EXHIBIT 10.96
AMENDMENT OF LEASE AGREEMENT
BY AND BETWEEN
XXXXXX/XXXXXX COMPANIES, INC.,
AND
LIVING CENTERS OF TEXAS, INC.
DATED JANUARY 25, 2001
This Amendment of Lease Agreement ("Amendment") is made and entered
into effective as of January 25, 2001, by and between Xxxxxx/Xxxxxx Companies,
Inc., a Texas corporation ("Lessor") and Living Centers of Texas, Inc., a
Delaware corporation ("Lessee").
RECITALS
A. Lessor and Lessee previously entered into a Lease Agreement
dated May 20, 1994 (the "Lease"), for the following long-term health care
center ("Leased Center"), owned by Lessor and located in the State of Texas, on
the land described in "Exhibit A" attached thereto:
Location of Center Rental Beds / Licensed Beds
------------------ ----- -----
X. Xxxxxx and Lessee also previously entered into an agreement
entitled "Master Lease Agreement" ("Xxxxxx Master Lease") dated May 20, 1994,
and 13, individual lease agreements, including the Lease for, the
__________________. Five Leases (the "Cheetah Leases") covered 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") covered 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").
X. Xxxxxx 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. As a result, Lessor and Lessee have amended
the Xxxxxx Master Lease concurrently herewith to eliminate the five Cheetah
Centers from the Xxxxxx Master Lease, so that the Xxxxxx Master Lease covers
only the eight Xxxxxx Centers.
D. Concurrent with this Amendment, Lessor and Lessee are
entering into amendments to the other four Cheetah Leases (the "Cheetah Lease
Amendments").
Further, Lessor and Lessee concurrently herewith entered into a separate master
lease agreement for the five Cheetah Centers (the "Cheetah Master Lease").
E. Lessee filed a petition for relief under Chapter 11 of Title
11 of the United States Code on January 18, 2000.
F. The Bankruptcy Court having jurisdiction over Tenant's
bankruptcy case has entered an order authorizing Tenant to assume the Cheetah
Leases, as amended by the Cheetah Lease Amendments, and to enter into this
Amendment, the Cheetah Master Lease, the remaining Cheetah Lease Amendments,
and the amendment to the Xxxxxx Master Lease.
G. This Amendment does not constitute an assignment of the
Cheetah Master Lease or the Cheetah Leases, as amended, to Cheetah.
H. Pursuant to Article XV, Section 15.7, of the Lease, Lessor
and Lessee may amend the Lease by a written agreement signed by Lessor and
Lessee.
ACCORDINGLY, Lessor and Lessee agree as follows:
1. Amendments. Lessor and Lessee hereby amend the Lease
effective as of the Effective Date as follows:
(a) Section 1.2, Use, is amended to read as follows:
"Section 1.2 Use. The Leased Center shall be used
during the Term hereof by Lessee solely and exclusively for the purpose of
operating a long term health care center for the elderly (including without
limitation long term care for Alzheimer's disease, stroke care, arthritis care
and transitional care), and any and all related business activities. The Lessee
will not seek to have the Leased Center certified for any other specialized
purpose.
Lessee shall use the Leased Center in a careful and proper manner, and agrees
not to permit the Leased Center to be operated or used in continuing violation
of any applicable federal, state, or local statute, law, ordinance, rule or
regulation relating to the possession, use, or maintenance of the Leased Center
as a long-term health care center, including but not limited to, those of the
Life Safety Code Requirements, and of the Texas Department of Health, Texas
Department of Human Services and U.S. Department of Health and Human Services
necessary to qualify the Leased Center for reimbursement under the applicable
Medicaid and Medicare programs, if applicable due to Lessee's use of the Leased
Center. During the Term hereof, Lessee agrees to furnish Lessor, at the time
the operating statements are furnished to Lessor pursuant to Section 15.4
below, a certification from Lessee that the Leased Center is in substantial
compliance with all requirements of the Texas Department of Health and Texas
Department of Human Services, and a list of capital expenditures for the prior
year and pro-forma capital expenditures for the succeeding tear. Lessee agrees
to provide
2
Lessor with any notice received by lessee within five (5) (Jays after receipt
by Lessee of proposed or threatened decertification or suspension of licensure
of the Leased Center by any appropriate governmental authorities."
(b) Exhibit B, referenced in Section 1.5,
Representations and Warranties of Lessor, is amended to include the following
liens:
"Liens in favor of Bank One, Texas, National
Association."
(c) Section 2.1, Initial Term, is amended to read as
follows:
"Section 2.1 Initial Term. The initial term of this
Lease (the "Initial Term") will be for a term that will expire on October 31,
2020, unless sooner terminated as hereinafter provided."
(d) Section 2.2, Renewal Term, is deleted in its
entirety. Accordingly, all references to the Renewal Term are hereby deleted
from Sections 4.2, 4.3 and 7.3.
(e) Section 2.4, Right of First Refusal to Lease, is
amended to read as follows:
Section 2.4 Right of First Refusal to Lease. So long
as no Event of Default by Lessee is then occurring, Lessor grants to Lessee the
right of first refusal to re-lease the Leased Center upon the expiration of the
Initial Term, if Lessor receives a bona fide offer from any unrelated third
party to lease the Leased Center upon terms acceptable to Lessor. In that
event, Lessor shall give Lessee written notice of the terms and conditions
offered by such third party. Upon receipt of any such written notice, Lessee
shall have ten (10) days to notify Lessor whether or not Lessee elects to lease
the Leased Center upon such terms and conditions stated in the notice from
Lessor to Lessee. If Lessee elects to lease the Leased Center upon the same
terms and conditions offered by Lessor to the unrelated third party, it shall
so notify Lessor and such lease shall be executed within ten (10) days
following such notice. If Lessee declines to lease the Leased Center (or does
not respond timely to Lessor), Lessor may thereafter lease the Leased Center to
the third party only on such terms and conditions originally offered by Lessor
to Lessee, such new lease to become effective only at the expiration of the
Initial Term. It is agreed that Lessor shall not seek to re-lease the Leased
Center until the last twelve months (12) of the Initial Term."
(f) Section 2.6, Lessor's End of Term Rights, is amended
to read as follows:
"Section 2.6 Lessor's End of Term Rights. Lessee
hereby represents and warrants that at the end of the Initial Term hereof, the
Leased Center shall be turned over to Lessor in a fully licensable condition,
with at least 94 licensed and Medicaid certified skilled nursing facility beds
and 28 licensed assisted living beds, and operating as a long-term health care
center facility with the Medicaid contract, if
3
any, reassigned, if then assignable, to Lessor, as more fully described in
Section 1.2 above."
(g) Section 3.1, Base Rent, is amended to read as
follows:
"Section 3.1 Base Rent. For the first year of the
Lease, Lessee agrees to pay as base rent the amount of $20,529.60 per month,
adjusted annually as provided herein, to such address as Lessor may from time
to time designate to Lessee in writing, without demand and without deduction,
abatement or setoff. The Leased Center presently contains 141 Rental Beds,
which number shall not be decreased by any action of Lessee during the term of
this Lease, but may be increased should appropriate licensing be obtained from
the proper administrative agency."
(h) Section 3.2, Annual Rent Escalation, is amended to
read as follows:
"Section 3.2 Annual Rent Escalation. On June 1st of
each year during the Term of this Lease, beginning June 1, 2001, the then
current year's rent shall be adjusted by the change in the prior year of the
Consumer Price Index ("CPI Adjustment") as set forth in this Section 3.2. To
calculate the CPI Adjustment:
1) Determine the annual percentage change in the CPI:
(CPI-Current Year minus CPI-Base Year) divided by CPI-Base
Year; and
2) Add 100% to the annual percentage change in the CPI
determined in (1) above.
"CPI-Base Year" means the CPI for the month of June for the immediately
preceding year. "CPI-Current Year" means the CPI for the month of June of the
current year. "CPI" means the Consumer Price Index - All Urban Consumers
(CPI-U) for the U.S. City Average for All Items, 1982-84=100, reported by the
Bureau of Labor Statistics of the U.S. Department of Labor. If the index is no
longer reported, then the successor index reported by that agency for it shall
be used, and if there is no successor index reported, the Lessor and Lessee
will select an inflationary index that most closely tracks the changes in
prices tracked by the consumer price index. Any rent increase will not exceed
3% in any given year.
For purposes of illustrating the annual rent increase:
If the rent on May 31, 1999, is $20,163.00 and the CPI for June 1999
is 166.2 (CPI-Current Year) and the CPI for June 1998 is 163.0 (CPI-Base Year)
the following calculations would apply:
100% + (3.2 (being, 166.2 - 1 63.0) / 163.0 X 100) = 102%
Thus, $20,163.00 X 102% = $20,566.26
4
For the next year, the rent on May 31, 2000, is $20,566.26 and the CPI
for June 2000 is 172.4 (CPI-Current Year) and the CPI for June 1999 was 166.2
(CPI-Base Year), the following calculations would apply:
100% + (6.2 (being, 172.4 - 166.2) / 166.2 X 1 00) = 103.17%
Thus, $20,566.26 X 103%* = $21,183.25
*Since any adjustments are capped at 3%, the CPI adjustment would be
103%.
(i) Section 6.1, Assignment and Subletting, is amended
to read as follows:
"Section 6.1 Assignment and Subletting. It is
understood and agreed that the Leased Center is one of the Cheetah Centers
being leased of even date herewith by Lessor to Lessee, and that Lessor agrees
that Lessee may assign or sublease any of the Cheetah Centers to third parties
experienced in the operation of nursing homes. However, Lessee grants to
Lessor, or its assigns, a right of first refusal to sublease the Leased Center
on the same terms offered to a third party by Lessee. Lessee's right to
sublease shall be subject to Lessor's right of first refusal. Lessee shall
provide Lessor with notice of any intent to sublease and information indicating
the sublessee's experience in the operation of nursing homes. Lessor shall have
10 days to notify Lessee whether or not Lessor elects to sublease the Leased
Center. In the event Lessor declines to sublease the Leased Center (or does not
timely respond to Lessor), Lessee may thereafter sublease the Leased Center.
Any sublease shall be subject to the terms of this Lease and that the proposed
sublessee and Lessee have timely complied with all change of ownership and
certification of all applicable governmental authorities. If Lessee subleases
the Leased Center and Lessor does not exercise the right of first refusal,
Lessee shall remain primarily liable for full payment and performance of the
obligations under this Lease and all other terms and conditions hereunder. If
Lessor subleases, Lessee shall be released of all obligations and liabilities
under the Lease."
(j) Section 6.2 is added to the Lease as follows:
"Section 6.2 Assignment by Lessor. Lessor shall have
the right to assign the Lease without the prior written approval of Lessee.
Lessor will provide Lessee with notice of the assignment. If the Lease is
assigned, Lessor shall be released and discharged of its obligation arising
under the Lease after the effective date of the assignment of the Lease. The
assignment shall be Subject to the terms of the Lease and the assignee as the
new Lessor shall assume all obligations under the Lease."
5
(k) Section 7.1, Operating Costs, the first paragraph
and subparagraph are amended to read as follows. Paragraphs (ii) through (viii)
under this heading shall remain unchanged.
"Section 7.1 Operating Costs. "Operating Costs"
shall include, but not be limited to, the following costs, expenses and
disbursements that Lessor or Lessee shall incur, pay or become obligated to pay
in connection with the ownership, operation, maintenance, repair and security
of the Leased Center which shall be obligated to be paid solely by the Lessee
as provided in Section 3.3 herein above, including, but not limited to, the
following:
(i) As a condition to this Lease a11
outstanding 1999 ad valorem taxes (and all penalties and interest) for the
Leased Center not previously paid must be paid within 30 days of the effective
date of the Amendment. In addition, Lessee shall be obligated to pay before
they become delinquent all other taxes and assessments and governmental charges
applicable to the Leased Center, or to personal property used in connection
therewith, whether federal, state, county or municipal, and whether assessed by
taxing districts or authorities presently taxing the Leased Center or the
operation thereof, or by other taxing authorities, whether subsequently created
or otherwise, and any other taxes and assessments attributable to the Leased
Center or its operation;"
(l) Section 7.3, Damage to Leased Center. The third
paragraph of Section 7.3 is amended to read as follows, with all other
paragraphs in the section remaining unchanged.
"If Lessee does any rebuilding or repair, Lessee
will be entitled to receive all insurance proceeds, which shall be applied as
necessary to accomplish such rebuilding or repair. Such proceeds shall be held
and disbursed by Lessor as repair and rebuilding progresses. If any lienholder
will not release the insurance proceeds to Lessee, Lessor may elect to timely
provide Lessee with funds equal to the insurance proceeds for such rebuilding,
which funds shall be utilized by Lessee in the same manner as if the insurance
proceeds had been paid directly to Lessee. Notwithstanding anything in this
Lease to the contrary, if Lessee is provided neither the insurance proceeds due
to the Lessor's lender's election not to release such insurance proceeds, nor
other funds from Lessor to repair or rebuild as required, then in such event,
but only in such event, Lessee may, at its election: (i) terminate this Lease
and its obligations hereunder as of the date of such damage or destruction,
(ii) repair the Leased Center (or replace if totally destroyed) such that it is
operable as required by Lessee and licensing governmental authorities, using
its own funds, and offset such cost against future rentals in their direct
order of maturity."
(m) Section 7.4, Insurance Requirements, is hereby
amended by deleting the first sentence of the paragraph immediately following
subparagraph d. thereof and inserting the following in lieu thereof:
6
All policies of insurance described above shall: (i)
be written by companies authorized to do business in the
State of Texas and with a policy rating and financial size
category of at least "A" according to the most current Best's
Insurance Reports, or as otherwise reasonably acceptable to
Lessor; and (ii) contain an endorsement requiring thirty (30)
days written notice to Lessor prior to cancellation.
(n) Section 7.7, Renewal Policies, is hereby amended by
deleting the first sentence of such Section and inserting the following in lieu
thereof:
As soon as reasonably possible, but in any event on
or prior to the expiration of each insurance policy, Lessee
shall deliver to Lessor copies of a renewal policy or binder
which shall comply with the foregoing provisions with respect
to prior notice of cancellation thereof being given by the
insurance company to Lessor.
(o) Section 9.1, Indemnification, is amended to add
"general partners and limited partners and their respective officers and
owners" after the phrase shareholders, directors and officers, employees and
agents" in each place it appears. In all other respects Section 9.1 remains
unchanged.
(p) Section 11.1, Events of Default, paragraphs (iii)
and (viii) are amended to read as follows.
"(iii) If Lessee shall fail to comply with any
term, provision, or covenant of any Lease Agreement for the Xxxxxx, Xxxx, Del
Rio or Llano Care Centers executed as of the date hereof between Lessee and
Lessor, and if Lessee shall not cure such failure within 20 days after written
notice thereof from Lessor to Lessee; provided, however, that if such
non-financial failure is incapable of cure within such twenty (20) day period,
so long as Lessee has commenced and is diligently pursuing a cure, such
non-financial failure shall not be deemed to be an Event of Default."
"(viii) If the Leased Center is operating as a
Medicaid facility and such Medicaid qualification is involuntarily terminated,
or any enforcement action is brought by Texas Department of Human Services
resulting in suspension or revocation of the license of the leased Center to
operate; emergency suspension and closing order; suspension of admissions,
voluntary or involuntary appointment of a trustee or the appointment of a
trustee by agreement; and the termination or suspension of the Leased Center's
provider agreement based on imposition of enforcement action any number of
times within an accountability period; provided, however, that no Event of
Default shall be deemed so long as Lessee is diligently pursuing the resolution
and cure of any termination, revocation, suspension or closing."
7
(q) Section 1 5.4, Operating Statement, is amended to
read as follows:
"Section 15.4 Operating Statement. Lessee shall
furnish Lessor with a copy of the annual operating statement for the Leased
Center within 30 days after the end of each fiscal year. Lessee also agrees to
provide Lessor within 30 days of its filing, the balance sheet and income
information for Lessee contained in the consolidated federal income tax return
filed by Living ,,enters of America, Inc., now known as Mariner Post-Acute
Network, Inc. or any affiliate for the applicable fiscal year. Further, Lessee
agrees to provide Lessor within 60 days following the end of each calendar
quarter ending December 31, March 31, and June 30 and within 120 days following
the end of the fiscal year (September 30), the financial statements of Living
Centers of America, Inc., now known as Mariner Post-Acute Network, Inc. and its
wholly owned subsidiaries as the guarantor of this Lease. This, obligation may
be satisfied by the provision of 10-Q and 10-K for the particular period filed
by the parent company with the Securities and Exchange Commission."
(r) Section 15.5, Notices, is amended to read as
follows:
"Section 15.5 Notices. Any notice to be given or to
be served in connection with this Lease must be in writing, and may be given by
certified or registered mail and shall be deemed to have been given and
received (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 Lessor: Xxxx Xxxxxx, Xx.
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
and
Xxxxx Xxxxxx
Xxxxxx/Xxxxxx Companies, Inc.
0000 Xxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
If to Lessee: 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
notice under this Section."
8
2. LCT Bankruptcy.
(a) Lessor and Lessee agree that notwithstanding
anything to the contrary in this particular Lease, Lessee's currently pending
Chapter 11 case does not, and shall not, constitute a default under the terms
of this Lease only. A future case under the Bankruptcy Code that is filed by or
against Lessee after a plan of reorganization for Lessee is confirmed in
Lessee's currently pending Chapter 11 case, the effective date thereof occurs,
and Lessee's Chapter 11 case is closed, will be subject to the default
provisions of this Lease.
(b) Lessor and Lessee agree that notwithstanding
anything to the contrary in this particular 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,
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. Lessor and
Lessee also expressly agree however that the right of Lessee to assign this
Lease during the pendency of Lessee's Chapter 11 case given in this provision
solely relates to this Lease and shall not and does not give Lessee the right
to assign any of the Xxxxxx Leases, the Xxxxxx Master Lease or any other lease
between Lessor and Lessee to any other entity unless expressly agreed to in
writing by Lessor by an amendment to such lease.
3. Miscellaneous. This Amendment is governed by and will be
construed in accordance with the laws of the State of Texas and applicable
federal laws. The parties agree that the Lease as amended by this Amendment
sets forth the entire agreement of the parties and supersedes all prior
agreements and understandings by or among them, written or oral, with respect
to this particular Lease. This Amendment shall be binding upon and inure to the
benefit of each party's successors and assigns. Except as expressly set forth,
the Lease shall continue in effect with no other changes.
IN WITNESS WHEREOF, Lessor and Lessee hereby sign and deliver to the
other this Amendment effective as of the date first above written.
[signatures appear on the following page]
9
Lessor: Lessee:
Xxxxxx/Xxxxxx Companies, Inc. Living Centers of Texas, Inc.
By: By:
----------------------------- ----------------------------------------
Xxxxxxxx X. Xxxxxx, President Its:
---------------------------------------
STATE OF
-----------------------
COUNTY OF
----------------------
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.
----------------------------------
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.
----------------------------------
Notary Public, State of Texas
10
