CMBS MASTER LEASE 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 FINANCE I, LLC
EXHIBIT 10.86
CMBS MASTER LEASE 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 FINANCE I, LLC
CMBS MASTER LEASE AMENDMENT AGREEMENT
THIS CMBS MASTER LEASE AMENDMENT AGREEMENT (hereinafter this “Agreement”) is dated as of the 11th day of December, 2003, and is by and among VENTAS FINANCE I, LLC, a Delaware limited liability company (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 Ventas Realty, Limited Partnership, a Delaware limited partnership (“VRLP”) entered into a certain Master Lease Agreement dated as of December 12, 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.
B. VRLP assigned all of its right, title, and interest in and to the Lease to Lessor pursuant to that certain Assignment and Assumption Agreement (CMBS Master Lease) dated as of December 12, 2001 by and between Lessor and Tenant.
C. VRLP 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”).
D. Immediately prior hereto and pursuant to the Sale/Amendment Agreement, Lessor and Tenant entered into a certain Master Lease Partial Lease Termination Agreement bearing even date herewith (the “Partial Lease Termination”), pursuant to which the Lease was terminated as it applied to a certain property.
X. Xxxxxx and Tenant desire to amend the Lease as it applies to the remaining Leased Properties, after the aforesaid termination, 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. Base Rent and Current Rent Amendments. Relative to the definitions of “Base Rent” and “Current Rent” contained in Section 2.1 of the Lease, Lessor and Tenant agree that
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the Base Rent and Current Rent for the Leased Properties remaining under the Lease after the termination referenced in the Partial Lease Termination shall, for the period from December 12, 2003 through April 30, 2004, be equal to Thirty Two Million Eight Hundred Ninety Five Thousand Four Hundred Four and 88/100 Dollars ($32,895,404.88) per annum, and, for Rent Calculation Years thereafter, Base Rent and Current Rent shall be determined as set forth in subsection (d) of the definition of “Base Rent” or subsection (b) of the definition of “Current Rent”, as applicable, contained in such Section 2.1, in each case subject to the provisions of such definitions relative to the Reset Option and to the provisions of Article XIX relative to the amount of the Base Rent and Current Rent during Extended Terms.
3. New Exhibit C. Effective as of December 12, 2003, Exhibit C to the Lease shall be amended and restated in its entirety to read as set forth in Attachment 1 to this Agreement.
4. New Exhibit D. Exhibit D to the Lease is hereby amended and restated in its entirety to read as set forth in Attachment 2 to this Agreement.
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
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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 FINANCE I, LLC, a Delaware limited liability company | ||||
| By: | Ventas Finance I, Inc., its sole member | |||
| 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 Xxxxxx Xxxxxxx, 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 Senior 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/ Xxxxxx Xxxxxxx |
| Notary Public |
My Commission Expires:
December 19, 2006
[Notarial Stamp/Seal]
| STATE OF KENTUCKY | ) | |
| ) | ||
| COUNTY OF JEFFERSON | ) |
This 5th day of December, 2003, personally came before me Xxxxxx Xxxxxxx, 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/ Xxxxxx Xxxxxxx |
| Notary Public |
My Commission Expires:
December 19, 2006
[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 FINANCE I, INC., a Delaware corporation, in its capacity as the sole member of VENTAS FINANCE I, LLC, a Delaware limited liability company, 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 sole member capacity on behalf of the aforesaid limited liability company. 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 sole member 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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ATTACHMENT 1
Exhibit C
Allocation Schedule – Applicable Transferred Property Percentages
| Facility ID |
Facility Name |
Base Rent Commencing May 1, 2003 |
Percentage of Master Lease Commencing December 10, 2003 | |||
| 112 |
Royal Oaks Healthcare & Rehab Ctr. | 1,319,634.96 | 4.0116% | |||
| 000 |
Xxxxxxxxx Xxxxxx & Xxxxx Xxxxxx | 1,102,998.72 | 3.3530% | |||
| 137 |
Sunnybrook Alzheimer’s & HC Spec. | 383,336.57 | 1.1653% | |||
| 000 |
Xxxx Xxxxx Xxxxx. & Healthcare Ctr. | 465,370.75 | 1.4147% | |||
| 150 |
Nob Hill Healthcare Center | 2,285,147.73 | 6.9467% | |||
| 000 |
Xxxxxxx Xxxxx Xxxx Xxxxxx | 1,153,736.14 | 3.5073% | |||
| 167 |
Canyonwood Nursing & Rehab. Ctr. | 733,987.95 | 2.2313% | |||
| 180 |
Vancouver Healthcare & Rehab. Ctr. | 686,047.19 | 2.0855% | |||
| 000 |
Xxxxxxx Xxxxxx Xxxxx & HC Center | 698,473.92 | 2.1233% | |||
| 190 |
Winston-Salem Rehab & HC Center | 498,323.86 | 1.5149% | |||
| 221 |
Lewiston Rehabilitation & Care Ctr. | 360,665.24 | 1.0964% | |||
| 000 |
Xx. Xxxxxx Care and Rehab. Center | 1,048,878.71 | 3.1885% | |||
| 000 |
Xxxxxxxxxx Xxxxxx for Health/Rehab. | 1,207,539.29 | 3.6708% | |||
| 286 |
Columbia Healthcare Facility | 898,749.16 | 2.7321% | |||
| 335 |
Xxxxxx Healthcare Center | 898,599.30 | 2.7317% | |||
| 406 |
Muncie Health Care & Rehab. | 1,368,308.61 | 4.1596% | |||
| 482 |
Wind River Healthcare & Rehab Ctr. | 682,650.55 | 2.0752% | |||
| 483 |
Sage View Care Center | 430,184.56 | 1.3077% | |||
| 501 |
Blue Hills Alzheimer’s Care Center | 624,334.08 | 1.8979% | |||
| 000 |
Xxxxxx Xxxxx Nursing Home | 963,279.90 | 2.9283% | |||
| 537 |
Quincy Rehab. & Nursing Center | 777,100.86 | 2.3623% | |||
| 000 |
Xxxxxxxx Xxxxx Health Care Center | 533,335.84 | 1.6213% | |||
| 000 |
Xxxxxxxxxx Xxxxx Xxx. & Rehab. Ctr. | 681,728.46 | 2.0724% | |||
| 000 |
Xxxxx Xxxx Xxxxx. & Living Center | 1,381,453.41 | 4.1995% | |||
| 000 |
Xxxxxxxxx Xxxx Healthcare | 1,249,502.67 | 3.7984% | |||
| 000 |
Xxxxxx Xxxxx. & Nursing Center | 812,060.63 | 2.4686% | |||
| 591 |
Dover Rehab. & Living Center | 1,053,896.88 | 3.2038% | |||
| 000 |
Xxxxxxx Xxxxxxx Healthcare | 509,229.40 | 1.5480% | |||
| 635 |
Coshocton Health & Rehab. Center | 490,165.25 | 1.4901% | |||
| 000 |
Xxxxxxx Xxxxxxx Xxxxx. & Xxx. Ctr. | 1,065,862.32 | 3.2402% | |||
| 660 |
Savannah Specialty Care Center | 601,716.15 | 1.8292% |
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| Facility ID |
Facility Name |
Base Rent Commencing May 1, 2003 |
Percentage of Master Lease Commencing December 10, 2003 | |||
| 704 |
Guardian Care of Roanoke Rapids | 630,683.91 | 1.9172% | |||
| 707 |
Rehab. & Nursing Center of Monroe | 642,923.62 | 1.9544% | |||
| 724 |
Rehab. & Health Center of Gastonia | 634,838.07 | 1.9299% | |||
| 775 |
Sheridan Medical Complex | 576,338.47 | 1.7520% | |||
| 776 |
Woodstock Health & Rehab. Center | 442,883.29 | 1.3463% | |||
| 000 |
Xxxxxxxxx Xxxxxx Xxxxx. & HC Ctr. | 1,213,464.22 | 3.6889% | |||
| 000 |
Xxxxx Xxxxxx Xxxxx. & Healthc. Ctr. | 653,914.66 | 1.9879% | |||
| 884 |
Masters Health Care Center | 1,134,060.23 | 3.4475% | |||
| Total | 32,895,405.53 | 100.0000% | ||||
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ATTACHMENT 2
EXHIBIT D
Renewal Groups
CMBS Portfolio
| Facility ID |
Name |
City |
State |
Lease Expiration Date |
Renewal Group Number | |||||||
| 1 |
406 | Muncie Health Care & Rehab. | Muncie | IN | April 30, 2008 | #11 | ||||||
| 2 |
000 | Xxxxxxxxxx Xxxxxx xxx Xxxxxx/Xxxxx. | Xxxxxxxxxx | XX | April 30, 2008 | #11 | ||||||
| 3 |
635 | Coshocton Health & Rehab. Ctr. | Coshocton | OH | April 30, 2008 | #11 | ||||||
| 4 |
482 | Wind River Healthcare & Rehab Ctr. | Riverton | WY | April 30, 2008 | #11 | ||||||
| 5 |
704 | Guardian Care of Roanoke Rapids | Roanoke Rapids | NC | April 30, 2008 | #11 | ||||||
| 6 |
167 | Canyonwood Nursing & Rehab. Ctr. | Redding | CA | April 30, 2008 | #11 | ||||||
| 7 |
000 | Xx. Xxxxxx Xxxx xxx Xxxxx. Xxxxxx | Xx. Xxxxxx | XX | April 30, 2008 | #11 | ||||||
| 8 |
180 | Vancouver Healthcare & Rehab. Ctr. | Vancouver | WA | April 30, 2008 | #11 | ||||||
| 9 |
112 | Royal Oaks Healthcare & Rehab Ctr. | Terre Haute | IN | April 30, 2013 | #12 | ||||||
| 10 |
000 | Xxxx Xxxxx Xxxxx. & Xxxxxxxxxx Xxx. | Xxxxxxxxx | XX | April 30, 2013 | #12 | ||||||
| 11 |
724 | Rehab. & Health Center of Gastonia | Gastonia | NC | April 30, 2013 | #12 |
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| Facility ID |
Name |
City |
State |
Lease Expiration Date |
Renewal Group Number | |||||||
| 12 |
655 | Federal Heights Rehab. & Nsg. Ctr. | Salt Lake City | UT | April 30, 2013 | #12 | ||||||
| 13 |
000 | Xxxx Xxxx Xxxx Xxxxxx | Xxxx Xxxxxxx | XX | April 30, 2013 | #12 | ||||||
| 14 |
000 | Xxxxxx Xxxxx Xxxxxxx Xxxx | Xxxxxxxxxxx | XX | April 30, 2013 | #12 | ||||||
| 15 |
591 | Dover Rehab. & Living Center | Dover | NH | April 30, 2013 | #12 | ||||||
| 16 |
113 | Southwood Health & Rehab Center | Terre Haute | IN | April 30, 2010 | #13 | ||||||
| 17 |
286 | Columbia Healthcare Facility | Evansville | IN | April 30, 2010 | #13 | ||||||
| 18 |
000 | Xxxxxxx-Xxxxx Xxxxx & XX Xxxxxx | Xxxxxxx-Xxxxx | XX | April 30, 2010 | #13 | ||||||
| 19 |
000 | Xxxxxxxx Xxxxx Xxxxxx Xxxx Xxxxxx | Xxxxxxxx | XX | April 30, 2010 | #13 | ||||||
| 20 |
000 | Xxxxxxxxxx Xxxxx Xxx. & Rehab. Ctr. | Canal Winchester | OH | April 30, 2010 | #13 | ||||||
| 21 |
884 | Masters Health Care Center | Algood | TN | April 30, 2010 | #14 | ||||||
| 22 |
000 | Xxxx Xxxxx Xxxxxxxxxx Xxxx Xxxxxx | Xxxxxxxxx | XX | April 30, 2010 | #13 | ||||||
| 23 |
537 | Quincy Rehab. & Nursing Center | Quincy | MA | April 30, 2010 | #13 | ||||||
| 24 |
000 | Xxxxx Xxxx Xxxxx. & Living Center | South Xxxxxx | MA | April 30, 2010 | #13 | ||||||
| 25 |
581 | Blueberry Hill Healthcare | Beverly | MA | April 30, 2010 | #13 | ||||||
| 26 |
593 | Hanover Terrace Healthcare | Hanover | NH | April 30, 2010 | #13 | ||||||
| 27 |
000 | Xxx Xxxx Xxxxxxxxxx Xxxxxx | Xxx Xxxxxxxxx | XX | April 30, 2010 | #14 | ||||||
| 28 |
000 | Xxxxxx Xxxxxxxxxx Xxxxxx | Xxx Xxxxxxxxx | XX | April 30, 2010 | #14 | ||||||
| 29 |
000 | Xxxxxx Xxxxx. & Xxxxxxx Xxxxxx | Xxxxxxx | XX | April 30, 2010 | #13 | ||||||
| 30 |
137 | Sunnybrook Alzheimers & HC Spec. | Raleigh | NC | April 30, 2010 | #14 | ||||||
| 31 |
000 | Xxxxxxx Xxxxxx Xxxxx & XX Xxxxxx | Xxxxxxxxxx | XX | April 30, 2010 | #14 |
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| Facility ID |
Name |
City |
State |
Lease Expiration Date |
Renewal Group Number | |||||||
| 32 |
707 | Rehab. & Nursing Center of Monroe | Monroe | NC | April 30, 2010 | #14 | ||||||
| 33 |
000 | Xxxxxxxxx Xxxxxx Xxxxx. & XX Xxx. | Xxxxxxx | XX | April 30, 2010 | #14 | ||||||
| 34 |
829 | River Pointe Rehab. & Healthc. Ctr. | Virginia Beach | VA | April 30, 2010 | #14 | ||||||
| 35 |
000 | Xxxxxxx Xxxxx Xxxx Xxxxxx | Xxxxxxxx | XX | April 30, 2010 | #13 | ||||||
| 36 |
000 | Xxxxxxxx Xxxxxxxxxxxxxx & Xxxx Xxx. | Xxxxxxxx | XX | April 30, 2010 | #14 | ||||||
| 37 |
660 | Savannah Specialty Care Center | Savannah | GA | April 30, 2010 | #14 | ||||||
| 38 |
000 | Xxxxxxxx Xxxxxxx Xxxxxxx | Xxxxxxx | XX | April 30, 2010 | #14 | ||||||
| 39 |
000 | Xxxxxxxxx Xxxxxx & Xxxxx. Xxxxxx | Xxxxxxx | XX | April 30, 2010 | #14 |
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