EXHIBIT 10.95
CHEETAH MASTER LEASE AGREEMENT
This Cheetah Master Lease Agreement ("Cheetah Master Lease") is made
by and between Xxxxxx/Xxxxxx Companies, Inc., a Texas corporation
("Xxxxxx/Xxxxxx"), and Living Centers of Texas, Inc., a Delaware corporation
("LCT"), duly authorized to do business in the State of Texas, each acting
herein by and through its duly authorized officers.
RECITALS:
1. Xxxxxx/Xxxxxx, as the Lessor, with LCT, as Lessee, previously
entered into an agreement entitled "Master Lease Agreement" ("Xxxxxx Master
Lease") dated May 20, 1994, and 13 individual lease agreements, each entitled
"Lease Agreement" (individually a "Lease;" and collectively, the "Leases"),
relating to 13 long-term health care centers (collectively, the "Care Centers")
owned by Lessor. Five Leases (the "Cheetah Leases") cover the following Care
Centers: Care Inn of Llano; Care Inn of Sanger; Care Inn of Xxxx; Retama Manor
of Del Rio; and, Care Inn of Seguin (collectively, the "Cheetah Centers").
Eight Leases (the "Xxxxxx Leases") cover the following Care Centers: Care Inn
of Ganado; Care Inn of Gladewater; Xxxxxxxx Xxxxxxx Place; Retama Manor
Victoria South; Victoria Care Inn West; Care Inn of Shamrock; Oak Crest Inn of
New Braunfels; and, Care Inn of San Marcos (collectively, the "Xxxxxx
Centers").
2. Xxxxxx/Xxxxxx, as Lessor, has entered into certain agreements
contemplating the transfer of the Cheetah Centers and the Cheetah Leases to
Cheetah Homes, Ltd., a Texas limited partnership ("Cheetah"), upon the
satisfaction of certain conditions, including, without limitation, the express
written consent of Bank One, Texas, National Association.
3. Concurrent with this Cheetah Master Lease, Xxxxxx/Xxxxxx and
LCT, are entering into amendments to the Cheetah Leases (the "Cheetah Lease
Amendments") and an amendment of the Xxxxxx Master Lease, eliminating the
Cheetah Centers from the Xxxxxx Master Lease, so that it covers only the Xxxxxx
Centers. Therefore, Xxxxxx/Xxxxxx and LCT now desire to enter this separate
Cheetah Master Lease for the Cheetah Centers.
4. Lessee filed a petition for relief under Chapter 11 of Title
11 of the United States Code on January 18, 2000.
5. The Bankruptcy Court having jurisdiction over Lessee's
bankruptcy case has entered an order authorizing Lessee to assume the Cheetah
Leases, as amended by the Cheetah Lease Amendments, to enter into this Cheetah
Master Lease and the Cheetah Lease Amendments, and to amend the Xxxxxx Master
Lease.
6. This Cheetah Master Lease does not constitute an assignment
of the Cheetah Leases, as amended, to Cheetah.
AGREEMENTS:
NOW, THEREFORE, for adequate and sufficient consideration, intending
to be legally bound, Xxxxxx/Xxxxxx and LCT hereby agree as follows:
1. Effective Date. The Cheetah Lease Amendments and this Cheetah
Master Lease shall be effective January 25, 2001, on the terms and conditions
herein and therein set forth.
2. Lease. Xxxxxx/Xxxxxx does hereby and pursuant to the five
Cheetah Leases, as amended by the five Cheetah Lease Amendments ("Amended
Cheetah Leases"), lease to LCT and LCT does hereby and pursuant to the five
Amended Cheetah Leases lease from Xxxxxx/Xxxxxx, subject to the covenants,
agreements, terms, provisions and conditions contained herein and therein, for
the term and at the rental therein stated, the five Cheetah Centers.
3. Terms and Provisions Incorporated. The covenants, agreements,
terms, provisions and conditions contained and set forth in the Amended Cheetah
Leases are incorporated herein by this reference for all purposes the same as
if such were restated herein in their entirety.
4. Guaranty. The obligations of LCT under this Cheetah Master
Lease and the Amended Cheetah Leases, are guaranteed by a written Guaranty
dated May 20, 1994, from Living Centers of America, Inc., a Delaware
corporation, now known as Mariner Post-Acute Network, Inc. ("Mariner"), which
was partially ratified by Mariner pursuant to a Partial Ratification of
Guaranty dated January 25, 2001.
5. Single Agreement. This Cheetah Master Lease and the Amended
Cheetah Leases, are and shall constitute but a single agreement. A default
under this Cheetah Master Lease or any one of the Amended Cheetah Leases shall
be a default as to the Cheetah Master Lease and all of the Amended Cheetah
Leases, subject to this Cheetah Master Lease. The Amended Cheetah Leases, are
executed for convenience in (i) specifying certain terms and provisions
applicable only to the particular Cheetah Center covered by a particular
Amended Cheetah Lease, and (ii) permitting, as provided in each Amended Cheetah
Lease, the assignment and sublease thereof, only on those specified terms and
provisions.
6. Assignment and Sublease. LCT is and shall be permitted to
sublease or assign an Amended Cheetah Lease for any or all of the Cheetah
Centers on the terms and provisions set forth in each Amended Cheetah Lease.
Notwithstanding any such sublease or assignment, LCT shall remain primarily
liable for the full payment and performance of the obligations set forth herein
and in each and every Amended
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Cheetah Lease. LCT agrees that Xxxxxx/Xxxxxx shall have the right to assign all
of the Amended Cheetah Leases to Cheetah without the prior written approval of
LCT. However, Xxxxxx/Xxxxxx will provide LCT with notice of the assignment. The
assignment shall be subject to the terms of this Cheetah Master Lease;
provided, however, Lessor and Lessee agree that as to the Amended Cheetah
Leases, but only as to the Amended Cheetah Leases to which this Cheetah Master
Lease applies and not to any other lease or master lease between Lessor and
Lessee, that notwithstanding anything to the contrary in any particular Amended
Cheetah Lease, including, without limitation, any otherwise applicable
limitation or prohibition on assignment or transfer, during the pendency of
Lessee's currently pending Chapter 11 case filed on January 18, 2000, and until
the effective date of a plan of reorganization in such Chapter 11 case, Lessee
may assign this Lease to any entity that satisfies the requirements for the
assignment of a lease under 11 U.S.C. ss.365.
7. Notices. Any notice to be given or to be served in connection
with this Agreement must be in writing, and may be given by certified or
registered mail or by overnight delivery by a nationally recognized delivery
service, and shall be deemed to have been given and received forty-eight (48)
hours after a certified or registered letter containing such notice, properly
addressed, with postage prepaid, is deposited in the United States mail, or the
next business day if delivered by the overnight delivery service addressed as
follows:
If to Xxxxxx/Xxxxxx: Xxxx Xxxxxx, Xx.
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
and
Xxxxx Xxxxxx
0000 Xxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
If to LCT: Living Centers of Texas, Inc.
Xxx Xxxxxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Treasurer
Each party hereto shall have the right by giving written notice to the
other party hereto, to change the address of such party for the purpose of
notices under this paragraph 7.
8. Successors and Assigns. All of the covenants, agreements,
conditions and stipulations herein contained inure to the benefit of and are
binding upon Xxxxxx/Xxxxxx, its successors and assigns. All of the covenants,
agreements,
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conditions and stipulations herein contained inure to the benefit of and are
binding upon LCT, its successors and assigns.
9. Partial Invalidity. If any term or provision of this Cheetah
Master Lease or the application thereof to any person or circumstance shall to
any extent be invalid or Cheetah Master Lease Agreement unenforceable, the
remainder of this Cheetah Master Lease, or the application of such term or
provision to any person or circumstances than those as to which it is invalid
or unenforceable, shall not be affected thereby, and each term of this Cheetah
Master Lease shall be valid and be in force to the fullest extent permitted by
law.
10. Descriptive Headings. The descriptive headings of this
Cheetah Master Lease are inserted for convenience in reference only and do not
in any way limit or amplify the terms and provisions of this Cheetah Master
Lease.
11. Modification. This Cheetah Master Lease may be modified only
by written agreement signed by Xxxxxx/Xxxxxx and LCT.
12. Governing Law. This Cheetah Master Lease shall be governed by
and interpreted in accordance with the laws of the State of Texas and
applicable federal laws.
13. Time is of the Essence. Time is of the essence in all things
under this Cheetah Master Lease.
IN WITNESS WHEREOF, the parties have executed this Cheetah Master
Lease this 25th day of January, 2001.
[Signatures appear on the following page]
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Xxxxxx/Xxxxxx: LCT:
Xxxxxx/Xxxxxx Companies, Inc. Living Centers of Texas, Inc.
By: By:
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Xxxxxxxx X. Xxxxxx, President Its:
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STATE OF TEXAS
COUNTY OF BEXAR
THIS INSTRUMENT was ACKNOWLEDGED BEFORE ME, on this ____ day of
_______________, 2001, by Xxxxxxxx X. Xxxxxx, President of Xxxxxx/Xxxxxx
Companies, Inc., a Texas corporation, on behalf of said corporation.
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Notary Public, State of Texas
STATE OF TEXAS
COUNTY OF BEXAR
THIS INSTRUMENT was ACKNOWLEDGED BEFORE ME, on this ____ day of
_______________, 2001, by Xxxx X. Xxxxxx, Vice President of Living Centers of
Texas, a Delaware corporation, on behalf of said corporation.
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Notary Public, State of Texas
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