NINTH AMENDMENT TO AMENDED AND RESTATED MASTER LEASELease Agreement |
|
|
You are currently viewing: This Lease Agreement involves
CY-Fair, LLC | Effective Date, Emeritus Realty V, LLC | Emeritus Corporation | FAEC HOLDINGS (EP), LLC | FLORIDA SUB, LLC | FLORIDA, LLC | Friendswood, LLC | HCP GP, Inc | HCP HOLDING, LP | HCPI/Tennessee, LLC | HEALTH CARE PROPERTY INVESTORS, INC | Irving, LLC | Lakeland Hills, LLC | LH ASSISTED LIVING, 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, Gainesville LLC, Fox Run LLC, Wekiwa Springs LLC, Oak Park, LLC, Lookout Pointe LLC, Oak Ridge LLC | Oviedo LLC | PINELLAS PARK, LLC | SUMMERVILLE 9, LLC | Summerville Senior Living, Inc | WESTMINSTER HCP, LLC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
|
|
|
|
Exhibit 10.24.10
Removed Facilities
[West)
Ocala, Florida]
[(East)
Ocala, Florida]
[Lakeland,
Florida]
[Venice,
Florida]
[New
Port Richey, FL]
[Morristown,
Tennessee]
[Dallas,
Texas]
[Ontario,
CA]
NINTH AMENDMENT TO AMENDED
AND RESTATED MASTER LEASE
THIS
NINTH AMENDMENT TO AMENDED AND RESTATED MASTER LEASE (this
“Amendment”) is made and entered into as of August
15, 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”), AL OF FLORIDA
SUB, LLC, a Delaware limited liability company (“AL of
Florida Sub”), EMERITUS REALTY V, LLC, a Delaware
limited liability company (“ER-V”), and FAEC
HOLDINGS (EP), LLC, a Delaware limited liability company
(“FAEC”) (HCP, Westminster HCP, Texas HCP,
HCP AL, AL of Florida Sub, ER-V 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 the current “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 Oviedo LLC (each as defined on
Appendix A attached hereto) (collectively, and jointly
and severally, “Lessee”), as the current
“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 effective 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 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”), that certain Fifth Amendment to Amended and
Restated Master Lease dated as of June 1, 2006 (the
“Fifth Amendment”), that certain Sixth Amendment
to Amended and Restated Master Lease dated as of August 1,
2006 (the “Sixth Amendment”), that certain Seventh
Amendment to Amended and Restated Master Lease dated as of
October 2, 2006 (the “Seventh Amendment”), and
that certain Eighth Amendment to Amended and Restated Master
Lease dated as of August 8, 2007 (the “Eighth
Amendment,” and together with the First Amendment, the
Second Amendment, the Third Amendment, the Fourth Amendment,
the Fifth Amendment and the Sixth Amendment, and the Seventh
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, Texas, Tennessee 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
“Existing Guaranty”), made by Summerville Senior
Living, Inc., a Delaware corporation (“Existing
Guarantor”) in favor of Lessor, Existing Guarantor
guaranteed the obligations of Lessee under the Master Lease,
all as more particularly described therein.
C. Pursuant
to an Agreement and Plan of Merger (the “Merger
Agreement”), Emeritus Corporation, a Washington
corporation (“Emeritus”) has agreed to acquire all
of the outstanding stock of Existing Guarantor, and as a
result thereof, Existing Guarantor, and each Person comprising
Lessee, has become or will become a direct or indirect
wholly-owned Subsidiary of Emeritus. The closing of
the transactions contemplated by the Merger Agreement shall be
referred to herein as the “Emeritus/Summerville Merger
Closing.”
D. Upon
and subject to the terms of each of the agreements identified
on Appendix B attached hereto (each, as the same may be
amended or modified from time to time in accordance with the
terms thereof, a “Portfolio Purchase Agreement,”
and collectively, the “Portfolio Purchase
Agreements”), between or among HCP and/or certain
Affiliates of HCP, on the one hand, as “Seller,”
and Emeritus and/or certain Affiliates of Emeritus, on the
other hand, as “Buyer,” each “Seller”
has agreed to sell, and each “Buyer,” has agreed
to purchase the Leased Property of the (West) Ocala, FL
Facility, the (East) Ocala, FL Facility, the Lakeland, FL,
Facility, the Venice, FL Facility, the New Port Richey, FL
Facility, the Morristown, TN Facility and the Dallas, TX
Facility (aka Twleve Oaks East) and the Ontario, CA Facility
(collectively, the “Repurchased Summerville
Facilities,” and each a “Repurchased Summerville
Facility”).
E. Pursuant
to the Portfolio Purchase Agreements, each
“Seller” has also agreed to sell, and each
“Buyer” has agreed to purchase the “Leased
Property” of each “Facility” leased by HCP
and its Affiliates to Emeritus, and its Affiliates under that
certain Amended and Restated Master Lease dated as of
September 18, 2002 (as amended, the “Emeritus Master
Lease”).
F. Effective
immediately upon the Effective Date and the Closing Date (as
defined in the Portfolio Purchase Agreements), and as a
condition thereto, Lessor and Lessee desire to amend the
Master Lease (i) to remove from the Leased Property thereof
the Land, Leased Improvements, Related Rights, Fixtures, and
Lessor’s Personal Property relating to each of the
Repurchased Summerville Facilities, (ii) to remove AL of
Florida Sub and ER-V as Persons comprising
“Lessor” thereunder, and (iii) to amend the Master
Lease in certain other particulars, all as more particularly
set forth herein.
- 2 -
G. 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, Lessor and
Lessee hereby agree as follows:
1.
Amendment and Termination With Respect to the Repurchased
Summerville Facilities . As
of the Effective Date, the Master Lease is hereby amended to
remove all references to the Repurchased Summerville
Facilities, and each of them, and the Master Lease shall be
terminated with respect to the Leased Property of each of the
Repurchased Summerville Facilities (including any purchase
option, right of first refusal or other right of Lessee to
purchase the Leased Property of any Repurchased Summerville
Facility). The provisions of Section 5.2 of the
Original Master Lease shall apply with respect to such
termination of the Master Lease with respect to each of the
Repurchased Summerville Facilities. Notwithstanding
the foregoing, the following obligations of Lessee under the
Master Lease, shall be preserved and continue subsequent to
the Effective Date with respect to the Repurchased Summerville
Facilities:
(a) Lessee
shall remain responsible for and shall protect, indemnify,
defend and hold Lessor harmless from and against any and all
claims, liabilities, damages, actions and causes of action,
costs and expenses, including reasonable attorneys’
fees, for which Lessee is responsible pursuant to the Master
Lease with respect to the Repurchased Summerville Facilities,
and each of them, and which accrue or have accrued before the
Effective Date; and
(b) Lessee
shall remain responsible for all obligations of the
“Lessee” under the Master Lease which accrue or
have accrued before the Effective Date until full and complete
payment and/or performance of the same, including payment of
all Rent with respect to the Repurchased Summerville
Facilities through the Effective Date.
(c) Without
limiting the provisions of subsections (a) and (b) above,
Lessee shall remain responsible for and shall pay any personal
property taxes assessed against the Leased Property of all of
the Repurchased Summerville Facilities or any personal
property of Lessee therein with a lien date prior to the
Effective Date, irrespective of the date of the billing
therefore, and shall protect, indemnify, defend and hold
Lessor harmless with respect to any claims for such taxes or
resulting from non-payment thereof.
2.
Removal of AL of Florida Sub and ER-V
. From
and after the Effective Date, each of AL of Florida Sub and
ER-V shall be removed as a Person comprising
“Lessor” (as their interests may appear) under the
Master Lease, as hereby amended, and neither AL of Florida Sub
nor ER-V shall have any further obligations under the Master
Lease, as hereby amended; provided, however, that Lessee shall
remain liable to each of AL of Florida Sub and ER-V for all
obligations of Lessee with respect to the Repurchased
Summerville Facilities which accrue or have accrued before the
Effective Date and which are preserved and continued
subsequent to the Effective Date as provided in Section 1
above.
- 3 -
3.
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)
Supplemented Definitions . The following
definitions appearing in Article II of the Original Master
Lease (as amended by the Amendments) shall be supplemented as
follows:
Affiliate
: The meaning given to such term in the Original
Master Lease, except that from and after the
Emeritus/Summerville Merger Closing, if at all, with respect
to Lessee and any Guarantor the term “Affiliate”
shall exclude any Person that is an affiliate of Daniel R.
Baty and that but for its relationship with Daniel R. Baty
would not otherwise be considered an Affiliate of Lessee or
any Guarantor.
Guarantor
: The meaning given to such term in the Original
Master Lease, except that from and after the
Emeritus/Summerville Merger Closing, if at all,
“Guarantor” shall mean each of Existing Guarantor
(as defined in the Recitals hereto) (and its successors by
operation of law) and Emeritus (as defined in the Recitals
hereto), and any future guarantor of Lessee’s
obligations under the Master Lease, as hereby amended,
pursuant to a written Guaranty.
Guaranty
: The meaning given to such term in the Original
Master Lease, except that from and after the
Emeritus/Summerville Merger Closing, if at all,
“Guaranty” shall mean (i) the Guaranty of
Obligations of even date with the original Master Lease (as
the same has been or may hereafter be amended or re-affirmed
from time to time in writing) made by Existing Guarantor,
(ii) the New Emeritus Guaranty to be executed by Emeritus
pursuant to Section 6 below promptly following the
Emeritus/Summerville Merger Closing, and (iii) any future
written guaranty of Lessee’s obligations under the
Master Lease, as hereby amended, made by any subsequent
Guarantor.
Transaction Documents : The meaning given to such
term in the Original Master Lease (as amended by the Amendments),
together with this
Amendment.
(b)
Definition of Lessor . The definition of
“Lessor” appearing in Article II of the Original
Master Lease (as amended and restated pursuant to the
Amendments) shall be further amended and restated to have the
meaning given to such term in the preamble to this Amendment;
provided, however, that from and after the Effective Date,
each of AL Sub of Florida and ER-V shall be removed
therefrom.
(c)
Definition of Consolidated Net Worth
. Notwithstanding anything to the contrary in the
Master Lease (as hereby amended), paragraph (iii) of the
definition of “Consolidated Net Worth” appearing
in Section 2.1 of the Original Master Lease, is hereby amended
and restated, in its entirety, to provide as
follows:
- 4 -
“(iii) the
sum of the following (without duplication of deductions in
respect of items already deducted in arriving at surplus and
retained earnings): (a) intangible assets as defined and
calculated in accordance with GAAP; (b) unamortized debt
discount and expense; and (c) any write-up in book value of
assets resulting from a revaluation thereof subsequent to the
most recent Consolidated Financials, prior to the date hereof,
excluding, however, any (i) net write-up in value of foreign
currency in accordance with GAAP, (ii) write-up resulting from
a reversal of a reserve for bad debts or depreciation, and
(iii) write-up resulting from a change in methods of
accounting for inventory.”
(d)
Transfers . Effective as of the
Emeritus/Summerville Merger Closing, if at all, Article XXIV
of the Original Master Lease (as amended by the Amendments),
is hereby amended and restated, in its entirety, with the
provisions of Appendix C attached hereto and
incorporated herein by this reference.
(e)
Financial Reporting . In addition to the
reports and information required to be delivered by Lessee
pursuant to Section 25.1.2 of the Original Master
Lease:
(i) within
forty-five (45) days after the end of each fiscal quarter
(other than the last fiscal quarter during any fiscal year of
the applicable Person), Lessee shall furnish to Lessor (i) a
copy of the unaudited consolidated balance sheets of Lessee,
each Guarantor and their respective consolidated Subsidiaries
as of the end of such fiscal quarter, and related unaudited
consolidated statements, changes in common stock and other
stockholders’ equity and changes in the financial
position of Lessee, each Guarantor and their respective
consolidated Subsidiaries for such fiscal quarter, and (ii) a
statement of income of Lessee, each Guarantor and their
respective consolidated Subsidiaries that sets forth the
results for both such fiscal quarter and year-to-date, in all
cases prepared in accordance with GAAP applied on a basis
consistently maintained throughout the applicable period;
and
(ii) prior
to each January 1 st , and
if requested each July 1 st , of
each Lease Year, Lessee shall furnish to Lessor projected
financial statements of each of Lessee and each Guarantor,
projecting at least twelve (12) months in advance, including,
without limitation, Lessee’s and Guarantor’s
income statement, balance sheet, and cash flow statement, all
in a reasonable level of detail and prepared consistent with
the accounting principals applied in the preparation of each
entity’s annual financial statements and prepared in
accordance with GAAP.
(f)
Exhibits and Schedules .
(i)
Exhibit A . Exhibits A-5 (Ontario,
CA), A-11 (New Port Richey, FL Land), A-12
(Lakeland, FL Land), A-14 ((East) Ocala, FL Land),
A-15 (Venice, FL Land), A-16 ((West) Ocala, FL
Land), A-20 (Dallas, TX Land) and A-29
(Morristown, TN Land) attached to the Original
Master Lease (as supplemented by the Amendments) are hereby
deleted.
- 5 -
(ii)
Replacement of Exhibit C and Schedule 7.4.1
. Exhibit C and Schedule 7.4.1 to
the Original Master Lease (as amended by the Amendments) are
hereby further amended and replaced, in their entirety, with
Exhibit C and Schedule 7.4.1 attached hereto,
respectively.
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, adversely affect Lessee’s
condition, financial or otherwise, or Lessee’s prospects
or the Leased Property.
(d) No
consent, approval or other authorization of, or registration,
declaration or filing with, any governmental authority is
required for the due execution and delivery of this Amendment,
or for the performance by or the validity or enforceability of
this Amendment against Lessee.
(e) The
execution and delivery of this Amendment and compliance with
the provisions hereof will not result in (i) a breach or
violation of (A) any Legal Requirement applicable to Lessee or
any Facility now in effect; (B) the organizational or charter
documents of such party; (C) any judgment, order or decree of
any governmental authority binding upon Lessee; or (D) any
agreement or instrument to which Lessee is a counterparty or
by which it is bound; or (ii) the acceleration of any
obligation of Lessee.
5.
Consent to Emeritus/Summerville Merger Closing
. Subject to Lessee’s satisfaction of
Lessee’s covenants and agreements set forth in Section 6
below, Lessor hereby consents (in its capacity as
“Lessor” only) to the Emeritus/Summerville Merger
Closing and agrees that no Transfer Consideration with respect
to any Facility shall be payable under the Master Lease, as
hereby amended, in connection with the Emeritus/Summerville
Merger Closing. Lessee acknowledges and agrees that
Lessor’s consent to the Emeritus/Summerville Merger
Closing shall not (i) constitute a consent to any such
subsequent Transfer or (ii) be construed as a waiver, release
or relinquishment by Lessor of any of Lessor’s rights
and privileges (A) under the Master Lease (as hereby amended),
including, the right to receive Transfer Consideration in
connection with any subsequent Transfer to the extent provided
in the Master Lease, as hereby amended, or (B) as a
shareholder of Existing Guarantor.
- 6 -
6.
New Emeritus Guaranty . Promptly upon the
Emeritus/Summerville Merger Closing, Lessee covenants and
agrees to cause Emeritus to execute and promptly deliver to
Lessor a written guaranty of Lessee’s obligations under
the Master Lease, as hereby amended, in substantially the form
attached hereto as Appendix D .
7.
Failure of the Emeritus/Summerville Merger Closing
. In the event that the Emeritus/Summerville Merger
Closing does not occur and the Merger Agreement is terminated
for any reason, then (i) any amendment or supplement to the
Master Lease pursuant to this Amendment that is to be
effective as of the Emeritus/Summerville Merger Closing shall
not be effective and shall have no further force or effect and
(ii) Lessor’s consent to the Emeritus/Summerville Merger
Closing pursuant to Section 5 above shall have no further
force or effect.
8.
Financing Statement Amendments . Lessee
hereby authorizes Lessor to file such financing statement
amendments and other documents as may be necessary or
desirable to perfect or continue the perfection of
Lessor’s security interest in the
Collateral.
9.
Reaffirmation of Master Lease and Treatment
Thereof . Lessor
and Lessee hereby acknowledge, agree and reaffirm that (a)
except as otherwise expressly provided in the Master Lease, as
hereby amended, the Master Lease, as hereby amended, is and
the parties intend the same for all purposes to be treated as
a single, integrated and indivisible agreement, and (b) the
Master Lease, as hereby amended, shall be treated as an
operating lease for all purposes and not as a synthetic lease,
financing lease or loan, and Lessor shall be entitled to all
of the benefits of ownership of the Leased Property, including
depreciation for all federal, state and land tax
purposes.
10.
Full Force and Effect; Counterparts; Facsimile
Signatures . Except
as hereby amended, the Master Lease shall remain in full force
and effect. This Amendment may be executed in any
number of counterparts, all of which shall constitute one and
the same instrument. Telecopied signatures may be
used in place of original signatures on this Amendment, and
Lessor and Lessee both intend to be bound by the signatures of
the telecopied document.
[Signature Pages Follow]
- 7 -
IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be executed as
of the day and year first written above.
S-1
S-2
[
Signatures continue on the following page
]
______________________
1 NOTE: From and after the Effective
Date, Emeritus Realty V, LLC shall be removed as a Person
comprising Lessor under the Master Lease, as hereby
amended.
S-3
[
Signatures continue on the following page
]
<</div>
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
SITE SEARCH
AGREEMENTS / CONTRACTS
CLAUSES
| Get Email Updates |
