Contract
Exhibit 10.14
FIRST AMENDMENT TO
MEMORANDUM OF UNDERSTANDING
This FIRST AMENDMENT TO MEMORANDUM OF UNDERSTANDING (this “Amendment”) is made and entered into as of December 30, 2002, among ALTERRA HEALTHCARE CORPORATION, a Delaware corporation (“Guarantor”), ALS LEASING, INC., a Delaware corporation (“ALS”), ASSISTED LIVING PROPERTIES, INC., a Kansas corporation (“ALP” and, together with ALS, “Tenant”) and ENTITIES LISTED ON SCHEDULE I to this Amendment (collectively, “Landlord”).
R E C I T A L S
A. Landlord and Tenant entered into that certain Master Lease dated April 9, 2002 (the “Lease”) pursuant to which Tenant has leased from Landlord the Premises as described therein.
B. Pursuant to its separate Guaranty of Master Lease and Letter of Credit Agreement dated April 9, 2002, Guarantor unconditionally guaranteed to Landlord, among other things, the performance by Tenant under the Lease.
C. Pursuant to that certain Memorandum of Understanding dated April 9, 2002 (the “Original Memorandum of Understanding”), Tenant and Guarantor requested, and Landlord agreed, to forbear from exercising certain remedies available to Landlord upon a bankruptcy filing by Guarantor and certain other potential defaults under the Lease and the Guaranty. Initially capitalized terms used but not otherwise defined in this Amendment shall have the meanings given to them in the Original Memorandum of Understanding.
D. Guarantor and Tenant have requested, and Landlord has agreed, to modify certain terms and provisions of the Original Memorandum of Understanding, and to clarify certain terms and provisions of the Lease, as hereinafter set forth.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing Recitals (which by this reference are incorporated herein), and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Filing Deadline. The definition of the Filing Deadline in Section 7 of the Original Memorandum of Understanding is hereby deleted in its entirety and the following substituted in lieu thereof:
“Filing Deadline” shall mean January 31, 2003.
2. Insurance. The final sentence of Section 3 of the Original Memorandum of Understanding is hereby deleted in its entirety, and the following substituted in lieu thereof:
Upon the earlier of the Plan Effective Date or June 30, 2003, whichever first occurs, Guarantor shall have in place the policies of insurance required under Section 6 of the Lease, as modified by Schedule 3 to the Lease.
3. Section 1 of the Original Memorandum of Understanding is hereby modified and amended by deleting the period at the end of subparagraph (c) and substituting in lieu thereof the following:
“;or”
and, in addition, adding the following new subparagraph (d):
(d) An Event of Default arising under Section 12(d)(ii) or (iii) or Section 12(f)(ii) of the Lease as a result of Guarantor's pledge of the stock of Tenant as security for debtor in possession financing, where (A) such pledge occurs during the pendency of a Conforming Bankruptcy Proceeding and (B) such pledge is expressly subject and subordinate to (i) the Stock Pledge and (ii) the subsequent stock pledge of the stock of ALS given by Guarantor to JER/NHP Senior Living Acquisition, LLC dated October 7, 2002.
4. For purposes of clarifying certain terms of the Lease, Landlord and Tenant agree that a
single-parent-captive insurance program that is fully funded as of the Plan Effective Date for a policy term of one (1) year shall satisfy the requirements of the final sentence of Section 5 to Schedule 3 to the Lease.
Except as modified herein, Guarantor, Tenant and Landlord acknowledge and agree that the Lease and Original Memorandum of Understanding are in full force and effect and are hereby ratified, confirmed and affirmed in all respects. Tenant and Guarantor hereby further acknowledge the full force and effect of, and ratify their respective obligations under, the Guaranty, the LC Agreement and the Stock Pledge, in each case without modification or amendment. Hereafter, all references to the “Memorandum of Understanding” shall mean and refer to the Memorandum of Understanding as amended by this Amendment.
IN WITNESS WHEREOF, this Amendment has been executed by TENANT, GUARANTOR and LANDLORD as of the date first written above.
“TENANT”
ALS LEASING, INC.,
a Delaware corporation
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Vice President
Witness: /s/ Xxxxxxx X. Xxxxxxx Witness: /s/ Xxxxx X. Xxxxxxxx
ASSISTED LIVING PROPERTIES, INC.,
a Kansas corporation
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Vice President
Witness: /s/ Xxxxxxx X. Xxxxxxx Witness: /s/ Xxxxx X. Xxxxxxxx
“GUARANTOR”
ALTERRA HEALTHCARE CORPORATION,
a Delaware corporation
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Senior Vice President
Witness: /s/ Xxxxxxx X. Xxxxxxx Witness:/s/ Xxxxx X. Xxxxxxxx
“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 and General Counsel
Witness: Witness:
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: Senior Vice President and General Counsel
Witness: Witness:
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 and General Counsel
Witness: Witness:
JER/NHP SENIOR LIVING KANSAS, INC.,
a Kansas corporation
By: /s/Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and General Counsel
Witness: Witness:
SCHEDULE 1
LANDLORD ENTITIES
1. JER/NHP Senior Living Texas, L.P., A Texas limited partnership
2. JER/HNP Senior Living Wisconsin, LLC, a Delaware limited liability company
3. JER/NHP Senior Living Kansas, Inc., a Kansas corporation
(f/k/a Meditrust of Kansas, Inc., a Kansas corporation)
4. JER/NHP Senior Living Acquisition, LLC, a Delaware limited liability company
