FIRST AMENDMENT TO AMENDED AND RESTATED MASTER LEASE AGREEMENT
Exhibit 10.4
FIRST AMENDMENT TO AMENDED AND RESTATED
THIS FIRST AMENDMENT TO AMENDED AND RESTATED MASTER LEASE AGREEMENT ("Amendment") is dated as of July 16, 2001 (the "Effective Date") among HEALTH CARE REIT, INC., a corporation organized under the laws of the State of Delaware ("HCRI" and a "Landlord"), HCRI NORTH CAROLINA PROPERTIES, LLC, a limited liability company organized under the laws of the State of Delaware ("HCRI-NC" and a "Landlord"), HCRI TENNESSEE PROPERTIES, INC., a corporation organized under the laws of the State of Delaware ("HCRI-TN" and a "Landlord"), and HCRI TEXAS PROPERTIES, LTD., a limited partnership organized under the laws of the State of Texas ("HCRI-TX" and a "Landlord"), each Landlord having its principal office located at Xxx XxxXxxx, Xxxxx 0000, X.X. Xxx 0000, Xxxxxx, Xxxx 00000-0000, and ALTERRA HEALTHCARE CORPORATION, a corporation organized under the laws of the State of Delaware ("Tenant"), having its chief executive office located at 00000 Xxxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx 00000.
A. Landlord and Tenant entered into an Amended and Restated Master Lease Agreement dated effective as of July 1, 2001 (the "Lease").
B. Landlord and Tenant desire to amend the Lease to include four additional Facilities located in Valparaiso, Indiana and Vero Beach, Florida (the "Additional Facilities") and as otherwise set forth herein.
1. Definitions. Any capitalized terms not defined in this Amendment shall have the meaning set forth in the Lease.
2. §1.4 of the Lease is hereby amended to add the following:
"Earnout Amount" means $250,000.00.
3. Effective Date. The definition of Effective Date in §1.4 of the Lease is hereby amended to read in its entirety as follows:
"Effective Date" means the date of this Amendment as set forth in the first paragraph hereof.
4. Lease Advance. The definition of Lease Advance in §1.4 of the Lease is hereby amended to read in its entirety as follows:
"Lease Advance" means [i] the Initial Lease Advance; [ii] the Lease Advance by Landlord to Tenant of even date of $12,750,000.00; [iii] the advance (if any) of the Earnout Amount made pursuant to §2.8; or [iv] any other advance of funds by Landlord to Tenant pursuant to the term of this Lease.
5. Lease Rate. The definition of Lease Rate in §1.4 of the Lease is hereby amended to add the following:
Notwithstanding anything to the contrary set forth in this definition of Lease Rate, commencing on the Effective Date of this Amendment, the Lease Rate for the remainder of the Initial Term is 10.72%.
6. Earnout Disbursement. Article 2 of the Lease is hereby amended to add the following §2.8:
2.8 Earnout Disbursement. If Tenant achieves an Additional Facility Coverage Ratio (hereinafter defined) of not less than 1.30 to 1.00 for eight consecutive quarters during the first four years of the Initial Term (including, if applicable, quarters prior to the commencement of the Initial Term), as evidenced by financial statements satisfactory to Landlord and provided that the Allocated Lease Amount for the Additional Facilities after payment of the Earnout Payment is less than ninety percent (90%) of the appraisal value of the Additional Facilities, Landlord shall disburse the Earnout Amount to Tenant upon Tenant's satisfaction of the following disbursement requirements: [i] Tenant shall pay all of Landlord's reasonable out-of-pocket expenses, including, without limitation, attorneys' fees and expenses, incurred in connection with the Earnout Amount disbursement; [ii] no uncured Event of Default exists under this Lease and no event has occurred which, with the giving of notice, the passage of time or both, would constitute an Event of Default; and [iii] no material adverse change in the condition of Landlord or the Leased Property exists. For purposes of this §2.8 only, the Additional Facility Coverage Ratio shall be determined in the same manner as the Portfolio Coverage Ratio (defined in §15.7.1(c)) except all references to Portfolio shall be deleted and shall be replaced with Additional Facilities in both §15.7.1(b) and (c). For purposes of this §2.8, the calculation of the Additional Facility Coverage Ratio shall be made as if the Earnout Amount was included in the Lease Amount at the commencement of the period of 16 consecutive quarters for which the calculation is being made. Landlord shall not be obligated to disburse the Earnout Amount if Tenant does not satisfy the foregoing disbursement requirements within six months after the Additional Facility Coverage Ratio requirement has been satisfied.
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7. Repairs. Article 2 of the Lease is hereby amended to add the following §2.9:
a. Roof Repair Escrow. Tenant acknowledges that there are certain roof repairs and other miscellaneous repairs (collectively "Repairs") required at Alterra Sterling House of Valparaiso and Alterra Clare Bridge Cottage at Valparaiso (collectively "Valparaiso Facilities"). Tenant agrees to cause the seller of the Valparaiso Facilities to escrow $150,000.00 ("Escrow Amount") of the proceeds from the sale of the Valparaiso Facilities at the time of the Landlord's purchase of the Valparaiso Facilities.
b. Budget. As soon as possible but in no event later than 30 days after the Effective Date of this Amendment, Tenant shall provide Landlord with a budget setting forth the total cost for the Repairs of the Valparaiso Facilities, together with a construction contract for the Repairs. Upon approval of the budget and the construction contract, Landlord shall release as much of the Escrow Amount as is necessary to retain 125% of the cost of the Repairs in escrow ("Amended Escrow Amount"). c. Disbursement of Amended Escrow Amount. Landlord may make disbursements of the Amended Escrow Amount from time to time as repairs progress, but shall not be obligated to disburse more frequently than once in each calendar month and shall not be obligated to disburse until at least five Business Days following receipt of all documentation required for such disbursement. d. Documents Required for Disbursement. Prior to the disbursement of any Amended Escrow Amount, Tenant shall have provided Landlord with the following: [i] budget; [ii] construction contract; [iii] disbursement voucher; and [iv] sworn statements, waivers of lien or such other documents as may be required to ensure Landlord that there are no mechanics liens. e. Disbursement of Remaining Funds. Landlord shall not be obligated to make any disbursement except from the Amended Escrow Amount. In the event that all costs for the Repairs have been paid and upon the earlier of [i] a sufficient amount of time passing to ensure that there are no mechanics liens; or [ii] Landlord receiving the appropriate lien waivers under Indiana law to release any and all mechanics liens, Landlord shall disburse any funds remaining in the Amended Escrow Amount to Tenant.-3-
8. Commitment Fee. Article 2 of the Lease is hereby amended to add the following §2.9:
2.9 Commitment Fee. On the Effective Date of this Amendment, Tenant shall pay a commitment fee to Landlord of $127,500.00.
9. Representations and Warranties. Article 22 of the Lease is hereby amended to make all representations and warranties effective as of the Effective Date.
10. Legal Description. Exhibit A of the Lease is hereby amended by the addition of Exhibit A-37 through Exhibit A-39 hereto.
11. Permitted Exceptions. Exhibit B of the Lease is hereby amended by the addition of Exhibit B-37 through Exhibit B-39 hereto.
12. Facility Information. Exhibit C of the Lease is hereby amended to read in its entirety as set forth on Exhibit C hereto.
13. Government Authorizations; Zoning Permits. Exhibit G of the Lease is hereby amended by the addition of those items set forth on Exhibit G hereto.
14. Affirmation. Except as specifically modified by this amendment, the terms and provisions of the Lease are hereby affirmed and shall remain in full force and effect.
15. Binding Effect. This Amendment will be binding upon and inure to the benefit of the successors and permitted assigns of Landlord and Tenant.
16. Further Modification. The Lease may be further modified only by writing signed by Landlord and Tenant.
17. Counterparts. This Amendment may be executed in multiple counterparts, each of which shall be deemed an original hereof, but all of which will constitute one and the same document.
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Signed and acknowledged in the presence of: |
HEALTH CARE REIT, INC. |
Signature /s/ Xxxx X. Xxxxx |
By: /s/ Xxxx X. Xxxxx |
Print Name Xxxx X. Xxxxx |
Title: Vice President and Corporate Secretary |
Signature /s/ Xxxxxxxx X. Stick |
|
Print Name Xxxxxxxx X. Stick |
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HCRI NORTH CAROLINA PROPERTIES, LLC |
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By: Health Care REIT, Inc. Member |
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Signature /s/ Xxxx X. Xxxxx |
By: /s/ Xxxx X. Xxxxx |
Print Name Xxxx X. Xxxxx |
Title: Vice President and Corporate Secretary |
Signature /s/ Xxxxxxxx X. Stick |
|
Print Name Xxxxxxxx X. Stick |
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HCRI TENNESSEE PROPERTIES, INC. |
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Signature /s/ Xxxx X. Xxxxx |
By: /s/ Xxxx X. Xxxxx |
Print Name Xxxx X. Xxxxx |
Title: Vice President and Corporate Secretary |
Signature /s/ Xxxxxxxx X. Stick |
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Print Name Xxxxxxxx X. Stick |
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HCRI TEXAS PROPERTIES, LTD. |
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By: Health Care REIT, Inc. |
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General Partner |
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Signature /s/ Xxxx X. Xxxxx |
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Print Name Xxxx X. Xxxxx |
By: /s/ Xxxx X. Xxxxx |
Title: Vice President and Corporate Secretary |
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Signature /s/ Xxxxxxxx X. Stick |
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Print Name Xxxxxxxx X. Stick |
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ALTERRA HEALTHCARE CORPORATION |
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Signature /s Xxxxx Xxxxx |
By: /s/ Xxxxxxx X. Xxxxx |
Print Name Xxxxx Xxxxx |
Title: Vice President |
Signature /s/ Xxxx Xxxxxx |
|
Print Name /s/ Xxxx Xxxxxx |
TAX I.D. No.: 00-0000000 |
S-1
STATE OF OHIO )
) SS:
COUNTY OF XXXXX )
The foregoing instrument was acknowledged before me this 16th day of July, 2001 by Xxxx X. Xxxxx, the Vice President and Corporate Secretary of Health Care REIT, Inc., a Delaware corporation, on behalf of the corporation.
/s/ Xxxx X. Xxxxx
Notary Public
My Commission Expires: [SEAL]
STATE OF OHIO )
) SS:
COUNTY OF XXXXX )
The foregoing instrument was acknowledged before me this 16th day of July, 2001 by Xxxx X. Xxxxx, the Vice President and Corporate Secretary of Health Cre REIT, Inc., a Delaware corporation and the sole member of HCRI North Carolina Properties, LLC, a limited liability company organized under the laws of the State of Delaware on behalf of the limited liability company.
/s/ Xxxx X. Xxxxx
Notary Public
My Commission Expires: [SEAL]
STATE OF OHIO )
) SS:
COUNTY OF XXXXX )
The foregoing instrument was acknowledged before me this 16th day of July, 2001 by Xxxx X. Xxxxx, the Vice President and Corporate Secretary of HCRI Tennessee Properties, Inc., a corporation organized under the laws of the State of Delaware on behalf of the corporation.
/s/ Xxxx X. Xxxxx
Notary Public
My Commission Expires: [SEAL]
S-2
STATE OF OHIO )
) SS:
COUNTY OF XXXXX )
The foregoing instrument was acknowledged before me this 16th day of July, 2001 by Xxxx X. Xxxxx, the Vice President and Corporate Secretary of Health Care REIT, Inc., a Delaware corporation and the general partner of HCRI Texas Properties, Ltd., a limited liability partnership organized under the laws of the State of Texas on behalf of the limited partnership. organized under the laws of the State of Delaware on behalf of the corporation.
/s/ Xxxx X. Xxxxx
Notary Public
My Commission Expires: [SEAL]
STATE OF WISCONSIN )
) SS:
COUNTY OF MILWAUKEE)
The foregoing instrument was acknowledged before me this 14th day of July, 2001 by Xxxxxxx X. Xxxxx, the Vice President of Alterra Healthcare Corporation, a Delaware corporation, on behalf of the corporation.
/s/ X. X. Xxxxxx
Notary Public
THIS INSTRUMENT PREPARED BY:
Xxxxxx X. Xxxx, Esq.
Xxxxxxxx, Loop & Xxxxxxxx, LLP
0000 Xxxxxxx
Xxxxxx, Xxxx 00000
S-3
EXHIBIT C: FACILITY INFORMATION
|
Allocated Lease |
Facility Type (per license) |
|
Facility Name/Address |
Amount |
Beds/Units |
|
1. |
Clare Bridge of Bradenton |
$3,550,000 |
Assisted Living 40 beds 34 units |
|
|
|
|
2. |
Clare Bridge of Sarasota |
$3,650,000 |
Assisted Living |
|
|
|
|
3. |
Sterling House of Ponca City |
$1,650,000 |
Assisted Living |
|
|
|
|
4. |
Sterling House of Norman |
$1,539,000 |
Assisted Living |
|
|
|
|
5. |
Sterling House of Lawton |
$1,600,000 |
Assisted Living 42 beds 42 units |
|
|
|
|
6. |
Sterling House of Bartlesville |
$1,480,000 |
Assisted Living 39 beds 39 units |
|
|
|
|
7. |
Sterling House of Xxxx |
$1,480,000 |
Assisted Living 39 beds 39 units |
|
|
|
|
8. |
Sterling House of Stillwater |
$1,480,000 |
Assisted Living 39 beds 39 units |
|
|
|
|
9. |
Sterling House of Shawnee |
$1,480,000 |
Assisted Living |
|
|
|
|
10. |
Sterling House of Midwest City |
$1,480,000 |
Assisted Living |
|
|
|
|
11. |
Sterling House of Claremore |
$1,582,500 |
Assisted Living |
|
|
|
|
12. |
Sterling House of Waxahachie |
$1,582,500 |
Assisted Living |
|
|
|
|
13. |
Sterling House of Palestine |
$1,582,500 |
Assisted Living |
|
|
|
|
14. |
Sterling House of Muskogee |
$1,582,500 |
Assisted Living 43 beds 43 units |
|
|
|
|
15. |
Sterling House of Owasso |
$1,595,000 |
Assisted Living |
|
|
|
|
16. |
Sterling House of Texarkana |
$1,595,000 |
Assisted Living |
|
|
|
|
17. |
Sterling House of N. Oklahoma City 0000 X.X. 000xx Xxxxxx X. Xxxxxxxx Xxxx, XX 00000 Oklahoma County |
$1,595,000 |
Assisted Living 43 beds 43 units |
|
|
|
|
18. |
Sterling House of Chickasha 000 Xxxxxxx Xxxx Xxxx Xxxxxxxxx, XX 00000 Xxxxx County |
$1,480,000 |
Assisted Living 39 beds 39 units |
|
|
|
|
19. |
Sterling House of Desoto 000 X. Xxxxxxxx Xxx Xxxxxx, XX 00000 Xxxxxx Xxxxxx |
$1,595,000 |
Assisted Living 60 beds 50 units |
|
|
|
|
20. |
Sterling House of Oklahoma City 0000 X.X. 00xx Xxxxxx Xxxxxxxx Xxxx, XX 00000 Oklahoma County |
$1,480,000 |
Assisted Living 39 beds 39 units |
|
|
|
|
21. |
Sterling House of Xxxxxx 000 Xxxxx Xxxx Xxxxxx, XX 00000 Xxxxxxxx County |
$1,450,000 |
Assisted Living 39 beds 39 units |
|
|
|
|
22. |
Sterling House of Cedar Hill 000 X. Xxxxxxxx Xxxx Xxxxx Xxxx, XX 00000 Xxxxxx Xxxxxx |
$1,661,000 |
Assisted Living 60 beds 50 units |
|
|
|
|
23. |
Sterling House of Findlay 000 Xxx Xxx Xxxx Xxxxxxx, XX 00000 Xxxxxxx County |
$2,000,000 |
Assisted Living 37 beds 37 units |
|
|
|
|
24. |
Sterling House of Troy 00 X. Xxxxxxxxx Xxxx Xxxx, XX 00000 Xxxxx Xxxxxx |
$2,200,000 |
Assisted Living 37 beds 37 units |
|
|
|
|
25. |
Sterling House of Georgetown 0000 Xxxxxxxxxx Xxxxx X Xxxxxxxxxx, XX 00000 Xxxxxxxxxx County |
$2,300,000 |
Assisted Living 54 beds 54 units |
|
|
|
|
26. |
Sterling House of Piqua 0000 X. Xxxx Xxxxxx Xxxxx, XX 00000 Xxxxx Xxxxxx |
$2,120,000 |
Assisted Living 37 beds 37 units |
|
|
|
|
27. |
Sterling House of Clarksville 0000 Xxxxxxxx Xxxxx Xxxxxxxxxxx, XX 00000 Xxxxxxxxxx Xxxxxx |
$2,622,279 |
Assisted Living 49 beds 49 units |
|
|
|
|
28. |
Sterling House of Canton 0000 Xxxxx Xxxxx X.X. Xxxxxx, XX 00000 Xxxxx County |
$2,398,100 |
Assisted Living 42 beds 42 units |
|
|
|
|
29. |
Clare Bridge of Oklahoma City 00000 Xxxxxx Xxxxx Xxxxxxxx Xxxx, XX 00000 Oklahoma County (Still in retainage) |
$3,200,000 |
Assisted Living 38 beds 34 units |
|
|
|
|
30. |
Sterling House of N. Augusta 000 X. Xxxxx Xxxxx X. Xxxxxxx, XX 00000 Xxxxx Xxxxxx |
$2,890,000 |
Assisted Living 52 beds 52 units |
|
|
|
|
31. |
Clare Bridge of Salem 0000 Xxxxx Xxxx X.X. Xxxxx, XX 00000 Xxxxxx County |
$5,620,298 |
Assisted Living 60 beds 60 units |
|
|
|
|
32. |
Clare Bridge of Asheville 0 Xxxxxx Xxxxx Xxxxx Xxxxxxxxx, XX 00000 Xxxxxxxx Xxxxxx |
$3,692,675 |
Assisted Living 38 beds 34 units |
|
|
|
|
33. |
Sterling House of Columbia 0000 Xxxxxxxx Xxxxxx Xxxxxxxx, XX 00000 Xxxxx Xxxxxx |
$2,635,620 |
Assisted Living 49 beds 49 units |
|
|
|
|
34. |
Clare Bridge of Wilmington 0000 Xxxxxxxx Xxxxx Xxxxxxxxxx, XX 00000 |
$3,200,939 |
Assisted Living 38 beds 34 units |
|
|
|
|
35. |
Clare Bridge of Everett 0000 Xxxx Xxxxxxx Xxxxx Xxxxxxx, XX 00000 Xxxxxxxxx Xxxxxx |
$6,876,202 |
Assisted Living 52 beds 46 units |
|
|
|
|
36. |
Sterling House of Edmond 000 X. Xxxxxxxx Xxxx Xxxxxx, XX 00000 Xxxxxxxx Xxxxxx |
$1,739,000 |
Assisted Living 43 beds 43 units |
|
|
|
|
37. |
Sterling House of Valparaiso 0000 Xxxxxxxxxx Xx. Xxxxxxxxxx, XX 00000 Xxxxxx Xxxxxx |
$2,670,000 |
Residential Care 42 beds 42 units |
|
|
|
|
38. |
Alterra Clare Bridge Cottage of Valparaiso 0000 Xxxxxxxxxx Xx. Xxxxxxxxxx, XX 00000 Xxxxxx Xxxxxx |
$3,070,000 |
Residential Care 36 beds 32 units |
|
|
|
|
39. |
Alterra Sterling House of Vero Beach 000 0xx Xxxxx Xxxx Xxxxx, XX 00000 Indian River County |
$3,560,000 |
Residential Care 42 beds 42 units |
|
|
|
|
40. |
Alterra Clare Bridge Cottage of Vero Beach 000 0xx Xxxxx Xxxx Xxxxx, XX 00000 Indian River County |
$3,450,000 |
Residential Care 36 beds 32 units |
|
|
|
|
TOTAL |
$94,415,113 |
|