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EXIHIBIT 10.24.6
FIFTH AMENDMENT TO AMENDED
AND RESTATED MASTER LEASE
THIS
FIFTH AMENDMENT TO AMENDED AND RESTATED MASTER LEASE (this
"Amendment") is made and entered into as of June 1, 2006 (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") (HCP, Westminster HCP, Texas HCP,
and HCP AL shall be referred to herein, collectively, as their
interests may appear, as "Lessor"), on the one hand, and LH
ASSISTED LIVING, LLC, a Delaware limited liability company
("LHAL LLC"), SUMMERVILLE AT COBBCO, INC., a California
corporation ("Cobbco Inc."), SUMMERVILLE AT HILLSBOROUGH,
L.L.C., a New Jersey limited liability company ("Hillsborough
LLC"), SUMMERVILLE AT OCOEE, INC., a Delaware corporation
("Ocoee Inc."), SUMMERVILLE AT PORT ORANGE, INC., a Delaware
corporation ("Port Orange Inc."), SUMMERVILLE AT PRINCE
WILLIAM, INC., a Delaware corporation ("Prince William Inc."),
SUMMERVILLE AT STAFFORD, L.L.C., a New Jersey limited
liability company ("Stafford LLC"), SUMMERVILLE AT VOORHEES,
L.L.C., a New Jersey limited liability company ("Voorhees
LLC"), SUMMERVILLE AT WESTMINSTER, INC., a Maryland
corporation ("Westminster Inc."), SUMMERVILLE AT PINELLAS
PARK, LLC, a Delaware limited liability company ("Pinellas
LLC"), SUMMERVILLE AT OCALA WEST, LLC, a Delaware limited
liability company ("Ocala West LLC"), SUMMERVILLE AT CY-FAIR
ASSOCIATES, L.P., a Delaware limited partnership ("Cy-Fair
LP"), SUMMERVILLE AT FRIENDSWOOD ASSOCIATES, L.P., a Delaware
limited partnership ("Friendswood LP"), SUMMERVILLE AT NEW
PORT RICHEY, LLC, a Delaware limited liability company ("New
Port Richey LLC"), SUMMERVILLE AT LAKELAND, LLC, a Delaware
limited liability company ("Lakeland LLC"), SUMMERVILLE AT ST.
AUGUSTINE LLC, a Delaware limited liability company ("St.
Augustine LLC"), SUMMERVILLE AT OCALA EAST, LLC, a Delaware
limited liability company ("Ocala East LLC"), SUMMERVILLE AT
VENICE, LLC, a Delaware limited liability company ("Venice
LLC"), SUMMERVILLE AT LAKELAND HILLS ASSOCIATES, L.P., a
Delaware limited partnership ("Lakeland Hills LP"),
SUMMERVILLE AT IRVING ASSOCIATES, L.P., a Delaware limited
partnership ("Irving LP"), SUMMERVILLE AT CHESTNUT HILL, LLC,
a Delaware limited liability company ("Chestnut Hill LLC"),
SUMMERVILLE 9, LLC, a Delaware limited liability company
("Summerville 9"), SUMMERVILLE AT CARROLLWOOD, LLC, a Delaware
limited liability company ("Carrollwood LLC"), and SUMMERVILLE
AT GAINESVILLE, LLC, a Delaware limited liability company
("Gainesville LLC") (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, and Gainesville LLC shall be 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, and Chestnut Hill LLC (collectively, and
jointly and severally, "Current 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"), and that certain Fourth Amendment to
Amended and Restated Master Lease and Consolidation and
Restatement of Beckett Lake Facility Master Lease dated as of
May 31, 2006 (the "Fourth Amendment," and together with the
Original Master Lease, the First Amendment, the Second
Amendment, and the Third Amendment, the "Master Lease"),
covering the Leased Property of twenty-three (23) mixed
skilled nursing and assisted living care Facilities located in
California, Connecticut, Florida, Maryland, New Jersey, Ohio,
Texas and Virginia. 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 Current Lessee under the Master Lease, all as
more particularly described therein.
C. HCP,
as Buyer, and Guarantor, as Seller, have entered into to that
certain Contract
of Acquisition, dated as of May 31, 2006 (as the same may be
amended or modified in accordance with the terms thereof, the
"Group 8 Facilities Contract of Acquisition"), pursuant to
which HCP is purchasing and acquiring from Guarantor (or
pursuant to which Guarantor is causing to be transferred and
conveyed to HCP) on and effective as of the Effective Date,
the following:
(i) the
real property located in Tampa, Florida and more particularly
described on Exhibit
A-24 attached hereto, together with all
improvements and fixtures thereon, related rights and certain
Personal Property relating thereto (the "Carrollwood
Facility"); and
(ii) the
real property located in Gainesville, Florida and more
particularly described on Exhibit
A-25 attached hereto, together with all
improvements and fixtures thereon, related rights and certain
Personal Property relating thereto (the "Gainesville
Facility").
The
Carrollwood Facility and the Gainesville Facility are
sometimes referred to herein, individually, as a "Group 8
Facility," and collectively, as the "Group 8
Facilities."
D. Effective
immediately upon the Effective Date and Closing Date {as
defined in the Group 8 Facilities Contract of Acquisition),
Lessor desires to add to the Leased Property and lease to
Lessee, and Lessee desires to lease from Lessor, the Group 8
Facilities, and each of them, upon the terms and conditions
set forth in the Master Lease, as amended by this
Amendment.
E. Lessor
and Lessee desire to enter into this Amendment to effectuate
the matters set forth in the above Recitals, all as more
particularly described 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.
Leasing. Lessor hereby leases to Lessee and Lessee hereby
leases from Lessor, the Leased Property of the Group 8 Facilities
upon all of the terms and conditions set forth in the Master Lease,
as amended by this Amendment. All references herein and in the
Master Lease to a "Facility" or "Facilities" shall mean each
Facility (as defined in the Master Lease) together with the Group 8
Facilities, and each of them.
2.
Joint and Several Liability of Lessee. From and after the
Effective Date,
Carrollwood
LLC and Gainesville LLC shall {i) be jointly and severally
liable for all of the obligations of the "Lessee" under the
Master Lease, as hereby amended, and (ii) assume jointly and
severally with Current Lessee, all obligations of "Lessee"
arising under the Master Lease, as hereby amended, on, prior
to or after the Effective Date.
3.
[Intentionally
Omitted]
4.
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 expressly provided
or unless the
context otherwise requires, for all purposes of the Master
Lease, as hereby amended, the terms defined in this Section
4(a) shall have the meanings assigned to them as provided
below and shall be added to Article II of the Original Master
Lease (as amended by the First Amendment, the Second
Amendment, the Third Amendment and the Fourth Amendment) to
read, in their entireties, as follows:
"Allocated Group 8 Facility Buyer's Transaction Costs: With
respect to each Group 8 Facility, an amount equal to the Group 8
Facility Buyer's Transaction Costs, multiplied by the following
applicable percentages relating to such Facility:
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(a)
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Carrollwood Facility:
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50%
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(b)
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Gainesville Facility:
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50%
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"Carrollwood Facility: That certain Facility located in Tampa,
Florida."
"Gainesville Facility: That certain Facility located in
Gainesville, Florida."
"Group 8 Facilities Contract of Acquisition: As defined in
Recital C of this Amendment."
"Group 8 Facility(ies): Each of those Facilities identified as
a Group 8 Facility on Exhibit C attached
hereto."
"Group 8 Facility Buyer's Transaction Costs: The 'Buyer's
Transaction Costs' as defined in the Group 8 Facilities Contract of
Acquisition."
"Group 8 Facility Escalator: An amount equal to the greater of
(i) Seventy-Five Percent (75%) of the applicable CPI Increase or
(ii) Two and Three-Quarters Percent (2.75%)."
"Group 8 Facility Partial Lease Year CPI Increase: For purposes
of determining the Group 8 Facility Purchase Price, the percentage
increase, if any, in (i) the Cost of Living Index published for the
month which is two (2) months prior to the date of closing of
Lessee's purchase of the Leased Property of the applicable Group 8
Facility, over (ii) the Cost of Living Index published for the
month which is two (2) months prior to the commencement of the then
current Lease Year in which such closing occurs."
"Group 8 Facility Purchase Price: With respect to each Group 8
Facility at any given time, the sum of:
(i) the
Allocated Initial Investment with respect to such Group 8
Facility, as increased each Lease Year from and after the
applicable Restatement Date for such Facility by the greater
of (A) the Fixed Adjustment Factor (cumulative and compounded)
for such Facility (and, as also increased by the Fixed
Adjustment Factor on the date of closing if Lessee's purchase
of the Leased Property of such Facility occurs on any day
other than the first (1 st )
day of a Lease Year with respect to such Facility) or (B) the
applicable CPI Increase (cumulative and compounded) for such
Facility commencing upon the expiration of the first (1
St )
Lease Year with respect to such Facility, and upon the
expiration of each Lease Year thereafter with respect to such
Facility (and, as also increased by the Group 8 Facility
Partial Lease Year CPI Increase on the date of closing if
Lessee's purchase of the Leased Property of such Facility
occurs on any day other than the first (1 st )
day of a Lease Year with respect to such Facility);
plus
(ii) any
Capital Addition Costs paid, funded or accrued by Lessor
withrespect to such Group 8 Facility, as increased from and
after the date of each such payment, funding or accrual by
Lessor of any such Capital Addition Costs by the greater of
(A) Fixed Adjustment Factor each Lease Year (cumulative and
compounded) for such Facility (and, as also increased by the
Fixed Adjustment Factor on the date of closing if Lessee's
purchase of the Leased Property of such Facility occurs on any
day other than the first (1 8 ) day
of a Lease Year with respect to such Facility) or (B) the
applicable CPI
Increase
(cumulative and compounded) for such Facility commencing upon
the expiration of the first (1 st )
Lease Year with respect to such Facility, and upon the
expiration of each Lease Year thereafter with respect to such
Facility (and, as also increased by the Group 8 Facility
Partial Lease Year CPI Increase on the date of closing if
Lessee's purchase of the Leased Property of such Facility
occurs on any day other than the first (1 st )
day of a Lease Year with respect to such
Facility).
For
purposes of this definition of "Group 8 Facility Purchase
Price," "Fixed Adjustment Factor" shall mean Three Percent
(3%); provided, however, that if the closing of Lessee's
purchase of the Leased Property of the applicable Group 8
Facility occurs on a date other than the first (1 st )
day of a Lease Year with respect to such Facility, then such
"Fixed Adjustment Factor" as of the date of such closing shall
mean Three Percent (3%) times a fraction, the numerator of
which equals the number of days elapsed in the Lease Year in
which such closing occurs, and the denominator of which is
three hundred sixty (360)."
"Group 8 Facility Put Event Price: With respect to any Group 8
Facility at any given time, the sum of (i) the Minimum Repurchase
Price for such Facility, plus (ii) an amount which, upon the
closing, equals an annually compounded return equal to the
applicable Group 8 Facility Escalator per year on (A) the Allocated
Initial Investment for such Facility accruing from and after the
applicable Restatement Date for such Facility and (B) any Capital
Addition Costs funded by Lessor for such Facility accruing from and
after the date of funding; provided, however, that if the closing
of Lessee's purchase of the Leased Property of the applicable Group
8 Facility occurs on a date other than the first (1 8 ) day of a
Lease Year with respect to such Facility, then for purposes of
determining the annually compounded return applicable for the Lease
Year in which such closing occurs, the Group 8 Facility Escalator
shall be an amount equal to the greater of (A) Seventy-Five Percent
(75%) of the Group 8 Partial Lease Year CPI Increase or (ii) Two
and Three-Quarters Percent (2.75%) times a fraction, the numerator
of which equals the number of days elapsed in the Lease Year in
which such closing occurs, and the denominator of which is three
hundred sixty (360)."
(b)
Supplemented Definitions. The following definitions
appearing in Article
II of the Original Master Lease (as amended by the First
Amendment, the Second Amendment, the Third Amendment and the
Fourth Amendment) shall be supplemented as
follows:
Annual Minimum Capital Project Amount: With respect to each
Group 8 Facility, during each Lease Year with respect to such Group
8 Facility, the following amounts:
(i) With
respect to the Carrollwood Facility, $37,200.00;
and
(ii) With
respect to the Gainesville Facility, $40,800.00.
Notwithstanding
the foregoing, Lessor and Lessee acknowledge that the initial
Annual Minimum Capital Project Amount for each Group 8
Facility represents an amount equal to (A) the number of
licensed units located at such Group 8 Facility
times (B) Four Hundred Dollars ($400.00).
In the event that the number of licensed units for any Group 8
Facility is increased or decreased in accordance with the
terms of the Master Lease, as hereby amended, the Annual
Minimum Capital Project Amount for such Group 8 Facility shall
be increased, or decreased, as applicable, by an amount equal
to (1) the number of such licensed units increased or
decreased at such Group 8 Facility times (2) Four
Hundred Dollars ($400.00).
Annual Minimum Capital Project Amount Overage: With respect to
each Group 8 Facility for any Lease Year, an amount equal to (a)
the sum of (i) the Capital Project Costs incurred and paid by
Lessee in funding Capital Projects for such Group 8 Facility in the
immediately preceding two (2) Lease Years and for which Lessor has
received paid invoices, receipts or other commercially reasonable
evidence or supporting information as is customary to evidence such
expenditures, verifying the cost and payment of funding such
Capital Projects, and an Officer's Certificate certifying that the
applicable item(s) of Capital Projects have been completed, less
(ii) the amounts disbursed by Lessor to Lessee from any Replacement
Reserve on account of such Capital Projects to such Group 8
Facility in accordance with the terms of Section 9.3.1 of the
Master Lease, as hereby amended, in excess of (b) the Annual
Minimum Capital Project Amount for such Group 8 Facility for such
prior two (2) Lease Year period.
Deed: With respect to each Group 8 Facility, "Deeds" as defined
in the Group 8 Facilities Contract of Acquisition.
Fair Market Rental: With respect to each Group 8 Facility, the
definition of Fair Market Rental applicable to the Group 2
Facilities, the Group 3 Facilities, the Group 4
Facilities, the Group 5 Facilities, the Chestnut Hill Facility and
the Beckett Lake Facility, but in each instance relating to such
Group 8 Facility.
Lease Year: With respect to each Group 8 Facility, the first
Lease Year for such Group 8 Facility shall be the period commencing
on the applicable Restatement Date with respect to such Group 8
Facility and ending May 31 2007, and each subsequent Lease Year for
any Group 8 Facility shall be each period of twelve (12) full
calendar months after the last day of the prior Lease Year;
provided, however, that the last Lease Year for each Group 8
Facility during the Term may be a period of less than twelve (12)
full calendar months and shall end on the last day of the Term for
such Facility.
Restatement Date: With respect to each Group 8 Facility, the
Effective Date of this Amendment, which shall also be the
commencement date of the Master Lease, as hereby amended, with
respect to each such Group 8 Facility.
Transaction Documents: The meaning given to such term in the
Original Master Lease (as amended by the First Amendment, the
Second Amendment, the Third Amendment and the Fourth Amendment),
together with this Amendment and the Group 8 Facilities Contract of
Acquisition.
(c)
Definition of Lessee. The definition of "Lessee" appearing
in Article II of the Original Master Lease (as amended and restated
pursuant to the First Amendment, the Second Amendment, the Third
Amendment and the Fourth Amendment) shall be further amended and
restated to have the meaning given to such term in the preamble of
this Amendment.
(d)
Amendment to Letter of Credit Amount. From and after the
Effective Date hereof, the percentage "7.1%" appearing in the
definition of "Letter of Credit Amount" in Article II of the
Original Master Lease (as amended and restated pursuant to the
First Amendment, the Second Amendment, the Third Amendment and the
Fourth Amendment) shall read "6.3%."
(e)
Leased Property; Tenn. The phrase "Group 3 Facilities, the
Group 4 Facilities, the Group 5 Facilities and the Chestnut Hill
Facility, the applicable Restatement Date" appearing in the last
paragraph of Article I of the Original Master Lease (as amended by
the First Amendment, the Second Amendment, the Third Amendment and
the Fourth Amendment) is hereby amended to read "Group 3
Facilities, the Group 4 Facilities, the Group 5 Facilities, the
Chestnut Hill Facility and the Group 8 Facilities, the applicable
Restatement Date."
(f)
Minimum Rent. With respect to each Group 8
Facility:
(i) For
the period from the Effective Date through the expiration of
the first (1 st )
Lease Year with respect to such Group 8 Facility, Lessee shall
pay to Lessor as monthly "Allocated Minimum Rent" for such
Group 8 Facility at the times and in the manner provided in
Section 3.1 of the Master Lease, as hereby amended, the amount
allocated to and set forth or determined pursuant to the
formula opposite such Group 8 Facility on Exhibit C to
the Master Lease, as hereby amended. The first monthly payment
of Allocated Minimum Rent for each such Group 8 Facility shall
be payable on the Effective Date (prorated as to any partial
calendar month at the beginning of the Term with respect to
each such Facility); and
(ii) Commencing
upon the expiration of the first (1 8t )
Lease Year for each Group 8 Facility and upon the expiration
of each Lease Year thereafter during the Fixed Term for such
Group 8 Facility, the then current monthly Allocated Minimum
Rent for such Group 8 Facility for such Lease Year shall be
increased by an amount equal to the Group 8 Facility
Escalator.
(iii) For
the first (1 St )
Lease Year of each Extended Term for each Group 8 Facility, if
any, the monthly Allocated Minimum Rent for such Group 8
Facility shall be equal to the greater of (a) the then current
monthly Fair Market Rental for such Facility and (b) the
monthly Allocated Minimum Rent payable for such Group 8
Facility during the last Lease Year of the immediately
preceding Term, as increased by the Group 8 Facility
Escalator.
(iv)
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