendment, or any part thereof, the losing party shall
      pay all costs, charges, fees and expenses (including reasonable attorneys'
      fees)
      paid or incurred by the prevailing party, regardless of whether any action
      or
      proceeding is initiated relative to such dispute and regardless of whether
      any
      such litigation is prosecuted to judgment.

     

    
      
        
          
          

        

        
          7

          
            

          

        

        
          
          

        

      

    

    


    8. Effect
      of Amendment.
      Except
      as
      specifically amended pursuant to the terms of this Amendment, the terms and
      conditions of the Original Lease shall remain unmodified and in full force
      and
      effect. In the event of any inconsistencies between the terms of this Amendment
      and any terms of the Original Lease, the terms of this Amendment shall govern
      and prevail.

     

    9.Costs;
      Expenses.
      All
      costs and expenses incurred by Tenant or Landlord with respect to the
      preparation, negotiation and execution of this Amendment and all other
      documentation related to this Amendment shall be paid by Tenant. To the extent
      Landlord pays any such costs or expenses, Tenant shall reimburse Landlord for
      such costs and expenses immediately upon Landlord’s demand
      therefor.

     

    10.Entire
      Agreement.
      This
      Amendment contains the entire agreement between the parties relating to the
      subject matters contained herein. Any oral representations or statements
      concerning the subject matters herein shall be of no force or
      effect.

     

    [signatures
      on the following pages]

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

      	
               

               

               

               

               

               

               

               

               

               

               

               

               

               

               

               

               

               

               

               

               

               

               

               

               

               

               

               

               

               

               

              THE FOREGOING AMENDMENT

              IS CONSENTED TO BY THE

              UNDERSIGNED

               

              RED MORTGAGE CAPITAL, INC.,

              an Ohio corporation

               

              
                By:
                  ___________________________

                Name:
                  _________________________

                Title:
                  __________________________

                 

              

            	 TENANT:
               

              ARC
                HERITAGE CLUB, INC.

              a
                Tennessee corporation

               

              By:
                ___________________________

              Name:
                _________________________

              Title:
                __________________________

               

              
                GUARANTOR:

                 

                AMERICAN
                  RETIREMENT CORPORATION,

                a
                  Tennessee corporation

                 

              

              
                
                  By:
                    ___________________________

                  Name:
                    _________________________

                  Title:
                    __________________________

                

                 

                
                  LANDLORD:

                   

                  
                    NHP
                      HERITAGE CLUB, LLC,

                    a
                      Colorado limited liability company

                     

                  

                  
                    By:
                      ___________________________

                    
                            
                        Donald D. Bradley

                            
                        Senior Vice President and Chief Investment Officer

                    

                     

                  

                

              

            


    

     

    
 

    
      
        
        

      

      
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