Exhibit 10.42.2
FIRST AMENDMENT TO MASTER LEASE
AND CONSENT TO TRANSFER
THIS FIRST AMENDMENT TO MASTER LEASE AND CONSENT TO TRANSFER (the
"FIRST AMENDMENT") is made as of December 2, 2003 by and among ALTERRA
HEALTHCARE CORPORATION, a Delaware corporation ("TENANT") and NATIONWIDE HEALTH
PROPERTIES, INC., a Maryland corporation, NH TEXAS PROPERTIES LIMITED
PARTNERSHIP, a Texas limited partnership, MLD DELAWARE TRUST, a Delaware
business trust, MLD PROPERTIES, LLC, a Delaware limited liability company, NHP
SILVERWOOD INVESTMENTS, INC., a Nevada corporation, and NHP WESTWOOD
INVESTMENTS, INC., a Nevada corporation (collectively, "LANDLORD").
R E C I T A L S:
A. Landlord and Tenant have entered into that certain Master Lease
dated as of April 9, 2002 (the "MASTER LEASE"), pursuant to which Landlord
leases to Tenant the Premises described therein. Initially capitalized terms
used but not otherwise defined in this First Amendment shall have the meanings
given to them in the Master Lease.
B. Pursuant to the Master Lease and that certain Letter of Credit
Agreement dated as of April 9, 2002 (the "LC AGREEMENT") by and between Landlord
and Tenant, Tenant has posted one or more letters of credit with Landlord as
partial collateral for the performance of Tenant's obligations under the Master
Lease.
C. As of the date of execution hereof, Tenant is a debtor in
possession in a case (Case No. 03-10254 (MFW)) (the "BANKRUPTCY PROCEEDING")
commenced under chapter 11 of Title 11 of the United States Code (the
"BANKRUPTCY CODE"), which case is presently pending before the United States
Bankruptcy Court for the District of Delaware (the "BANKRUPTCY COURT"). It is
currently contemplated that FEBC-ALT Acquisition, Inc., a Delaware corporation
(the "PURCHASER"), shall be merged with and into Tenant (the "TRANSFER")
pursuant to the terms of the Agreement and Plan of Merger dated July 18, 2003 by
and among FEBC-ALT Investors, Inc., FEBC-ALT Acquisition Inc. and the Tenant's
First Amended Plan of Reorganization of Alterra Healthcare Corporation dated
July 28, 2003 (as such plan may later be amended, supplemented or otherwise
modified, the "PLAN"). Tenant shall be the surviving entity under the Transfer
(the "SURVIVING ENTITY").
D. Landlord and Tenant desire, among other things, to amend the
Lease Documents and to make certain other representations, warranties and
covenants, all as more particularly set forth in this First Amendment.
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A G R E E M E N T
NOW, THEREFORE, taking into account the foregoing Recitals, and in
consideration of the mutual covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. AMENDMENTS TO LEASE DOCUMENTS.
(A) CERTAIN CROSS DEFAULTS. Clause (iii) of Section 12(d) of
the Master Lease is hereby amended and restated in its entirety as
follows: "(iii) [intentionally omitted]". In addition, the following is
hereby added to the end of Section 12(d) of the Master Lease: "As used in
this Section 12(d), an "Affiliate of Landlord" shall not be deemed or
construed to include JER/NHP Senior Living Acquisition, LLC, a Delaware
limited liability company, JER/NHP Senior Living Texas, L.P., a Texas
limited partnership, JER/NHP Senior Living Wisconsin, LLC, a Delaware
limited liability company, or JER/NHP Senior Living Kansas, Inc., a Kansas
corporation, unless such entity is directly or indirectly owned and
controlled solely by Nationwide Health Properties, Inc. a Maryland
corporation;"
(B) NOTICE ADDRESSES. The notice address for Tenant set
forth in Section 21 of the Master Lease is hereby amended and
restated in its entirety as follows:
c/o Alterra Healthcare Corporation
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Fax No. 000-000-0000
With a copy to:
Xxxxxx & Hardin LLP
Suite 2700
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Fax No. 000-000-0000
(C) EFFECT OF AMENDMENT. Except as specifically amended
pursuant to the terms of this First Amendment, the terms and conditions of
the Lease Documents shall remain unmodified and in full force and effect.
In the event of any inconsistencies between the terms of this First
Amendment and any terms of the Lease Documents, the terms of this First
Amendment shall govern and prevail.
2. AFFIRMATION OF LEASE DOCUMENTS. Tenant hereby acknowledges and
affirms its obligations under the Lease Documents (as modified hereby). Landlord
and Tenant
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represent and warrant that the Lease Documents are the valid and binding
obligations of Landlord and Tenant and are in full force and effect and are
fully enforceable by Landlord against Tenant in accordance with their respective
terms. Tenant specifically acknowledges and affirms that, except as expressly
modified by this First Amendment, its obligations under the Lease Documents
shall not be diminished or otherwise affected by this First Amendment and shall
not be released, discharged, terminated or otherwise diminished in whole or in
part as a result of the Bankruptcy Proceeding, and further agrees that it shall
take no actions and shall oppose any actions by third parties in the Bankruptcy
Proceeding that would result in the release, discharge, termination or other
diminution of any obligation of the Tenant thereunder. Tenant hereby further
represents and warrants that, upon the closing of the merger contemplated under
the Plan, the Lease Documents will be the valid and binding obligations of the
Surviving Entity and shall be in full force and effect and fully enforceable by
Landlord against the Surviving Entity in accordance with their respective terms.
3. CONSENT TO TRANSFER. Upon satisfaction of the conditions
precedent to the effectiveness of this First Amendments as set forth in Section
4 hereof, Landlord shall be deemed to have consented to the Transfer and to have
waived any default or event of default that might otherwise arise as a result of
the Transfer, including without limitation any default or event of default under
Sections 12 and/or 16 of the Master Lease.
4. EFFECTIVENESS OF FIRST AMENDMENT. This First Amendment shall be
deemed effective on the first date (the "EFFECTIVE DATE") upon which each of the
following conditions has occurred, each of which shall be deemed a condition
precedent to the Landlord's obligations and covenants hereunder:
(A) All conditions to the effectiveness of the JER/NHP
Amendments have been satisfied and the Transfer shall have been
consummated and closed in accordance with the Plan;
(B) the Lease Documents shall continue to be and shall be the
valid and binding obligations of the Surviving Entity and shall continue
to be and shall be in full force and effect, enforceable in accordance
with their respective terms by Landlord against the Surviving Entity; and
(C) the claims of Landlord shall have been treated as
unimpaired in accordance with the Plan.
5. OUTSIDE DATE OF TRANSFER. This First Amendment may at the option
of any party be declared null and void ab initio in the event that, the Transfer
has not been consummated and has not become effective, and the Plan has not been
confirmed (by final order of the Bankruptcy Court that is no longer subject to
appeal) by, December 31, 2003.
6. FURTHER INSTRUMENTS. Each of the undersigned will, whenever and
as often as it shall be reasonably requested so to do by another party, take all
actions reasonably required and shall cause to be executed, acknowledged or
delivered, any and all such further instruments and documents as may be
necessary or proper, in the reasonable opinion of the
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requesting party, in order to carry out the intent and purpose of this First
Amendment, including without limitation modifying or amending the Plan to ensure
that the undersigned receive the full benefit of their respective bargains set
forth herein.
7. INCORPORATION OF RECITALS. The Recitals to this First Amendment
are incorporated hereby by reference.
8. ATTORNEYS' FEES. In the event of any dispute or litigation
concerning the enforcement, validity or interpretation of this First Amendment,
or any part thereof, the losing party shall pay all costs, charges, fees and
expenses (including reasonable attorneys' fees) paid or incurred by the
prevailing party, regardless of whether any action or proceeding is initiated
relative to such dispute and regardless of whether any such litigation is
prosecuted to judgment.
9. MISCELLANEOUS. This First Amendment contains the entire agreement
between the parties relating to the subject matters contained herein. Any prior
representations or statements concerning the subject matters herein shall be of
no force or effect. This First Amendment shall be construed as a whole and in
accordance with its fair meaning. Headings are for convenience only and shall
not be used in construing meaning. This First Amendment shall be governed by and
construed in accordance with the internal laws of the State of California
without regard to rules concerning the choice of law. This First Amendment may
be executed in multiple counterparts and in original or by facsimile, each of
which constitute an original, but all of which taken together shall constitute
but one in the same document.
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IN WITNESS WHEREOF, the parties have executed this First Amendment as of
the date first above written.
TENANT:
ALTERRA HEALTHCARE CORPORATION,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxxx
--------------------------------
Title: President
--------------------------------
Witness: /s/ Xx X. Witness: /s/ Xxxxx X.
-------------------------------- -----------------------------
LANDLORD:
NATIONWIDE HEALTH PROPERTIES, INC.,
a Maryland corporation
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and General Counsel
Witness: /s/ Xxxxxx X. Xxxxxxxx Witness: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------- -----------------------------
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NH TEXAS PROPERTIES LIMITED PARTNERSHIP,
a Texas limited partnership
By: MLD TEXAS CORPORATION,
a Texas corporation,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and General Counsel
Witness: /s/ Xxxxxx X. Xxxxxxxx Witness: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------- -----------------------------
MLD PROPERTIES, LLC,
a Delaware limited liability company
BY: MLD PROPERTIES, INC.,
a Delaware corporation,
its Sole Member
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and General Counsel
Witness: /s/ Xxxxxx X. Xxxxxxxx Witness: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------- -----------------------------
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MLD DELAWARE TRUST,
a Delaware business trust
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx, not in his individual
capacity, but solely as Trustee
Witness: /s/ Xxxxxx X. Xxxxxxxx Witness: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------- -----------------------------
NHP SILVERWOOD INVESTMENTS, INC.,
a Nevada corporation
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and General Counsel
Witness: /s/ Xxxxxx X. Xxxxxxxx Witness: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------- -----------------------------
NHP WESTWOOD INVESTMENTS, INC.,
a Nevada corporation
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and General Counsel
Witness: /s/ Xxxxxx X. Xxxxxxxx Witness: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------- -----------------------------
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