EXHIBIT: 10.43.2
FIRST AMENDMENT TO MASTER LEASE,
AFFIRMATION OF GUARANTY AND
CONSENT TO TRANSFER
THIS FIRST AMENDMENT TO MASTER LEASE, AFFIRMATION OF GUARANTY AND
CONSENT TO TRANSFER (the "FIRST AMENDMENT") is made as of September 12, 2003 by
and among ALS LEASING, INC., a Delaware corporation, and ASSISTED LIVING
PROPERTIES, INC., a Kansas corporation (collectively, "TENANT") and JER/NHP
SENIOR LIVING ACQUISITION, LLC, a Delaware limited liability company, JER/NHP
SENIOR LIVING TEXAS, L.P., a Texas limited partnership, JER/NHP SENIOR LIVING
WISCONSIN, LLC, a Delaware limited liability company, and JER/NHP SENIOR LIVING
KANSAS, INC., a Kansas corporation (collectively, "LANDLORD") and ALTERRA
HEALTHCARE CORPORATION, a Delaware corporation ("GUARANTOR").
R E C I T A L S:
A. Landlord and Tenant have entered into that certain Master Lease
dated as of April 9, 2002 (the "MASTER LEASE"), pursuant to which Landlord
leases to Tenant the Premises described therein. Initially capitalized terms
used but not otherwise defined in this First Amendment shall have the meanings
given to them in the Master Lease.
B. Pursuant to the Master Lease and that certain Letter of Credit
Agreement dated as of April 9, 2002 (the "LC AGREEMENT") by and between Landlord
and Tenant, Tenant has posted one or more letters of credit with Landlord as
partial collateral for the performance of Tenant's obligations under the Master
Lease.
C. Pursuant to that certain Guaranty of Master Lease and Letter of
Credit Agreement dated as of April 9, 2002 (the "GUARANTY") executed by
Guarantor, as guarantor, in favor of Landlord, as beneficiary, Guarantor has
guarantied the obligations of Tenant under the Master Lease. Pursuant to that
certain Stock Pledge Agreement dated as of April 9, 2002 (the "PLEDGE
AGREEMENT") by and between Guarantor, as pledgor, and Landlord, as secured
party, Guarantor has pledged to Landlord the capital stock of each entity
comprising Tenant as security for the performance by Tenant under the Master
Lease and the performance by Guarantor under the Guaranty.
D. Pursuant that certain Memorandum of Understanding dated as of
April 9, 2002 (the "MOU" (the Master Lease, the LC Agreement, the MOU and all
other documents executed by Tenant in connection therewith or incorporated or
referenced therein are collectively referred to herein as the "LEASE DOCUMENTS",
and the Guaranty, the Pledge Agreement and the MOU and all other documents
executed by Guarantor in connection therewith or incorporated or referenced
therein are collectively referred to herein as the "GUARANTY DOCUMENTS"))
executed by Guarantor, Tenant and Landlord, the parties hereto and thereto
established certain understandings with respect to the Master Lease and the
Guaranty.
E. As of the date hereof, Guarantor is a debtor in possession in a
case (Case No. 03-10254 (MFW)) (including any later bankruptcy proceeding of
Tenant procedurally
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consolidated therewith, the "BANKRUPTCY PROCEEDING") commenced under chapter 11
of Title 11 of the United States Code (the "BANKRUPTCY CODE"), which case is
presently pending before the United States Bankruptcy Court for the District of
Delaware (the "BANKRUPTCY COURT"). It is currently contemplated that FEBC-ALT
Acquisition, Inc., a Delaware corporation (the "PURCHASER"), shall be merged
with and into Guarantor (the "TRANSFER") pursuant to the terms of the Agreement
and Plan of Merger dated July 18, 2003 by and among FEBC-ALT Investors, Inc.,
FEBC-ALT Acquisition Inc. and the Guarantor Guarantor's First Amended Plan of
Reorganization of Alterra Healthcare Corporation dated July 28, 2003 (as such
plan may later be amended, supplemented or otherwise modified, the "PLAN"). Each
entity comprising Tenant is prior to the Transfer a wholly owned subsidiary and
an Affiliate of Guarantor, and shall remain immediately following the
effectiveness of the Transfer a wholly owned subsidiary and an Affiliate of
Guarantor as the surviving entity under the Transfer (the "SURVIVING ENTITY").
F. Landlord, Tenant and Guarantor desire, among other things, to
amend the Lease Documents and to make certain other representations, warranties
and covenants, all as more particularly set forth in this First Amendment.
A G R E E M E N T
NOW, THEREFORE, taking into account the foregoing Recitals, and in
consideration of the mutual covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. AMENDMENTS TO LEASE DOCUMENTS.
(a) MINIMUM OCCUPANCY. Clause (i) of Section 7.1(b) of the Master
Lease is hereby amended and restated in its entirety as follows:
"(i) commencing as of June 30, 2004, to be less than forty
percent (40%) of the applicable number of beds or living units, as
applicable, shown on Schedule 2, for more than four (4) individual
Facilities at any time that the Coverage Ratio for the immediately
preceding calendar quarter was less than 1.0:1.0; provided that (x)
the Disposition Facilities (as defined below) shall not be
considered, and (y) the Coverage Ratio for purposes of this clause
(i) shall be calculated as if (i) the Disposition Facilities were
not a part of the Premises in calculating Portfolio EBITDARM, and
(ii) Portfolio Rent Expense were reduced by an amount equal to the
reduction of Minimum Rent that would result from subtracting the
Target Purchase Price for each of the Excluded Facilities from
Landlord's Investment and recalculating Minimum Rent in accordance
with Section 2.2(b), or"
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(b) NONCOMPLIANCE. Section 7.1(c) of the Master Lease is hereby
amended and restated in its entirety as follows:
"(c) Intentionally Omitted."
(c) COVERAGE RATIO. Section 7.4 of the Master Lease is hereby
amended and restated in its entirety as follows:
"7.4 DEFINITION OF COVERAGE RATIO. As used in Section 7 and
elsewhere in this Master Lease, "COVERAGE RATIO" shall mean the
ratio of (i) Portfolio EBITDARM to (ii) Portfolio Rent Expense."
(d) CERTAIN EVENTS OF DEFAULT. Clauses (i) and (ii) of Section
12(b) of the Master Lease are each hereby amended and restated in their
entirety as follows:
"(b) (i) the failure to perform or comply with the provisions
of, or a breach or default under, Section 7.2 (together with the
events described in Section 12(c), each a "LOSS OF LICENSURE"); (ii)
the closure of any material portion of the Business;"
(e) CERTAIN CROSS DEFAULTS.
(i) Clause (ii) of Section 12(d) of the Master Lease is
hereby amended and restated in its entirety as follows:
"(ii) any other lease, agreement or obligation between
it and Landlord or any of its Affiliates (excluding
Nationwide Health Properties, Inc. ("NHP")) which is not
cured within any applicable cure period specified
therein,".
(ii) Clause (iii) of Section 12(d) of the Master Lease is
hereby amended and restated in its entirety as follows:
"(iii) [intentionally omitted]".
(f) SALE OF CERTAIN FACILITIES; REDUCTION IN RENT. The following
is hereby added to and made a part of the Master Lease as Section 27
thereof:
"27. SALE OF CERTAIN FACILITIES; REDUCTION IN RENT. Pursuant
to this Section 27, at the request of Tenant, Landlord agrees to use
commercially reasonable efforts as described herein, provided that
Tenant use its commercially reasonable efforts to assist and
cooperate with Landlord in such regard (but Landlord shall control
such process and any actions by Tenant in connection therewith shall
be subject to Landlord's prior reasonable approval to ensure
coordination), to sell the four (4) Disposition Facilities
identified in accordance with the procedure set forth in Section
27.1, and Landlord and Tenant agree that, concurrently with the
closing of any such sale, this Master Lease shall be terminated as
to the applicable Disposition Facility. Landlord's obligation to
market or sell any Disposition Facility under this Section 27 shall
terminate and be of no force or effect during the continuance of any
material Event of Default.
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27.1 DISPOSITION FACILITIES. As used herein, "DISPOSITION
FACILITY" shall refer to four (4) of the Facilities described below,
which shall be the Facility located at Lower Makefield, PA ("LOWER
MAKEFIELD"), which shall be sold pursuant to the letter of intent
dated August 4, 2003, and three (3) of the remaining of the
Facilities listed below, to be identified by Tenant by written
notice (the "DISPOSITION FACILITY ID NOTICE") thereof to Landlord
delivered not later than March 30, 2004 (and the failure of Tenant
to timely deliver a Disposition Facility ID Notice in compliance
with this Section 27.1 shall terminate the rights of Tenant under
this Section 27 except with respect to Lower Makefield). As used
herein, (i) the "LENDER RELEASE PRICE" with respect to each
potential Disposition Facility shall be the price indicated as the
Lender Release Price set forth below next to such Facility, (ii) the
"TARGET PURCHASE PRICE" with respect to each potential Disposition
Facility shall be the price indicated as the Target Purchase Price
set forth below next to such Facility plus, in each case, the net
book value of the Tenant Personal Property allocable to such
Disposition Facility, and (iii) the "MINIMUM PURCHASE PRICE" shall
be the greater of (x) the Lender Release Price and (y) the price at
which the Coverage Ratio as calculated based on such price
immediately following such sale on a pro forma basis, for the prior
three (3) month period, would be one hundred one percent (101%) of
the Coverage Ratio as calculated immediately prior to such sale.
Landlord shall not be required to sell any Disposition Facility for
less than the applicable Minimum Purchase Price unless it so agrees
in its sole and absolute discretion.
Disposition Facility Target Purchase Price Lender Release Price
-------------------- --------------------- --------------------
Ft. Xxxxx, FL $4,425,000 $3,330,000
Ocala, FL $2,437,000 $1,210,000
Tampa, FL $2,700,000 $ 370,000
Farmington Hills, MI $4,000,000 $2,500,000
Lower Makefield, PA $2,000,000 $ 0
Lancaster, TX $1,900,000 $1,240,000
Bethany, OK $1,324,000 $ 600,000
27.2 MARKETING PERIOD. Commencing on the later to occur of
(i) Landlord's timely receipt of the Disposition Facility ID Notice,
and (ii) the Effective Date (as defined below) and continuing until
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September 30, 2004 (the "MARKETING PERIOD"), Landlord and Tenant
shall use their respective reasonable commercial efforts to market
and sell each of the potential Disposition Facilities in accordance
with this Section 27. In the event that during the Marketing Period,
through the efforts of Tenant or otherwise, Landlord is presented
with an offer to sell a Disposition Facility for an amount equal to
or in excess of the applicable Minimum Purchase Price and otherwise
in accordance with this Section 27 prior to expiration of the
Marketing Period, in the form of a fully executed non-binding letter
of intent, term sheet or similar instrument for the purchase and
sale of the applicable Disposition Facility in form acceptable to
Landlord in its reasonable discretion (a "BONA FIDE OFFER"),
Landlord shall take commercially reasonable efforts to enter into a
purchase and sale agreement for such sale, in form and substance
reasonably acceptable to Landlord and Tenant, prior to the
expiration of the Marketing Period, and consummate such sale in
accordance with such purchase and sale agreement prior to the date
that is sixty (60) days after the expiration of the Marketing
Period. However, in no event shall Landlord be obligated to market
any Disposition Facility or otherwise take any action to sell any
Disposition Facility after the expiration of the Marketing Period,
except for the consummation of any sale within a reasonable period
of time after Marketing Period, not to exceed, sixty (60) days that
is subject as of the expiration of the Marketing Period to a fully
executed purchase and sale agreement with a deposit not less than
five percent (5%) of the applicable actual purchase price, which
deposit shall become nonrefundable no later than thirty (30) days
after the execution of the purchase and sale agreement. Such
purchase and sale agreement shall, upon expiration of the Marketing
Period, not be subject to any unexpired study or feasibility period
or due diligence-type termination right, nor any financing or other
open-ended closing condition that expires beyond thirty (30) days
after the execution of the purchase and sale agreement, but may be
subject to reasonable and customary closing conditions such as
insurable title, no material casualty, licensing and no material
condemnation in form and substance reasonably acceptable to
Landlord.
27.3 TERMS OF SALE. In no event shall Landlord be obligated
to sell any Disposition Facility at any time (a) if, as a condition
to such sale, Landlord would be required to make any
representations, warranties, indemnifications, obligations or
agreements to the buyer or any other third party concerning any
aspect of the real or personal property comprising such Disposition
Facility or the business of the Tenant conducted thereon (and Tenant
shall make any commercially reasonable representations warranties,
indemnifications, obligations or agreements to the buyer or other
appropriate third party with respect
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thereto) or any other representations or warranties other than
customary and reasonable representations (which shall not survive
more than one year from the date of closing) regarding Landlord's
existence, good standing and authority to enter into the sale
transaction or (b) otherwise on terms, conditions and provisions
that are not reasonably acceptable to Landlord. In the event that
Landlord receives multiple offers for any Disposition Facility,
Landlord shall be free, in its commercially reasonable discretion,
to select the final Bona Fide Offer from among such multiple offers.
27.4 CLOSING COSTS; APPLICATION OF PROCEEDS. Tenant shall pay
or reimburse Landlord for all reasonable transaction and closing
costs incurred by Landlord in selling any Disposition Facility in
accordance with the terms of this Section 27, provided that Tenant
shall have approved, in the exercise of its commercially reasonable
discretion, the amount of any commission in connection with such
sale to be paid to any broker or agent engaged by Landlord. All of
the proceeds from the sale of any Disposition Facility shall be paid
to and retained by Landlord, provided that the portion of such
proceeds allocable to any Tenant Personal Property shall be paid to
and retained by Tenant.
27.5 RETENTION OPTION. Landlord has the right (the "RETENTION
OPTION"), but not the obligation, exercisable in its sole and
absolute discretion, at any time there is no Bona Fide Offer in
effect, to elect by express written notice to Tenant (the "RETENTION
NOTICE"), to terminate its obligation to use commercially reasonable
efforts to sell one or more of the Disposition Facilities pursuant
to this Section 27 and to retain ownership of such Disposition
Facility. This Master Lease shall terminate as to such Disposition
Facility on the date chosen by Landlord, which shall be the sixtieth
(60th) day after such Retention Notice (or such earlier date as
Landlord may designate and which shall be subject to change from
time to time upon notice by Landlord provided that termination of
the Master Lease occurs on or before such sixtieth (60th) day). Upon
such termination date, (a) the Landlord's Investment shall be
reduced by an amount equal to the Target Purchase Price, and (b)
Minimum Rent shall be recalculated and reset in accordance with
Section 2.2(b) based upon the reduction of the Landlord's Investment
in accordance with the immediately preceding clause (a). The
Retention Option is not intended to require termination of the
Master Lease in the event Landlord does not receive any offer to
sell the Disposition Facility for an amount equal to a greater than
its applicable Minimum Purchase Price by a Bona Fide Offer prior to
the expiration of the Marketing Period, in which event Landlord may
retain such Disposition Facility and the Master Lease shall remain
in
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full force and effect with respect to such Disposition Faculty
without modification of the Landlord's Investment or the Minimum
Rent. At the request of Landlord, Tenant shall operate the
applicable Disposition Facility after the termination of this Master
Lease following the exercise of the Retention Option for a
management fee equal to five percent (5%) of the gross revenues from
such Disposition Facility and otherwise in accordance with a
management agreement on market terms reasonably acceptable to both
Landlord and Tenant. The term of such management agreement shall be
one (1) year, and shall automatically renew for successive one (1)
year periods unless either party provides written notice of
termination at least thirty (30) days prior to the expiration of the
then current term. Landlord may terminate any such management
agreement upon ten (10) days prior notice to Tenant in connection
with the sale or lease of such Disposition Facility, or entering
into management agreement with a third party with respect to such
Disposition Facility.
27.6 ADJUSTMENT TO LANDLORD'S INVESTMENT; MODIFICATION OF
MASTER LEASE. Concurrently with the closing of any sale of any
Disposition Facility pursuant to this Section 27 or the termination
of this Master Lease with respect to any Disposition Facility
pursuant to Section 27, (a) Landlord's Investment shall be reduced
by an amount equal to the lesser of (i) the applicable Target
Purchase Price (regardless of any higher price or net proceeds that
may be actually received by Landlord) and (ii) the actual net
proceeds received by Landlord, if less than the Target Purchase
Price (provided that Landlord shall not consummate any sale if the
actual net proceeds received by Landlord is less than the applicable
Minimum Purchase Price unless both Landlord and Tenant, each in
their sole and absolute discretion, elect to enter into such sale
transaction), (b) Minimum Rent shall be recalculated and reset in
accordance with Section 2.2(b) based upon the reduction of the
Landlord's Investment in accordance with the immediately preceding
clause (a), and (c) such Disposition Facility shall be removed from,
and shall no longer be a part of, the Premises, with the Master
Lease being deemed amended mutatis mutandis to reflect such
removal."
(g) NOTICE ADDRESSES.
(1) The notice address for Tenant set forth in Section 21 of
the Master Lease is hereby amended and restated in its entirety
as follows:
c/o Alterra Healthcare Corporation
_________________________________
_________________________________
_________________________________
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Attention:_______________________
Fax No.__________________________
With a copy to:
_________________________________
_________________________________
_________________________________
Attention:_______________________
Fax No.__________________________
(2) The notice address for the first-listed counsel to
Landlord set forth in Section 21 of the Master Lease is hereby
amended and restated in its entirety as follows:
Xxxxxx Xxxxxxxxx Xxxxxx & Xxxxxx LLP
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax No. (000) 000-0000
(h) EFFECT OF AMENDMENT. Except as specifically amended pursuant
to the terms of this First Amendment, the terms and conditions of the
Lease Documents shall remain unmodified and in full force and effect. In
the event of any inconsistencies between the terms of this First Amendment
and any terms of the Lease Documents, the terms of this First Amendment
shall govern and prevail.
2. AFFIRMATION OF LEASE DOCUMENTS AND GUARANTY DOCUMENTS.
(a) Each entity comprising Tenant hereby acknowledges and
affirms its obligations under the Lease Documents (as modified hereby),
and further represents and warrants that the Lease Documents are the valid
and binding obligations of Tenant and are in full force and effect and are
fully enforceable by Landlord against Tenant in accordance with their
respective terms. Each entity comprising Tenant specifically acknowledges
and affirms that, except as expressly modified by this First Amendment,
its obligations under the Lease Documents shall not be diminished or
otherwise affected by this First Amendment and shall not be released,
discharged, terminated or otherwise diminished in whole or in part as a
result of the Bankruptcy Proceeding, and further agrees that it shall take
no actions and shall oppose any actions by third parties in the Bankruptcy
Proceeding that would result in the release, discharge, termination or
other diminution of any obligation of the Tenant thereunder.
(b) Guarantor hereby acknowledges and affirms its obligations
under the Guaranty Documents, and further represents and warrants that the
Guaranty Documents are the valid and binding obligations of Guarantor and
are in full force and effect and are fully enforceable by Landlord against
Guarantor in accordance with their respective
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terms. Guarantor specifically acknowledges and affirms that, except as
expressly modified by this First Amendment, its obligations under the
Guaranty Documents shall not be diminished or otherwise affected by this
First Amendment and shall not be released, discharged, terminated or
otherwise diminished in whole or in part as a result of the Bankruptcy
Proceeding, and further agrees that it shall take no actions and shall
oppose any actions by third parties in the Bankruptcy Proceeding that
would result in the release, discharge, termination or other diminution of
any obligation of the Guarantor thereunder, in each case whether such
result is achieved under the Plan or under an successor or replacement
chapter 11 plan. Guarantor hereby further represents and warrants that,
upon entry of the Approval Order (as defined in the Stipulation referred
to below), the Guaranty Documents will be the valid and binding
obligations of the Surviving Entity and shall be in full force and effect
and fully enforceable by Landlord against the Surviving Entity in
accordance with their respective terms. Guarantor further agrees that any
reference made in the Guaranty Documents to the Lease Documents or any
terms or conditions contained therein, shall mean such Lease Documents or
such terms or conditions as modified by this First Amendment.
3. ACKNOWLEDGMENT OF DEFAULT; WAIVER OF SETOFF, COUNTERCLAIM.
(a) The Events of Default and other defaults described in this
paragraph are collectively referred to in this First Amendment as the
"AUGUST 2003 EVENTS OF DEFAULT." The August 2003 Events of Default include
any Events of Default or other defaults arising from (i) the failure to
maintain the Coverage Ratio required under Section 7.4 of the Master Lease
for the quarter ended June 30, 2003, (ii) any mechanic's or materialman's
lien being recorded against the Premises that has, on or before the date
hereof, been released and terminated, (iii) the default arising under the
MOU as a result of the defaults described in the foregoing clauses (i) and
(ii), (iv) any default under the MOU for failure to file and continuously
pursue a Conforming Plan (as defined in the MOU), and (v) a cross default
occurring under the Master Lease dated October 7, 2002 between ALS
Leasing, Inc. and JER/NHP Senior Living Acquisition, LLC or the Master
Lease dated April 9, 2002 between Guarantor and NHP and certain Affiliates
of NHP as a result of the defaults described in the foregoing clauses
(i)-(iv).
(b) Each entity comprising Tenant and Guarantor hereby
acknowledges and agrees that (i) the August 2003 Events of Default have
occurred and are continuing, and (ii) until satisfaction of the conditions
set forth in Section 3(d) of this First Amendment, Landlord's agreement in
Section 3(c) to forbear is not intended as and shall not be construed as a
waiver of the August 2003 Events of Default or any other defaults or
Events of Default, whether now existing or hereafter arising and, except
as specifically provided herein, Landlord's agreement to forbear in no way
impairs Landlord's right to enforce its remedies for the August 2003
Events of Default and any subsequent defaults or Events of Default.
Landlord reserves all such rights and remedies. Each entity comprising
Tenant and Guarantor hereby waives any right of setoff or counterclaim
against Landlord with respect to any rights, claims or defenses it has or
may have with respect to the Lease Documents or Guaranty Documents.
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(c) Subject to the provisions of this Section 3 and other
provisions of this First Amendment, Landlord shall forbear from exercising
its rights and remedies with respect to the August 2003 Events of Default
for a period (the "FORBEARANCE PERIOD") commencing effective as of the
date of the Stipulation (as defined below) and terminating upon the
earlier to occur of the following dates (the "TERMINATION DATE"): (i) the
entry of an order denying the Approval Order (as defined in the
Stipulation); (ii) the date on which occurs any Event of Default or other
default under any of the Lease Documents (including without limitation any
default arising as a cross-default with any of the Guaranty Documents)
other than the August 2003 Events of Default; (iii) the date on which
Tenant or Guarantor breaches any covenant, representation or warranty of
this First Amendment; and (iv) December 31, 2003, if by such date the
Bankruptcy Court has not entered a final order that is no longer subject
to appeal confirming the Amended Plan and the Transfer has not been
consummated and become effective.
(d) Upon satisfaction of the conditions precedent to the
effectiveness of this First Amendment as set forth in Section 5 hereof,
Landlord shall be deemed to have and shall waive the August 2003 Events of
Default and any rights or remedies it may have in connection therewith.
4. CONSENT TO TRANSFER. Upon satisfaction of the conditions
precedent to the effectiveness of this First Amendment as set forth in Section 5
hereof, Landlord shall be deemed to have consented to the Transfer in accordance
with Section 16 of the Master Lease.
5. EFFECTIVENESS OF FIRST AMENDMENT. This First Amendment shall be
deemed effective on the first date (the "EFFECTIVE DATE") upon which each of the
following conditions has occurred, each of which shall be deemed a condition
precedent to the Landlord's obligations and covenants hereunder:
(a) Landlord has obtained all consents and approvals from its
mortgage lender in connection with this First Amendment that Landlord
deems necessary to comply with the terms and conditions of the mortgage
loan secured by the Premises, provided that Landlord shall either (i)
elect in its sole and absolute discretion to waive this condition, or (ii)
obtain all such consents and approvals, in either case on or before
September 24, 2003;
(b) All conditions precedent to the effectiveness of this
First Amendment as set forth in that certain Stipulation between the
parties dated as of September __, 2003 (the "STIPULATION") shall have been
satisfied in accordance with the Stipulation, and Guarantor and Tenant
shall have performed all covenants, conditions and undertakings and
satisfied all other requirements binding on them under the Stipulation in
accordance with the Stipulation;
(c) No Events of Default or other defaults or breaches of the
Lease Documents or the Guaranty Documents, other than the August 2003
Events of Defaults (as defined in the Stipulation) shall have occurred and
be continuing; and
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(d) (i) the Transfer shall have been consummated and closed in
accordance with the Plan, (ii) the Lease Documents and the Guaranty
Documents shall continue to be and shall be the valid and binding
obligations of Tenant and the Surviving Entity, respectively, and shall
continue to be and shall be in full force and effect, enforceable in
accordance with their respective terms by Landlord against Tenant and the
Surviving Entity, respectively, and (iii) the claims of Landlord shall
have been treated as impaired, with the consent of and in accordance with
the consent given by Landlord and with the Plan.
6. FURTHER INSTRUMENTS. Each of the undersigned will, whenever and
as often as it shall be reasonably requested so to do by another party, take all
actions reasonably required and shall cause to be executed, acknowledged or
delivered, any and all such further instruments and documents as may be
necessary or proper, in the reasonable opinion of the requesting party, in order
to carry out the intent and purpose of this First Amendment, including without
limitation modifying or amending the Plan to ensure that the undersigned receive
the full benefit of their respective bargains set forth herein.
7. INCORPORATION OF RECITALS. The Recitals to this First Amendment
are incorporated hereby by reference.
8. ATTORNEYS' FEES. In the event of any dispute or litigation
concerning the enforcement, validity or interpretation of this First Amendment,
or any part thereof, the losing party shall pay all costs, charges, fees and
expenses (including reasonable attorneys' fees) paid or incurred by the
prevailing party, regardless of whether any action or proceeding is initiated
relative to such dispute and regardless of whether any such litigation is
prosecuted to judgment.
9. MISCELLANEOUS. This First Amendment contains the entire agreement
between the parties relating to the subject matters contained herein. Any prior
representations or statements concerning the subject matters herein shall be of
no force or effect. This First Amendment shall be construed as a whole and in
accordance with its fair meaning. Headings are for convenience only and shall
not be used in construing meaning. This First Amendment shall be governed by and
construed in accordance with the internal laws of the State of California
without regard to rules concerning the choice of law. This First Amendment may
be executed in multiple counterparts and in original or by facsimile, each of
which constitute an original, but all of which taken together shall constitute
but one in the same document.
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IN WITNESS WHEREOF, the parties have executed this First Amendment
as of the date first above written.
"TENANT"
ALS LEASING, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxxx
----------------------------
Title: VP
----------------------------
Witness: /s/ Illegible Witness: /s/ Illegible
----------------------- -------------------------
ASSISTED LIVING PROPERTIES, INC.,
a Kansas corporation
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxxx
----------------------------
Title: VP
----------------------------
Witness: /s/ Illegible Witness: /s/ Illegible
----------------------- -------------------------
S-1
"GUARANTOR"
ALTERRA HEALTHCARE CORPORATION,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxxx
----------------------------
Title: President
----------------------------
Witness: /s/ Illegible Witness: /s/ Illegible
----------------------- ----------------------
S-2
"LANDLORD"
JER/NHP SENIOR LIVING ACQUISITION, LLC,
a Delaware limited liability company
By: JER/NHP SENIOR HOUSING, LLC,
a Delaware limited liability company,
its sole member
By: NATIONWIDE HEALTH PROPERTIES, INC.,
a Maryland corporation,
its managing member
By: /s/ Xxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President & General Counsel
Witness: /s/ Illegible Witness: /s/ Illegible
-------------------------- -------------------------
JER/NHP SENIOR LIVING TEXAS, L.P.,
a Texas limited partnership
By: JER/NHP MANAGEMENT TEXAS, LLC,
a Texas limited liability company
its general partner
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Manager
Witness: /s/ Illegible Witness: /s/ Illegible
-------------------------- -------------------------
S-3
JER/NHP SENIOR LIVING WISCONSIN, LLC,
a Delaware limited liability company
By: JER/NHP SENIOR HOUSING, LLC,
a Delaware limited liability company,
its sole member
By: NATIONWIDE HEALTH PROPERTIES, INC.,
a Maryland corporation,
its managing member
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President & General Counsel
Witness: /s/ Illegible Witness: /s/ Illegible
-------------------------- -------------------------
JER/NHP SENIOR LIVING KANSAS, INC.,
a Kansas corporation
By:/s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Secretary and Treasurer
Witness: /s/ Illegible Witness: /s/ Illegible
-------------------------- -------------------------
S-4
