EXHIBIT 10.21
AMENDMENT TO MASTER LEASE DOCUMENT
AMENDMENT dated as of December 29, 1993 between HEALTH AND
REHABILITATION PROPERTIES TRUST (known in Wisconsin as "Health and
Rehabilitation Properties REIT"), a real estate investment trust formed under
the laws of the State of Maryland ("HRP") and AMS PROPERTIES, INC., a Delaware
corporation ("AMS Properties")
W I T N E S S E T H:
WHEREAS, HRP, as landlord, and AMS Properties, as tenant, have entered
into a Master Lease Document, General Terms and Conditions dated as of December
28, 1990 (as amended, the "Master Lease"), and have also executed Facility
Leases which incorporate by reference the Master Lease (collectively, the
"Facility Leases") relating to the health care facilities described on Exhibit
A-2 to the Master Lease and on Exhibit F-3 to the Acquisition Agreement,
Agreement to Lease and Mortgage Loan Agreement, dated as of December 28, 1990,
as amended, between HRP, AMS Properties, Hostmasters, Inc., GranCare, Inc.
(formerly known as AMS Holding Co.) and American Medical Services, Inc. (the
"Acquisition Agreement");
WHEREAS, HRP and AMS Properties have agreed to amend the Master Lease
as hereinafter provided;
NOW, THEREFORE, in consideration of the foregoing, and of other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, HRP and AMS Properties agree as follows:
SECTION 1. AMENDMENT TO MASTER LEASE
The Master Lease is hereby amended as follows:
(a) The definitions "Guarantor", "Net Patient Revenues" and
"Transaction Documents" in Article 1 of the Master Lease are hereby amended in
full to read as follows:
Guarantor shall mean any guarantor of Tenant's obligations
under the applicable Lease, including, without limitation, GranCare,
Inc. (f/k/a AMS Holding Co.) and GCI Health Care Centers, Inc.
Net Patient Revenues with respect to the Facility located at
the applicable Leased Property (or Collective Leased Property, as the
case may be), shall mean all
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revenues (determined in accordance with GAAP, except as provided below)
received or receivable from or by reason of the operation of such
Facility, or any other use of such Facility, including without
limitation all patient or client revenues received or receivable for
the use of or otherwise by reason of all rooms, beds and other
facilities provided, meals served, services performed or provided,
space or facilities subleased or goods sold at such Facility,
including, without limitation, any other arrangements with third
parties relating to the possession or use of any portion of such
Facility; provided, however, that Net Patient Revenues shall not
include:
(a) revenue from professional fees or charges by
physicians and unaffiliated providers of ancillary services,
when and to the extent such charges are paid over to such
physicians or unaffiliated providers of ancillary services, or
are separately billed and not included in comprehensive fees;
(b) non-operating revenues such as interest income or
income from the sale of assets not sold in the ordinary course
of business;
(c) revenues attributable to services actually
provided off-site or otherwise away from such Facility, such
as home health care, to persons that are not patients at such
Facility;
(d) all revenues attributable to Tenant's Capital
Additions;
(e) revenues attributable to child care services used
primarily for employees of such Facility; and
(f) all revenues attributable to pharmacy services
provided to patients of such Facility by Tenant or its
Affiliates, and other services provided to patients of such
Facility by Tenant or its Affiliates that Landlord
acknowledges in writing following the written request of
Tenant (which acknowledgement will not be unreasonably
withheld) are not typically provided to nursing home patients
by the operators of such facilities; provided that this clause
(f) shall be given effect with respect to calculations of
Additional Rent (including, without limitation, the
computation of Base Net Patient Revenues for the Base Year)
only as to Fiscal Years ending after December 31, 1993.
Transaction Documents has the meaning given that term in the
Acquisition Agreement.
(b) Section 12.1(h) of the Master Lease is amended in full to read as
follows:
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(h)(A) any obligation of Tenant or any Guarantor (other than
GranCare, Inc.), or of any Subsidiary thereof, in respect of any
indebtedness for borrowed money or for the deferred purchase price of
any material property or services (excluding (1) trade accounts payable
in the ordinary course of business on customary trade terms and (2)
indebtedness or obligations under the Transaction Documents)
(hereinafter, "Indebtedness for Borrowed Money") or any guaranty
relating thereto shall be declared to be or shall become due and
payable prior to the stated maturity thereof, or such Indebtedness for
Borrowed Money shall not be paid as and when the same becomes due and
payable, or there shall occur and be continuing any default under any
instrument, agreement or evidence of indebtedness relating to any such
Indebtedness for Borrowed Money the effect of which is to permit the
holder or holders of such instrument, agreement or evidence of
indebtedness, or a trustee, agent or other representative on behalf of
such holder or holders, to cause such Indebtedness for Borrowed Money
to become due prior to its stated maturity; or (B) any obligation of
GranCare, Inc., a Delaware corporation (f/k/a AMS Holding Co.), or of
any Subsidiary thereof, in respect of any Indebtedness for Borrowed
Money or any guaranty relating thereto shall be declared to be or shall
become due and payable prior to the stated maturity thereof, or the
holder or holders of any instrument, agreement or evidence of
indebtedness relating to any such Indebtedness for Borrowed Money, or a
trustee, agent or other representative on behalf of such holder or
holders, shall deliver a notice of default, or shall accelerate or
demand payment of such Indebtedness for Borrowed Money, or initiate
foreclosure proceedings or exercise any other creditor's remedies in
respect of such Indebtedness for Borrowed Money (whether similar or
dissimilar to the foregoing); or
(c) Section 21.4 of the Master Lease is amended in full to read as
follows:
21.4 Tenant's Option to Purchase the Collective Leased
Properties.
Provided,
(a) no Default involving the nonpayment of Rent shall
have occurred and be continuing,
(b) the Leases for each of the Collective Leased
Properties shall be in full force and effect (other than
Leases that have been terminated in accordance with the
provisions hereof, other than after the occurrence of an Event
of Default), and
(c) other than as expressly permitted by Article 17,
Tenant shall not have assigned the Leases for any
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of the Collective Leased Properties or subleased all or any
portion of the Collective Leased Properties,
Tenant shall have the option, exercisable on not less than twelve (12)
months prior Notice to Landlord, to purchase all, but not less than
all, the Collective Leased Properties (other than those Collective
Leased Properties whose Leases have been terminated in accordance with
the provisions of Article 10 or Article 11) upon the expiration of any
Extended Term, each for a purchase price equal to the sum of the
greater of (i) ninety percent (90%) of the Fair Market Value Purchase
Price of such Collective Leased Property as of the expiration of such
Extended Term, or (ii)(1) if such option is exercised at the end of the
first Extended Term, one hundred fifty percent (150%) of such Adjusted
Purchase Price, (2) if such option is exercised at the end of the
second Extended Term, two hundred percent (200%) of such Adjusted
Purchase Price or (3) if such option is exercised at the end of the
third Extended Term, three hundred percent (300%) of such Adjusted
Purchase Price. Such purchase by Tenant shall be made in accordance
with the provisions of Article 15.
SECTION 2. EFFECT ON MASTER LEASE
(a) Except as specifically provided above, the Master Lease shall
remain in full force and effect and is hereby ratified and confirmed.
(b) The amendments set forth herein (i) do not constitute an amendment,
waiver or modification of any term, condition or covenant of the Master Lease,
or any of the instruments or documents referred to therein, other than as
specifically set forth herein, and (ii) shall not prejudice any rights which HRP
or its successors and assigns may now or hereafter have under or in connection
with the Master Lease, as amended hereby or any of the instruments or documents
referred to therein.
SECTION 3. EFFECTIVENESS
This Amendment shall become effective as of the date first above
indicated when a counterpart to this Amendment shall have been executed by each
of the parties hereto.
SECTION 4. COSTS, EXPENSES AND TAXES
AMS Properties agrees to pay all costs and expenses of HRP in
connection with the preparation, reproduction, execution and delivery of this
Amendment, including the reasonable fees and expenses of Xxxxxxxx & Worcester,
special counsel to HRP with respect thereto.
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SECTION 5. GOVERNING LAW
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN AC CORDANCE WITH
THE INTERNAL SUBSTANTIVE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS.
SECTION 6. NO LIABILITY OF TRUSTEES
THE DECLARATION OF TRUST OF HRP, DATED OCTOBER 9, 1986, A COPY OF
WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE "DECLARATION"), IS DULY FILED
IN THE OFFICE OF THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF
MARYLAND, PROVIDES THAT THE NAME "HEALTH AND REHABILITATION PROPERTIES TRUST"
REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOT
INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE
OR AGENT OF HRP SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY,
FOR ANY OBLIGATION OF, OR CLAIM AGAINST, HRP. ALL PERSONS DEALING WITH HRP, IN
ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF HRP FOR THE PAYMENT OF ANY SUM OR THE
PERFORMANCE OF ANY OBLIGATION.
IN WITNESS WHEREOF, the parties have executed this amendment as a
sealed instrument as of the date first above written.
LANDLORD:
HEALTH AND REHABILITATION
PROPERTIES TRUST,
a Maryland real estate
investment trust
By:/s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title:
TENANT:
AMS PROPERTIES, INC.
By:/s/ Xxxxxx Xxxxxx
Name:
Title:
