MASTER LEASE NO. 3 AMENDMENT AGREEMENT BY AND AMONG KINDRED HEALTHCARE, INC. (f/k/a Vencor, Inc.), KINDRED HEALTHCARE OPERATING, INC. (f/k/a Vencor Operating, Inc.), AND VENTAS REALTY, LIMITED PARTNERSHIP
EXHIBIT 10.83
MASTER LEASE NO. 3 AMENDMENT AGREEMENT
BY AND AMONG
KINDRED HEALTHCARE, INC.
(f/k/a Vencor, Inc.),
KINDRED HEALTHCARE OPERATING, INC.
(f/k/a Vencor Operating, Inc.),
AND
VENTAS REALTY, LIMITED PARTNERSHIP
MASTER LEASE NO. 3 AMENDMENT AGREEMENT
THIS MASTER LEASE NO. 3 AMENDMENT AGREEMENT (hereinafter this “Agreement” ) is dated as of the 11th day of December, 2003, and is by and among VENTAS REALTY, LIMITED PARTNERSHIP, a Delaware limited partnership (together with its successors and assigns, “Lessor”), having an office at 0000 Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, and KINDRED HEALTHCARE, INC., a Delaware corporation (f/k/a Vencor, Inc.) (“Kindred”), and KINDRED HEALTHCARE OPERATING, INC., a Delaware corporation (f/k/a Vencor Operating, Inc.) (“Operator”; Operator, jointly and severally with Kindred and permitted successors and assignees of Operator and Kindred, “Tenant”), both having an office at 000 Xxxxx 0xx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
RECITALS
A. Lessor and Tenant entered into a certain Amended and Restated Master Lease Agreement No. 3 dated as of April 20, 2001 (as the same may have been or may hereafter be amended, amended and restated, supplemented, modified, severed, renewed, extended or replaced, the “Lease”), demising to Tenant certain properties.
X. Xxxxxx and Tenant entered into an Agreement for Sale of Real Estate and Master Lease Amendments dated November 5, 2003 (as the same may have been heretofore amended, amended and restated, supplemented, modified, renewed, extended or replaced, the “Sale/Amendment Agreement”).
X. Xxxxxx and Tenant desire to amend the Lease as it applies to the Leased Properties on the terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the parties hereby agree as follows:
1. Capitalized Terms. All capitalized terms used herein and not defined herein shall have the meaning ascribed thereto in the Lease.
2. New Section 40.18.1. Section 40.18.1 of the Lease is hereby deleted in its entirety and replaced with the following:
“Section 40.18.1 If this Lease is combined pursuant to Section 40.18 with any other lease of any Master Lease Leased Property(ies), and this Lease is the Section 40.18 Lease, each Master Lease Leased Property included in the Second Lease shall, following such combination, be a part of, and re-join, the Renewal Group of the same number as was applicable to such Master Lease Leased Property as of December 11, 2003, as set forth as of such date in Exhibit D to this Lease.
3. New Exhibit D. Exhibit D to the Lease is hereby amended and restated in its entirety to read as set forth in Attachment 1 to this Agreement.
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4. Exhibit A Amendments. Tenant and Lessor hereby further amend the Lease in the manner provided in Exhibit A attached hereto and made a part hereof.
5. No Other Amendments. Except as provided in this Agreement, the Lease remains in full force and effect without modification.
6. Successors and Assigns. This Agreement and the covenants and agreements herein contained shall be binding upon and inure to the benefit of Lessor and Tenant and their respective heirs, devisees, successors and assigns.
7. Integrated Agreement; Modifications; Waivers. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes any and all prior representations, understandings and agreements, whether written or oral, with respect to such subject matter. Each of the parties hereto acknowledges that it has not relied upon, in entering into this Agreement, any representation, warranty, promise or condition not specifically set forth in this Agreement. No supplement, modification or waiver of any provision of this Agreement shall be binding unless executed in writing by the party to be bound thereby. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
8. Headings and Captions. The headings and captions of the paragraphs of this Agreement are for convenience of reference only and shall not affect the meaning or interpretation of this Agreement or any provision hereof.
9. Gender and Number. As used in this Agreement, the neuter shall include the feminine and masculine, the singular shall include the plural, and the plural shall include the singular, except where expressly provided to the contrary.
10. Severability. In the event that any paragraph, section, sentence, clause or phrase contained in this Agreement becomes or is held by any court of competent jurisdiction to be illegal, null or void or against public policy, the remaining paragraphs, sections, sentences, clauses or phrases contained in this Agreement shall not be affected thereby.
11. Counterparts. This Agreement and any amendment to this Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto were upon the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed these presents the day and year first above written.
| TENANT: | ||
| KINDRED HEALTHCARE, INC., a Delaware corporation formerly known as Vencor, Inc. | ||
| By: |
/s/ Xxxxxx Xxxxxxxxxx | |
| Name: |
Xxxxxx Xxxxxxxxxx | |
| Title: |
Vice President of Corporate Legal Affairs and Corporate Secretary | |
| TENANT: | ||
| KINDRED HEALTHCARE OPERATING, INC., a Delaware corporation formerly known as Vencor Operating, Inc. | ||
| By: |
/s/ Xxxxxx Xxxxxxxxxx | |
| Name: |
Xxxxxx Xxxxxxxxxx | |
| Title: |
Vice President of Corporate Legal Affairs and Corporate Secretary | |
| LESSOR: | ||||
| VENTAS REALTY, LIMITED PARTNERSHIP, a Delaware limited partnership | ||||
| By: | Ventas, Inc., a Delaware corporation, its general partner | |||
| By: |
/s/ T. Xxxxxxx Xxxxx | |||
| T. Xxxxxxx Xxxxx, Executive Vice President, General Counsel and Secretary | ||||
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Acknowledgments
| STATE OF KENTUCKY | ) | |
| ) | ||
| COUNTY OF JEFFERSON | ) |
This 5th day of December 2003, personally came before me Xxxxx Xxxxxxxx, a Notary Public in and for said County and State, Xxxxxx Xxxxxxxxxx, who being by me duly sworn, says that he is the Vice President of Corporate Legal Affairs and Corporate Secretary of KINDRED HEALTHCARE, INC., a Delaware corporation, and that the seal affixed to the foregoing instrument in writing is the corporate seal of said corporation, and that said writing was signed and sealed by him on behalf of such corporation by its authority duly given. And the said Vice President of Corporate Legal Affairs and Corporate Secretary acknowledged the said writing to be the act and deed of said corporation.
WITNESS my hand and notarial stamp/seal this 5th day of December, 2003.
| /s/ Xxxxx Xxxxxxxx |
| Notary Public |
| My Commission Expires: |
| March 22, 2004 |
| [Notarial Stamp/Seal] |
| STATE OF KENTUCKY | ) | |
| ) | ||
| COUNTY OF JEFFERSON | ) |
This 5th day of December, 2003, personally came before me Xxxxx Xxxxxxxx, a Notary Public in and for said County and State, Xxxxxx Xxxxxxxxxx, who being by me duly sworn, says that he is the Vice President of Corporate Legal Affairs and Corporate Secretary of KINDRED HEALTHCARE OPERATING, INC., a Delaware corporation, and that the seal affixed to the foregoing instrument in writing is the corporate seal of said corporation, and that said writing was signed and sealed by him on behalf of such corporation by its authority duly given. And the said Vice President of Corporate Legal Affairs and Corporate Secretary acknowledged the said writing to be the act and deed of said corporation.
WITNESS my hand and notarial stamp/seal this 5th day of December, 2003.
| /s/ Xxxxx Xxxxxxxx |
| Notary Public |
| My Commission Expires: |
| March 22, 2004 |
| [Notarial Stamp/Seal] |
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| STATE OF KENTUCKY | ) | |
| ) | ||
| COUNTY OF JEFFERSON | ) |
This 11th day of December, 2003, personally came before me Xxxx X. Xxxxx, a Notary Public in and for said County and State, T. Xxxxxxx Xxxxx, who being by me duly sworn, says that he is the Executive Vice President, General Counsel and Secretary of VENTAS, INC., a Delaware corporation, in its capacity as the general partner of VENTAS REALTY, LIMITED PARTNERSHIP, a Delaware limited partnership, and that the seal affixed to the foregoing instrument in writing is the corporate seal of said corporation, and that said writing was signed and sealed by him on behalf of such corporation by its authority duly given, in its aforesaid general partner capacity on behalf of the aforesaid limited partnership. And the said Executive Vice President, General Counsel and Secretary acknowledged the said writing to be the act and deed of said corporation, acting in such general partner capacity.
WITNESS my hand and notarial stamp/seal this 11th day of December, 2003.
| /s/ Xxxx X. Xxxxx |
| Notary Public |
| My Commission Expires: |
| March 28, 2005 |
| [Notarial Stamp/Seal] |
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CONSENT
The undersigned hereby consents to the terms of the foregoing instrument.
JPMORGAN CHASE BANK (formerly THE CHASE MANHATTAN BANK, successor by merger to XXXXXX GUARANTY TRUST COMPANY OF NEW YORK), as administrative agent and Collateral Agent under that certain $120,000,000 credit agreement, dated as of April 20, 2001, as amended, and as administrative agent and Collateral Agent under that certain $300,000,000 credit agreement, dated as of April 20, 2001, as amended
| By: | /s/ Xxxxx X. Xxx, III | |
| Name: | Xxxxx X. Xxx, III | |
| Title: |
Managing Director | |
| STATE OF NEW YORK | ) | |
| ) | ||
| COUNTY OF NEW YORK | ) |
This 5th day of December, 2003, personally came before me Xxxxxxxxxx X. Xxxxxxxx, a Notary Public in and for said County and State, Xxxxx X. Xxx, III, who being by me duly sworn, says that he is the Managing Director of JPMORGAN CHASE BANK, a New York banking corporation, and that the seal affixed to the foregoing instrument in writing is the corporate seal of said corporation, and that said writing was signed and sealed by him on behalf of such corporation by its authority duly given. And the said Managing Director acknowledged the said writing to be the act and deed of said corporation.
WITNESS my hand and notarial stamp/seal this 5th day of December, 2003.
| /s/ Xxxxxxxxxx X. Xxxxxxxx |
| Notary Public |
| My Commission Expires: |
| June 30, 2006 |
| [Notarial Stamp/Seal] |
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Exhibit A
Additional Amendments to Lease
Lessor and Tenant hereby further amend the Lease in the following respects:
| (a) | Section 1.3.5 of the Lease is hereby amended by deleting therefrom the reference to “Lessor” and substituting in its place a reference to “Ventas, Inc.”. |
| (b) | The definition of “Master Lease Leased Properties” contained in Section 2.1 of the Lease is hereby amended and restated in its entirety as follows: ““Master Lease Leased Properties”: The Leased Properties under Amended and Restated Master Lease Agreement No. 3 dated as of the Effective Date and entered into by Ventas Realty, Limited Partnership and Tenant, exclusive of any Leased Properties that, pursuant to Section 40.17 below or the corresponding section of such Amended and Restated Master Lease Agreement No. 3 or of any New Lease derived, directly or indirectly, therefrom, are transferred into a New Master Lease in accordance with the requirements of any such Section 40.17.” |
| (c) | The definition of “Medicaid” contained in Section 2.1 of the Lease is hereby amended by deleting therefrom the reference to “XVIII” and substituting in its place a reference to “XIX”. |
| (d) | The definition of “Tax Refund Escrow Agreement” contained in Section 2.1 of the Lease is hereby amended by deleting therefrom the reference to “Lessor” and substituting in its place a reference to “Ventas Realty, Limited Partnership.” |
| (e) | The penultimate sentence of Section 6.2 of the Lease is hereby amended by deleting therefrom the words “disposed of in accordance” and substituting in their place the words “dispose of the same in accordance”. |
| (f) | The second sentence of Section 22.1 of the Lease is hereby amended and restated in its entirety as follows: “Lessor has heretofore approved the Leasehold Mortgages dated April 20, 2001 securing the Tenant Senior Secured Notes and the Exit Financing, provided that such approval shall not constitute an agreement by Lessor to be bound by the terms of any such Leasehold Mortgage.” |
| (g) | The last sentence of Section 25.1.11 of the Lease is hereby amended and restated in its entirety as follows: “To the extent that any of the Master Lease Leased Properties are the subject of a New Lease derived, directly or indirectly, from Amended and Restated Master Lease Agreement No. 3, Tenant shall continue to have the right to assign or sublet such Master Lease Leased Properties upon compliance with this Section 25.1.11 or the corresponding section of such New Lease, as applicable, but such right to assign or sublet, whether under Section 25.1.11 of Amended and Restated Master Lease Agreement No. 3 or the |
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| corresponding section of any and all New Leases derived, directly or indirectly, from Amended and Restated Master Lease Agreement No. 3, shall never exceed ten percent (10%) in the aggregate of the nursing centers included within the Master Lease Leased Properties or two (2) hospitals included within the Master Lease Leased Properties.” |
| (h) | Article XXVI of the Lease is hereby amended by adding thereto the following new Section 26.4: “Section 26.4 Non-Ventas Lessors. Notwithstanding anything to the contrary contained in this Article XXVI, if and for so long as the lessor under this Lease is not a Ventas Lessor, Tenant (a) shall not be required under this Lease to provide to such non-Ventas Lessor Facility-specific information related to Facilities or Leased Properties which are not included in this Lease, (b) shall exclude from consolidated facility information that is required under Section 26.1 of this Lease facility information which relates to Facilities or Leased Properties not included in this Lease, and (c) shall continue to be required to provide information relative to Tenant, as opposed to Leased Properties and Facilities, on the same basis as such information is provided to a Ventas Lessor.” |
| (i) | Section 36.1.1 of the Lease is hereby amended by deleting therefrom the reference to “general partner” and substituting in its place a reference to “Affiliate.” |
| (j) | Section 40.14(i)(D) of the Lease is hereby amended by deleting therefrom the reference to “Lessor” and substituting in its place a reference to “Ventas, Inc. or Lessor.” |
| (k) | Section 40.15(a)(xi) of the Lease is hereby amended and restated in its entirety as follows: “If the New Lease relates to a single Leased Property, the New Lease shall provide that (1) because, for example, such New Lease may thereafter be amended by agreement of Lessor and Tenant to include one or more other leased properties or such New Lease may thereafter be combined with a Second Lease pursuant to Section 40.18 of such new Lease, with such New Lease as the Section 40.18 Lease, Lessor and Tenant under such New Lease have, in creating such New Lease as a “New Lease” under Section 40.15 of one of the other Combined Leases, nevertheless retained in such New Lease references to multiple Leased Properties and provisions and terms that apply to multiple Leased Properties and (2) without limitation of and subject to Sections 16.10, 19.1, 25.1.11 and 40.18 of such New Lease and all other leases demising any of the Master Lease Leased Properties, for so long as such New Lease relates to a single Leased Property, the aforesaid references to multiple Leased Properties, and the aforesaid provisions and terms applicable to multiple Leased Properties, shall, if the context so requires in light of such New Lease relating to only a single Leased Property, be treated as references to a single Leased Property or as provisions and terms applicable to a single Leased Property”. |
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ATTACHMENT 1
EXHIBIT D
Renewal Groups
Master Lease #3
| Facility ID |
Name |
City |
State |
Lease Expiration Date |
Renewal Group Number | |||||||
| 1 | 4644 | Kindred Hospital Brea | Orange County | CA | April 30, 2008 | #1 | ||||||
| 2 | 000 | Xxxxxxxxxxx Xxxx Xxxxxx | Xxxxxxxxxxx | XX | April 30, 2008 | #1 | ||||||
| 3 | 000 | Xxxx Xxxxx Xxxxxxxxxx Xxxxxx | Xxxxxxxxx | XX | April 30, 2008 | #1 | ||||||
| 4 | 000 | Xxxxxxxx Xxxx Xxxxxx | Xxxxxxxx | XX | April 30, 2008 | #1 | ||||||
| 5 | 219 | Xxxxxx Rehabilitation and Healthcare | Emmett | ID | April 30, 2008 | #1 | ||||||
| 6 | 453 | Medford Rehab. & Healthcare Centre | Medford | OR | April 30, 2008 | #1 | ||||||
| 7 | 461 | Edmonds Rehab. & Healthcare Ctr. | Edmonds | WA | April 30, 2008 | #1 | ||||||
| 8 | 000 | Xxxxxxxxx Xxxx Xxxxxx | Xxxxxx | XX | April 30, 2008 | #1 | ||||||
| 9 | 230 | Crosslands Rehab. & Health Care Ctr. | Sandy | UT | April 30, 2008 | #1 | ||||||
| 10 | 4876 | Kindred Hospital - South Florida - Hollywood | Hollywood | FL | April 30, 2008 | #2 |
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| Facility ID |
Name |
City |
State |
Lease Expiration Date |
Renewal Group Number | |||||||
| 11 | 155 | Savannah Rehab. & Nursing Center | Savannah | GA | April 30, 2008 | #2 | ||||||
| 12 | 645 | Specialty Care of Marietta | Marietta | GA | April 30, 2008 | #2 | ||||||
| 13 | 547 | Xxxxxx Rehabilitation & Living Center | Brewer | ME | April 30, 2008 | #2 | ||||||
| 14 | 824 | Rehab. & Healthcare Ctr. Of Mobile | Mobile | AL | April 30, 2008 | #2 | ||||||
| 15 | 000 | Xxxxxxx Xxxxx. & Xxxxxxx Xxxxxx | Xxxxxxx | XX | April 30, 2008 | #2 | ||||||
| 16 | 4688 | Kindred Hosp. – Boston | Boston | MA | April 30, 2013 | #3 | ||||||
| 17 | 4675 | Kindred Hosp. – Detroit | Detroit | MI | April 30, 2013 | #3 | ||||||
| 18 | 000 | Xxxxx Xxxxxxx Xxxxxx Xxxxxx | Xxxxxx | XX | April 30, 2013 | #3 | ||||||
| 19 | 506 | Presentation Nursing & Rehab. Ctr. | Brighton | MA | April 30, 2013 | #3 | ||||||
| 20 | 514 | Sachem Nursing & Rehab. Ctr. | East Bridgewater | MA | April 30, 2013 | #3 | ||||||
| 21 | 539 | Xxxxxx and Wellesley Alzheimer Ctr. | Wellesley | MA | April 30, 2013 | #3 | ||||||
| 22 | 544 | Augusta Rehabilitation Center | Augusta | ME | April 30, 2013 | #3 | ||||||
| 23 | 4673 | Kindred Hosp. – Boston Northshore | Peabody | MA | April 30, 2010 | #4 | ||||||
| 24 | 4662 | Kindred Hosp. – Greensboro | Greensboro | NC | April 30, 2010 | #4 | ||||||
| 25 | 4647 | Kindred Hospital - Las Vegas (Sahara Campus) | Las Vegas | NV | April 30, 2010 | #4 | ||||||
| 26 | 563 | Camelot Nursing & Rehab. Center | New London | CT | April 30, 2010 | #4 |
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| Facility ID |
Name |
City |
State |
Lease Expiration Date |
Renewal Group Number | |||||||
| 27 | 568 | Parkway Pavilion Healthcare | Enfield | CT | April 30, 2010 | #4 | ||||||
| 28 | 000 | Xxxxx Xxxxxxx | Xxxxxxxxx | XX | April 30, 2010 | #4 | ||||||
| 29 | 554 | Westgate Manor | Bangor | ME | April 30, 2010 | #4 | ||||||
| 30 | 000 | Xxxxxxxxx Xxxxx. & Xxxxxxxxxx Xxx. | Xxxxxx | XX | April 30, 2010 | #4 | ||||||
| 31 | 143 | Raleigh Rehab. & Healthcare Center | Raleigh | NC | April 30, 2010 | #4 | ||||||
| 32 | 307 | Lincoln Nursing Center | Lincoln | NC | April 30, 2010 | #4 | ||||||
| 33 | 713 | Guardian Care of Zebulon | Zebulon | NC | April 30, 2010 | #4 | ||||||
| 34 | 4635 | Kindred Hosp. - San Antonio | San Antonio | TX | April 30, 2010 | #4 | ||||||
| 35 | 4660 | Kindred Hosp. – Mansfield | Mansfield | TX | April 30, 2010 | #4 | ||||||
| 36 | 269 | Meadowvale Health & Rehab. Ctr. | Bluffton | IN | April 30, 2010 | #4 | ||||||
| 37 | 694 | Wedgewood Healthcare Center | Clarksville | IN | April 30, 2010 | #4 | ||||||
| 38 | 000 | Xxxxxx xx Xxxxxxx Xxxxxxx Xxxxxx | Xxxxxxx | XX | April 30, 2010 | #4 | ||||||
| 39 | 000 | Xxxxxxxxx Xxxxx Xxxxxx Xxxx | Xxxxxxx | XX | April 30, 2010 | #4 | ||||||
| 40 | 782 | Danville Centre for Health & Rehab. | Danville | KY | April 30, 2010 | #4 | ||||||
| 41 | 1237 | Wyomissing Nsg. & Rehab. Ctr. | Reading | PA | April 30, 2010 | #4 | ||||||
| 42 | 773 | Mt. Carmel Medical & Rehab. Ctr. | Burlington | WI | April 30, 2010 | #4 | ||||||
| 43 | 774 | Mt. Carmel Medical & Rehab Ctr. | Milwaukee | WI | April 30, 2010 | #4 |
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