EXHIBIT 10.22
AMENDMENT TO AMS PROPERTIES, INC.
MASTER LEASE DOCUMENT AND FACILITY LEASES
AMENDMENT dated as of October 1, 1994 between HEALTH AND RETIREMENT
PROPERTIES TRUST (known in Wisconsin as "Health and Rehabilitation Properties
REIT"), a real estate investment trust formed under the laws of the State of
Maryland ("HRP") and AMS PROPERTIES, INC., a Delaware corporation ("AMS
Properties")
W I T N E S S E T H:
WHEREAS, HRP, as landlord, and AMS Properties, as tenant, have entered
into a Master Lease Document, General Terms and Conditions dated as of December
28, 1990, as amended (the "Master Lease"), and have also executed Facility
Leases which incorporate by reference the Master Lease (collectively, the
"Facility Leases") relating to the health care facilities described on Exhibit
A-2 to the Master Lease and on Exhibit F-3 to the Acquisition Agreement,
Agreement to Lease and Mortgage Loan Agreement, dated as of December 28, 1990,
as amended (the "Acquisition Agreement"), between HRP, AMS Properties,
HostMasters, Inc., GranCare, Inc. (formerly known as AMS Holding Co.) and
American Medical Services, Inc.;
WHEREAS, HRP and AMS Properties have agreed to amend the Master Lease
and the Facility Leases as hereinafter provided;
NOW, THEREFORE, in consideration of the foregoing, and of other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, HRP and AMS Properties agree as follows:
SECTION 1. AMENDMENTS TO MASTER LEASE
The Master Lease is hereby amended as follows:
(a) Section 3.1.1(b) of the Master Lease is amended in full to
read as follows:
(b) Adjustments of Minimum Rent Following Disbursements under
Renovation Funding Agreement. Effective on the date of each
disbursement made pursuant to the terms of the Renovation Funding
Agreement after September 30, 1994 for the purpose of paying for the
cost of renovations at the applicable Leased Property, each installment
of Minimum Rent under the Lease for such Leased Property shall be
increased, effective on the date of such disbursement, to an amount
equal to the product of (i) a fraction, the numerator of which is the
amount advanced and the denominator of which is twelve (12) multiplied
by (ii) the higher of (x) ten percent (10%) or (y) the quoted yield, on
the date of disbursement, for United States Treasury obligations
maturing on December 31, 2010
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(or the next longest maturity if no maturity on December 31, 2010 is
available) plus four hundred (400) basis points. The computation of
yield shall be made using the information on the date of disbursement
quoted in The Wall Street Journal. If The Wall Street Journal shall not
be available, Landlord shall choose the quotation from another
recognized source. If any such disbursement is made during any calendar
month on a day other than the first day of a calendar month, Tenant
shall pay to Landlord on the first day of the immediately following
calendar month (in addition to the amount of Minimum Rent payable with
respect to such month, as adjusted pursuant to this paragraph (b)) the
amount by which Minimum Rent for the preceding month, as adjusted for
such disbursement, exceeded the amount of Minimum Rent payable by
Tenant for such preceding month without giving effect to such
adjustment.
(b) Section 3.1.2 of the Master Lease is amended in full to read as
follows:
3.1.2 Additional Rent.
Tenant shall pay Landlord additional rent ("Additional Rent")
(a) for the Collective Leased Properties in the amount of $200,000 on
or before December 31, 1995, and (b) for the applicable Leased
Property, in advance on the first day of each calendar month of each
calendar year, commencing January 1, 1996, in an amount equal to the
product of (x) the Minimum Rent for the applicable Leased Property as
at December 31 of the prior year multiplied by (y) seventy-five percent
(75%) of the percentage increase in the Index (as hereinafter defined)
since September 30, 1994 as measured at December 31 of such prior year;
provided that the amount of each monthly installment of Additional Rent
payable for any calendar year may not exceed an amount that, when
aggregated with the monthly installment of Minimum Rent for the
applicable Leased Property for such year, would exceed the sum of the
monthly installments of Minimum Rent and Additional Rent for the
applicable Leased Property for December of the previous year by more
than 2%. As used herein, the term "Index" shall mean the Consumer Price
Index for Urban Wage Earners and Clerical Workers, Boston,
Massachusetts, All Items 1982-1984=100. The Index is presently
published by the Bureau of Labor Statistics of the United States
Department of Labor. In the event publication of the Index ceases, the
computation of the Additional Rent due from Tenant during each year
with respect to which the Index is to be applied shall be computed upon
the basis of whatever index published by the United States Department
of Labor at that time is most nearly comparable as a measure of general
changes in price levels for the Boston area.
SECTION 2. AMENDMENTS TO FACILITY LEASES
The first sentence of Paragraph 6 of the Facility Lease for each Leased
Property is hereby amended to provide that the annual amount of initial Minimum
Rent and the amount of each monthly installment of initial Minimum Rent are the
respective amounts set forth on Schedule 1 hereto.
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SECTION 3. EFFECT ON MASTER LEASE AND FACILITY LEASES
(a) Except as specifically provided above, the Master Lease and the
Facility Leases shall remain in full force and effect and each is hereby
ratified and confirmed.
(b) The amendments set forth herein (i) do not constitute an amendment,
waiver or modification of any term, condition or covenant of the Master Lease or
any Facility Lease, or any of the instruments or documents referred to therein,
other than as specifically set forth herein, and (ii) shall not prejudice any
rights which HRP or its successors and assigns may now or hereafter have under
or in connection with the Master Lease and the Facility Leases, as amended
hereby, or any of the instruments or documents referred to therein.
SECTION 4. EFFECTIVENESS
This Amendment shall become effective as of the date first above
indicated when a counterpart to this Amendment shall have been executed by each
of the parties hereto.
SECTION 5. COSTS, EXPENSES AND TAXES
AMS Properties agrees to pay all costs and expenses of HRP in
connection with the preparation, reproduction, execution and delivery of this
Amendment, including the reasonable fees and expenses of Xxxxxxxx & Worcester,
special counsel to HRP with respect thereto.
SECTION 6. GOVERNING LAW
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL SUBSTANTIVE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS.
SECTION 7. NO LIABILITY OF TRUSTEES
THE DECLARATION OF TRUST OF HRP, DATED OCTOBER 9, 1986, A COPY OF
WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE "DECLARATION"), IS DULY FILED
IN THE OFFICE OF THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF
MARYLAND, PROVIDES THAT THE NAME "HEALTH AND RETIREMENT PROPERTIES TRUST" REFERS
TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOT
INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE
OR AGENT OF HRP SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY,
FOR ANY OBLIGATION OF, OR CLAIM AGAINST, HRP. ALL PERSONS DEALING WITH HRP, IN
ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF HRP FOR THE PAYMENT OF ANY SUM OR THE
PERFORMANCE OF ANY OBLIGATION.
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IN WITNESS WHEREOF, the parties have executed this amendment as a
sealed instrument as of the date first above written.
LANDLORD:
HEALTH AND RETIREMENT
PROPERTIES TRUST,
a Maryland real estate
investment trust
By:/s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: President
TENANT:
AMS PROPERTIES, INC.
By: /s/
Name:
Title:
SCHEDULE 1 TO AMENDMENT
Schedule of Revised Minimum Rent Amounts
Amount of Monthly
Aggregate Yearly Installment of
Facility Name State Minimum Rent Minimum Rent
Flagship CA $ 714,759 $ 59,563.00
Golden Hill CA 458,213 38,184.00
Lancaster CA 585,057 48,755.00
Pacific Gardens CA 802,330 50,194.00
Palm Springs, CA 402,107 33,509.00
Health Care
Tarzana CA 623,338 51,945.00
Thousand Oaks CA 639,036 53,253.00
Van Nuys CA 244,457 20,371.00
Ceders Health Care CO 783,615 65,301.00
Cherrelyn Manor CO 1,017,118 84,760.00
Friendship Manor IL 452,148 37,679.00
Greentree Health WI 317,831 26,486.00
Care
Park Manor WI 635,366 52,947.00
Pine Manor WI 319,471 26,623.00
Sunny Hill Health WI 348,958 29,080.00
Care
The Virginia WI 885,698 72,142.00
Woodland WI 1,535,970 127,998.00
River Hills East WI 773,840 64,487.00
11,539,312 943,277
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