EX-10.1 2 dex101.htm THIRD AMENDMENT TO MASTER LEASE AGREEMENT THIRD AMENDMENT TO MASTER LEASE AGREEMENT
Exhibit 10.1
THIRD AMENDMENT TO MASTER LEASE AGREEMENT
THIS THIRD AMENDMENT TO MASTER LEASE AGREEMENT (“Amendment”) is dated as of September 26, 2008 (“Amendment Effective Date”) among HCRI MASSACHUSETTS PROPERTIES TRUST, a Massachusetts business trust organized under the laws of the Commonwealth of Massachusetts (“HCN-MA” and a “Landlord”), having its principal office located at One SeaGate, Suite 1500, P. O. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, HCRI MASSACHUSETTS PROPERTIES TRUST II, a Massachusetts business trust organized under the laws of the Commonwealth of Massachusetts (“HCN-MA II” and a “Landlord”), having its principal office located at One SeaGate, Suite 1500, P. O. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and KINDRED HOSPITALS EAST, L.L.C., a Delaware limited liability company organized under the laws of the State of Delaware (“Tenant”), having its chief executive office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
R E C I T A L S
A. Landlord has leased to Tenant property located in Massachusetts (collectively called “Property”) pursuant to a Master Lease Agreement dated as of February 28, 2006, as amended from time to time (“Lease”).
B. As of the Amendment Effective Date of this Amendment, HCN-MA is selling the Braintree Facility to an affiliate of Tenant.
C. Landlord and Tenant desire to amend the Lease to remove the Braintree Facility and to modify certain terms and conditions.
NOW, THEREFORE, in consideration of the foregoing recitals and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows.
1. Definitions. Any capitalized terms not defined in this Amendment shall have the meaning set forth in the Lease.
2. Amended Definitions. The definition of “Rent Schedule” in §1.4 of the Lease is hereby amended to read in its entirety as follows (added language in italics):
“Rent Schedule” means the schedule issued by Landlord to Tenant showing the Base Rent to be paid by Tenant pursuant to the terms of this Lease, as such schedule is amended from time to time by Landlord. The initial Rent Schedule is attached to this Lease as Schedule 1 or will be attached following Closing if the Rent Schedule cannot be determined until the day of Closing. The Rent Schedule to be in effect upon the Amendment Effective Date of the First Amendment to Master Lease Agreement is attached as Schedule 1-A. The Rent Schedule to be in effect upon the Amendment Effective Date of the Third Amendment to Master Lease Agreement is attached as Schedule 1-B.
3. Early Option to Purchase. Section 13.7 of the Lease is hereby amended to read in its entirety as follows (added language in italics):
13.7 Early Option to Purchase. Notwithstanding any provision to the contrary contained in this Article 13, Tenant may exercise the Option to Purchase all of the Leased Property by giving notice of such exercise and closing on the purchase of the Leased Property on or before March 31, 2009 (“Early Option Period”) subject to the same terms and conditions of this Article 13 except for §13.3 and except that [i] the required Purchase Notice may be given at any time during the Early Option Period; [ii] the Option Price for the Leased Property shall be $49,949,000.00; [iii] the purchase of the Leased Property shall close no later than March 31, 2009; and [iv] no Event of Default shall have occurred and be continuing. The Option to Purchase pursuant to this §13.7 shall be referred to as the “Early Option”.
4. Amendment Rent Schedule. The Lease is hereby amended to add a new Schedule 1-B in the form of Schedule 1-B attached hereto and made a part hereof.
5. Legal Description. The Lease is hereby amended to delete Exhibit A-1 in its entirety.
6. Permitted Exceptions. The Lease is hereby amended to delete Exhibit B-1 in its entirety.
7. Facility Information. Exhibit C of the Lease is hereby amended to read in its entirety as set forth on Exhibit C attached hereto and made a part hereof.
8. 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.
9. Binding Effect. This Amendment will be binding upon and inure to the benefit of the successors and permitted assigns of Landlord and Tenant.
10. Further Modification. The Lease may be further modified only by writing signed by Landlord and Tenant.
11. 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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12. Consent of Guarantor. This Amendment shall have no force or effect unless and until each Guarantor has executed the Consent of Guarantor set forth below.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as of the date first set forth above.
| Signed and acknowledged in the presence of: | HCRI MASSACHUSETTS PROPERTIES TRUST | |||||||||
| Signature | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ | By: | HCRI Massachusetts Properties, Inc., as Trustee, and not individually, and subject to the provisions of the Declaration of Trust of HCRI Massachusetts Properties Trust filed with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Boston | |||||||
| Print Name
| ▇▇▇▇ ▇. ▇▇▇▇▇
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| Signature | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||||||
| Print Name | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇ Senior Vice President – Administration and Corporate Secretary | |||||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Vice President and Treasurer |
| HCRI MASSACHUSETTS PROPERTIES TRUST II | ||||||||||
| Signature | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ | By: | HCRI Massachusetts Properties, Inc., as Trustee, and not individually, and subject to the provisions of the Declaration of Trust of HCRI Massachusetts Properties Trust II filed with the Secretary of the Commonwealth of Massachusetts and the City Clerk of Boston | |||||||
| Print Name
| ▇▇▇▇ ▇. ▇▇▇▇▇
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| Signature | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||||||
| Print Name | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇ Senior Vice President – Administration and Corporate Secretary | |||||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Vice President and Treasurer |
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| KINDRED HOSPITALS EAST, L.L.C. | ||||||||||
| Signature | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ | By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||||
| Print Name | ▇▇▇▇▇▇▇ ▇▇▇▇▇
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Vice President of Facilities and Real Estate Development | ||||||||
| Signature | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||||||
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Print Name | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ |
| STATE OF OHIO | ) | |||||
| ) | SS: | |||||
| COUNTY OF ▇▇▇▇▇ | ) |
The foregoing instrument was acknowledged before me this 25 day of Sept., 2008 by ▇▇▇▇ ▇. ▇▇▇▇▇, the Senior Vice President-Administration and Corporate Secretary, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, the Vice President and Treasurer of HCRI Massachusetts Properties, Inc., a Delaware corporation, as Trustee, on behalf of and as the free act and deed of HCRI Massachusetts Properties Trust, a Massachusetts business trust.
| My Commission Expires: |
| /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ Notary Public
[SEAL] |
| STATE OF OHIO | ) | |||||
| ) | SS: | |||||
| COUNTY OF ▇▇▇▇▇ | ) |
The foregoing instrument was acknowledged before me this 25 day of Sept., 2008 by ▇▇▇▇ ▇. ▇▇▇▇▇, the Senior Vice President-Administration and Corporate Secretary, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, the Vice President and Treasurer of HCRI Massachusetts Properties, Inc., a Delaware corporation, as Trustee, on behalf of and as the free act and deed of HCRI Massachusetts Properties Trust II, a Massachusetts business trust.
| My Commission Expires: |
| /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ Notary Public
[SEAL] |
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| STATE OF KENTUCKY | ) | |||||
| ) | SS: | |||||
| COUNTY OF JEFFERSON | ) |
On this 25th day of September, 2008, before me, the undersigned notary public, personally appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, the Vice President of Facilities and Real Estate Development of KINDRED HOSPITALS EAST, L.L.C. and proved to me through satisfactory evidence of identification, which was a Kentucky Driver’s License, to be the person whose name is signed on this document, and acknowledged to me that he signed it voluntarily in his capacity as Vice President of Facilities and Real Estate Development, for its stated purpose, as his free act and deed and the free act and deed of KINDRED HOSPITALS EAST, L.L.C.
| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Notary Public My commission expires: 2/16/2012 |
THIS INSTRUMENT PREPARED BY:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
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CONSENT OF GUARANTOR
In connection with the Unconditional and Continuing Lease Guaranty (“Guaranty”) made by the undersigned Guarantors in favor of Landlord dated as of February 28, 2006, the undersigned Guarantors hereby [i] consent to the foregoing First Amendment to Master Lease Agreement (“Amendment”), [ii] affirm the Guaranty which shall remain in full force and effect and secure the Guaranteed Obligations, as defined in the Guaranty, and [iii] waive any suretyship defenses arising in connection with the Amendment. All capitalized terms not defined herein shall have the meaning set forth in the foregoing Amendment.
| KINDRED HEALTHCARE OPERATING, INC. | ||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Vice President of Facilities and Real Estate Development | |
| ▇▇▇▇▇▇▇ NURSING, L.L.C. | ||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Vice President of Facilities and Real Estate Development | |
| SPRINGFIELD PARK VIEW HOSPITAL, L.L.C. | ||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Vice President of Facilities and Real Estate Development | |
| ▇▇▇▇▇▇▇ NURSING, L.L.C. | ||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Vice President of Facilities and Real Estate Development |
SCHEDULE 1-B: THIRD AMENDMENT RENT SCHEDULE
KINDRED HEALTHCARE OPERATING, INC. - MASTER LEASE
HEALTH CARE REIT, INC.
| EFFECTIVE DATE | 03/01/06 | |||||||||||
| INITIAL TERM COMMENCEMENT DATE | 03/01/06 | FINAL | ||||||||||
| INITIAL TERM | 15 | Yrs | ||||||||||
| INITIAL TERM EXPIRATION DATE | 02/28/21 | |||||||||||
| INITIAL INVESTMENT AMOUNT | 72,450,000 | |||||||||||
| AMENDED INVESTMENT AMOUNT EFFECTIVE 7/25/07 | 72,575,000 | |||||||||||
| AMENDED INVESTMENT AMOUNT EFFECTIVE 9/26/08 | 50,299,000 | |||||||||||
| RATE OF RETURN | N/A | |||||||||||
| (365/360 BASIS) | N/A | |||||||||||
| INITIAL RATE OF RETURN | 8.75% | |||||||||||
| INCREASER | As defined within the Master Lease Agreement |
| DATES | REVENUE CONDITION MET (YES/NO) | INCREASER (BP) | BEGINNING RENT RATE OF RETURN (ROUNDED) | PERCENTAGE RATE SHORTFALL | ADJUSTED RENT RATE OF RETURN (ROUNDED) | MONTHLY RENT AMOUNT | ANNUAL RENT AMOUNT | |||||||||||
| LEASE YEAR | FROM | TO | ||||||||||||||||
| 1 | 03/01/06 | 02/28/07 | YES | N/A | 8.75% | N/A | N/A | 528,281.25 | 6,339,375.00 | |||||||||
| 2 | 03/01/07 | 06/30/07 | TBD | 2.5% | 8.97% | N/A | N/A | 541,488.28 | 2,165,953.12 | |||||||||
| 2A | 07/01/07 | 07/24/07 | N/A | N/A | 8.97% | N/A | N/A | 419,216.73 | 419,216.73 | |||||||||
| 2B | 07/25/07 | 07/31/07 | N/A | N/A | 8.97% | N/A | N/A | 122,499.58 | 122,499.58 | |||||||||
| 2C | 08/01/07 | 02/29/08 | YES | N/A | 8.97% | N/A | N/A | 542,498.13 | 3,797,486.91 | |||||||||
| 3 | 03/01/08 | 08/31/08 | N/A | 2.5% | 9.19% | N/A | N/A | 556,060.58 | 3,336,363.48 | |||||||||
| 3A | 09/01/08 | 09/25/08 | N/A | N/A | 9.19% | N/A | N/A | 463,383.82 | ||||||||||
| 3B | 09/26/08 | 09/30/08 | N/A | N/A | 9.19% | N/A | N/A | 64,230.78 | 527,614.60 | |||||||||
| 3C | 10/01/08 | 02/28/09 | TBD | N/A | 9.19% | N/A | N/A | 385,384.65 | 1,926,923.25 | |||||||||
| 4 | 03/01/09 | 02/28/10 | ▇▇▇ | ▇▇▇ | 9.19% | N/A | N/A | 385,384.65 | 4,624,615.80 | |||||||||
| 5 | 03/01/10 | 02/28/11 | ▇▇▇ | ▇▇▇ | 9.19% | ▇▇▇ | ▇▇▇ | 385,384.65 | 4,624,615.80 | |||||||||
| 6 | 03/01/11 | 02/29/12 | ▇▇▇ | ▇▇▇ | 9.19% | ▇▇▇ | ▇▇▇ | 385,384.65 | 4,624,615.80 | |||||||||
| 7 | 03/01/12 | 02/28/13 | ▇▇▇ | ▇▇▇ | 9.19% | ▇▇▇ | ▇▇▇ | 385,384.65 | 4,624,615.80 | |||||||||
| 8 | 03/01/13 | 02/28/14 | ▇▇▇ | ▇▇▇ | 9.19% | ▇▇▇ | ▇▇▇ | 385,384.65 | 4,624,615.80 | |||||||||
| 9 | 03/01/14 | 02/28/15 | ▇▇▇ | ▇▇▇ | 9.19% | ▇▇▇ | ▇▇▇ | 385,384.65 | 4,624,615.80 | |||||||||
| 10 | 03/01/15 | 02/29/16 | ▇▇▇ | ▇▇▇ | 9.19% | ▇▇▇ | ▇▇▇ | 385,384.65 | 4,624,615.80 | |||||||||
| 11 | 03/01/16 | 02/28/17 | ▇▇▇ | ▇▇▇ | 9.19% | ▇▇▇ | ▇▇▇ | 385,384.65 | 4,624,615.80 | |||||||||
| 12 | 03/01/17 | 02/28/18 | ▇▇▇ | ▇▇▇ | 9.19% | ▇▇▇ | ▇▇▇ | 385,384.65 | 4,624,615.80 | |||||||||
| 13 | 03/01/18 | 02/28/19 | ▇▇▇ | ▇▇▇ | 9.19% | ▇▇▇ | ▇▇▇ | 385,384.65 | 4,624,615.80 | |||||||||
| 14 | 03/01/19 | 02/29/20 | ▇▇▇ | ▇▇▇ | 9.19% | ▇▇▇ | ▇▇▇ | 385,384.65 | 4,624,615.80 | |||||||||
| 15 | 03/01/20 | 02/28/21 | ▇▇▇ | ▇▇▇ | 9.19% | ▇▇▇ | ▇▇▇ | 385,384.65 | 4,624,615.80 |
EXHIBIT C: FACILITY INFORMATION
| Facility Name Affiliate Subtenant | Street Address County | Facility Type (per license) Beds/Units | ||
| ▇▇▇▇▇▇▇ Rehabilitation and Nursing Center, Kindred Hospital Northeast-Stoughton, and ▇▇▇▇▇▇▇ Medical Office Building (“Stoughton Facility”)
Kindred Braintree Hospital, L.L.C.
▇▇▇▇▇▇▇ Nursing, L.L.C. (SNF sub-subtenant) | ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Norfolk County | Hospital (Satellite of Braintree) 88 licensed beds 88 operating beds Nursing Home 115 licensed beds 60 operating beds | ||
| Kindred Hospital Park View and Park View Rehabilitation and Nursing Center (“Springfield Facility”)
Springfield Park View Hospital, L.L.C. | ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Hampden County | Hospital 127 licensed beds 107 operating beds Nursing Home 172 licensed beds 26 operating beds | ||
| The ▇▇▇▇▇▇▇ Rehabilitation and Nursing Center and Kindred Hospital Park View – Central Mass. (“Rochdale Facility”)
Springfield Park View Hospital, L.L.C.
▇▇▇▇▇▇▇ Nursing, L.L.C. (SNF sub-subtenant) | ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Worcester County | Hospital (Satellite of Springfield) 47 licensed beds 47 operating beds Nursing Home 135 licensed beds 82 operating beds |