NINTH AMENDMENT TO CONSOLIDATED
AMENDED AND RESTATED MASTER LEASE
This Ninth
Amendment to Consolidated Amended and Restated Master Lease (this
“ Amendment ”) is executed and delivered as of
May 5, 2009 by and between STERLING ACQUISITION CORP., a
Kentucky corporation (“ Lessor ”), the address
of which is 9690 Deereco Road, Suite 100, Timonium, MD 21093,
and DIVERSICARE LEASING CORP., a Tennessee corporation, the address
of which is 1621 Galleria Boulevard, Brentwood, TN
37027.
A. Lessee has
executed and delivered to Lessor a Consolidated Amended and
Restated Master Lease dated as of November 8, 2000, but
effective as of October 1, 2000 (the “ Master
Lease ”), as amended by a First Amendment to Consolidated
Amended and Restated Master Lease dated as of September 30,
2001 (the “ First Amendment ”), a Second
Amendment to Consolidated Amended and Restated Master Lease dated
as of June 15, 2005 (the “ Second Amendment
”), a Third Amendment to Consolidated Amended and Restated
Master Lease dated as of October 20, 2006 (the “
Third Amendment ”), a Fourth Amendment to Consolidated
Amended and Restated Master Lease dated as of April 1, 2007
(the “ Fourth Amendment ”), a Fifth Amendment to
Consolidated Amended and Restated Master Lease dated as of
August 10, 2007 (the “ Fifth Amendment ”),
a Sixth Amendment to Consolidated Amended and Restated Master Lease
dated as of March 14, 2008 (the “ Sixth Amendment
”), a Seventh Amendment to Consolidated Amended and Restated
Master Lease dated as of October 24, 2008, and an Eighth
Amendment to Consolidated Amended and Restated Master Lease dated
as of March 31, 2009 (collectively, the “ Existing
Master Lease ”) pursuant to which Lessee leases from
Lessor certain healthcare facilities.
B. Lessee has
requested that Lessor to make available to Lessee additional
capital improvements funds in the amount of Five Million Dollars
($5,000,000), and Lessor desires to do so on the terms and
conditions of this Amendment.
NOW THEREFORE, the
parties agree as follows:
1.
Definitions . Any capitalized term used but not defined in
this Amendment will have the meaning assigned to such term in the
Master Lease. From and after the date of this Amendment, each
reference in the Existing Master Lease or the other Transaction
Documents to the “Lease” or “Master Lease”
means, as applicable, the Existing Master Lease as modified by this
Amendment.
2. Tenant
Improvement Allowance . Pursuant to the Second Amendment,
Lessor made available to Lessee an Improvement Allowance of Five
Million Dollars ($5,000,000). Pursuant to the Third Amendment,
Lessor made an additional Improvement Allowance of Five Million
Dollars ($5,000,000) available to Lessee. Lessor hereby makes
available to Lessee an additional improvement allowance equal to
Five Million Dollars ($5,000,000) to be used for certain capital
improvements to the Facilities. Such additional improvement
allowance shall be used only for completion of capital improvements
to the Facilities which shall be approved and constructed in
accordance with the terms and provisions of Paragraph 2 of the
Second
Amendment. The
term “Capital Improvements” as and where used in
Paragraph 2 of the Second Amendment shall be deemed to include
such capital improvements. The additional improvement allowance
shall be requested and disbursed in accordance with the provisions
of Paragraph 3 of the Second Amendment. The term
“Improvement Allowance”, as and where used in
Paragraph 3 of the Second Amendment, shall be deemed to
include and refer to the additional improvement allowance provided
for in this paragraph, except that such additional improvement
allowance shall be available for Capital Improvements completed on
or before December 31, 2010 and the final request for
disbursement shall be no later than March 31, 2011. The annual
Base Rent payable under the Existing Master Lease shall be
increased by the Improvement Allowance Adjustment Amount for each
disbursement of such additional improvement allowance as provided
in Paragraph 4 of the Second Amendment. In the event Lessor
fails to pay Lessee any installment request for the additional
improvement allowance as provided in Paragraph 3 of the Second
Amendment, Lessee shall have the rights and remedies provided in
Paragraph 4 of the Second Amendment and the provisions of
Paragraph 4 of the Second Amendment shall apply to Lessee’s
exercise of such rights and remedies.
3.
Representations and Warranties of Lessee . Lessee hereby
represents and warrants to Lessor that (i) it has the right
and power and is duly authorized to enter into this Amendment; and
(ii) the execution of this Ame
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