EXHIBIT 10.2
MASTER LEASE
Between
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; and
JER/NHP SENIOR LIVING KANSAS, INC.,
a Kansas corporation
collectively as “Landlord”
and
ALS LEASING, INC.,
a Delaware corporation; and
ASSISTED LIVING PROPERTIES, INC.,
a Kansas corporation
collectively as “Tenant”
Dated: April 9, 2002
TABLE OF CONTENTS1. | | Term | 2 |
2. | | Rent | 2 |
| 2.1 | Initial Term Minimum Rent | 2 |
| 2.2 | Landlord's Investment; Rent Adjustments | 3 |
| 2.3 | Renewal Term Minimum Rent | 3 |
| 2.4 | Rent Caps and Floors | 4 |
| 2.5 | Manlius Rent | 4 |
| 2.6 | Payment Terms | 6 |
| 2.7 | Absolute Net Lease | 6 |
3. | | Late Charges | 6 |
4. | | Security Deposit; Collateral for Lease Obligations | 6 |
5. | | Taxes and Other Charges | 7 |
| 5.1 | Tenant's Obligation | 7 |
| 5.2 | Protests | 8 |
| 5.3 | Tax Impound and Escrow | 8 |
6. | | Insurance | 9 |
| 6.1 | Requirements | 9 |
| 6.2 | Exceptions to Insurance Requirements | 11 |
| 6.3 | Reimbursement of Landlord's Insurance Costs | 11 |
| 6.4 | Determination of Commercial Reasonableness | 11 |
7. | | Use, Regulatory Compliance and Preservation of Business | 12 |
| 7.1 | Permitted Use; Qualified Care | 12 |
| 7.2 | Regulatory Compliance | 12 |
| 7.3 | Preservation of Business | 13 |
| 7.4 | Coverage Ratio | 14 |
8. | | Acceptance, Maintenance, Upgrade, Alteration and Environmental | 14 |
| 8.1 | Acceptance "AS IS"; No Liens | 14 |
| 8.2 | Tenant's Maintenance Obligations | 14 |
| 8.3 | Upgrade Expenditures | 14 |
| 8.4 | Alterations by Tenant | 15 |
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TABLE OF CONTENTS
(continued) | 8.5 | Hazardous Materials | 16 |
9. | | Tenant Property and Security Interest; Landlord Personal Property | 17 |
| 9.1 | Tenant Property | 17 |
| 9.2 | Landlord's Security Interest and Financing Statements | 17 |
| 9.3 | Landlord Personal Property | 18 |
10. | | Financial, Management and Regulatory Reports | 18 |
11. | | Representations and Warranties | 19 |
| 11.1 | By Landlord | 19 |
| 11.2 | By Tenant | 19 |
12. | | Events of Default | 21 |
13. | | Remedies | 22 |
| 13.1 | General | 23 |
| 13.2 | Tenant Repurchase/Receivership | 23 |
| 13.3 | Remedies Cumulative; No Waiver | 24 |
| 13.4 | Performance of Tenant's Obligations | 24 |
14. | | Provisions on Termination | 24 |
| 14.1 | Surrender of Possession | 24 |
| 14.2 | Removal of Tenant Personal Property | 25 |
| 14.3 | Management of Premises | 25 |
| 14.4 | Holding Over | 26 |
| 14.5 | Survival | 26 |
15. | | Certain Landlord Rights | 26 |
| 15.1 | Entry and Examination of Records | 26 |
| 15.2 | Grant Liens; Change in Zoning | 26 |
| 15.3 | Subordination, Attornment and Nondisturbance | 26 |
| 15.4 | Estoppel Certificates | 27 |
| 15.5 | Conveyance Release | 27 |
16. | | Assignment and Subletting | 27 |
17. | | Damage by Fire or Other Casualty | 28 |
18. | | Condemnation | 28 |
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TABLE OF CONTENTS
(continued)19. | | Indemnification | 28 |
20. | | Attorneys Fees; Disputes | 29 |
21. | | Notices | 29 |
22. | | Miscellaneous | 30 |
23. | | Wisconsin Purchase Facilities | 31 |
| 23.1 | Tenant Purchase Option | 31 |
| 23.2 | Landlord Disposition Rights | 32 |
| 23.3 | Adjustment to Landlord's Investment | 32 |
24. | | Quiet Enjoyment | 33 |
25. | | Landlord Maintenance Obligation | 33 |
| 25.1 | Maintenance Contractors | 33 |
| 25.2 | Request for Service | 33 |
| 25.3 | Costs and Expenses | 33 |
| 25.4 | Report on Activities | 33 |
| 25.5 | Transition | 34 |
26. | | Advisory Fee | 34 |
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EXHIBITS AND SCHEDULES:EXHIBIT A LEGAL DESCRIPTIONS
EXHIBIT B LANDLORD PERSONAL PROPERTY
EXHIBIT C FAIR MARKET VALUE
EXHIBIT D PERMITTED EXCEPTIONS
EXHIBIT E CERTAIN DEFINITIONS
EXHIBIT F FINANCIAL, MANAGEMENT AND REGULATORY REPORTS
SCHEDULE 1A LANDLORD ENTITIES
SCHEDULE 1B TENANT ENTITIES
SCHEDULE 2 FACILITY INFORMATION:
BUSINESS, BEDS, TRADENAMES, ETC.
SCHEDULE 3 EXCEPTIONS TO INSURANCE REQUIREMENTS
SCHEDULE 4 EXISTING FACILITIES EXEMPT FROM RADIUS RESTRICTION
SCHEDULE 5 EXCEPTIONS TO TENANT'S REPRESENTATIONS AND WARRANTIES
SCHEDULE 6 INITIAL CAPITAL EXPENDITURE ITEMS
SCHEDULE 7 WISCONSIN PURCHASE FACILITIES
SCHEDULE 8 MANLIUS FINANCING DOCUMENTS
MASTER LEASE
(Meditrust Pool)
This “
Master Lease” is entered into effective as of April 9, 2002 (the “
Effective Date”) among the
Entities Listed onSchedule 1A (collectively, “
Landlord”), and
ALS Leasing, Inc., a Delaware corporation (“
ALS Leasing”), and
Assisted Living Properties, Inc., a Kansas corporation (“
ALP” and, collectively with ALS Leasing, “
Tenant”), for the respective real properties and improvements thereon (collectively, the “
Facilities”) as set forth on
Schedules 1A and 1B and as legally described on
Exhibit A and the “
Landlord Personal Property” associated therewith as described in
Exhibit B or as may be acquired after the Effective Date (collectively, the “
Premises”), each used as a licensed healthcare facility of the type described on
Schedule 2 (individual ly as so utilized, and collectively, the “
Business”). Landlord and Tenant have also concurrently entered into a
Letter of Credit Agreement (the “
LC Agreement”) pursuant to which Tenant shall provide certain collateral to Landlord for the performance of its obligations under this Master Lease. Pursuant to its concurrent
Guaranty of Master Lease and Letter of Credit Agreement (the “
Guaranty”), Alterra Healthcare Corporation, a Delaware corporation (“
Guarantor”), has guaranteed Tenant's obligations hereunder. In consideration of the mutual covenants, conditions and agreements set forth herein, Landlord hereby leases the Premises to Tenant for the Term upon the terms and conditions provided below. Certain capitalized terms used in this Master Lease are defined on
Exhibit E.
RECOGNITION OF INDIVISIBLE MASTER LEASE;
IRREVOCABLE WAIVER OF CERTAIN RIGHTS
Tenant and Guarantor each acknowledge and agree that this Master Lease constitutes a single, indivisible lease of the entire Premises, and the Premises constitutes a single economic unit. The Minimum Rent, other Rent payable hereunder and all other provisions contained herein have been negotiated and agreed upon based on the intent to lease the entirety of the Premises as a single and inseparable transaction, and such Minimum Rent, other Rent and other provisions would have been materially different had the parties intended to enter into separate leases or a divisible lease. Any Event of Default under this Master Lease shall constitute an Event of Default as to the entire Premises.
Tenant and Guarantor each further acknowledge and agree that Landlord is entering into this Master Lease as an accommodation to Tenant and Guarantor. Each of the entities comprising Tenant and Guarantor, in order to induce Landlord to enter into this Master Lease, to the extent permitted by law:
A. Agrees, acknowledges and is forever estopped from asserting to the contrary that the statements set forth in the preceding paragraphs of this Section are true, correct and complete;
B. Agrees, acknowledges and is forever estopped from asserting to the contrary that this Master Lease is a new and de novo lease, separate and distinct from any other lease between any of the entities comprising Tenant and any of the entities comprising Landlord that may have existed prior to the date hereof;
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C. Agrees, acknowledges and is forever estopped from asserting to the contrary that this Master Lease is a single lease pursuant to which the collective Premises are demised as a whole to Tenant;
D. Agrees, acknowledges and is forever estopped from asserting to the contrary that if, notwithstanding the provisions of this Section, this Master Lease were to be determined or found to be in any proceeding, action or arbitration under state or federal bankruptcy, insolvency, debtor-relief or other applicable laws to constitute multiple leases demising multiple properties, such multiple leases could not, by the debtor, trustee, or any other party, be selectively or individually assumed, rejected or assigned;
E. Forever knowingly waives and relinquishes any and all rights under or benefits of the provisions of the Federal Bankruptcy Code Section 365 (11 U.S.C. § 365), or any successor or replacement thereof or any analogous state law, to selectively or individually assume, reject or assign the multiple leases comprising this Master Lease following a determination or finding in the nature of that described in the foregoing Section D.
1. Term. The “
Term” of this Master Lease is the Initial Term
plus all Renewal Terms, and a “
Lease Year” is the
twelve (12) month period commencing on January 1st of each year of the Term. The “
Initial Term” commences on April 10, 2002 and ends on December 31, 2020, and may be extended for two (2) separate “
Renewal Terms” of
ten (10) years each if:
(a) not more than
thirty (30) days before or after the date that is
fifteen (15) months prior to the end of the then current Term, Tenant delivers to Landlord written notice (a “
Rent Determination Notice”) that Tenant desires to determine the applicable Minimum Rent for a subsequent Renewal Term pursuant to the provisions of
Section 2.3 below for the purpose of evaluating whether Tenant desires to exercise its right to extend the the n current Term for one (1) Renewal Term,
(b) on or prior to the date that is
twelve (12) months prior to the end of the then current Term, Tenant delivers to Landlord written notice (a “
Renewal Notice”), which shall be irrevocable by Tenant, stating that it desires to exercise its right to extend this Master Lease for one (1) Renewal Term;
(c) there is no Event of Default on the date Landlord receives the Rent Determination Notice (the “
Exercise Date”), the date Landlord receives the Renewal Notice or on the last day of the then current Term; and
(d) the Minimum Rent for the Renewal Term is determined pursuant to
Section 2.3 on or before the date that is
twelve (12) months prior to the end of the then current Term.
2. Rent. During the Term, Tenant shall pay Landlord “
Rent” consisting of “
Minimum Rent” determined as provided in this
Section 2 and such other sums as may be described in this Master Lease as Rent. The monthly Minimum Rent for any month that begins or ends on other than the first or last day of a calendar month, and the annual Minimum Rent for any Lease Year that begins on other than the fist day of a Lease Year, shall be prorated based on actual days elapsed.
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2.1 Initial Term Minimum Rent. During the Initial Term, “
Minimum Rent” per Lease Year is equal to Landlord's Investment (as defined below)
multiplied by the Initial Term Applicable Rate. The “
Initial Term Applicable Rate” for each Lease Year (or portion thereof) shall be
(a) the Initial Term Base Rate (as defined below) for the portion of the Lease Year from the Effective Date to December 31, 2002,
(b) the Initial Term Base Rate
plus the CPI Increase (as defined below), not to exceed 30/100ths of one percent (.30%), for the first (1st) Lease Year,
(c) the Initial Term Applicable Rate in effect in the immediately preceding Lease Year
plus the CPI Increase, not to exceed 30/100ths of one percent (.30%), for the second (2nd through the fourth (4th) Lease Years, and
(d) the Initial Term Applicable Rate in effect in the immediately preceding Lease Year
plus the CPI Increase, not to exceed 25/100ths of one percent (.25%), for the fifth (5th) Lease Year and each Lease Year thereafter during the Initial Term. The “
Initial Term Base Rate” shall be equal to eleven and one-half percent (11.5%). The “
CPI Increase” shall be calculated annually by comparing the CPI (as defined below) in effect on the first calendar day of the immediately preceding Lease Year (or calendar year with respect to the first (1st) full Lease Year) to the first calendar day of the then current Lease Year and
multiplyingby three (3). The “
CPI” shall mean the Consumer Price Index for All Urban Wage Earners and Clerical Workers, United States Average, Subgroup “All Items” (1982 - 1984 = 100), as published by the United States Department of Labor, Bureau of Labor Statistics, or similar index if the same becomes unavailable
2.2 Landlord's Investment; Rent Adjustments.
(a) “
Landlord's Investment” in the Premises, shall mean
Ninety-Six Million Four Hundred Forty-Four Thousand Seven Hundred Ninety-Two Dollars ($96,444,792), which includes the outstanding principal amount of the Manlius Financing on the Effective Date, and includes as of the Effective Date the amount of
One Million Five Hundred Sixty-Seven Thousand Two Hundred Twenty-Two Dollars ($1,567,222) representing the sums payable pursuant to
Section 26,
plus, as of the date of such funding, the amount of
Two Million Dollars ($2,000,000) which may be funded by Landlord into the CapEx Reserve or otherwise made available to Tenant pursuant to
Section 8.3,
plus any amount for Alterations advanced by Landlord pursuant to
Section 8.4,
plus any amount elected to be added by Landlord pursuant to
Section 13.4,
plus any other amount that, in accordance with any o ther term of provision of this Master Lease, is to be added to Landlord's Investment, and
minus any net award paid to Landlord for a Partial Taking pursuant to
Section 18,
minus any amounts to be subtracted therefrom as a result of the sale or other disposition of any of the Wisconsin Facilities pursuant to
Section 23.3,
minus any other net capital proceeds received by Landlord for any portion of the Premises sold or conveyed, including any portion of the Premises as to which Tenant acquires title pursuant to the operation of the Put set forth in
Section 13.2 or otherwise, as to any portion of the Premises for which this Master Lease is terminated during the Term in accordance with its terms, and
minus any other amount that, in accordance with any other term of provision of this Master Lease, is to be subtracted from Landlord's Investment.
(b) Concurrently with any increase or decrease in Landlord's Investment during the Term as described in
Section 2.2(a), the Minimum Rent then due and payable for the balance of the applicable Lease Year and Term shall be recalculated and reset based on the adjusted Landlord's Investment.
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2.3 Renewal Term Minimum Rent. To establish a fair market Minimum Rent for the Premises during the Renewal Terms, the Minimum Rent for each Renewal Term shall be reset and expressed as an annual amount equal to the product of:
(a) Landlord's Investment in the Premises on the Exercise Date for such Renewal Term (provided that, if the “
Fair Market Value” of the Premises on such Exercise Date as established pursuant to
Exhibit C, is greater than the then Landlord's Investment, such Landlord's Investment shall be adjusted for purposes of this Master Lease to be equal to such Fair Market Value), and
(b) the Renewal Term Applicable Rate. The “
Renewal Term Applicable Rate” for each Lease Year shall be
(i) the Renewal Term Base Rate for the first (1st) Lease Year of each Renewal Term, and
(ii) the Renewal Term Applicable Rate in effect in the immediately precedi ng Lease Year
plus the CPI Increase, not to exceed 25/100ths of one percent (.25%), for the second (2nd) Lease Year and each other Lease Year of each Renewal Term. The “
Renewal Term Base Rate” in each Renewal Term shall be a percentage equal to
Six Hundred Twenty-Nine (629) basis points over the 10-Year U.S. Treasury Rate in effect on the applicable Exercise Date.
2.4 Rent Caps and Floors.
(a) Notwithstanding any of the other terms of this Master Lease, in no event shall the Minimum Rent in the first (1st) Lease Year of any Renewal Term exceed
one hundred twenty-five percent (125%) of the Minimum Rent due for the last Lease Year of the Initial Term or preceding Renewal Term, as applicable.
(b) Notwithstanding any of the other terms of this Master Lease, in no event shall the Minimum Rent in the first (1st) Lease Year of any Renewal term be less than
one hundred percent (100%) of the Minimum Rent due for the last Lease Year of the Initial Term or preceding Renewal Term, as applicable.
2.5 Manlius Rent.
(a) Tenant acknowledges that, in connection with Landlord's acquisition of the Manlius Facility, Tenant has requested that Landlord assume the Manlius Financing. In consideration thereof, and as additional Rent payable hereunder, Tenant shall pay as and when due and prior to any delinquency and without incurring or causing the accrual of any penalty, late charge or default interest in connection therewith, the Manlius Debt Service. Tenant shall pay the Manlius Debt Service to the entities, and in the manner, required by the Manlius Financing Documents. Without limitation of any other provision contained in this Master Lease or in any of the Manlius Financing Documents, Tenant further covenants and agrees to fully perform and discharge, at the times and in the manner required thereunder, all of the undertakings, obligations and responsibilities of the borrower under the Manlius Financing Documents, including all reporting, regulatory, indemnity, environ mental and maintenance (subject to Landlord's obligations, if any, under
Section 25) requirements. At no cost or expense to itself, Landlord will reasonably cooperate with Tenant to fulfill any reporting or similar requirements under the Manlius Financing Documents that could not reasonably be performed by Tenant in the absence of such cooperation and will perform all obligations under the Manlius Financing Documents that could only be performed by Landlord, which are limited to
(i) the requirement that Landlord remain in good standing and not dissolve its existence and
(ii) the requirement that Landlord not willfully cause any default under the Manlius Financing Documents. The amounts actually paid by Tenant and received by the appropriate payee during any calendar month for Manlius Debt Service (excluding any penalty, late charge or default interest) shall be credited against the amount of Minimum Rent payable by Tenant in such month, provided that
(y) no Event of Default is then continuing, and
(z) the amount of such credit shall not, in any event, exceed Landlord's yield under this Master Lease on the principal amount of the Manlius Financing assumed by Landlord. Without in any way limiting Tenant's obligations to make such payments in accordance with this
Section 2.5, if at any time any payment of Manlius Debt Service is not paid when due, Tenant shall provide immediate written notice to Landlord of such nonpayment. Tenant shall from time to time upon reasonable advance request of Landlord provide to Landlord evidence of payments of Manlius Debt Service or otherwise made in connection with the Manlius Financing.
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(b) Except to the extent provided to the contrary in the immediately succeeding sentence, Landlord will pay to the Persons entitled thereto the outstanding principal amount of the Manlius Financing at the scheduled maturity thereof, provided that Tenant shall remain responsible for and shall pay when due all other amounts constituting Manlius Debt Service or otherwise owed in connection with the Manlius Financing and which are to be paid at such scheduled maturity. Notwithstanding the foregoing, in the event that the maturity of the Manlius Financing is accelerated due to a default by Tenant or any Affiliate of Tenant thereunder or for any other reason except a default by Landlord in connection with such maturity or otherwise under the Manlius Financing Documents, Tenant shall be responsible for and shall pay the outstanding principal amount of the Manlius Financing when due, and all other amounts constituting Manlius Debt Service or otherwise owed in co nnection with the Manlius Financing and which are to be paid at such time. In the event that Landlord willfully causes or creates any default under the Manlius Financing Documents resulting in any acceleration thereunder or any penalty, late charge or default interest, Landlord shall be responsible for and shall pay all amounts, costs and expenses due under the Manlius Financing Documents on account of such default, including without limitation all penalties, late charges, default interest, principal, interest and increased Taxes.
(c) During the continuance of any Event of Default or any default or breach by Tenant or any Affiliate of Tenant under the Manlius Financing Documents after expiration of any period expressly provided for notice, cure or both, Landlord may
(i) in Landlord's sole and absolute discretion, require Tenant to pay, in whole or in part, all outstanding principal of and other amounts then due on or in connection with the Manlius Financing, or
(ii) in its sole and absolute discretion, but shall be under no obligation to Tenant to,
(A) prepay, in whole or in part, all outstanding principal of and other amounts then due on or in connection with the Manlius Financing, or
(B) make any payment of, or due on or in connection with, the Manlius Debt Service. Any amount paid by Landlord pursuant to
Section 2.5(c)(ii) shall be treated in accordance with
Section 13.4. Landlord agrees that, except durin g the continuance of any Event of Default or any default or breach by Tenant or any Affiliate of Tenant under the Manlius Financing Documents after expiration of any period expressly provided for notice, cure or both, it shall not prepay, nor shall it require Tenant to prepay before scheduled maturity, in whole or in part, the outstanding principal amount of the Manlius Financing.
(d) Notwithstanding any other provision of this
Section 2.5, in no event shall Tenant be entitled to a credit against any payment of Minimum Rent for any payment made by Landlord on or toward the Manlius Financing. In the event that Landlord receives notice that any payment required by Tenant of Manlius Debt Service or otherwise on or in connection with the Manlius Financing was not in fact made as and when required under this
Section 2.5, any credit against Minimum Rent taken on account thereof shall be immediately revoked and Minimum Rent in the amount of such credit shall be immediately due and payable.
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(e) At all times during the Term that the Agency Lease remains in force and effect, this Master Lease shall be deemed to be a sublease of the Manlius Facility by Landlord to Tenant subject to the Agency Lease. Concurrently with any termination of the Agency Lease during the Term, this Master Lease shall become a prime lease of the Manlius Facility by Landlord to Tenant.
2.6 Payment Terms. All Rent and other payments to Landlord shall be paid by
wire transfer only. Minimum Rent and all amounts to be paid concurrently therewith shall be paid in advance in equal monthly installments on or before the
first (1st) business dayof each calendar month (or, with respect to the first such payment due hereunder, on the Effective Date).
2.7 Absolute Net Lease. All Rent payments shall be absolutely net to Landlord, free of any and all Taxes, Other Charges, and operating or other expenses of any kind whatsoever, all of which shall be paid by Tenant. Tenant shall continue to perform its obligations under this Master Lease even if Tenant claims that it has been damaged by Landlord. Thus, Tenant shall at all times remain obligated under this Master Lease without any right of set-off, counterclaim, abatement, deduction, reduction or defense of any kind; provided, however, that the foregoing shall not preclude
(a) Tenant from bringing a separate action against Landlord for breach of its obligations under
Section 24, or
(b) Tenant receiving a credit against Minimum Rent due in any month for payments made on the Manlius Debt Service pursuant to
Section 2.5(a). Tenant's sole right to recover damages against Landlord under this Master Lease shall be to prove such damages in a separate action.
3. Late Charges. The late payment of Rent or other amounts due will cause Landlord to lose the use of such money and incur administrative and other expenses not contemplated under this Master Lease. While the exact amount of the foregoing is extremely difficult to ascertain, the parties agree that as a reasonable estimate of fair compensation to Landlord, if any Rent or other amount is not paid
(a) on the due date for such payment (without consideration of any grace period that may be applicable in connection therewith), then Tenant shall thereafter pay to Landlord on demand a
late charge equal to
five percent (5%)of such delinquent amounts, and
(b) within
ten (10) days after the due date for such payment, such unpaid amount shall
accrue interest from such date at the “
Agreed Rate” of
five percent (5%)plus the prime rateof interest then charged by Wells Fargo Ba nk, N.A., San Francisco, CA.
4. Security Deposit; Collateral for Lease Obligations.
4.1 Tenant shall maintain with Landlord cash securing Tenant's faithful performance of its obligations under this Master Lease (the “
Security Deposit”), Letters of Credit (as defined in the LC Agreement) as partial collateral for the Master Lease obligations or a combination thereof (collectively, the “
Security Deposit and Collateral”). Each Letter of Credit shall be in the form set forth in, and shall otherwise be in compliance with the terms of, the LC Agreement. Neither Letters of Credit, nor any proceeds from any draw on any Letter of Credit, shall constitute a security deposit or any part of the Security Deposit hereunder. The amount of the Security Deposit and the aggregate undrawn face amounts of all Letters of Credit comprising the Security Deposit and Collateral shall at all times during the Term be equal to, in the aggregate,
Two Million Seven Hundred Thirty Thousand Dollars($2,730,000), as may be increased from time to time pursuant to
Section 7.1(c), (the “
Security Deposit and Collateral Amount”). Landlord shall hold the Security Deposit in a separate, interest-bearing account and all interest earned thereon shall be added to and become a part of the CapEx Reserve (as defined below).
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4.2 Landlord may apply the Security Deposit and Collateral (cash from the Security Deposit and proceeds of any draw on a Letter of Credit), in whole or in part, against any Event of Default, as otherwise permitted in any Letter Credit or may use such amounts for any other purpose allowed under applicable law. If Landlord so applies all or any portion of the Security Deposit and Collateral, Tenant shall, subject to the provisions of
Section 4.3, within
five (5) days of such application by Landlord and without the requirement of notice or demand by Landlord, deposit cash or post additional Letters of Credit such that the total amount of cash and undrawn face amounts of Letters of Credit comprising the Security Deposit and Collateral is equal to the Security Deposit and Collateral Amount.
4.3 On or before the date (the “
Replacement Date”), as reasonably determined by Landlord and Tenant, that Letters of Credit become available to Tenant on commercially reasonable terms, Tenant shall have replaced the Security Deposit with Letters of Credit such that, on and after the Replacement Date, the Security Deposit and Collateral shall be represented entirely by Letters of Credit. Upon Landlord's receipt of any Letter of Credit provided by Tenant in exchange for a portion of the Security Deposit pursuant to this
Section 4.3, Landlord shall promptly return to Tenant cash from the Security Deposit in the amount of the undrawn face amount of the such Letter of Credit. In the absence of Landlord's prior written approval, which may be granted, withheld or conditioned in Landlord's sole and absolute discretion, the portion of the Security Deposit and Collateral represented by Letters of Credit prior to the Replacement Date s hall not be decreased.
4.4 As additional collateral for the faithful performance by Tenant of this Master Lease, Guarantor has executed and delivered that certain Stock Pledge Agreement (the “
Stock Pledge”) dated as of the Effective Date pursuant to which Guarantor has pledged the capital stock of Tenant to Landlord. The value of, and dividends or other amounts paid on or in connection with the capital stock held by Landlord pursuant to the Stock Pledge, shall not be a part of Security Deposit and Collateral, nor considered in the calculation of the Security Deposit and Collateral Amount.
5. Taxes and Other Charges.
5.1 Tenant's Obligation. At the end of the Term, all Taxes and Other Charges shall be prorated. Landlord shall promptly forward to Tenant copies of all bills and payment receipts for Taxes or Other Charges received by it. Subject to Landlord's obligations to make payments from the Tax Escrow to the extent provided in
Section 5.3(a), Tenant shall be responsible for paying and discharging (including the filing of all required returns), not later than
fourteen (14) days prior to delinquency or imposition of any fine, penalty, interest or other cost (“
Penalty”),
(a) “
Taxes”, consisting of any property (real and personal) and other taxes and assessments levied or assessed with respect to this Master Lease or any portion of the Premises during or prior to the Term or any amounts due under payment in lieu of taxes or impact fee agreements or similar arrangements (excluding any income tax of Landlord and any intangible, mortgage or transfer tax or stamps for its transfer of any interest in any portion of the Premises to any Person other than Tenant or any of its Affiliates), and
(b) “
Other Charges”, consisting of any utilities and other costs and expenses of the Business or any portion of the Premises and all other charges, obligations or deposits assessed against any portion of the Premises during or prior to the Term. Unless paid from the Tax Escrow (as defined below) pursuant to
Section 5.3, Tenant may pay the foregoing in permitted installments (whether or not interest accrues on the unpaid balance) not later than
fourteen (14) days prior to the date when due and before any Penalty. If Tenant fails to pay as and when due any Tax or Other Charge, or any Penalty that may be assessed notwithstanding the foregoing provisions of this
Section 5.1, and if thereafter Landlord (in its sole and absolute discretion) pays such Tax, Other C harge or Penalty with funds other than those in the Tax Escrow, then, upon its receipt of Landlord's written notice of payment, Tenant shall pay Landlord an amount equal to any such Tax, Other Charge or Penalty for which Tenant is liable under this Master Lease. Tenant shall, prior to the Effective Date, pay all Taxes and Other Charges that are delinquent as of the day immediately prior to the Effective Date. Notwithstanding the foregoing provisions of this
Section 5.1, Landlord shall remain named as the landowner and Tax payor on all real property Tax records concerning the Premises.
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5.2 Protests. Each party has the right, but not the obligation, in good faith to protest or contest (a “
Protest”) in whole or in part
(a) the amount or payment of any Taxes or Other Charges and
(b) the existence, amount or validity of any Lien (as defined in
Section 8.1) by appropriate proceedings sufficient to prevent its collection or other realization and the sale, forfeiture or loss of any portion of the Premises or Rent to satisfy it (so long as it provides Landlord with reasonable security to assure the foregoing). If Tenant elects to pursue a Protest, Tenant shall diligently prosecute such Protest at its sole cost and expense and pay such Taxes, Other Charges or Lien before the imposition of any Penalty. Landlord will cooperate fully in any Protest that involves an amount assessed against it.
5.3 Tax Impound and Escrow.
(a) Commencing with the
first (1st) business day of the
seventh (7th) full calendar month after the Effective Date, Tenant shall include with each Minimum Rent payment a deposit of
one-twelfth (1/12th) of the amount required to discharge the annual amount of real property Taxes secured by a Lien encumbering any portion of the Premises as and when they become due. The deposits shall be held in escrow (the “
Tax Escrow”) in a separate, interest-bearing account, which interest shall be added to and become a part of the Tax Escrow. The deposits in the Tax Escrow shall not be held by Landlord in trust or as an agent of Tenant, and Tenant acknowledges that the impounding of such funds in the Tax Escrow shall constitute a true escrow, and that Tenant has no, and hereby waives any, interest in or right or title to any funds escrowed pursuant to this
Section 5.3, whether legal, equitable, beneficial or otherwise. Provided that the Tax Escrow then contains sufficient funds for payment of the applicable obligations, the amounts in the Tax Escrow shall be applied by Landlord directly to the payment of the related obligations in a timely fashion and prior to the imposition of any Penalty. If any Penalty results from Landlord's failure to timely make any such payment, such Penalty shall be borne by Landlord. Without limitation upon Landlord's rights under
Section 13.4, if at any time within
thirty (30) daysprior to the due date of the applicable Taxes the deposits shall be insufficient for the payment of such Taxes in full, Tenant shall within
ten (10) days after demand by Landlord deposit the deficiency with Landlord. If deposits are in excess of the actual obligation, the required monthly deposits for the ensuing Lease Year shall be reduced proportionately and any such excess at the end of the final Lease Year shall be refunded to Tenant within
thirty calendar (30) days. Tenant sha ll forward to Landlord or its designee all Tax bills, bond and assessment statements as soon as they are received. If Landlord transfers this Master Lease, it shall transfer all such deposits to the transferee, and Landlord shall thereafter have no liability of any kind with respect thereto.
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(b) Notwithstanding anything to the contrary set forth in
Section 5.3(a), Tenant shall deposit the amount of
One Hundred Three Thousand Dollars ($103,000) per month into the Tax Escrow with the payments of Minimum Rent due for the first
six (6) months of Term, such that the balance of the Tax Escrow shall equal at least
Six Hundred Eighteen Thousand Dollars ($618,000) after such
six (6) month period. Thereafter, Tenant shall commence depositing into the Tax Escrow the amounts described in
Section 5.3(a) with the payment of Minimum Rent due for the
seventh (7th) month of the Term. If any Tax or Other Charge is due during the first
six (6) months of the Term, Tenant shall pay such amount directly to the Person entitled to receive the same as described in
Section 5.1, and Landlord shall have no obligation to pay the same from the Tax Escrow.
6. Insurance.
6.1 Requirements. All insurance provided for in this Master Lease shall
(i) be maintained under valid and enforceable policies issued by insurers licensed and approved to do business in the state(s) where the applicable Facility or portion of the Premises is located and having general policyholders and financial ratings of not less than “A-” and “X”, respectively, in the then current Best's Insurance Report, and a claims paying ability rating from S&P of at least AA and the equivalent rating of at least one other rating agency, unless in either case Landlord agrees in the exercise of its reasonable judgment that the required insurance would not be available to Tenant on commercially reasonable terms from insurers with such ratings,
(ii) name Landlord as an additional insured and, for the casualty policy referenced in this
Section 6.1, as the owner and loss payable beneficiary,
(iii)&# 160;be on an “occurrence” basis, or, to the extent such insurance is not available at commercially reasonable rates in Landlord's reasonable judgment, on a “claims-made” basis,
(iv) cover all of Tenant's operations at the applicable Facility or portion of the Premises,
(v) provide that the policy may not be canceled except upon not less than
thirty (30) days prior written notice to Landlord, unless Landlord shall agree, in its reasonable judgment, that insurance is not available to Tenant on such terms at commercially reasonable rates, and
(vi) be primary and provide that any insurance with respect to any portion of the Premises maintained by Landlord is excess and noncontributing with Tenant's insurance. The parties hereby waive as to each other all rights of subrogation which any insurance carrier, or either of them, may have by reason of any provision in any policy issued to them, provided such waiver does not thereby invalidate such policy. Original policies or satisfactory insurer certificates evidencing the existence of the insurance required by this Master Lease and showing the interest of Landlord shall be provided to it prior to the commencement of the Term or, for a renewal policy, not less than
ten (10) days prior to the expiration date of the policy being renewed. If Landlord is provided with a certificate, it may demand that Tenant provide a complete copy of the related policy within
ten (10) days. Landlord shall review each such policy or certificate and, within a reasonable time following its receipt thereof, notify Tenant in writing whether the insurance evidenced by such policy or certificate complies with the requirements of this Master Lease. During the Term, Tenant shall maintain the following insurance and any claims thereunder shall be adjudicated by and at the expense of it or its insurance carrier:
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Fire and Extended Coverage with respect to each Facility against loss or damage from all causes under standard “all risk” property insurance coverage with an agreed amount endorsement (such that the insurance carrier has accepted the amount of coverage and has agreed that there will be no co-insurance penalty), without exclusion for fire, lightning, windstorm, explosion, smoke damage, vehicle damage, sprinkler leakage, flood, vandalism, earthquake, malicious mischief or any other risks normally covered under an extended coverage endorsement, in amounts that are not less than the actual replacement value of such Facility and all Tenant Personal Property associated therewith (including the cost of compliance with changes in zoning and building codes and other laws and regulations, demolition and debris removal and increased cost of construction);
Commercial General Public Liability Coveragewith respect to each Facility (including products liability and broad form coverage) against claims for bodily injury, death or property damage occurring on, in or about such Facility, affording the parties protection of not less than Five Million Dollars
($5,000,000)for bodily injury or death to any one person, not less than Ten Million Dollars
($10,000,000) for any one accident, and not less than One Million Dollars
($1,000,000) for property damage;
Professional Liability Coveragewith respect to each Facility for damages for injury, death, loss of service or otherwise on account of professional services rendered or which should have been rendered, in a minimum amount of Five Million Dollars
($5,000,000)per claim and Ten Million Dollars
($10,000,000)in the aggregate;
Worker's Compensation Coveragewith respect to each Facility for injuries sustained by Tenant's employees in the course of their employment and otherwise consistent with all applicable legal requirements;
Boiler and Pressure Vessel Coverage with respect to each Facility on any fixtures or equipment which are capable of bursting or exploding, in an amount not less than Five Million Dollars
($5,000,000) for resulting damage to property, bodily injury or death and with an endorsement for boiler business interruption insurance;
Business Interruption and Extra Expense Coveragewith respect to each Facility for loss of rental value for a period not less than
one (1) year, provided that, so long as Tenant continues to pay all Rent and other amounts due hereunder and no other Event of Default exists, Tenant shall be entitled to receive all proceeds of such business interruption insurance; and
Deductibles/Self-Insured Retentionsfor the above policies shall not be greater than Fifty Thousand Dollars
($50,000), and Landlord shall have the right at any time to require a lower such amount or set higher policy limits, to the extent commercially available and reasonable and customary for similar properties. At such times and only so long as policies of insurance with deductibles or self-insured retentions not greater than
Fifty Thousand Dollars ($50,000) are generally not available to operators of assisted living facilities owned by institutional landlords and similar to the Facilities at commercially reasonable rates, as jointly determined by Landlord and Tenant in their respective reasonable judgment, the deductibles or self-insured retentions on the policies of insurance required hereunder may be in such greater amount, as jointly determined by Landlord and Tenant in their respective reasonable judgment, that would result in the applicable policies being available at commercial ly reasonable rates, not to exceed
Two Hundred Fifty Thousand Dollars ($250,000).
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6.2 Exceptions to Insurance Requirements. Tenant has advised Landlord that, to the extent described on
Schedule 3, it is not in compliance as of the Effective Date with the requirements set forth in
Section 6.1. Tenant nonetheless represents and warrants to Landlord that the policies of insurance (including the deductible or self-insured retention provisions thereof) and risk management programs that Tenant has in effect as of the Effective Date are, and as may be in effect at any time during the Term will be, consistent with custom, practice and prudent management standards in the business and industry in which Tenant is engaged. As and when insurance meeting the requirements set forth in
Section 6.1 becomes generally available to operators of assisted living facilities owned by institutional landlords and similar to the Facilities at commercially reasonable rates, as jointly determined by Landlord and Tenant in t heir respective reasonable judgment, Tenant shall purchase and maintain such insurance. Tenant's non-compliance with the requirements of
Section 6.1 shall not give rise to an Event of Default so long as
(i) no other Event of Default then exists,
(ii) such non-compliance is limited to the matters described on
Schedule 3,
(iii) the representations and warranties set forth in this
Section 6.2 remain true, correct and complete in all respects, and
(iv) Tenant is in compliance with the other covenants contained in this
Section 6.2 and
Section 6.3.
6.3 Reimbursement of Landlord's Insurance Costs. During any Lease Year or portion thereof in which Tenant is not in compliance with the provisions of
Section 6.1 (without consideration of the effect of
Section 6.2), Tenant shall reimburse Landlord, within
ten (10) days of Landlord's demand therefor, for the costs of the premiums of the general liability and environmental insurance policies maintained by Landlord, or contributions to self-insurance in lieu thereof, in connection with the Premises, which amount shall not exceed in any Lease Year the amount of
Two Hundred Thousand Dollars ($200,000) (as adjusted at the end of each Lease Year for increases since the Effective Date in the CPI). Tenant shall have no right to receive any proceeds or other benefits from any such insurance. For purposes of this
Section 6.3, Tenant shall not be in compliance with
Section 6.1 (without considera tion of the effect of
Section 6.2) at any such time that any insurance required hereunder is provided to Tenant by or through the “captive” insurance company described on
Schedule 3, or any other similar captive insurance company.
6.4 Determination of Commercial Reasonableness. In the event that Landlord and Tenant are unable to agree on any matter in this
Section 6 requiring a determination of commercial reasonableness, such determination shall be made by a reputable insurance company, consultant or expert (an “
Insurance Arbitrator”) with experience in the assisted living insurance industry as identified by Landlord in the exercise of its reasonable judgment. As a condition to a determination of commercial reasonableness with respect to any particular matter, the Insurance Arbitrator shall be capable of providing, procuring or identifying particular policies or coverages that would be available to Tenant and would satisfy the requirement in issue. The determinations made by any such experts shall be binding on Landlord and Tenant for purposes of this
Section 6, and the costs, fees and expenses of the same shall be borne by Tenant.
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7. Use, Regulatory Compliance and Preservation of Business.
7.1 Permitted Use; Qualified Care.
(a) Tenant shall continuously use and occupy each Facility during the Term as a licensed facility engaged in the respective Business described on
Schedule 2 with not less than the applicable number of beds or living units shown on
Schedule 2 (with respect to each Facility, the “
Required Bed Count”), and for ancillary services relating thereto, but for no other purpose. Notwithstanding the foregoing, Tenant may permit at any one time the number of beds or living units, as applicable, at no more than twenty (20) individual Facilities (and not in the aggregate) to be one (1) bed or unit less than the Required Bed Count in such Facilities.
(b) Tenant shall not allow the average occupancy for any trailing
three (3) month period
(i) to be less than
forty percent (40%) of the applicable number of beds or living units, as applicable, shown on
Schedule 2, for more than
four (4) individual Facilities at any time that the Coverage Ratio for the immediately preceding calendar quarter was less than 1.4:1.0, or
(ii) to be less than
sixty-five percent (65%) of the applicable number of beds or living units, as applicable, shown on
Schedule 2, for all Facilities on an aggregate basis.
(c) Provided that the Coverage Ratio for the immediately preceding calendar quarter was at least 1.20:1.00, in the event that of any non-compliance with the requirements of
Section 7.1(b)(i), or in the event of any Loss of Licensure (as defined below) affecting any Facility, no Event of Default shall arise if, within
five (5) days of Landlord's receipt of notice of such non-compliance or Loss of Licensure, as applicable, Tenant increases the Security Deposit and Collateral then held by Landlord by an amount equal to
Two Hundred Thousand Dollars ($200,000) for each additional Facility with non-complying average occupancy and for each Facility subject to a Loss of Licensure, as applicable, which amounts shall be held by Landlord pursuant to
Section 4 until Tenant has achieved compliance with the requirements of
Section 7.1(b)(i) for
two (2) consecutive trailing
three (3) month periods or has co mpletely remedied the Loss of Licensure, as applicable. Tenant's right under this
Section 7.1(c) to cure or prevent any Event of Default from arising for non-compliance with the requirements of
Section 7.1(b)(i) or for any Loss of Licensure shall terminate at such time as Tenant has exercised such right with respect to Facilities containing in the aggregate
three hundred fifty (350) or more beds or living units, as applicable.
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7.2 Regulatory Compliance. Tenant, each Facility and the other portions of the Premises shall comply in all material respects with all licensing and other laws and all CC&R's and other use or maintenance requirements applicable to the Business conducted thereon and, to the extent Tenant elects to participate in the same or as may be required by law to serve its resident population, all Medicare, Medicaid and other third-party payor certification requirements, including timely filing properly completed cost and other required reports, timely paying all expenses shown thereon, and ensuring that, to the extent Tenant has elected to participate in the same or as required by law to serve its respective resident population, each Facility continues to be fully certified for participation in Medicare and Medicaid throughout the Term and when each such Facility is returned to Landlord, all without any suspension, revocation, decertification or other mater ial limitation other than those suspensions, revocations, decertifications or other material limitations under which Tenant was operating immediately prior to the end of the Term. Further, Tenant shall not commit any act or omission that would in any way violate any certificate of occupancy affecting the any Facility, result in closure of the Business conducted at any Facility or result in the sale or transfer of all or any portion of any related certificate of need, bed rights or other similar certificate or license. During the Term, all inspection fees, costs and charges associated with a change of such licensure or certification (“
Change of Licensure Costs”) shall be borne solely by Tenant. Notwithstanding the foregoing, except in the event that the Term has been terminated as a result of an Event of Default, Tenant shall not be responsible for any Change of Licensure Costs that would be ordinarily incurred by a new operator of any Facility under usual custom and practice in the applic able Business (e.g., application fees for licensure, costs of training personnel, legal costs in connection with the same), provided, however, that Tenant shall be required to effect any repairs to or modifications or Alterations of any Facility as may be necessary for a prospective new operator to obtain such licenses as may be required to operate the same consistent with Tenant's prior operation and otherwise in material compliance with all applicable laws. In all events, Tenant shall cooperate in good faith, at no out-of-pocket expense to itself, with the efforts of any prospective new operator of any Facility to obtain licensure.
7.3 Preservation of Business. Tenant acknowledges that a fair return to Landlord on and protection of its investment in the Premises is dependent, in part, on Tenant's dedication to the Business and the concentration on each Facility of similar businesses of Tenant and its Affiliates in the geographical area of such Facility. Tenant further acknowledges that the diversion of residents or patient care activities from any Facility to other facilities owned or operated by Tenant or its Affiliates at any time during the Term will have a material adverse affect on the value and utility of such Facility. Therefore, Tenant agrees that during the Term and for a period of
one (1) yearthereafter, neither Tenant nor any of its Affiliates shall, without the prior written consent of Landlord:
(i) operate, own, participate in or otherwise receive revenues from any other business providing services similar to those of the Business of any F acility within an eight (8) mile radius of such Facility, provided, however, that Tenant and its Affiliates may continue to operate, own, manage, participate in or otherwise receive revenues from any of the facilities listed on
Schedule 4 (each an “
Exempt Facility”) so long as, after the date hereof, no aspects of the operations or management of any Exempt Facility are changed in any manner that results in such Exempt Facility becoming more competitive with any Facility, provided, however that routine maintenance and capital expenditures in the ordinary course of business and minor variations in the number of beds or living units, as applicable, in such other facilities shall not be deemed to violate the foregoing,
(ii) except as is necessary to provide residents or patients with an alternative level of care, recommend or solicit the removal or transfer of any resident or patient from any Facility to any other nursing, health care, senior housing or retirement housing facility or divert actual or potential residents, patients or care activities of the Business conducted at any Facility to any other facilities owned or operated by Tenant or its Affiliates or from which they receive any type of referral fees or other compensation for transfers, or
(iii) employ for other businesses any management or supervisory personnel working on or in connection with any portion of the Business or any Facility.
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7.4 Coverage Ratio. Tenant shall not permit the ratio (the “
Coverage Ratio”) of
(i) Portfolio EBITDARM to
(ii) Portfolio Rent Expense to be less that 1.2:1.0 for any fiscal quarter.
8. Acceptance, Maintenance, Upgrade, Alteration and Environmental.
8.1 Acceptance “AS IS”; No Liens. Tenant acknowledges it has leased, occupied and conducted operations at each Facility under the Meditrust Lease Documents, that it is presently engaged in operations like the Business conducted at each Facility in the state where such Facility is located and has expertise in such industry and, in deciding to enter into this Master Lease, has not relied on any representations or warranties, express or implied, of any kind from Landlord. Tenant has examined the condition of title to and thoroughly investigated the Premises, has selected the Premises to its own specifications, has concluded that no improvements or modifications to them are required in order to conduct the Business, and accepts them on an “
AS IS” basis and assumes all responsibility and cost for the correction of any observed or unobserved deficiencies or violations. Notwithstanding its right to Protest set forth in
Section 5.2, Tenant shall not cause or permit any lien, encumbrance, levy or attachment (a “
Lien”), except a Permitted Tenant Property Lien (as defined below) and except as otherwise may be expressly permitted under this Master Lease, to be placed or assessed against any portion of the Premises or the operation thereof for any reason.
8.2 Tenant's Maintenance Obligations. Tenant shall
(a) keep and maintain the Premises in good appearance, repair and condition and maintain proper housekeeping,
(b) promptly make all repairs (interior and exterior, structural and nonstructural, ordinary and extraordinary, foreseen and unforeseen) necessary to keep each Facility in good and lawful order and condition and in substantial compliance with all applicable requirements and laws relating to the Business conducted thereon, including if Tenant has elected to participate therein of if otherwise applicable certification for participation in Medicare and Medicaid, and
(c) keep and maintain all Landlord and Tenant Personal Property in good condition, ordinary wear and tear excepted, and repair and replace such property consistent with prudent industry practice.
8.3 Upgrade Expenditures.
(a) Tenant shall include with each Minimum Rent payment, starting with the
twenty-fifth (25th) month of the Term, a deposit to be added to a reserve (the “
CapEx Reserve”) equal to one-twelfth (1/12th) of the amount equal to
(i) Two Hundred Fifty Dollars($250)(as adjusted at the end of each Lease Year for increases since the Effective Date in the CPI, the “
CapEx Amount”),
multiplied by(ii) the aggregate number of living units or beds, as applicable, in all of the Facilities on the date such payment is due. This reserve shall bear interest, which shall be added to and become a part thereof. Landlord shall not be deemed to hold the same in trust or as an agent for Tenant. Tenant acknowledges that the impounding of such funds in the CapEx Reserve shall constitute a true escrow, and that Tenant has no, and hereby waives any, interest in or right or title to any funds es crowed pursuant to this
Section 8.3, whether legal, equitable, beneficial or otherwise. From time to time, but not more often than once in any calendar month and provided that no Event of Default is then continuing, Landlord will pay to Tenant amounts from the CapEx Reserve to reimburse Tenant for Upgrade Expenditures made by Tenant during the prior rolling
thirty-six (36) month period during the Term (or portion thereof), as reasonably determined by Landlord based on evidence of such expenditures submitted by Tenant (which shall be in substantially the same form utilized by Nationwide Health Properties and Tenant (or their respective affiliates) for such purposes); provided that such amount shall not exceed with respect to any individual Facility in any rolling
thirty-six (36) monthperiod during the Term, three (3)
times the CapEx Amount
multiplied by the average number of living units or beds, as applicable, in such Facility over such period. Landlord shall make t he reimbursements to Tenant required hereunder within
twenty-one (21) days after satisfaction of all conditions to such reimbursement. Upon reasonable advance request, Landlord may require Tenant to procure mechanic's lien waivers, in form and substance reasonably satisfactory to Landlord, in connection with any Upgrade Expenditures in excess of
One Thousand Dollars ($1,000).
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“
Upgrade Expenditures” means expenditures in commercially reasonable amounts to Persons not affiliated with Tenant for
(i) upgrades or improvements to each Facility that have the effect of maintaining or improving its competitive position in its respective marketplace, including new or replacement wallpaper, tiles, window coverings, lighting fixtures, painting, upgraded landscaping, carpeting, architectural adornments, common area amenities and the like, but excluding capital improvements or repairs (including repairs or replacements of the roof, structural elements of the walls, parking area or the electrical, plumbing, HVAC or other mechanical or structural systems), and
(ii) other improvements to each Facility as reasonably approved by Landlord, which shall include those matters, if any, that Landlord has approved in writing as of the Effective Date based on descriptions and budgets that Tenant has provided prior thereto. Any amount remaining in the CapEx Reserve at the expiration of the Term or earlier termination of this Master Lease shall be retained by Landlord as additional or supplemental Rent hereunder.
(b) Upon Landlord receiving the proceeds of both tranches of the mortgage loan to be made in connection with Landlord's acquisition of the Premises (collectively, the “
Acquisition Loan”), Landlord shall fund
Two Million Dollars ($2,000,000) (the “
Initial CapEx Funding”) into the CapEx Reserve to be used in accordance with this
Section 8.3(b). However, in the event that the Acquisition Loan is not funded on or before the date that is
forty-five (45) days after the Effective Date, in lieu of the initial funding of the CapEx Reserve, Landlord shall make available to Tenant funds in the amount of
Two Million Dollars ($2,000,000), which shall constitute the Initial CapEx Funding, and shall be used by Tenant for the purposes described herein. The Initial CapEx Funding shall made available to Tenant pursuant to the procedures described in
Section 8.3(b) for purposes of reimbursing T enant for expenses incurred only in connection with the capital expenditures described on
Schedule 6 (the “
Initial CapEx Items”). Landlord and Tenant acknowledge that the schedule attached as
Schedule 6 as of the Effective Date is preliminary in nature and that Tenant may replace the same with a final schedule in form and substance reasonably acceptable to Landlord within
forty-five (45) days after the Effective Date. Any portion of the Initial CapEx Funding remaining unused at the end of the
twenty-fourth (24th) month of the Term shall be returned to Landlord and thereafter become unavailable to Tenant for the purposes described in this
Section 8.3(b). Landlord's Investment shall be concurrently reduced by any amount so returned to Landlord, and Landlord shall promptly refund to Tenant the amount of Minimum Rent paid by Tenant in connection with such returned amount.
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8.4 Alterations by Tenant. Tenant may alter, improve, exchange, replace, modify or expand (collectively, including any work performed in connection with any Upgrade Expenditure, “
Alterations”) the Facilities, equipment or appliances in the Premises from time to time as it may determine is desirable for the continuing and proper use and maintenance of the Premises; provided, that any Alterations (except for the Initial CapEx Items) in excess of
Seven Hundred Fifty Dollars ($750) per bed or living unit, as applicable, with respect to any individual Facility in any rolling
twelve (12) month period shall require Landlord's prior written consent; provided further, that any Alterations to the Premises must satisfy the requirements set forth in Sections 4(4).02 and .03 of Revenue Procedure 75-21, 1975-1 C.B. 715, as modified by Revenue Procedure 79-48, 1979-2 C.B. 529. All Alterations shall immediately become a part o f the Premises and the property of Landlord subject to this Master Lease, and except to the extent that Landlord in its sole and absolute discretion agrees to fund them following Tenant's written request therefor, the cost of all Alterations or other purchases, whether undertaken as an on-going licensing, Medicare, Medicaid or other regulatory requirement, or otherwise shall be borne solely by Tenant. Any amounts so funded by Landlord shall
(i) concurrently with such funding be added to Landlord's Investment, and
(ii) shall not, unless expressly agreed by Landlord to the contrary, in its sole and absolute discretion, constitute Upgrade Expenditures. All Alterations shall be done in a good and workmanlike manner in compliance with all applicable laws and the insurance required under this Master Lease. Notwithstanding the foregoing, any equipment acquired by Tenant at Tenant's sole cost and expense that expands the services provided to the residents of any Facility, rather than repla ces existing equipment at such Facility, or replaces existing Tenant Personal Property, or is otherwise permitted under
Section 9.2, and that does not constitute a fixture (under the real property law of the State in which such Facility is located), shall constitute Tenant Personal Property subject to the security interest granted to Landlord in
Section 9.2. So long as there is no continuing Event of Default, Tenant may remove at any time and dispose of the equipment described in the preceding sentence free and clear of an security interest of Landlord. Tenant further agrees to
(x) periodically, but not less than once per fiscal quarter, provide Landlord with information regarding all Alterations and general maintenance activities that Tenant has engaged in or intends to engage in during the succeeding fiscal quarter with respect to the Premises, and
(y) make appropriate officers available periodically for consultation with representatives of Landlord with respect to m atters relating to ongoing Alterations to, and the general maintenance of, the Premises.
8.5 Hazardous Materials. Tenant's use of the Premises
(i) shall comply with all Hazardous Materials Laws,
(ii) shall not result in any Hazardous Materials Claims and
(iii) shall not involve any Environmental Activities. If
(x) any Environmental Activities occur,
(y) if Landlord or Tenant receive any notice of any Hazardous Materials Claims, or
(z) if Tenant's use of any portion of the Premises results in any violation of any Hazardous Materials Law, or Landlord has a reasonable belief that any of the foregoing has occurred, then Tenant shall promptly obtain all permits and approvals necessary to remedy any such actual or suspected problem through the removal of Hazardous Materials or otherwise, and upon Landlord's approval of the remediation plan, remedy any such problem to the satisfaction of Landlord and all applicable governmental authorities, in accordance with all Hazard ous Materials Laws and good business practices. Tenant shall immediately advise Landlord in writing of
(a) any Environmental Activities,
(b) any violation of any Hazardous Materials Laws;
(c) any Hazardous Materials Claims against Tenant or any portion of the Premises;
(d) any remedial action taken by Tenant in response to any Hazardous Materials Claims or any Hazardous Materials on, under or about any portion of the Premises in violation of any Hazardous Materials Laws;
(e) Tenant's discovery of any occurrence or condition on or in the vicinity of any portion of the Premises that materially increase the risk that any portion of the Premises is or will be exposed to Hazardous Materials; and
(f) all communications to or from Tenant, any governmental authority or any other Person relating to Hazardous Materials Laws or Hazardous Materials Claims with respect to any portion of the Premises, including copies thereof. Notwithstanding any ot her provision of this Master Lease, if any Hazardous Materials are discovered on, under or about any portion of the Premises, or any violation of any Hazardous Materials Law or any Hazardous Materials Claim occurs, the Term shall be automatically extended and this Master Lease shall remain in full force and effect until the earlier to occur of the completion of all remedial action or monitoring, as approved by Landlord, in accordance with all Hazardous Materials Laws, or the date specified in a written notice from Landlord to Tenant terminating this Master Lease (which date may be subsequent to the date upon which the Term was to have expired). Landlord shall have the right, at Tenant's sole cost and expense (including, without limitation, Landlord's reasonable attorneys' fees and costs) and with counsel chosen by Landlord, to join, participate in and direct, as a party if it so elects, any legal proceedings or actions initiated in connection with any Hazardous Materials Claims.
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9. Tenant Property and Security Interest; Landlord Personal Property.
9.1 Tenant Property. Tenant shall obtain, install, maintain and update all items of furniture, fixtures, supplies and equipment not included as Landlord Personal Property as shall be necessary or reasonably appropriate to operate each Facility in compliance with this Master Lease “
Tenant Personal Property” and with “
Tenant Intangible Property”, “
Tenant Property”). “
Tenant Intangible Property” means all the following at any time owned by Tenant in connection with its use of any portion of the Premises: Medicare, Medicaid and other accounts and proceeds thereof; rents, profits, income or revenue derived from such operation or use; all documents, chattel paper, instruments, contract rights (including contracts with residents, employees and third-party payors), deposit accounts, general intangibles and choses in action; refunds of any Taxes or Other Charges; licenses and permits nec essary or desirable for Tenant's use of any portion of the Premises, including any applicable certificate of need or other similar certificate, and the exclusive right to transfer, move or apply for the foregoing and manage the Business conducted at any portion of the Premises (including the right to apply for permission to reduce the licensed bed complement, take any of the licensed beds out of service or move the beds to a different location); and the right to use, at no cost, expense or royalty, for up to
three (3) years following the termination of this Master Lease for any reason other than the expiration of the then Term or the default by Landlord, the names “Clare Bridge,” “Wynwood” and “Sterling House” and all reasonable variations and replacements or substitutions thereof.
9.2 Landlord's Security Interest and Financing Statements.
(a) The parties intend that if Tenant defaults under this Master Lease, Landlord will control the Tenant Personal Property and the Tenant Intangible Property (to the extent assignable in accordance with applicable law and with the applicable terms and provisions thereof) so that Landlord or its designee can operate or re-let each Facility and associated personal property intact for use as a licensed facility engaged in the applicable Business. Therefore, to implement the intention of the parties, and for the purpose of securing the payment and performance of Tenant's obligations under this Master Lease, Tenant, as debtor, hereby grants to Landlord, as secured party, a security interest in and an express contractual Lien upon, all of Tenant's right, title and interest in and to the Tenant Personal Property and the Tenant Intangible Property (to the extent assignable in accordance with applicable law and with the applicable terms and provisions thereof) and a ny and all products and proceeds thereof, in which Tenant now owns or leases or hereafter acquires an interest or right, but expressly excluding Excluded Tenant Property except to the extent provided to the contrary in
Section 9.2(b). This Master Lease constitutes a security agreement covering all such Tenant Personal Property and Tenant Intangible Property (to the extent assignable in accordance with applicable law), and Tenant shall keep such Tenant Property free and clear of all Liens other than Liens in favor of Landlord and, with respect to Excluded Tenant Property (as defined below) only, Permitted Tenant Property Liens (as defined below). This security interest and agreement shall survive the termination of this Master Lease resulting from an Event of Default. Tenant shall pay all filing and reasonable record search fees and other costs for such additional security agreements, financing statements, fixture filings and other documents as Landlord may reasonably require to perfect or cont inue the perfection of its security interest.
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(b) Subject to the other provisions of this
Section 9.2, Tenant may obtain, install and maintain and update Excluded Tenant Property, and may grant security interests and other Liens (“
Permitted Tenant Property Liens”) in any Excluded Tenant Property to Persons other than Landlord. “
Excluded Tenant Property” shall mean personal property for each Facility the aggregate value of which does not exceed the lesser of
One Hundred Twenty Five Thousand Dollars ($125,000) or
Three Thousand Dollars ($3,000) per bed or living unit, as applicable, in such Facility, and which shall be strictly limited to: buses, vans and other vehicles; photocopy machines, fax machines and personal computers; and employee cell phones and pagers.
9.3 Landlord Personal Property. Landlord and Tenant acknowledge that, as of the Effective Date, the Premises does not include any Landlord Personal Property. In the event that Landlord, in its sole and absolute discretion, funds the acquisition of any personal property by Tenant after the Effective Date, all such personal property shall be considered Landlord Personal Property.
10. Financial, Management and Regulatory Reports. Tenant shall provide Landlord (and, upon Landlord's prior request, to any lender of Landlord) with the reports listed in
Exhibit F at the time described therein and such other information about it or the operations of the Premises and Business as Landlord may reasonably request from time to time. All financial information provided shall be prepared in accordance with generally accepted accounting principles consistently applied. If Tenant or any Guarantor becomes subject to any reporting requirements of the Securities and Exchange Commission during the Term, it shall concurrently deliver to Landlord such reports as are delivered pursuant to applicable securities laws. Tenant acknowledges that the failure to furnish Landlord with any of the statements required by this Section 10 will cause Landlord to incur costs and expenses not contemplated under this Master Lease; therefore, if Ten ant fails to furnish Landlord with any of the materials as and when required under this Section 10, Tenant shall pay to Landlord upon demand the sum of Five Hundred Dollars ($500.00) for each such failure.
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11. Representations and Warranties.
11.1 By Landlord. Landlord represents and warrants to Tenant that:
(a) this Master Lease and all other documents executed or to be executed by Landlord in connection herewith have been duly authorized and shall be binding upon Landlord;
(b) each entity comprising Landlord is duly formed, validly existing and in good standing under the laws of the State of its formation and is duly authorized and qualified to perform this Master Lease within the state(s) where any portion of the Premises is located; and
(c) neither this Master Lease nor any other document executed or to be executed in connection herewith violates the terms of any other agreement of any entity comprising Landlord.
11.2 By Tenant. Tenant represents and warrants to Landlord that:
(a) this Master Lease and all other documents executed or to be executed by Tenant in connection herewith have been duly authorized and shall be binding upon Tenant;
(b) each entity comprising Tenant is duly formed, validly existing and in good standing under the laws of the State of its formation and one or both of such entities is duly authorized and qualified to perform this Master Lease within the State(s) where any portion of the Premises is located;
(c) neither this Master Lease nor any other document executed or to be executed by Tenant or Guarantor in connection herewith violates the terms of any other agreement of any entity comprising Tenant;
(d) all documents, plans, surveys and other data or information, including financial data and information, prepared by or on behalf of Tenant and provided by or on behalf of Tenant to Landlord in connection with the transactions contemplated in this Master Lease, including
Schedule 2, are true, correct and complete in all material respects and disclose all material facts with no material omissions with respect thereto;
(e) Tenant holds good and marketable title to, and the entire right, title, and interest in, the Tenant Property, free and clear of any and all leases, Liens, encumbrances, or other liabilities, except, with respect to the Excluded Tenant Property only, the Permitted Tenant Property Liens and as otherwise permitted under
Section 9.2;
(f) there are no Liens encumbering title to any of the Facilities arising by, through or under Tenant;
(g) each Facility has available to its boundaries adequate utilities, including without limitation, adequate water supply, storm and sanitary sewage facilities, telephone, gas, electricity and fire protection, as is required for the operation of such Facility as contemplated under this Master Lease;
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(h) except to the extent set forth to the contrary on
Schedule 5, to the best of Tenant's knowledge, the improvements at each Facility and each portion thereof
(i) have been constructed in a good and workmanlike manner, free from material defects and in material compliance with all applicable laws, and
(ii) are in good condition and repair, free from material defects and in material compliance with all applicable laws and CC&R's;
(i) except to the extent set forth to the contrary on
Schedule 5, to the best of Tenant's knowledge, each Facility is properly zoned for its current use and intended use hereunder, and the real property comprising each Facility and the operation and use thereof, including all boundary line adjustments to such real property, materially comply with all applicable laws including laws concerning the subdivision of real property;
(j) except to the extent set forth to the contrary on
Schedule 5, to the best of Tenant's knowledge, there are not now, and have not been during Tenant's occupancy of the Premises under the Meditrust Lease Documents,
(i) any Hazardous Materials installed or stored in or otherwise present or existing at, on, in or under any Facility,
(ii) any Environmental Activities,
(iii) any Hazardous Materials Claims, and
(iv) any violation of any Hazardous Materials Law affecting any Facility;
(k) except to the extent set forth to the contrary on
Schedule 5, to the best of Tenant's knowledge, there are no soil conditions adversely affecting any Facility;
(l) except to the extent set forth to the contrary on
Schedule 5, Tenant has received no notice and to the best of its knowledge has no knowledge that
(i) any government agency or any employee or official thereof considers that the conduct of the Business at any Facility, or the operation or use of any Facility for its current use, has failed or will fail to materially comply with any applicable law,
(ii) any investigation has been commenced or is contemplated respecting any such possible or actual failure of the Business conducted at any Facility, or the operation or use of any Facility for its current use, to materially comply with any applicable law, other than routine deficiencies noted in connection with licensing surveys and inspections, each of which is or shall promptly be addressed in an appropriate plan of correction in accordance with applicable law, and
(iii) there are any unsatisfied requests fo r repairs, restorations or alterations with regard to the any Facility from any person, entity or authority, including, any lender, insurance carrier or governmental authority, other than routine deficiencies noted in connection with licensing surveys and inspections, each of which is or shall promptly be addressed in an appropriate plan of correction in accordance with applicable law;
(m) except to the extent set forth to the contrary on
Schedule 5, there are no material actions, suits or proceedings pending or threatened before or by any judicial, administrative or union body, any arbiter or any governmental authority, against or affecting Tenant, or any Facility or any portion thereof or the transactions contemplated by, or the enforceability of, this Master Lease, and there are no existing or, to the best of Tenant's knowledge, proposed or threatened eminent domain or similar proceedings which would affect title or access to any Facility in any manner whatsoever;
(n) Tenant or Guarantor has obtained and holds all consents, approvals, licenses, permits and other permissions related to leasing the Facilities from Landlord, operating the Facilities as contemplated under this Master Lease and conducting the Business thereon and the other the matters and transactions contemplated herein as are required of Tenant or Guarantor under any applicable law;
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(o) except to the extent set forth to the contrary on
Schedule 5, immediately prior to the Effective Date
(i) there were no existing breaches of or defaults or events of default under any Meditrust Lease Document by any entity comprising Tenant or, to the best of Tenant's knowledge, by any entity comprising Meditrust Landlord, and
(ii) all rent, taxes, expenses and other charges owed by any Tenant under any Meditrust Lease Document to Meditrust Landlord or any other Person have been paid or otherwise satisfied;
(p) (i) the Manlius Financing Documents constitute all of the documents, instruments and agreements evidencing, securing or setting forth the terms and provisions of the indebtedness secured by the Manlius Facility, and
(ii) the outstanding principal balance of the Manlius Financing after application of the April 1, 2002 payment due thereon is
Eight Hundred Fifty-Seven Thousand One Hundred Ninety-Four and 99/100 Dollars ($857,194.99).
12. Events of Default. The occurrence of any of the following events will constitute an “
Event of Default” on the part of Tenant, and there shall be no cure period therefor except as otherwise expressly provided:
(a) Tenant's failure to pay at or before 3:00 p.m. (California time) on the
second (2nd) business day after the date when due any Rent, Taxes, Other Charges or other payments required under this Master Lease;
(b) (i) Subject to the provisions of
Section 7.1(c), at any time that the Coverage Ratio for the immediately preceding calendar quarter was less than 1.4:1.0, the revocation, suspension or material limitation of any license required for the operation of any portion of the Business or any portion of the Premises or, if Tenant has elected to participate therein or if otherwise required by applicable law, the certification of any portion of the Premises for provider status under Medicare or Medicaid (together with the events described in
Section 12(c), each a “
Loss of Licensure”);
(ii) the closure of any portion of the Business;
(iii) the sale or transfer of all or any portion of any certificate of need, bed rights or other similar certificate or license relating to any portion of the Business or any portion of the Premises; and
(iv) the use of any portion of the Premises other than for a licensed facility engaged in the applicable Business and for ancillary services relating thereto, (each a “
Catastrophic Event of Default”);
(c) Subject to the provisions of
Section 7.1(c), at any time that the Coverage Ratio for the immediately preceding calendar quarter was less than 1.4:1.0, any other material suspension, termination or restriction (other than restrictions of general applicability imposed on the Business or under licenses necessary to conduct the Business) placed upon Tenant, any portion of the Premises, any portion of the Business or the ability to admit residents or patients (e.g., an admissions ban or non-payment for new admissions by Medicare or Medicaid (provided Tenant has elected to participate therein or the same is otherwise required by law) resulting from an inspection survey), and such suspension, termination or restriction continues for more than
sixty days (60) after imposition thereof;
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(d) A material default by Tenant or any Guarantor or any Affiliate of either under
(i) the Guaranty, the LC Agreement, the Stock Pledge,
(ii) any other lease, agreement or obligation between it and Landlord or any of its Affiliates which is not cured within any applicable cure period specified therein,
(iii) any other lease agreement or obligation between it and Nationwide Health Properties, Inc. (“
NHP”) or any of its Affiliates, provided that NHP is then a member of JER/NHP Senior Housing, LLC, or
(iv) under any other obligation in excess of
One Million Dollars ($1,000,000) under any other lease or financing agreement with any other party and with respect to which such party has accelerated such obligation or has otherwise exercised any material remedy as a result of such material default, which material default has not been waived or cured in accordance with the applicable agreement ;
(e) (i) Any material misstatement or omission of fact in any written report, notice or communication from Tenant or any Guarantor to Landlord with respect to Tenant, any Guarantor, the Premises or the Business, or
(ii) any representation or warranty made by Tenant in this Master Lease, proves to have been false, incorrect, misleading or incomplete when made;
(f) The failure to perform or comply with
(i) the provisions of
Section 6, or
(ii) the provisions of
Section 16;
(g) (i) Tenant or any Guarantor shall generally not pay its debts as they become due, or shall admit in writing its inability to pay its debts generally, or shall make an assignment of all or substantially all of its property for the benefit of creditors;
(ii) a receiver, trustee or liquidator shall be appointed for either of them or any of their property, if within
three (3) business days of such appointment Tenant does not inform Landlord in writing that they intend to cause such appointment to be discharged or such discharge is not diligently prosecuted to completion within
sixty (60) days after the date of such appointment;
(iii) the filing by either of them of a voluntary petition under any federal bankruptcy or state law to be adjudicated as bankrupt or for any arrangement or other debtor's relief; or
(iv) the involuntary filing of such a petition against either of them by any other party, unles s Tenant within
three (3) business days of such filing informs Landlord in writing of their intent to cause such petition to be dismissed, such dismissal is diligently prosecuted and such petition is dismissed within
ninety (90) days after filing; or
(h) The failure to perform or comply with any other provision of this Master Lease not requiring the payment of money and not set forth in
Sections 12(b)-(g) above unless
(i) within
three (3) business days of Tenant's receipt of a notice of default from Landlord, Tenant gives Landlord notice of its intent to cure such default; and
(ii) Tenant cures it either
(x) within
thirty (30) daysafter such notice from Landlord or
(y) if such default cannot with due diligence be so cured because of the nature of the default or delays beyond the control of Tenant and cure after such period will not have a materially adverse effect upon any portion of the Premises or any portion of the Business, then such default shall not constitute an Event of Default if Tenant uses its best efforts to cure such default by promptly commencing and diligently pursuing such cure to the completion thereof and cures it within
one hundred twenty (120) daysafter such notice from Landlord.
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13. Remedies. Upon the occurrence of an Event of Default, Landlord may exercise all rights and remedies under this Master Lease and the laws of the state(s) where the Premises are located that are available to a lessor of real and personal property in the event of a default by its lessee, and as to the Tenant Property, all remedies granted under the laws of such state(s) to a secured party under its Uniform Commercial Code. Landlord shall have no duty to mitigate damages unless required by applicable law and shall not be responsible or liable for any failure to relet any of the Premises or to collect any rent due upon any such reletting. Tenant shall pay Landlord, immediately upon demand, all expenses incurred by it in obtaining possession and reletting any of the Premises, including fees, commissions and costs of attorneys, architects, agents and brokers.
13.1 General. Without limiting the foregoing, Landlord shall have the right (but not the obligation) to do any of the following upon an Event of Default:
(a) sue for the specific performance of any covenant of Tenant as to which it is in breach;
(b) enter upon any portion of the Premises, terminate this Master Lease, dispossess Tenant from the Premises and/or collect money damages by reason of Tenant's breach, including the acceleration of all Rent which would have accrued after such termination and all obligations and liabilities of Tenant under this Master Lease which survive the termination of the Term;
(c) elect to leave this Master Lease in place and sue for Rent and other money damages as the same come due;
(d) (before or after repossession of the Premises pursuant to
clause (b) above and whether or not this Master Lease has been terminated) relet any portion of the Premises to such ten ant(s), for such term(s) (which may be greater or less than the remaining balance of the Term), rent, conditions (which may include concessions or free rent) and uses as it may determine in its sole discretion and collect and receive any rents payable by reason of such reletting; and
(e) sell any Tenant Property in a non-judicial foreclosure sale.
13.2 Tenant Repurchase/Receivership. Tenant acknowledges that a Catastrophic Event of Default will materially and irreparably impair the value of Landlord's investment in the Premises. Therefore, in addition to its other rights and remedies, upon a Catastrophic Event of Default Landlord shall have the right to put the applicable Facility and associated Landlord Personal Property, if any, to Tenant (the “
Put”) and/or, as permitted and provided by applicable law, petition any appropriate court for the appointment of a receiver to take possession of the Premises or applicable Facility, to manage the operation of the Premises or applicable Facility, to collect and disburse all rents, issues, profits and income generated thereby and to the extent applicable and possible, to preserve or replace any affected license or provider certification for the Premises or applicable Facility or to otherwise substitute the licensee or provider ther eof (the “
Receivership”). If Landlord exercises the Put, Tenant shall purchase the applicable portion of the Premises from Landlord for a cash price equal to the greater of, as attributable to the applicable portion of the Premises
(a) Landlord's Investment
plus the product of Landlord's Investment
multiplied by the Initial Term Applicable Rate or Renewal Term Applicable Rate then in effect, or
(b) Fair Market Value on the date of Landlord's notice of exercise (the ���
Put Exercise Date”) as established pursuant to
Exhibit C but assuming that such Catastrophic Event of Default did not then exist,
plus all of Landlord's attorneys' fees, costs and expenses incurred in connection with the Put and the attendant Catastrophic Event. Such purchase shall be consummated at Tenant's expense within
one hundred twenty (120) days of the Put Exercise Date through an escrow at a national title company selected by Landlord using the title company's standard sale escrow instructions, without representations or warranties, any due diligence or other contingencies in favor of the buyer, and providing that Landlord shall deliver to Tenant title to the applicable portion of the Premises subject only to the applicable title exceptions shown in
Exhibit D (the “
Permitted Exceptions”). If Landlord commences the Receivership, the receiver shall be paid a reasonable fee for its services and all such fees and other expenses of the Receivership shall be paid in addition to, and not in limitation of, the Rent otherwise due to Landlord hereunder. Tenant irrevocably consents to the Receivership upon a Catastrophic Event of Default and thus stipulates to and agrees not to contest the appointment of a receiver under such circumstances and for such purposes. Landlord's right and remedy to obtain a Receivership pursuant to this
Section 13.2 shall not prevent, limit or otherwise impair Landlord from seeking o r obtaining the appointment of a receiver upon any Event of Default other than a Catastrophic Event of Default with respect to all or any portion of the Premises in accordance with applicable law.
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13.3 Remedies Cumulative; No Waiver. No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be cumulative and in addition to any other right or remedy given hereunder or now or hereafter existing at law or in equity. Any notice or cure period provided herein shall run concurrently with any provided by applicable law. No failure of Landlord to insist at any time upon the strict performance of any provision of this Master Lease or to exercise any option, right, power or remedy contained herein shall be construed as a waiver, modification or relinquishment thereof as to any similar or different breach (future or otherwise) by Tenant. Landlord's receipt of any rent or other sum due hereunder (including any late charge) with knowledge of any breach shall not be deemed a waiver of such breach, and no waiver by Landlord of any provision of thi s Master Lease shall be effective unless expressed in a writing signed by it.
13.4 Performance of Tenant's Obligations. If Tenant at any time shall fail to make any payment or perform any act on its part required to be made or performed under this Master Lease, after expiration of applicable notice or cure periods as expressly provided herein, if any, then Landlord may, without waiving or releasing Tenant from any obligations or default hereunder, make such payment or perform such act for the account and at the expense of Tenant, and enter upon any portion of the Premises for the purpose of taking all such action as may be reasonably necessary. No such entry shall be deemed an eviction of Tenant. All sums so paid by Landlord and all necessary and incidental costs and expenses (including reasonable attorneys' fees and expenses) incurred in connection with the performance of any such act by it, together with interest at the Agreed Rate from the date of the maki ng of such payment or the incurring of such costs and expenses, shall at Landlord's option, which may be exercised in Landlord's sole and absolute discretion, either be payable by Tenant to Landlord on demand or added to Landlord's Investment.
14. Provisions on Termination.
14.1 Surrender of Possession. On the expiration of the Term or earlier termination or cancellation of this Master Lease (the “
Termination Date”), Tenant shall deliver to Landlord or its designee possession of
(a) each Facility and associated Landlord Personal Property, if any, in a neat and clean condition and in as good a condition as existed at the date of their possession and occupancy pursuant to this Master Lease, ordinary wear and tear excepted,
(b) a fully operational Business at each Facility including, at Tenant's sole cost except to the extent provided to the contrary in
Section 7.2, any Alterations necessitated by, or imposed in connection with, a change of ownership inspection survey for the transfer of operation of any portion of the Premises to Landlord or its designee, and
(c) provided that Landlord or its designee executes an agreement, in form and substance reasonabl y acceptable to such party, confirming its obligation to maintain such records for a period equal to the longer of
(i) the applicable statute of limitations, or
(ii) the period required by applicable law, all patient charts and resident records along with appropriate resident consents if necessary and copies of all its books and records relating to the Business and the Premises. Accordingly, Tenant shall not at any time during or after the Term seek to transfer, surrender, allow to lapse, or grant any security interest or any other interest in and to the licenses, permits or certifications relating to any portion of the Business or any portion of the Premises, nor shall Tenant commit or omit any act that would jeopardize any portion of the Business or any licensure or certification of any portion of the Premises. Tenant shall cooperate fully with Landlord or its designee in transferring or obtaining all necessary licenses and certifications for Landlord or its designee, and Tenant shall compl y with all requests for an orderly transfer of the Business, Facility licenses, and Medicare and Medicaid certifications and possession at the time of its surrender of the Premises to Landlord or its designee. Subject to all applicable laws and to the applicable limitations set forth in
Section 14.3, Tenant hereby assigns, effective upon the Termination Date, all rights to operate the facility to Landlord or its designee including all required licenses and permits and all rights to apply for or otherwise obtain them, and all other nonproprietary Tenant Intangible Property relating to any portion of the Premises.
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14.2 Removal of Tenant Personal Property. Provided that no Event of Default then exists, in connection with the surrender of the Premises, Tenant may upon at least
five (5) business daysprior notice to Landlord remove from the Premises in a workmanlike manner all Tenant Personal Property, leaving the Premises in good and presentable condition and appearance, including repair of any damage caused by such removal; provided that Landlord shall have the right and option, subject to the approval of any lienholder permitted under
Section 9.2, to purchase the Tenant Personal Property (other than the Excluded Tenant Property) for its then net book value during such
five (5) business daynotice period, in which case Tenant shall so convey the Tenant Personal Property (other than the Excluded Tenant Property) to Landlord by executing a bill of sale in a form reasonably required by Landlord. If there is any Event of Default then e xisting, Tenant will not remove any Tenant Personal Property (including the Excluded Tenant Personal Property) from the Premises and instead will, on demand from Landlord, convey it to Landlord for no additional consideration by executing a bill of sale in a form reasonably required by Landlord. Title to any Tenant Personal Property which is not removed by Tenant as permitted above upon the expiration of the Term shall, at Landlord's election, vest in Landlord; provided, however, that Landlord may remove and store or dispose at Tenant's expense any or all of such Tenant Personal Property which is not so removed by Tenant without obligation or accounting to Tenant.
14.3 Management of Premises. Commencing on the Termination Date, Landlord or its designee, upon written notice to Tenant, may elect to assume the responsibilities and obligations for the management and operation of the Business and Tenant agrees to cooperate fully to accomplish the transfer of such management and operation without interrupting the operation of the Business. Tenant agrees that Landlord or its designee may operate the Business under Tenant's licenses and certifications to the extent allowed under applicable law pending the issuance of new licenses and certifications to Landlord or its designee. Tenant shall not commit any act or be remiss in the undertaking of any act that would jeopardize any licensure or certification of any portion of the Premises, and Tenant shall comply with all requests for an orderly transfer of any and all facility and other licenses, Medicare and Medicaid certifications to the extent that Tenant is partic ipating therein and possession of the Premises at the time of any such surrender.
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14.4 Holding Over. If Tenant shall for any reason remain in possession of any portion of the Premises after the Termination Date, such possession shall be a month-to-month tenancy during which time Tenant shall pay as rental on the
first (1st) business day of each month
one and one-half (1½) times the total of the monthly Minimum Rent payable with respect to the last Lease Year
plus all additional charges accruing during the month and all other sums, if any, payable by Tenant pursuant to this Master Lease. Nothing contained herein shall constitute the consent, express or implied, of Landlord to the holding over of Tenant after the Termination Date, nor shall anything contained herein be deemed to limit Landlord's remedies.
14.5 Survival. All representations, warranties, covenants and other obligations of Tenant under this Master Lease shall survive the Termination Date.
15. Certain Landlord Rights.
15.1 Entry and Examination of Records. Landlord and its representatives may enter any portion of the Premises at any reasonable time after reasonable notice to Tenant to inspect the Premises for compliance, to exhibit the Premises for sale, lease or mortgaging, or for any other reason; provided that no such notice shall be required in the event of an emergency, upon an Event of Default or to post notices of non-responsibility under any mechanic's or materialman's lien law. No such entry shall unreasonably interfere with residents, patients, patient care or the Business. During normal business hours, Tenant will permit Landlord and its representatives, inspectors and consultants to examine all contracts, books and financial and other records (wherever kept) relating to Tenant's operations at any portion of the Premises.
15.2 Grant Liens; Change in Zoning. Without the consent of Tenant, Landlord may from time to time, directly or indirectly, create or otherwise cause to exist any Lien, title retention agreement, or other encumbrance upon the Premises, or any portion thereof or interest therein (including this Master Lease), whether to secure any borrowing or other means of financing or refinancing or otherwise. Without the consent of Tenant, Landlord may from time to time directly or indirectly, create or otherwise cause to exist any restrictive covenant or easement upon the Premises, or accede to a change in the zoning of any portion of the Premises, so long as such covenant, easement or change would not have a material adverse effect on the Business or other activities of Tenant conducted thereon pursuant to the terms of this Master Lease.
15.3 Subordination, Attornment and Nondisturbance. Upon the request of Landlord, Tenant shall subordinate this Master Lease to the Lien of any encumbrance consented to by Landlord pursuant to
Section 15.2. Any such encumbrance, or an ancillary agreement in connection therewith, shall provide, subject to customary limitations and exceptions
(a) that so long as no Event of Default shall exist,
(i) it is subject to the rights of Tenant under this Master Lease, and
(ii) that Tenant's occupancy hereunder, including Tenant's right of quiet enjoyment provided herein, shall not be disturbed if any Person (a “
Foreclosure Purchaser”) takes possession of the applicable portion of the Premises through foreclosure proceeding or otherwise, and
(b) that Tenant shall attorn to any Foreclosure Purchaser.
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15.4 Estoppel Certificates. Tenant and Landlord shall, at any time upon not less than
five (5) daysprior written request by the other party, have an authorized representative execute, acknowledge and deliver to the requesting party or its designee a written statement certifying
(a) that this Master Lease, together with any specified modifications, is in full force and effect,
(b) the dates to which Rent and additional charges have been paid,
(c) that no default by either party exists or specifying any such default and
(d) as to such other matters as the requesting may reasonably request.
15.5 Conveyance Release. Landlord or any successor owner may sell or transfer all or any portion of the Premises or assign in whole or in part this Master Lease in its sole and absolute discretion, which shall in each case include an assignment and delivery to the purchaser or assignee of all funds then held in escrow pursuant to this Master Lease (or the allocable portion thereof), and upon any such sale or transfer, they shall thereupon be released from all future liabilities and obligations under this Master Lease arising or accruing from and after the date of such conveyance or other transfer, which instead shall thereupon be binding upon the new owner.
16. Assignment and Subletting. Without the prior written consent of Landlord, which may be withheld or conditioned at its sole discretion, this Master Lease shall not, nor shall any interest of Tenant herein, be assigned or encumbered by operation of law, nor shall Tenant voluntarily or involuntarily assign, mortgage, encumber or hypothecate any interest in this Master Lease or sublet any portion of the Premises except
(i) in the ordinary course of Tenant's business to residents or occupants of such Facility or their immediate family members using Tenant's standard form occupancy lease for the State in which the applicable Facility is located (in the form approved by the regulatory agency having jurisdiction thereover), and
(ii) for incidental subleases and occupancy agreements to providers of incidental services to residents (such as physical therapists or beauty shops) which
(A) do not exceed in the aggregate for any single Facility more than one hundred (100) square feet within such Facility, and
(B) with respect to any individual sublease or occupancy agreement, does not exceed one (1) year in duration (including any available renewal or extension terms). Any of the foregoing acts without such consent shall be void and shall, at Landlord's sole option, constitute an Event of Default giving rise to Landlord's right, among other things, to terminate this Master Lease. An assignment of this Master Lease by Tenant shall be deemed to include:
(a) entering into a management or similar agreement relating to the operation or control of any portion of the Premises with a Person that is not an Affiliate of Tenant;
(b) any change (voluntary or involuntary, by operation of law or otherwise, including the transfer, assignment, sale, hypothecation or other disposition of any equity interest in Tenant) in the Person that ultimately exert effective Control over the management of the affai rs of Tenant as of the date hereof; provided that an initial public offering of Tenant or a change in the ownership of Guarantor shall not be deemed to be an assignment of the Master Lease so long as thereafter less than
twenty-five percent (25%)of the voting stock of Tenant or Guarantor, respectively, is held by any Person or related group that did not have such ownership prior thereto; or
(c) the sale or other transfer of all or any portion of any certificate of need, bed rights or other similar certificate or license relating to any portion of the Business or any portion of the Premises. Notwithstanding the foregoing, Tenant may, without Landlord's prior written consent, assign this Master Lease or sublet the Premises or any portion thereof to an Affiliate of Tenant or any Guarantor if all of the following are first satisfied:
(w) such Affiliate fully assumes Tenant's obligations hereunder;
(x) Tenant remains fully liable hereunder and any Guarantor remains fully liable under its guaranty;
(y) the use of the applicable portion of the Premises remains unchanged; and
(z) Landlord in its reasonable discretion shall have approved the form and content of all documents for such assignment or sublease and received an executed counterpart thereof. In no event shall Tenant sublet any portion of the Premises on any basis such that the rental to be paid by the sublessee would be based, in whole or in part, on either the income or profits derived by the business activities of the sublessee, or any other formula, such that any portion of the sublease rental received by Landlord would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the U.S. Internal Revenue Code, or any similar or successor provision thereto.
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17. Damage by Fire or Other Casualty. Tenant shall promptly notify Landlord of any damage or destruction of any portion of the Premises and diligently repair or reconstruct such portion of the Premises to a like or better condition than existed prior to such damage or destruction. Any net insurance proceeds payable with respect to the casualty shall be used for the repair or reconstruction of the applicable portion of the Premises pursuant to reasonable disbursement controls in favor of Landlord. If such proceeds are insufficient, Tenant shall provide the required additional funds; if they are more than sufficient, the surplus shall belong and be paid to Tenant. Tenant shall not have any right under this Master Lease, and hereby waives all rights under applicable law, to abate, reduce or offset rent by reason of any damage or destruction of any portion of the Premises by reason of an insured or uninsured casualty.
18. Condemnation. Except as provided to the contrary in this
Section 18, this Master Lease shall not terminate and shall remain in full force and effect in the event of a taking or condemnation of the Premises, or any portion thereof, and Tenant hereby waives all rights under applicable law to abate, reduce or offset rent by reason of such taking. If during the Term all or substantially all (a “
Complete Taking”) or a smaller portion (a “
Partial Taking”) of any Facility is permanently taken or condemned by any competent public or quasi-public authority, then
(a) in the case of a permanent Complete Taking, Tenant may at its election made within
thirty (30) daysof the effective date of such Taking, terminate this Master Lease with respect to such Facility and the current Rent shall be prorated as of the effective date of such termination, or
(b) in the case of a permanent Partial Taking, the Rent shall be abated to the same extent as the resulting diminution in Fair Market Value of the portion of the Premises taken. The award payable upon a Complete Taking shall be allocated
(i) as provided by the taking authority,
(ii) in the absence thereof, as agreed by the parties, or
(iii) failing such agreement within
thirty(30) days after the effective date of such Taking, pursuant to the appraisal procedure described in
Exhibit C. The resulting diminution in Fair Market Value on the effective date of a Partial Taking shall be as established pursuant to
Exhibit C. Landlord alone shall be entitled to prosecute, litigate, compromise and settle any condemnation claim, any Complete Taking or any Partial Taking, and to receive and retain any award for a Partial Taking.
19. Indemnification. Tenant agrees to protect, indemnify, defend and save harmless Landlord, its directors, officers, shareholders, agents and employees from and against any and all foreseeable or unforeseeable liability, expense, loss, cost, deficiency, fine, penalty or damage (including consequential or punitive damages) of any kind or nature, including reasonable attorneys' fees, from any suits, claims or demands, on account of any matter or thing, action or failure to act arising out of or in connection with this Master Lease, the Premises or the operations of Tenant on any portion of the Premises, including
(a) the breach by Tenant of any of its representations, warranties, covenants or other obligations hereunder,
(b) any Protest,
(c) all known and unknown Environmental Activities on any portion of the Premises, Hazardous Materials Claims or violations by Tenant of a Hazardous Materials Law with respect to any portion of the Premises, and
(d) upon or following the Termination Date, the correction of all deficiencies of a physical nature identified by, and any liability assessed or asserted by, any governmental agency or Medicare or Medicaid providers (but only to the extent Tenant was, or was required pursuant to applicable law to be, participating in the same as of the termination date) as a result of or arising out of or in connection with this Master Lease or the related change of ownership inspection and audit (including any overpayment to any Medicare, Medicaid or other third-party payor), except to the extent that Tenant is not responsible therefor pursuant to
Section 7.2. Upon receiving knowledge of any suit, claim or demand asserted by a third party that Landlord believes is covered by this indemnity, it shall give Tenant notice of the matter. If Landlord does not elect to defend the matter with its own counsel at Tenant's expense, Tenant shall then defend Landlord at Tenant' s expense (including Landlord's reasonable attorneys' fees and costs) with legal counsel satisfactory to Landlord
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20. Attorneys Fees; Disputes. If any party brings any action to interpret or enforce this Master Lease, or for damages for any alleged breach, the prevailing party shall be entitled to reasonable attorneys' fees and costs as awarded by the court in addition to all other recovery, damages and costs.
EACH PARTY HEREBY WAIVES ANY RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER IN CONNECTION WITH ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS MASTER LEASE, INCLUDING RELATIONSHIP OF THE PARTIES, TENANT'S USE AND OCCUPANCY OF ANY PORTION OF THE PREMISES, OR ANY CLAIM OF INJURY OR DAMAGE RELATING TO THE FOREGOING OR THE ENFORCEMENT OF ANY REMEDY.All disputes arising under or relating to this Master Lease shall be brought and litigated in the state and/or federal courts in Orange County, California and all related appellate courts, and Landlord and Tenant hereby consent to the jurisdiction of such courts.
21. Notices. All notices and demands, certificates, requests, consents, approvals and other similar instruments under this Master Lease shall be in writing and sent by personal delivery, U. S. certified or registered mail (return receipt requested, postage prepaid) or FedEx or similar generally recognized overnight carrier regularly providing proof of delivery, addressed as follows:
If to Tenant:
c/o Alterra Healthcare Corporation
10000 Innovation Drive
Milwaukee, Wisconsin 53226
Attention: Mark W. Ohlendorf
Fax No. (414) 918-5055
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With a copy to:
Rogers & Hardin LLP
2700 International Tower
229 Peachtree Street, N.E.
Atlanta, Georgia 30303-1601
Attention: Miriam J. Dent
Fax No. (404) 525-2224
If to Landlord:
Nationwide Health Properties, Inc.
610 Newport Center Drive, Suite 1150
Newport Beach, California 92660-6429
Attention: President and General Counsel
Fax No. (949) 759-6876
And:
JER Partners
1650 Tysons Boulevard, Suite 1600
McLean, Virginia 22101
Attention: Paul A. Froning
Facsimile: (703) 714-8060 and
Attention: Daniel T. Ward, Esq.
Facsimile: (703) 714-8102
With a copy to:
O'Melveny & Myers LLP
610 Newport Center Drive, Suite 1700
Newport Beach, California 92660-6429
Attention: Steven L. Edwards
Fax No. (949) 823-6994
And:
Pircher, Nichols & Meeks
1925 Century Park East, Suite 1700
Los Angeles, California 90067
Attention: Stevens A. Carey, Esq.
Facsimile: (310) 201-8922
A party may designate a different address by notice as provided above. Any notice or other instrument so delivered (whether accepted or refused) shall be deemed to have been given and received on the date of delivery established by U.S. Post Office return receipt or the carrier's proof of delivery or, if not so delivered, on the day received (provided that such notice or instrument shall be deemed received on the next succeeding business day if received after 5:00 p.m. (local time)). Delivery to any officer, general partner or principal of a party shall be deemed delivery to such party. Notice to any one co-Tenant shall be deemed notice to all co-Tenants.
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22. Miscellaneous. Since each party has been represented by counsel and this Master Lease has been freely and fairly negotiated, all provisions shall be interpreted according to their fair meaning and shall not be strictly construed against any party. While nothing contained in this Master Lease should be deemed or construed to constitute an extension of credit by Landlord to Tenant, if a portion of any payment made to Landlord is deemed to violate any applicable laws regarding usury, such portion shall be held by Landlord to pay the future obligations of Tenant as such obligations arise and if Tenant discharges and performs all obligations hereunder, such funds will be reimbursed (without interest) to Tenant on the Termination Date. If any part of this Master Lease shall be determined to be invalid or unenforceable, the remainder shall nevertheless continue in full force and effect. Time is of the essence, and whenever action must be taken (in cluding the giving of notice or the delivery of documents) hereunder during a certain period of time or by a particular date that ends or occurs on a Saturday, Sunday or federal holiday, then such period or date shall be extended until the immediately following business day. Whenever the words “including”, “include” or “includes” are used in this Master Lease, they shall be interpreted in a non-exclusive manner as though the words “without limitation” immediately followed. Whenever the words day or days are used in this Master Lease, they shall mean “calendar day” or “calendar days” unless expressly provided to the contrary. The titles and headings in this Master Lease are for convenience of reference only and shall not in any way affect the meaning or construction of any provision. Unless otherwise expressly provided, references to any “Section” mean a section of this Master Lease (including all subsections), to any “Exhibit” ; or “Schedule” mean an exhibit or schedule attached hereto, and references to “Medicare” or “Medicaid” include any successor program. If more than one Person is Tenant hereunder, their liability and obligations hereunder shall be joint and several. Promptly upon the request of either party and at its expense, the parties shall prepare, enter into and record a suitable short form memorandum of this Master Lease. This Master Lease
(a) together with the LC Agreement, the Guaranty, the Stock Pledge, the Memorandum of Understanding and all other documents or instruments executed as of the Effective Date in connection therewith, contains the entire agreement of the parties as to the subject matter hereof and supersedes all prior or contemporaneous verbal or written agreements or understandings,
(b) may be executed in several counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same document,
(c) may only be amended by a writing executed by the parties,
(d) shall inure to the benefit of and be binding upon the successors and permitted assigns of the parties,
(e) shall be governed by and construed and enforced in accordance with the internal laws of the State of California, without regard to the conflict of laws rules thereof, provided that the law of the State in which each Facility is located (each a “
Situs State”) shall govern procedures for enforcing, in the respective Situs State, provisional and other remedies directly related to such Facility and related personal property as may be required pursuant to the law of such Situs State, including without limitation the appointment of a receiver; and, further provided that the law of the Situs State also applies to the extent, but only to the extent, necessary to create, perfect and foreclose the security interests and liens created under this Master Lease, and
(f) incorporates by this reference any Exhibits and Schedules attached hereto.
23. Wisconsin Purchase Facilities.
23.1 Tenant Purchase Option.
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(a) Provided no Event of Default exists on the applicable Call Exercise Date or the applicable closing date, Tenant shall have the option to purchase each of the Wisconsin Purchase Facilities by giving Landlord written notice (a “
Call Exercise Notice”) thereof on a date (the “
Call Exercise Date”) that is at least
thirty (30) days but no more than
sixty (60) days prior to the anticipated closing date for the consummation of such purchase. Landlord shall not unreasonably withhold its consent to the extension or adjustment of the dates set forth in the preceding sentence upon the prior written request of Tenant. The purchase price shall be the applicable amount (the “
Minimum Residence Price”) set forth on
Schedule 7. Within
ten (10) days of Tenant's delivery of any Call Exercise Notice, the parties shall sign the standard sale escrow instructions (the “
Sale Instructio ns”) of a national title company (selected by Landlord) that are in form and substance reasonably satisfactory to Landlord, which Sale Instructions shall provide
(i) for no representations or warranties, due diligence or other contingencies in favor of Tenant;
(ii) that Tenant shall deposit
five percent (5%) of the purchase price with the title company, which may be retained by Landlord as liquidated damages solely for any breach by Tenant of the terms of this
Section 23.1 or the Sale Instructions (and which in no way shall liquidate or limit Landlord's damages by reason of any other breach of this Master Lease);
(iii) that the escrow shall close on the date identified in the applicable Call Exercise Notice, at which time Tenant shall pay the purchase price in cash and Landlord shall deliver title to the applicable Wisconsin Purchase Facility, subject only to the applicable Permitted Exceptions;
(iv) that Tenant shall pay all transac tion costs;
(v) that Tenant may elect to cause the conveyance of the applicable Wisconsin Purchase Facility to be made by Landlord to a third party. If Tenant fails to close the escrow for the purchase of any Wisconsin Purchase Facility for any reason other than a breach by Landlord, then no Event of Default shall arise solely as a result of such failure, but the rights granted to Tenant under this
Section 23.1 with respect only to such Wisconsin Purchase Facility shall automatically terminate and be of no further force or effect.
(b) Any proceeds received by Tenant from the sale to any third party of any Wisconsin Purchase Facility, to the extent such proceeds are in excess of the applicable Minimum Residence Purchase Price and Tenant's reasonable and customary transaction costs from such sale, shall immediately be paid by Tenant to Landlord upon Tenant's receipt thereof.
(c) The purchase option granted to Tenant pursuant to
Section 23.1(c) shall automatically terminate and be of no further force or effect with respect to each Wisconsin Purchase Facility for which Tenant has not then duly given a Call Exercise Notice on the date that is the earlier of
(i) one (1) year from the Effective Date, or
(ii) the date that Landlord gives notice of its exercise of its rights pursuant to
Section 23.2 with respect to such Wisconsin Purchase Facility.
23.2 Landlord Disposition Rights. Upon not less than
thirty (30) days prior written notice to Tenant in each instance, Landlord may terminate this Master Lease with respect to any Wisconsin Purchase Facility. Upon the effectiveness of any such termination, the applicable Wisconsin Purchase Facility shall no longer be a part of the Premises hereunder and Landlord and Tenant shall be released from their respective obligations with respect thereto, except to the extent that any such obligation survives the termination of this Master Lease in accordance with the terms hereof. Alternatively, at Landlord's request, all or the then remaining Wisconsin Purchase Facilities shall be removed from this Master Lease and Landlord and Tenant shall enter into a new lease with respect thereto, which shall be on substantially the same terms as this Master Lease as applicable to such Wisconsin Purchase Facilities (including the provisions concerning the pur chase option set forth in
Section 23.1).
23.3 Adjustment to Landlord's Investment. Concurrently with the closing of any sale of any Wisconsin Termination Facility pursuant to
Section 23.1, Landlord's Investment shall be reduced by the greater of the applicable Minimum Residence Price or the actual proceeds received by Landlord from such sale pursuant to
Section 23.1(b). Concurrently with the removal from this Master Lease with respect to any Wisconsin Termination Facility pursuant to
Section 23.2, Landlord's Investment shall be reduced by the applicable Minimum Residence Price.
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24. Quiet Enjoyment. So long as no Event of Default exists, Landlord covenants and agrees that Tenant shall peaceably and quietly have, hold and enjoy the Premises for the Term free from claims by, through or under Landlord, subject to all of the provisions of this Master Lease.
25. Landlord Maintenance Obligation. Effective as of the Effective Date, and continuing until
thirty (30) days after the date Landlord delivers notice to Tenant of the termination of Landlord's obligations under this
Section 25, which notice may be given at any time in Landlord's sole and absolute discretion, Landlord shall be responsible for performing, at the expense of Tenant as described below, the maintenance and repair of the Exterior Portion of each of the Facilities.
25.1 Maintenance Contractors. Landlord shall retain such third party vendors and contractors (each a “
Maintenance Contractor”) as Landlord shall from time to time deem necessary to perform Landlord's maintenance obligations under this
Section 25. Such Maintenance Contractors shall be identified by Landlord from a list (each a “
Maintenance Contractor List”) of proposed vendors and contractors for each Facility to be mutually agreed upon from time to time by Landlord and Tenant, which agreement shall not be unreasonably withheld, conditioned or delayed by Tenant. Landlord shall be free from time to time to terminate any such Maintenance Contractor and retain a replacement therefor as identified from the applicable Maintenance Contractor List. Any written contract to be entered into with respect to the maintenance of the Exterior Portion of any Facility shall be entered into by and between Landlord and the applicable Maintenance Contractor.
25.2 Request for Service. Subject to the other terms and provisions of this
Section 25 and other applicable Sections of this Master Lease, Tenant may contact any Maintenance Contractor to request the service to be performed by such Maintenance Contractor and shall otherwise be free to deal with each Maintenance Contractor in connection with the use and operation of the Facilities and the Business conducted thereon.
25.3 Costs and Expenses. All costs, expenses and fees of each Maintenance Contractor shall be the responsibility of Tenant. Tenant shall use its best efforts to cause each invoice, statement or other request for payment from any Maintenance Contractor to be billed in the name of, and sent to, Landlord with a copy to Tenant for direct payment by Tenant to the applicable Maintenance Contractor, and Tenant shall provide Landlord with such evidence of such payment as Landlord may reasonably request.
25.4 Report on Activities. Each quarterly Facility condition report submitted to Landlord pursuant to
Section 10 and
Exhibit F of this Master Lease shall include a reasonably detailed report on the activities of all Maintenance Contractors at the applicable Facility during the applicable quarter.
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25.5 Transition. Landlord and Tenant shall mutually cooperate with each other to effect an orderly transition of Landlord's obligations under this
Section 25 from Landlord to Tenant upon any election of Landlord to terminate such obligations.
26. Advisory Fee. On the Effective Date, at Tenant's request, Landlord shall pay to Tenant the amount of
One Million Five Hundred Thirty Two Thousand Seven Hundred Seventy-Eight Dollars ($1,532,778) to be paid by Tenant to certain of its professional advisors for services rendered in connection with this Master Lease. Provided that no Event of Default or circumstances that with the giving of notice or passing of time would constitute an Event of Default then exists, upon the termination of this Master Lease with respect to each Wisconsin Purchase Facility as a result of Tenant exercising its purchase option therefor in accordance with
Section 23.1(a) or Landlord exercising its disposition rights in accordance with
Section 23.2, Landlord shall pay to Tenant the amount of
Eleven Thousand Four Hundred Eighty-One and 33/100 Dollars ($11,481.33) per Wisconsin Purchase Facility to be paid by Tenant to certain of it s professional advisors for services rendered in connection with this Master Lease. In the event that Tenant is not entitled to receive any disbursement of the above-described advisory fee reimbursement as of the first (1st) anniversary of the Effective Date, it shall be conclusively deemed as between Landlord and Tenant that no such further payment is due, and Landlord shall
(a) have no further liability in connection with such payment and
(b) reduce the amount of Landlord's Investment by such amount. The amounts described above, if and when disbursed to Tenant, shall be utilized by Tenant only for the purposes described in this
Section 26. Landlord assumes, and shall have, no liability or obligation to any Person other than Tenant for the payment of the sums described in this
Section 26.
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IN WITNESS WHEREOF, this Master Lease has been executed by Landlord and Tenant as of the Effective Date.
“TENANT”
ALS LEASING, INC.,
a Delaware corporation
By:
/s/ Mark W. OhlendorfName:
Mark W. OhlendorfTitle:
VPWitness:
/s/ Sarah Wits Witness:
/s/ Kristin FergeASSISTED LIVING PROPERTIES, INC.,
a Kansas corporation
By:
/s/ Mark W. OhlendorfName:
Mark W. OhlendorfTitle:
VPWitness:
/s/ Sarah Wits Witness: /s/ Kristin Ferge
S-1
“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/ Donald D. Bradley
Name: Donald D. Bradley
Title: Senior Vice President & General Counsel
Witness: /s/ Sharina Ross Witness:/s/ Frank M. Crance
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/ Donald D. Bradley
Name: Donald D. Bradley
Title: Manager
Witness: /s/ Sharina Ross Witness: /s/ Frank M. Crance
S-2
JER/NHP SENIOR LIVING WISCONSIN, LLC,
a Delaware limited liability company
By: JER/NHP SENIOR HOUSING, LLC,
a Delaware limited liability company,
ts sole member
By:NATIONWIDE HEALTH PROPERTIES, INC.,
a Maryland corporation,
its managing member
By: /s/ Donald D. Bradley
Name: Donald D. Bradley
Title: Senior Vice President & General Counsel
Witness: /s/ Sharina Ross Witness /s/ Frank M. Crance
S-3
EXHIBIT E
CERTAIN DEFINITIONS
For purposes of this Master Lease, the following terms and words shall have the specified meanings:
ENVIRONMENTAL DEFINITIONS
“Environmental Activities” shall mean the use, generation, transportation, handling, discharge, production, treatment, storage, release or disposal of any Hazardous Materials at any time to or from any portion of the Premises or located on or present on or under any portion of the Premises.
“Hazardous Materials” shall mean(a) any petroleum products and/or by-products (including any fraction thereof), flammable substances, explosives, radioactive materials, hazardous or toxic wastes, substances or materials, known carcinogens or any other materials, contaminants or pollutants which pose a hazard to any portion of the Premises or to Persons on or about any portion of the Premises or cause any portion of the Premises to be in violation of any Hazardous Materials Laws;(b) asbestos in any form which is friable;(c) urea formaldehyde in foam insulation or any other form;(d) transformers or other equipment which contain dielectric fluid containing levels of polychlorinated biphenyls in excess of fifty (50) parts per million or any other more restrictive standard then prevailing;(e) medical wastes and biohazards;(f) radon gas; and(g) any other chemical, material or su bstance, exposure to which is prohibited, limited or regulated by any governmental authority or may or could pose a hazard to the health and safety of the occupants of any portion of the Premises or the owners and/or occupants of property adjacent to or surrounding any portion of the Premises, including, without limitation, any materials or substances that are listed in the United States Department of Transportation Hazardous Materials Table (49 CFR 172.101) as amended from time to time.
“Hazardous Materials Claims” shall mean any and all enforcement, clean-up, removal or other governmental or regulatory actions or orders threatened, instituted or completed pursuant to any Hazardous Material Laws, together with all claims made or threatened by any third party against any portion of the Premises, Landlord or Tenant relating to damage, contribution, cost recovery compensation, loss or injury resulting from any Hazardous Materials.
“Hazardous Materials Laws” shall mean any laws, ordinances, regulations, rules, orders, guidelines or policies relating to the environment, health and safety, Environmental Activities, Hazardous Materials, air and water quality, waste disposal and other environmental matters.
E-1
OTHER DEFINITIONS
“Affiliate” shall mean with respect to any Person, any other Person which Controls, is Controlled by or is under common Control with the first Person.
“CC&R's” shall mean covenants, conditions and restrictions or similar use, maintenance or ownership obligations encumbering or binding upon the real property comprising any Facility.
“Control” shall mean, as applied to any Person, the possession, directly or indirectly, of the power to direct the management and policies of that Person, whether through ownership, voting control, by contract or otherwise.
“Exterior Portion” shall mean, with respect to any Facility, the exterior structure and roof, parking areas, hardscape and other exterior areas and landscaping.
“Manlius Debt Service” shall mean all amounts due and payable under the Manlius Financing Documents or otherwise in connection with the Manlius Financing, including interest payments; principal (or amortization) payments; credit enhancement fees; letter of credit and other credit facility fees; ground lease payments; deposit, reserve and impound account payments; loan, extension, prepayment, commitment and other fees; servicing, administration and similar charges; indenture trustee fees and expenses; and underwriting, bond, remarketing fees and expenses.
“Manlius Facility” means the Facility known as Wynwood of Manlius, located at 100 Flume Road, Manlius, New York.
“Manlius Financing” shall mean the indebtedness evidenced by the Manlius Financing Documents.
“Manlius Financing Documents” shall mean the documents described onSchedule 8.
“Meditrust Landlord” shall mean, individually and collectively, La Quinta Properties, Inc., a Delaware corporation, Meditrust of Kansas, Inc., a Delaware corporation, T and F Properties, LP, a Delaware limited partnership, and Meditrust Acquisition Company LLC, a Delaware limited liability company.
“Meditrust Lease Documents” shall mean all leases and other documents or agreements evidencing the leasing of the Premises prior to the date hereof by Tenant from Meditrust Landlord and all documents and agreements securing Tenant's obligations thereunder or otherwise executed in connection therewith.
“Meditrust Purchase Agreement” shall mean that certain Amendment and Restatement of Purchase and Sale Agreement dated as of April 2, 2002 by and between La Quinta Properties, Inc. and certain Affiliates thereof, and Nationwide Health Properties, Inc., a Maryland corporation (“NHP”), as assigned by NHP to one or more of the entities comprising Landlord.
“Person” shall mean any individual, partnership, association, corporation, limited liability company or other entity.
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“Portfolio EBITDARM” shall mean, for any applicable fiscal quarter, the net income of Tenant for such quarter to the extent derived from the operation of the Premises, adjusted to add thereto, to the extent allocable to the Premises, without duplication,(i) interest expense,(ii) income tax expense,(iii) depreciation and amortization expense,(iv) rental expense, and(v) management fee expenses, in each case determined in conformity with generally accepted accounting principles, consistently applied.
“Portfolio Rent Expense” means, for any applicable fiscal quarter, the amount of Minimum Rent and Manlius Debt Service payable under this Master Lease in such quarter.
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SCHEDULE 1A
LANDLORD ENTITIES
1. JER/NHP Senior Living Texas, L.P., a Texas limited partnership
Fee owner of portions of Premises located in the State of Texas
2. JER/NHP Senior Living Wisconsin, LLC a Delaware limited liability company
Fee owner of portions of Premises comprising Wisconsin Purchase Facilities
3. JER/NHP Senior Living Kansas, Inc., a Kansas corporation
(f/k/a Meditrust of Kansas, Inc., a Kansas corporation)
Fee owner of portions of Premises located in the State of Kansas
4. JER/NHP Senior Living Acquisition, LLC, a Delaware limited liability company
Fee owner of all other portions of Premises not described in Nos. 1-3 above
SCHEDULE 1A-1
SCHEDULE 1B
TENANT ENTITIES
Residence | Tenant
| Alterra Sterling House of Ocala
1500 S.E. 24th Road
Ocala, FL 34471
Marion County | Assisted Living Properties, Inc., a Kansas corporation
| | | Alterra Sterling House of Ormond Beach
240 Interchange Blvd.
Ormond Beach, FL 32174
Volusia County | Assisted Living Properties, Inc., a Kansas corporation | | | Alterra Clare Bridge of Fort Myers
13565 American Colony Blvd.
Fort Myers, FL 33912
Lee County; | ALS Leasing, Inc., a Delaware corporation | | | Alterra Clare Bridge of Jacksonville
10050 St. Augustine Road
Jacksonville, FL 32257
Duval County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Clare Bridge of Tampa
1513 West Fletcher Avenue
Tampa, FL 33612
Hillsborough County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Sterling House of Derby
1709 E. Walnut Grove
Derby, KS 67037
Sedgwick County | Assisted Living Properties, Inc., a Kansas corporation | | | Alterra Sterling House of Wellington
500 N. Plum Street
Wellington, KS 67152MRB
Sumner County | Assisted Living Properties, Inc., a Kansas corporation | | | Alterra Sterling House of Davison
432 East Clark Street
Davison, MI 48423
Genesee County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Clare Bridge of Grand Blanc
3130 Baldwin Road
Holly, MI 48442
Genesee County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Wynwood of Grand Blanc
5080 Baldwin Road Holly, MI 48442
Genesee County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Sterling House of Delta
7323 Delta Commerce Drive
Lansing, MI 48917
Eaton County | ALS Leasing, Inc., a Delaware corporation |
SCHEDULE 1B-1
Residence | Tenant
| Alterra Clare Bridge of Delta
7235 Delta Commerce Drive
Lansing, MI 48917
Eaton County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Clare Bridge of Troy
4900 Northfield Parkway
Troy, MI 48098
Oakland County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Wynwood of Troy
4850 Northfield Parkway
Troy, MI 48098
Oakland County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Clare Bridge of Farmington Hills
27950 Drake Road (I)
Farmington Hills, MI 48331
Oakland County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Clare Bridge of Farmington Hills
27900 Drake Road (II)
Farmington Hills, MI 48331
Oakland County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Wynwood of Meridian
5346 Marsh Road
Haslett, MI 48840
Ingham County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Clare Bridge of Utica
45959 North Pointe Boulevard
Utica, MI 48315
Macomb County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Sterling House of Faribault
935 Spring Road
Faribault, MN 55021
Rice County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Sterling House of Mankato
100 Teton Lane
Mankato, MN 56001
Blue Earth County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Sterling House of Sauk Rapids
1325 Summit Avenue North
Sauk Rapids, MN 56379
Benton County& | ALS Leasing, Inc., a Delaware corporation | | | Alterra Sterling House of Willmar
1501 19th Avenue SW
Willmar, MN 56201
Kandiyohi County | ALS Leasing, Inc., a Delaware corporation |
SCHEDULE 1B-2
Residence | Tenant
| Alterra Sterling House of Winona
835 E. Belleview Street
Winona, MN 55987
Winona County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Clare Bridge of Charlotte
11240 Ballantyne Trace Court
Charlotte, NC 28277
Mecklenburg County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Wynwood of Charlotte
11230 Ballantyne Trace Court
Charlotte, NC 28277
Mecklenburg County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Wynwood of Greensboro
3896 N. Elm Street
Greensboro, NC 27455
Guilford County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Clare Bridge of Greensboro
3898 N. Elm Street
Greensboro, NC 27455
Guilford County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Wynwood of Manlius (Liberty Commons)
100 Flume Road
Manlius, NY 13104
Onandaga County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Sterling House of Marion
308 Barks Road East
Marion, OH 43302
Marion County | Assisted Living Properties, Inc., a Kansas corporation | | | Alterra Sterling House of Barberton
487 Austin Drive
Barberton, OH 44203
Summit County | Assisted Living Properties, Inc., a Kansas corporation | | | Alterra Sterling House of Englewood
350 Union Road
Englewood, OH 45322
Montgomery County | Assisted Living Properties, Inc., a Kansas corporation | | | Alterra Sterling House of Bartlesville South
3737 SE Camelot Drive
Bartlesville, OK 74005
Washington County | Assisted Living Properties, Inc., a Kansas corporation | | | Alterra Sterling House of Bethany
4101 N. Council Road
Bethany, OK 73008
Oklahoma County | Assisted Living Properties, Inc., a Kansas corporation |
SCHEDULE 1B-3
Residence | Tenant
| Alterra Clare Bridge of Lower Makefield
600 Township Line Road
Yardley, PA 19067
Bucks County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Clare Bridge of Columbia
990 Columbia Avenue
Irmo, SC 29063
Richland County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Clare Bridge of Charleston
1010 Anna Knapp Blvd. Ext
Mt. Pleasant, SC 29464
Charleston County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Sterling House of Kerrville
725 Leslie Drive
Kerrville, TX 78028
Kerr County | Assisted Living Properties, Inc., a Kansas corporation | | | Alterra Sterling House of Lancaster
2400 W. Pleasant Run Road
Lancaster, TX 75146
Dallas County | Assisted Living Properties, Inc., a Kansas corporation | | | Alterra Sterling House of Whitby
5996 Whitby Road
San Antonio, TX 78240
Bexar County | Assisted Living Properties, Inc., a Kansas corporation | | | Alterra Sterling House of Temple
3902 W. Adams Avenue
Temple, TX 76504
Bell County | Assisted Living Properties, Inc., a Kansas corporation | | | Alterra Sterling House of Kenosha
3109 12th Street
Kenosha, WI 53144
Kenosha County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Sterling House of Plymouth
112 S. River Blvd. Plymouth, WI 53073
Sheboygan County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Sterling House of Brown Deer
4015 W. Woodale
Brown Deer, WI 53209
Milwaukee County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Sterling House of Manitowoc
5005 Vista Road
Manitowoc, WI 54220
Manitowoc County | ALS Leasing, Inc., a Delaware corporation |
SCHEDULE 1B-4
Residence | Tenant
| Alterra Sterling House of Middleton
6916 Century Avenue
Middleton, WI 53562
Dane County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Sterling House of Neenah
2330 Bruce Street
Neenah, WI 54956
Winnebago County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Sterling House of Onalaska
949 Tenth Avenue North
Onalaska, WI 54650
La Cross County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Sterling House of Oshkosh
190 Lake Pointe Drive
Oshkosh, WI 54901
Winnebago County | ALS Leasing, Inc., a Delaware corporation | | | Alterra Sterling House of Sun Prairie
650 Broadway Drive
Sun Prairie, WI 53590
Dane County | ALS Leasing, Inc., a Delaware corporation |
SCHEDULE 1B-5
SCHEDULE 2
FACILITY INFORMATION: BUSINESS, BEDS, ETC.
Facility Number | Alterra Code | Facility | Facility Location | Business/Facility Type | No. of Beds or Living Units | | | | | | | 1 | 404 | Clare Bridge of Fort Myers at the Colony | 13565 American Colony Blvd. Fort Myers, FL | assisted living/memory care | 38 | | | | | | | 2 | 402 | Clare Bridge of Tampa | 1513 West Fletcher Avenue Tampa, FL | assisted living/memory care | 38 | | | | | | | 3 | 201 | Clare Bridge of Farmington Hills I | 27950 Drake Road Farmington Hills, MI | assisted living/memory care | 28 | | | | | | | 4 | 201 | Clare Bridge of Farmington Hills II | 27900 Drake Road Farmington Hills, MI | assisted living/memory care | 32 | | | | | | | 5 | 202 | Clare Bridge of Utica | 45959 North Pointe Blvd. Utica, MI | assisted living/memory care | 36 | | | | | | | 6 | 502 | Clare Bridge of Lower Makefield | 600 Township Line Road Yardley, PA | assisted living/memory care | 48 | | | | | | | 7 | 827 | Sterling House of Brown Deer | 4015 West Woodale Brown Deer, WI | assisted living | 15 | | | | | | | 8 | 809 | Sterling House of Onalaska | 949 10th Avenue North Onalaska, WI | assisted living | 20 | | | | | | | 9 | 606 | Wynwood of Manlius | 100 Flume Road Manlius, NY | assisted living | 80 | | | | | | | 10 | 804 | Sterling House of Plymouth | 112 South River Blvd. Plymouth, WI | assisted living | 15 | | | | | | | 11 | 838 | Sterling House of Faribault | 935 Spring Road Faribault, MN | assisted living | 20 | | | | | | | 12 | 829 | Sterling House of Mankato | 100 Teton Lane Mankato, MN | assisted living | 20 | | | | | | | 13 | 849 | Sterling House of Sauk Rapids | 1325 Summit Avenue North Sauk Rapids, MN | assisted living | 20 | | | | | | | 14 | 833 | Sterling House of Winona | 835 East Belleview Street Winona, MN | assisted living | 20 | | | | | | | 15 | 826 | Sterling House of Manitowoc | 5005 Vista Road Manitowoc, WI | assisted living | 20 | | | | | | | 16 | 824 | Sterling House of Neenah | 2330 Bruce Street Neenah, WI | assisted living | 20 | | | | | | | 17 | 831 | Sterling House of Oshkosh | 190 Lake Pointe Drive Oshkosh, WI | assisted living | 20 | | | | | | | 18 | 825 | Sterling House of Sun Prairie | 650 Broadway Drive Sun Prairie, WI | assisted living | 20 | | | | | | | 19 | 837 | Sterling House of Willmar | 1501 19th Avenue South West Willmar, MN | assisted living | 20 | | | | | | | 20 | 836 | Sterling House of Middleton | 6916 Century Avenue Middleton, WI | assisted living | 20 | | | | | | | 25 | 450 | Clare Bridge of Jacksonville | 10050 Old Saint Augustine Rd. Jacksonville, FL | assisted living/memory care | 38 | | | | | | | 28 | 205 | Wynwood of Meridian | 5346 Marsh Road Meridian, MI (Haslett) | assisted living | 72 | | | | | | | 29 | 446 | Sterling House of Ocala | 1500 South East 24th Road Ocala, FL | assisted living | 42 | | | | | | | 30 | 448 | Sterling House of Ormond Beach | 240 Interchange Blvd. Ormond Beach, FL | assisted living | 42 | | | | | | | 31 | 1135 | Sterling House of Marion | 308 Barks Road East Marion, OH | assisted living | 43 | | | | | | |
SCHEDULE 2-1
32 | 1125 | Sterling House of Barberton | 487 Austin Drive Barberton, OH | assisted living | 42 | | | | | | | 33 | 1129 | Sterling House of Englewood | 350 Union Road Englewood, OH | assisted living | 42 | | | | | | | 34 | 840 | Sterling House of Kenosha | 3109 12th Street Kenosha, WI | assisted living | 20 | | | | | | | | | | | | | 35 | 221 | Sterling House of Davison | 432 East Clark Street Davison, MI | assisted living | 20 | | | | | | | 36 | 222 | Clare Bridge of Delta | 7235 Delta Commerce Drive Delta, MI (Lansing) | assisted living/memory care | 38 | | | | | | | 37 | 240 | Sterling House of Delta | 7323 Delta Commerce Drive Delta, MI (Lansing) | assisted living | 20 | | | | | | | 38 | 218 | Clare Bridge of Troy | 4900 Northfield Parkway Troy, MI | assisted living/memory care | 52 | | | | | | | 39 | 237 | Wynwood of Troy | 4850 Northfield Parkway Troy, MI | assisted living | 78 | | | | | | | 40 | 232 | Clare Bridge of Grand Blanc | 5130 Baldwin Road Holly, MI | assisted living | 52 | | | | | | | 41 | 233 | Wynwood of Grand Blanc | 5080 Baldwin Road Holly, MI | assisted living | 78 | | | | | | | 42 | 1704 | Sterling House of Bethany | 4101 North Council Road Bethany, OK | assisted living | 26 | | | | | | | 43 | 1111 | Sterling House of Derby | 1709 East Walnut Grove Derby, KS | assisted living | 26 | | | | | | | 44 | 1120 | Sterling House of Wellington | 500 North Plum Street Wellington, KS | assisted living | 26 | | | | | | | 45 | 1703 | Sterling House of Bartlesville South | 3737 South East Camelot Dr. Bartlesville, OK | assisted living | 33 | | | | | | | 46 | 1736 | Sterling House of Lancaster | 2400 West Pleasant Run Rd. Lancaster, TX | assisted living | 37 | | | | | | | 47 | 1747 | Sterling House of Temple | 3902 West Adams Avenue Temple, TX | assisted living | 42 | | | | | | | 48 | 1735 | Sterling House of Kerrville | 725 Leslie Drive Kerrville, TX | assisted living | 37 | | | | | | | 49 | 1745 | Sterling House of Whitby | 5996 Whitby Road San Antonio, TX | assisted living | 50 |
SCHEDULE 2-2
SCHEDULE 3
EXCEPTIONS TO INSURANCE REQUIREMENTS
Alterra has in place a liability insurance program through Commonwealth Risk Services, Inc., a risk management organization, to provide $5 million of aggregate liability coverage. The Commonwealth program is a claims made insurance policy, including general liability and professional liability, which was initially issued by Legion Indemnity Company, an A. M. Best A- insurance company. Legion Indemnity Company utilizes the insurance profit center program offered by Mutual Indemnity (Bermuda) Ltd. (initially A. M. Best A- rated), which is a risk financing plan designed to control the underwriting, profit and investment income from a insured's insurance policy. Both ratings were reduced after the initial formation of the program. The fronting insurance carrier for the program, Legion Indemnity Company (“Legion”), became subject to a Conservation Order issued by the Illinois Department of Insurance that limits Legion's ability to pay claims without court approval. Legion's current credit rating is & #147;E.”
Pursuant to the insurance profit center program, Legion issued a policy to Alterra for $5 million of aggregate coverage, subject to a $25,000 per occurrence deductible and all claims paid by Legion to Alterra will reduce the aggregate limit accordingly. Alterra paid the premium for the policy and also posted cash collateral. Pursuant to its re-insurance agreement with Mutual Indemnity (Bermuda) Ltd., Legion ceded the funds from Alterra to Mutual, which will invest the funds until losses or other expenses are actually paid. Favorable claims experience will result in dividends to Alterra. The policy is an annual policy that expires on July 1, 2002, and the premium has been paid for the period through July 1, 2002.
As outlined above and set forth in the policy, this program does not comply with the following particulars of Section 6 of the Master Lease:
1. The financial ratings of the insurers involved are below those required.
2. The policy aggregate limit is $5,000,000, not $10,000,000.
3. The policy is written on a “claims made” basis as opposed to an “occurrence” basis.
In addition to these matters related to Alterra's general liability/professional liability insurance program, the following matters may not comply with the requirements of Section 6 of the Master Lease:
1. The deductible under Alterra's workers' compensation is $250,000, which the Company considers to be commercially reasonable for the size of the program.
2. Deductibles for Flood, Windstorm and Quake coverage are typically 2% of value with a $100,000 minimum. Lower deductibles for these forms of coverage are generally not available in the market.
SCHEDULE 3-1
3. Alterra has consistently inflated its property schedule of values by 2% to 4% per year over initial construction or acquisition costs. These scheduled amounts are believed generally to be adequate to cover the replacement cost of an individual property but have not been recently verified as adequate for every property. The Company intends to perform that analysis in conjunction with its property insurance renewal of July 1, 2002.
4. The Company's current policies and typically practice in the commercial insurance market generally do not permit delivery of replacement policies 10 days prior to the expiration of a policy and it is unlikely that it is feasible to deliver the renewal policy within 10 days of renewal, although Alterra will use its commercially reasonable efforts to do so as soon thereafter as is practicable.
5. Upon the expiration of the Company's current general liability insurance program (effective July 1, 2002), the Company may defer implementing a general liability insurance program until the earlier of the expiration of the Forbearance Period (as defined in the Memorandum of Understanding), the filing of a Conforming Bankruptcy Proceeding (as defined in the Memorandum of Understanding) by the Company or the conversion of an involuntary petition to a voluntary petition pursuant to Section 1(a)(iii) of the Memorandum of Understanding (such date, the “Plan Commencement Date”). Upon the Plan Commencement Date the Company shall have in effect a general liability insurance program, which complies with the requirements of Section 6 of the Lease or a rent-a-captive program with a carrier with an A- or better rating, or a fully funded self-insurance program, in each case providing $5.0 million of aggregate liability coverage.
SCHEDULE 3-2
SCHEDULE 4
EXISTING FACILITIES EXEMPT FROM RADIUS RESTRICTION
Building Name | Address Line 1 | City | State | Zip | Clare Bridge of Tempe | 1610 East Guadalupe Road | Tempe | AZ | 85283-3938 | Clare Bridge of Oro Valley | 10175 North Oracle Road | Oro Valley | AZ | 85737-7647 | Clare Bridge of Sun City West on Meeker | 14001 West Meeker Boulevard | Sun City West | AZ | 85375-5202 | Sterling House of Chandler | 2800 West Ray Road | Chandler | AZ | 85224-3492 | Sterling House of Mesa | 6060 East Arbor Avenue | Mesa | AZ | 85206-6049 | Sterling House of Peoria | 8989 West Greenbrian Drive | Peoria | AZ | 85382-8157 | Sterling House on East Speedway | 8468 East Speedway Boulevard | Tucson | AZ | 85710-1715 | Clare Bridge of East Mesa | 6145 East Arbor | Mesa | AZ | 85206- | Clare Bridge of Peoria | 9296 W. Union Hills Dr. | Peoria | AZ | 85382- | Clare Bridge of Sun City West II | 21739 North 151st Avenue | Sun City West | AZ | 85375- | Wynwood of Tucson | 3701 N. Swan Road | Tucson | AZ | 85718- | Wynwood of the Palms | 25585 Van Leuven Street | Loma Linda | CA | 92354-2442 | Clare Bridge of Corona | 2005 Kellogg Avenue | Corona | CA | 91719- | Clare Bridge Cottage of Bakersfield | 3115 Brookside Drive | Bakersfield | CA | 93311- | Sterling House of Bakersfield | 3209 Brookside Drive | Bakersfield | CA | 93311- | Wynwood of Harden Ranch | 290 Regency Circle | Salinas | CA | 93906- | Clare Bridge at Lake Park | 3524 Lake Boulevard | Oceanside | CA | 92056-4600 | Clare Bridge of Fresno | 7468 North Millbrook Avenue | Fresno | CA | 93720- | Wynwood of Fresno | 7442 North Millbrook Avenue | Fresno | CA | 93720- | Wynwood of Brea | 285 West Central | Brea | CA | 92821- | Clare Bridge or Citrus Heights | 7375 Stock Ranch Rd. | Citrus Heights | CA | 95621- | Wynwood of Whittier | 8101 South Painter | Whittier | CA | 92653- | Wynwood at Palm Terrace | 24962 Calle Aragon | Laguna Woods | CA | 92653- | Villas at the Atrium | 3350 30th Street | Boulder | CO | 80301-5608 | Wynwood at Canterbury Gardens II | 1001 South Kingston | Aurora | CO | 80012-3178 | Wynwood-Villas at Canterbury Gardens | 11265 East Mississippi Avenue | Aurora | CO | 80012-3201 | Wynwood at Ridge Point | 3375 34th Street | Boulder | CO | 80301-1987 | Wynwood of Colorado Springs | 2780 Vickers Drive | Colorado Springs | CO | 80918-8903 | Wynwood of Pueblo | 4723 Surfwood Lane | Pueblo | CO | 81005-4609 | Clare Bridge Cottage of Fort Collins | 1008 Rule Dr. | Fort Collins | CO | 80525-6731 | Clare Bridge of Highlands Ranch | 9160 South University Boulevard | Highlands Ranch | CO | 80126-5068 | Clare Bridge of Louisville | 282 McCaslin Boulevard | Louisville | CO | 80027-2911 |
Sterling House of Arvada | 7720 Alison Street | Arvada | CO | 80005-5024 | Sterling House of Brighton | 2215 East Egbert Street | Brighton | CO | 80601-2590 | Sterling House of Briargate | 7560 Lexington Drive | Colorado Springs | CO | 80920-4151 | Sterling House of Broadmoor | 615 Southpointe Court | Colorado Springs | CO | 80906-3978 | Sterling House of Fort Collins | 1002 Rule Drive | Fort Collins | CO | 80525-6731 | Sterling House of Greeley | 1999 West 38th Avenue | Greeley | CO | 80634-3459 | Sterling House of Littleton | 8271 South Continental Divide Road | Littleton | CO | 80127-3890 | Sterling House of Longmont | 2240 Pratt Street | Longmont | CO | 80501-1497 | Sterling House of Loveland | 2895 North Empire | Loveland | CO | 80538-5115 | Clare Bridge of Colorado Springs | 2850 N. Academy Blvd | Colorado Springs | CO | 80917- | Clare Bridge of Denver | 3790 W. Quincy Avenue | Dourer | CO | 80224- | Clare Bridge of Glastonbury | 1824 Manchester Road | Glastonbury | CT | 06033-1832 | Clare Bridge of Bradenton | 6101 Pointe West Boulevard | Bradenton | FL | 34209-5534 | Clare Bridge of Tampa | 1513 West Fletcher Avenue | Tampa | FL | 33612-3315 | Clare Bridge of Sarasota | 8450 McIntosh Road | Sarasota | FL | 34238-5675 | Clare Bridge of Fort Myers at the Colony | 13565 American Colony Boulevard | Fort Myers | FL | 33912-5681 | Wynwood at Palmer Ranch West | 3749 Sarasota Square Boulevard | Sarasota | FL | 34238-4595 | Clare Bridge of Orlando | 8015 Pin Oak Drive | Orlando | FL | 32819-7108 | Clare Bridge of Tallahassee | 1980 Centre Pointe Boulevard | Tallahassee | FL | 32308-4873 | Wynwood of Orlando | 8001 Pin Oak Drive | Orlando | FL | 32819-7108 | Clare Bridge of Brandon | 1819 Providence fudge Boulevard | Brandon | FL | 33511-1899 | Clare Bridge of Oviedo | 445 Alexandria Boulevard | Oviedo | FL | 32765-5516 | Sterling House of Oviedo II | 395 Alafaya Woods Boulevard | Oviedo | FL | 32765-7095 | Sterling House of Oviedo I | 355 Alafaya Woods Boulevard | Oviedo | FL | 32765-7095 | Sterling House of Blue Water Bay | 1551 Merchants Way | Niceville | FL | 32578-8821 | Sterling House of Brandon | 824 North Parsons Avenue | Brandon | FL | 33510-3435 | Sterling House of Cape Coral | 1416 Country Club Boulevard | Cape Coral | FL | 33990-2198 | Sterling House of DeLand | 1210 North Stone Street | DeLand | FL | 32720-0915 | Sterling House of Englewood (FL) | 550 Rotonda Boulevard West | Rotonda West | FL | 33947-2533 | Sterling House of Fort Myers | 14521 Lakewood Boulevard | Fort Myers | FL | 33919-2829 | Sterling House of Gainesville | 4601 North West 53rd Avenue | Gainesville | FL | 32606-4382 | Sterling House of Merrimac | 4455 Merrimac Avenue | Jacksonville | FL | 32210-1814 | Sterling House of Jacksonville | 10875 Old Saint Augustine Road | Jacksonville | FL | 32257-1091 | Sterling House of Leesburg | 700 South Lake Street | Leesburg | FL | 34748-7321 | Sterling House of LeHigh Acres | 1251 Business Way | LeHigh Acres | FL | 33936-6045 | Sterling House of West Melbourne I | 7300 Greenboro Drive | West Melbourne | FL | 32904-1419 | Sterling House of Ocala | 1500 South East 24th Road | Ocala | FL | 34471-6076 | Sterling House of Ormond Beach | 240 Interchange Boulevard | Ormond Beach | FL | 32174-1835 | Sterling House of Palm Coast | 3 Club House Drive | Palm Coast | FL | 32137-8138 |
Clare Bridge of Jacksonville | 10050 Old Saint Augustine Road | Jacksonville | FL | 32257-6018 | Clare Bridge of Gainesville | 4607 North West 53rd Avenue | Gainesville | FL | 32606-4357 | Sterling House of Panama City | 2575 Harrison Avenue | Panama City | FL | 32405-4458 | Sterling House of Pensacola | 8700 University Parkway | Pensacola | FL | 32514-4931 | Sterling House of Port Orange | 955 Village Trail Drive | Port Orange | FL | 32127-8916 | Sterling House of Port Charlotte | 18440 Toledo Blade Boulevard | Port Charlotte | FL | 33948-3339 | Sterling House of Punte Gorda | 250 Bal Harbor Boulevard | Punta Gorda | FL | 33950-5294 | Sterling House of Spring Hill | 10440 Palmgren Lane | Spring Hill | FL | 34608-7486 | Sterling House of Stuart | 3401 South East Aster Lane | Stuart | FL | 34994-5533 | Sterling House of Sun City | 758 Cortaro Drive | Sun City Center | FL | 33573-6803 | Sterling House of Tallahassee | 1780 Hermitage Boulevard | Tallahassee | FL | 32308-7708 | Sterling House of Tavares | 2232 Dora Avenue | Tavares | FL | 32778-5708 | Sterling House of Tequesta I | 205 Village Boulevard | Tequesta | FL | 33469-2341 | Sterling House of Tequesta II | 211 Village Boulevard | Tequesta | FL | 33469-2317 | Sterling House of Venice | 1200 Avenida del Circo | Venice | FL | 34285-4141 | Sterling House of Vero Beach | 410 4th Court | Vero Beach | FL | 32962-1814 | Sterling House of West Melbourne II | 7200 Greenboro Drive | West Melbourne | FL | 32904-1424 | Sterling House of Winter Haven | 6110 Cypress Gardens Boulevard | Winter Haven | FL | 33884-4130 | Clare Bridge Cottage of Leesburg | 710 South Lake Street | Leesburg | FL | 34748-7316 | Clare Bridge Cottage of Winter Haven | 6120 Cypress Gardens Boulevard | Winter Haven | FL | 33884-3180 | Clare Bridge Cottage of Vero Beach | 420 4th Court | Vero Beach | FL | 32962-1812 | Clare Bridge of Tequesta | 223 Village Blvd. | Tequesta | FL | 33469-2341 | Villas of Tequesta | 217 Village Blvd. | Tequesta | FL | 33469-2341 | Clare Bridge of West Melbourne | 7199 Greenboro Drive | West Melbourne | FL | 32904-1432 | Clare Bridge of Cape Coral | 911 Santa Barbara Boulevard | Cape Coral | FL | 33991-2074 | Wynwood of Boynton Beach West | 3005 South Congress | Boynton Beach | FL | 33426- | Wynwood of Boynton Beach East | 1935 South Federal Highway | Boynton Beach | FL | 33435- | Wynwood of Dunedin | 880 Patricia Ave | Dunedin | FL | 34698- | Wynwood at Palmer Ranch East | 5111 Palmer Ranch | Sarasota | FL | 34238- | Clare Bridge Cottage of Lakeland | 605 Carpenters Way | Lakeland | FL | 33809-3919 | Clare Bridge Cottage of Savannah | 11310 White Bluff Road | Savannah | GA | 31419-1506 | Clare Bridge at Vinings Place | 4375 Beech Haven Trail South East | Smyrna | GA | 30080- | Clare Bridge Decatur | 475 Irvin Court | Decatur | GA | 30030- | Clare Bridge of Sandy Springs | 1262 Hightower Trail | Atlanta | GA | 30350- | Wynwood of Sandy Springs | 1260 Hightower Trail | Atlanta | GA | 30350- | Wynwood at River Place | 739 East Parkcenter Boulevard | Boise | ID | 83706-6511 | Villas at River Place | 787 East Parkcenter Boulevard | Boise | ID | 83706- | Wynwood at Twin Falls | 1367 Locust Street North | Twin Falls | ID | 83301-3477 | Sterling House of Michigan City | 1400 East Coolspring Avenue | Michigan City | IN | 46380-7184 |
Sterling House of Evansville | 6521 Greendale Drive | Evansville | IN | 47711-1740 | Sterling House Valparaiso | 2601 Valparaiso Street | Valparaiso | IN | 46383-3175 | Sterling House of South Bend | 17441 State Road #23 | South Bend | IN | 46635-1742 | Sterling House of Columbus (IN) | 2564 Foxpointe Drive | Columbus | IN | 47203-3219 | Sterling House of Bloomington | 3802 South Sare Road | Bloomington | N | 47401-4889 | Sterling House of Marion (IN) | 2452 West Kem Road | Marion | IN | 46952-9258 | Sterling House of Kokomo | 3025 West Sycamore Road | Kokomo | IN | 46901-4080 | Sterling House of Merrillville | 8253 Virginia Street | Merrillville | IN | 46410-6228 | Sterling House of Portage | 3444 Swanson Road | Portage | IN | 46368-4980 | Sterling House of Richmond | 3700 South A Street | Richmond | IN | 47374-7841 | Sterling House of Muncie | 1601 North Morrison Road | Muncie | IN | 47304-5329 | Sterling House of Jeffersonville | 2715A Charlestown Pike | Jeffersonville | IN | 47130-8163 | Clare Bridge Cottage of Jeffersonville | 2715B Charlestown Pike | Jeffersonville | IN | 47130-8163 | Clare Bridge Cotta of Michigan City | 1300 East Coolspring Avenue | Michigan City | IN | 46360-6256 | Clare Bridge Cottage of Valparaiso | 2501 Valparaiso Street | Valparaiso | IN | 46383- | Clare Bridge Cottage of Muncie | 1605 North Morrison Road | Muncie | IN | 47304-5329 | Sterling House of Abilene I | 1100 North Vine Street | Abilene | KS | 67410-4009 | Sterling House of Abilene II | 1102 North Vine Street | Abilene | KS | 67410-4015 | Sterling House of Arkansas City | 402 Windsor Road | Arkansas City | KS | 67005-3894 | Sterling House of Asbury Village | 3800 Asbury Drive | Coffeyville | KS | 67337-9154 | Sterling House of Augusta | 1611 Fairway Drive | Augusta | KS | 67010-2246 | Sterling House of Derby | 1709 East Walnut Grove | Derby | KS | 67037-3555 | Sterling House of Dodge City | 2400 North 14th Avenue | Dodge City | KS | 67801-2300 | Sterling House of Emporia | 1200 West 12th | Emporia | KS | 66801-2557 | Sterling House of Great Bend | 1206 Patton Road | Great Bend | KS | 67530-3190 | Sterling House of Hays | 1801 East 27th Street | Hays | KS | 67601-2128 | Sterling House of Junction City | 1022 North Caroline Avenue | Junction City | KS | 66441-5215 | Sterling House of McPherson | 1460 North Main Street | McPherson | KS | 67460-1917 | Sterling House of Salina | 1200 East Kirwin Avenue | Salina | KS | 67401-6333 | Sterling House of Fairdale | 2251 East Crawford | Salina | KS | 67401-1317 | Sterling House of Wellington | 500 North Plum Street | Wellington | KS | 67152-3574 | Sterling House of Wichita | 8600 East 21st Street | Wichita | KS | 67206-2990 | Sterling House of Woodland Terrace | 1500 Terrace Avenue | Liberal | KS | 67901-5702 | Sterling House of Lawrence | 3220 Peterson Road | Lawrence | KS | 66049-1963 | Sterling House of Leawood | 12720 State Line Road | Leawood | KS | 66209-1619 | Sterling House of Lenexa I | 8710 Caenen Lake Road | Lenexa | KS | 66215-2069 | Sterling House of Lenexa II | 8740 Caenen Lake Road | Lenexa | KS | 66215-2069 | Sterling House of Olathe I | 751 North Somerset Terrace | Olathe | KS | 66062-5450 |
Sterling House of Olathe II | 791 North Somerset Terrace | Olathe | KS | 66062-5450 | Sterling House of Topeka | 5820 South West Drury Lane | Topeka | KS | 66604-2262 | Clare Bridge of Wichita | 9191 East 21st Street North | Wichita | KS | 67206-2923 | Sterling House of Parkwood Village | 401 Rochester | Pratt | KS | 67124-2990 | Clare Bridge of Leawood | 12724 State Line Road | Leawood | KS | 66221- | Clare Bridge of Cottage Topeka | 5800 SW Drury Lane | Topeka | KS | 66604-2262 | Clare Bridge of Overland Park | 11000 Oakmont | Overland Park | KS | 66210- | Clare Bridge Cottage of Valley Station | 9300 Stonestreet Road | Louisville | KY | 40272-2876 | Sterling House of Valley Station | 9302 Stonestreet Road | Louisville | KY | 40727-2876 | Clare Bridge of Farmington Hills I & II | 27950 Drake Road | Farmington Hills | MI | 48331-3133 | Clare Bridge of Farmington Hills II | 27900 Drake Road | Farmington Hills | MI | 48331-3133 | Clare Bridge of Utica | 45959 North Pointe Boulevard | Utica | MI | 48315-5803 | Clare Bridge of Ann Arbor | 750 West Eisenhower | Ann Arbor | MI | 48103-5896 | Clare Bridge of Meridian | 5250 Marsh Road | Haslett | MI | 48840-8621 | Wynwood of Meridian | 5346 Marsh Road | Haslett | MI | 48840-8632 | Wynwood of Northville | 40405 Six Mile Road | Northville | MI | 48167-2368 | Wynwood of Utica | 45969 North Pointe Boulevard | Utica | MI | 48315-5603 | Sterling House of Saginaw | 2485 McCarty Road | Saginaw Township | MI | 48603-2576 | Sterling House of Bay City | 734 North Pine Road | Bay City | MI | 48708-9178 | Sterling House of Westland | 32111 Cherry HIM Road | Westland | MI | 48186-5288 | Sterling House of Monroe | 1605 Fredericks Drive | Monroe | MI | 48162-5111 | Sterling House of Midland | 4004 Waldo Avenue | Midland | MI | 48642-6571 | Clare Bridge of Troy | 4900 Northfield Parkway | Troy | MI | 48098-4435 | Sterling House of Battle Creek | 191 Lois Drive | Battle Creek | MI | 49015-7933 | Clare Bridge of Portage | 3150 Old Centre Avenue | Portage | MI | 49002-5812 | Sterling House of Davison | 432 East Clark Street | Davison | MI | 48423-1821 | Clare Bridge of Delta | 7235 Delta Commerce Drive | Lansing | MI | 48917-1067 | Sterling House of Swartz Creek | 8240 Miller Road | Swartz Creek | MI | 48473-1360 | Clare Bridge Cottage of Battle Creek | 197 Lois Drive | Battle Creek | MI | 49015- | Clare Bridge Cottage of Westland | 32151 Cherry Hill Road | Westland | MI | 48186-5288 | Wynwood of Portage | 3100 Old Centre Avenue | Portage | MI | 49002-5812 | Clare Bridge of Grand Blanc | 5130 Baldwin Road | Holly | MI | 48442-9306 | Wynwood of Grand Blanc | 5080 Baldwin Road | Holly | MI | 48442-9306 | Wynwood of Troy | 4850 Northfield Parkway | Troy | MI | 48098-4433 | Clare Bridge Cottage of Monroe | 1815 Fredericks Drive | Monroe | MI | 48162-5111 | Clare Bridge Cottage of Saginaw | 2445 McCarty Road | Saginaw Township | MI | 48603-2576 | Sterling House of Delta | 7323 Delta Commerce Drive | Lansing | MI | 48917-1069 | Clare Bridge Cottage of Bay City | 720 North Pine Road | Bay City | MI | 48708-9178 | Clare Bridge Cottage of Midland | 4012 Waldo Avenue | Midland | MI | 48642-6571 | Clare Bridge of Eagan | 1365 Crestridge Lane | Eagan | MN | 55123-1042 |
Clare Bridge of North Oaks | 300 Village Center Drive | North Oaks | MN | 55127-3021 | Clare Bridge of Plymouth | 15855 22nd Avenue North | Plymouth | MN | 55447-6452 | Clare Bridge of Eden Prairie | 7513 Mitchell Road | Eden Prairie | MN | 55344-1950 | Wynwood of Rochester | 3035 Salem Meadows Drive South West | Rochester | MN | 55902- | Clare Bridge Cottage of Owatonna | 364 Cedardale Drive South East | Owatonna | MN | 55060-4467 | Sterling House of Mankato | 100 Teton Lane | Mankato | MN | 56001-4827 | Sterling House of Winona | 835 East Belleview Street | Winona | MN | 55987-4502 | Sterling House of Owatonna | 334 Cedardale Drive South East | Owatonna | MN | 55060-4467 | Sterling House of Willmar | 1501 19th Avenue South West | Willmar | MN | 56201-4940 | Sterling House of Faribault | 935 Spring Road | Faribault | MN | 55021-6975 | Sterling House of Sauk Rapids | 1325 Summit Avenue North | Sauk Rapids | MN | 56379-2545 | Clare Bridge Cottage of Coon Rapids | 1770 113th Lane North West | Coon Rapids | MN | 55433-3019 | Sterling House of Blaine | 1005 Paul Parkway | Blaine | MN | 55434-3926 | Sterling House of Inver Grove Heights | 5891 Carmen Avenue | Inver Grove Heights | UN | 55076-4414 | Sterling House of West St. Paul | 305 East Thompson Avenue | West Saint Paul | MN | 55118-3239 | Clare Bridge Cottage of West St. Paul | 315 East Thompson Avenue | West Saint Paul | MN | 55118-3239 | Sterling House of Coon Rapids | 11372 Robinson Drive | Coon Rapids | MN | 55433-3776 | Wynwood of Chapel Hill | 2220 Farmington Drive | Chapel Hill | NC | 27514-7843 | Clare Bridge of Greensboro | 3898 North Elm Street | Greensboro | NC | 27455-2596 | Clare Bridge of Cary | 7870 Chapel Hill Road | Cary | NC | 27513-5428 | Clare Bridge of Charlotte | 11240 Ballantyne Trace Court | Charlotte | NC | 28277-2791 | Wynwood of Charlotte | 11230 Ballantyne Trace Court | Charlotte | NC | 28277-2791 | Clare Bridge of Winston-Salem | 275 South Peace Haven Road | Winston Salem | NC | 27104-4419 | Clare Bridge of Wilmington | 3501 Converse Drive | Wilmington | NC | 28412-6179 | Wynwood of Greensboro | 3896 North Elm Street | Greensboro | NC | 27455-2595 | Clare Bridge of Asheville | 4 Walden Ridge Drive | Asheville | NC | 28803-8583 | Clare Bridge of Chapel Hill | 2230 Farmington Drive | Chapel Hill | NC | 27514-7843 | Sterling House of Rocky Mount | 650 Goldrock Road | Rocky Mount | NC | 27804-8804 | Sterling House of New Bern | 1336 South Glenburnie Road | New Bern | NC | 28562-2624 | Sterling House of Raleigh | 1110 Falls River Avenue | Raleigh | NC | 27614-7772 | Sterling House of Goldsboro | 1800 Berkeley Road | Goldsboro | NC | 27534-3368 | Sterling House of Greenville (NC) | 2105 West Arlington Boulevard | Greenville | NC | 27834-5744 | Sterling House of Southern Pines | 101 Brucewood Road | Southern Pines | NC | 28387-5144 | Sterling House of Hickory | 910 29th Avenue North East | Hickory | NC | 28601-1135 | Sterling House of Shelby | 1425 East Marion Street | Shelby | NC | 28150-4947 | Clare Bridge of Southern Pines | 101-B Brucewood Road | Southern Pines | NC | 28387- | Clare Bridge Cottage of Raleigh | 1130 Falls River Ave. | Raleigh | NC | 27614-7772 | Clare Bridge of South Park | 5326 Park Road | Charlotte | NC | 28209- | Clare Bridge of Hamilton | 1645 Whitehorse-Mercerville Road | Hamilton | NJ | 08619-3821 |
Clare Bridge of Westampton | 480 West Woodlane Road | Westampton | NJ | 08060-3828 | Sterling House of Deptford I & II | 1674 Delsea Drive | Deptford | NJ | 08096-4117 | Sterling House of Deptford II | 1676 Delsea Drive | Deptford | NJ | 08096-4117 | Sterling House of Florence (NJ) | 901 Broad Street | Florence | NJ | 08518-2813 | Clare Bridge of Galloway Township | 42 West Jimmie Leeds Road | Absecon | NJ | 08201-9401 | Wynwood of Galloway Township | 46 West Jimmie Leeds Road | Absecon | NJ | 08201-9401 | Clare Bridge Cottage of Williamstown | 1648 South Black Horse Pike | Williamstown | NJ | 08094-9247 | Clare Bridge of Brick | 1594 Route 88 West | Brick | NJ | 08724-3036 | Wynwood of Emerson | 590 Old Hook Road | Emerson | NJ | 07630- | Wynwood of Wayne | 820 Hamburg Turnpike | Wayne | NJ | 07470- | Wynwood of West Orange | 520 Prospect Avenue | West Orange | NJ | 07052- | Sterling House of Williamstown | 1640 South Black Horse Pike | Williamstown | NJ | 08094-9247 | Wynwood of Sparks | 2000 East Prater Way | Sparks | NV | 89434-8943 | Villas of Sparks | 1900 East Prater Way | Sparks | NV | 89434-8900 | Clare Bridge of Tropicana | 8880 West Tropicana Avenue | Las Vegas | NV | 89147-6000 | Clare Bridge of Sparks | 2121 East Prater Way | Sparks | N V | 89434-9622 | Clare Bridge of Reno | 3105 Plumas Street | Reno | NV | 89509- | Clare Bridge of Niskayuna | 2861 Troy-Schenectady Road | Niskayuna | NY | 12309-1629 | Clare Bridge of Williamsville | 6076 Main Street | Amherst | NY | 14221-6835 | Clare Bridge of Perinton | 159 Sullys Trail | Pittsford | NY | 14534-4506 | Wynwood of Kenmore | 2971 Delaware Avenue | Kenmore | NY | 14217-2353 | Wynwood of Manlius | 100 Flume Road | Manlius | NY | 13104-2459 | Wynwood of Niskayuna | 1786 Union Street | Niskayuna | NY | 12309-6901 | Villas of Sherman Brook | 99 Brookside Drive | Clinton | NY | 13323-9561 | Villas of Summerfield | 100 Summerfield Village Lane | Syracuse | NY | 13215-1945 | Clare Bridge of Clifton Park | One Emma Lane | Clifton Park | NY | 12065-3762 | Clare Bridge of Greece | 1 Treeline Drive | Rochester | NY | 14612-3446 | Sterling House of Ithaca | 103 Bundy Road | Ithaca | NY | 14830-9252 | Sterling House of Greece | 3 Treeline Drive | Rochester | NY | 14612-3446 | Clare Bridge of Orchard Park | 101 Sterling Drive | Orchard Park | NY | 14127- | Clare Bridge Cottage of Ithaca | 101 Bundy Road | Ithaca | NY | 14850-9052 | Clare Bridge Cottage of Niagara | 6751 Nash Road | North Tonawanda | NY | 14120- | Sterling House of Niagara | 6741 Nash Road | North Tonawanda | NY | 14120- | Clare Bridge Cottage of Clinton | 115 Brookside Drive | Clinton | NY | 13323-3903 | Sterling House of Saratoga Springs | 390 Church Street | Saratoga | NY | 12866- | Clare Bridge of Manlius | 5125 Highbridge Street | Fayetteville | NY | 13066-2413 | Clare Bridge of Rockland County | 582 Veterans Memorial Drive | Pearl River | NY | 10965- | Sterling House of Alliance | 1277 South Sawburg Road | Alliance | OH | 44601-5750 | Clare Bridge Cottage of Austintown | 1420 South Canfield Niles Road | Austintown | OH | 44515-4040 |
Sterling House of Barberton | 487 Austin Drive | Barberton | OH | 44203-8641 | Sterling House of Bowling Green (OH) | 121 North Wintergarden Road | Bowling Green | OH | 43402-2135 | Sterling House of Canton | 1119 Perry Drive North West | Canton | OH | 44708-3374 | Sterling House of Westerville | 6377 Cooper Road | Columbus | OH | 43231-7648 | Sterling House of Englewood (OH) | 350 Union Road | Englewood | OH | 45322-2196 | Sterling House of Fairfield | 2357 Mack Road | Fairfield | OH | 45014-4841 | Sterling House of Findlay | 725 Fox Run Road | Findlay | OH | 45840-8403 | Sterling House of Greenville (OH) | 1401 North Broadway | Greenville | OH | 45331-4300 | Sterling House of Lancaster (OH) | 241 Whittier Drive South | Lancaster | OH | 43130-5717 | Sterling House of Mansfield (OH) | 1841 Middle Bellville | Mansfield | OH | 44904-1798 | Sterling House of Marion (OH) | 308 Barks Road East | Marion | OH | 43302-6500 | Clare Bridge Cottage of Middletown | 3712 Roosevelt Boulevard | Middletown | OH | 45044-6515 | Sterling House of Newark | 331 Goosepond Road | Newark | OH | 43055-3184 | Sterling House of Piqua | 1744 West High Street | Piqua | OH | 45356-5001 | Sterling House of Salem | 1916 South Lincoln Avenue | Salem | OH | 44460-4312 | Sterling House of Springdale | 11320 Springfield Pike | Springdale | OH | 45246-5400 | Sterling House of Springfield | 3270 Middle Urbana Road | Springfield | OH | 45502-9285 | Sterling House of Troy | 81 South Stanfield Road | Troy | OH | 45373-2337 | Sterling House of Urbana | 609 East Water Street | Urbana | OH | 43078-7100 | Sterling House of Washington Township | 8130 Miller Farm Lane | Dayton | OH | 45458- | Sterling House of Youngstown | 2300 Canfield Road | Youngstown | OH | 44511-2922 | Sterling House of BeaverCreek | 3839 Indian Ripple Road | Beaver Creek | OH | 45440-3410 | Clare Bridge Cottage of New Philadelphia | 716 Commercial Avenue South West | New Philadelphia | OH | 44663-9367 | Wynwood of Westlake | 27569 Detroit Road | Westlake | OH | 44145- | Sterling House of Ada | 801 South Stadium Drive | Ada | OK | 74620-8403 | Sterling House of Bartlesville North | 5420 South East Adams Boulevard | Bartlesville | OK | 74006-8874 | Sterling House of Bartlesville South | 3737 South East Camelot Drive | Bartlesville | OK | 74006-7586 | Sterling House of Bethany | 4101 North Council Road | Bethany | OK | 73008-3108 | Sterling House of Broken Arrow | 4001 South Aspen Avenue | Broken Arrow | OK | 74011-1465 | Sterling House of Chickasha | 801, Country Club Road | Chickasha | OK | 73018-7282 | Sterling House of Claremore | 1605 North Highway 88 | Claremore | OK | 74017-4843 | Sterling House of Duncan | 915 West Plato Road | Duncan | OK | 73533-3387 | Sterling House of Durant | 1500 North 19th | Durant | OK | 74701-2152 | Sterling House of Edmond | 116 West Danforth | Edmond | OK | 73003-5280 | Sterling House of Enid | 4613 West Willow Road | Enid | OK | 73703-2738 | Sterling House of Lawton | 6302 South West Lee Boulevard | Lawton | OK | 73505-9103 | Sterling House of Weatherford (OK) | 600 Gartrell Place | Weatherford | OK | 73096-2074 | Sterling House of Midwest City | 615 West BlueRidge Drive | Midwest City | OK | 73110-1201 | Sterling House of Muskogee | 3211 Chandler Road | Muskogee | OK | 74403-4949 |
Sterling House of Norman | 1701 East Alameda Street | Norman | OK | 73071-3076 | Sterling House of Oklahoma City South | 2500 South West 89th Street | Oklahoma City | OK | 73159-6354 | Sterling House of Oklahoma City North | 2435 North West 122nd Street | Oklahoma City | OK | 73120-8424 | Sterling House of Oklahoma City West | 7535 West Hefner Road | Oklahoma City | OK | 73162-4462 | Sterling House of Owasso | 12807 East 86th Place North | Owasso | OK | 74055-2530 | Sterling House of Ponca City | 1500 East Bradley Avenue | Ponca City | OK | 74604-2517 | Sterling House of Edmond Santa Fe | 1500 North Santa Fe | Edmond | OK | 73003-3639 | Sterling House of Shawnee | 3947 North Kickapoo | Shawnee | OK | 74801-1699 | Sterling House of Stillwater | 1616 East McElroy Road | Stillwater | OK | 74075-7318 | Sterling House of Tulsa | 6022 East 71st Street | Tulsa | OK | 74136-6742 | Sterling House of Tulsa South | 8231 South Mingo Road | Tulsa | OK | 74133-4523 | Clare Bridge Cottage of SW Oklahoma City | 10001 South May Avenue | Oklahoma City | OK | 73159-6600 | Clare Bridge of Oklahoma City | 12401 Dorset Drive | Oklahoma City | OK | 73120-9190 | Villas of Albany | 1560 Davidson Street South East | Albany | OR | 97321-6700 | Villas at Courtyard | 1929 Grand Prairie Road South East | Albany | OR | 97321-6700 | Wynwood of Forest Grove | 3110 19th Avenue | Forest Grove | OR | 97116-2634 | Wynwood of Mt. Hood | 25200 South East Stark Street | Gresham | OR | 97030-8300 | Wynwood of Meridian Park | 19200 South West 65th | Tualatin | OR | 97062-8754 | Wynwood of Rogue Valley | 3033 Barnett Road | Medford | OR | 97504-4324 | Villas of McMinnville | 775 North East 27th Street | McMinnville | OR | 97128-2157 | Wynwood of McMinnville | 721 North East 27th Street | McMinnville | OR | 97128- | Wynwood of Albany | 2445 Southeast Geary Street | Albany | OR | 97321-5962 | Clare Bridge of Troutdale | 1201 Cherry Park Road | Troutdale | OR | 97701- | Clare Bridge of Salem | 1355 Boone Road South East | Salem | OR | 97306-1037 | Clare Bridge of Beaverton | 16655 NW Walker Road | Beaverton | OR | 97006-4163 | Clare Bridge of Bend | 1099 NE Watt Way | Bend | OR | 97701- | Wynwood of Northampton Manor | 65 Newtown-Richboro Road | Richboro | PA | 18954-1726 | Clare Bridge of Lower Makefield | 600 Township Line Road | Yardley | PA | 19067-4200 | Clare Bridge of Montgomery | 1089 Horsham Road | North Wales | PA | 19454-1513 | Wynwood of Montgomery | 1091 Horsham Road | North Vales | PA | 19454-1513 | Clare Bridge of East Hempfield | 1870 Rohrerstown Road | Lancaster | PA | 17601- | Wynwood of Adams | 10 Adams Ridge Boulevard | Mars | PA | 16046-3964 | Clare Bridge of Cheswick | 931 Route 910 | Cheswick | PA | 15024-4015 | Clare Bridge of Murrysville | 5300 Old William Penn Highway | Export | PA | 15632-9354 | Sterling House of Penn Hills | 7151 Saltsburg Road | Penn Hills | PA | 15235-2252 | Sterling House of Chambersburg | 745 Norland Avenue | Chambersburg | PA | 17201-4211 | Sterling House of Bristol | 2022 Bath Road | Bristol | PA | 19007-2107 | Clare Bridge Cottage of Chambersburg | 735 Norland Avenue | Chambersburg | PA | 17201-42111 | Clare Bridge of State College | 610 West Whitehall Road | State College | PA | 16801-4537 |
Clare Bridge Cottage of Dublin | 160 Elephant Road | Dublin | PA | 18917-2202 | Clare Bridge of Columbia | 990 Columbia Avenue | Irmo | SC | 29063-2854 | Clare Bridge of Charleston | 1010 Anna Knapp Boulevard Extension | Mount Pleasant | SC | 29464-3134 | Sterling House on Park Lane | 251 Springtree Drive | Columbia | SC | 29223-7901 | Sterling House of Harbison | 51 Woodcross Drive | Columbia | SC | 29212-2350 | Sterling House of Sumter | 1180 Wilson Hall Road | Sumter | SC | 29150-1738 | Sterling House of Greenville (SC) | 2010 Brushy Creek Road | Greer | SC | 29650-2665 | Sterling House of Greenwood (SC) | 1408 Parkway Road | Greenwood | SC | 29646-4043 | Sterling House of Central | 131 Vickery Drive | Central | SC | 29630-8304 | Sterling House of North Augusta | 105 North Hills Drive | North Augusta | SC | 29841-0102 | Sterling House of Hilton Head | 80 Main Street | Hilton Head Island | SC | 29926-1647 | Sterling House of Florence (SC) | 3006 Hoffmeyer Road | Florence | SC | 29501-7551 | Clare Bridge Cottage of Florence | 467 Sterling Drive | Florence | SC | 29501- | Clare Bridge Cottage of Hilton Head | 48 Main Street | Hilton Head | SC | 29926-1647 | Sterling House of Rock Hill | 1920 Ebenezer Road | Rock Hill | SC | 29732-1014 | Sterling House of Clarksville | 2183 Memorial Drive | Clarksville | TN | 37043-4447 | Sterling House of Maryville | 511 Pearson Springs Road | Maryville | TN | 37803-8205 | Sterling House of Goodlettsville | 2025 Caldwell Drive | Goodlettsville | TN | 37072-3569 | Sterling House of Columbia (TN) | 5011 Trotwood Avenue | Columbia | TN | 38401-5048 | Clare Bridge Cottage of Murfreesboro | 1464 New Lascassas Pike | Murfreesboro | TN | 37130-1600 | Sterling House of Lebanon | 801 West Main Street | Lebanon | TN | 37087- | Clare Bridge Collage of Goodlettsville | 3001 Business Park Circle | Goodlettsville | TN | 37072-3593 | Clare Bridge Cottage of Lebanon | 731 West Main Street | Lebanon | TN | 37087- | Sterling House of Carrollton | 1029 Seminole Trail | Carrollton | TX | 75007-6275 | Sterling House of Cedar Hill | 602 East Beltline Road | Cedar Hill | TX | 75104-2260 | Sterling House of Corsicana | 3329 West 7th Avenue | Corsicana | TX | 75110-4876 | Sterling House of DeSoto | 747 West Pleasant Run Road | DeSoto | TX | 75115-3838 | Sterling House of Denton | 2525 North Hinkle Drive | Denton | TX | 76201-0763 | Sterling House of Ennis | 2500 Yorkstown Drive | Ennis | TX | 75119-2199 | Sterling House of Georgetown | 2600 East University Avenue | Georgetown | TX | 78626-6400 | Sterling House of Kerrville | 725 Leslie Drive | Kerrville | TX | 78028-2591 | Sterling House of Lancaster (TX) | 2400 West Pleasant Run Road | Lancaster | TX | 75146-1179 | Sterling House of Lewisville | 965 Gardenridge Road | Lewisville | TX | 75067-2871 | Sterling House of Mansfield (TX) | 1771 Country Club Drive | Mansfield | TX | 76063-6607 | Sterling House of New Braunfels | 2457 Loop 337 | New Braunfels | TX | 78130-8152 | Sterling House of Watauga | 5800 North Park Square | Watauga | TX | 76148-2453 | Sterling House of Palestine | 101 Trinity Court | Palestine | TX | 75801-6978 | Sterling House of Paris | 2410 Stillhouse Road | Paris | TX | 75462-2065 | Sterling House of Richland Hills | 7520 A Glenview Drive | Richland Hills | TX | 76180-8326 |
Sterling House of Maltsberger | 13303 Jones Maltsberger Road | San Antonio | TX | 78247-3910 | Sterling House of Whitby | 5996 Whitby Road | San Antonio | TX | 78240-6000 | Sterling House of Nacogdoches | 14595 Nacogdoches Road | San Antonio | TX | 78247-1999 | Sterling House of Temple | 3902 West Adams Avenue | Temple | TX | 76504-3500 | Sterling House of Texarkana | 4204 Moores Lane | Texarkana | TX | 75503-2198 | Sterling House of Tyler | 3505 University | Tyler | TX | 75701-6657 | Sterling House of Waco | 1700 Lakeshore Drive | Waco | TX | 76708-3737 | Sterling House of Waxahachie | 2250 Brown Street | Waxahachie | TX | 75165-5126 | Sterling House of Weatherford (TX) | 904 South Lamar Street | Weatherford | TX | 76086-5169 | Sterling House of Wichita Falls | 918 Midwestern Parkway | Wichita Falls | TX | 76302-2110 | Clare Bridge Cottage of Richland Hills | 7520 B Glenview Drive | Richland Hills | TX | 76180-8349 | Clare Bridge of Irving - Valley Ranch | 8855 Valley Ranch Parkway | Irving | TX | 75063-4802 | Clare Bridge of Roanoke | 1127 Persinger Road SW | Roanoke | VA | 24015- | Wynwood of Columbia Edgewater | 1625 George Washington Way | Richland | WA | 99352-5711 | Villas at Union Park | 2010 South Union Avenue | Tacoma | WA | 98405-1064 | Clare Bridge of Olympia | 420 Yauger Way South West | Olympia | WA | 98502-8660 | Clare Bridge of Everett | 2015 Lake Heights Drive | Everett | WA | 98208-6034 | Clare Bridge of Puyallup | 8811 176th Street East | Puyallup | WA | 98375-9724 | Wynwood of Yakima | 4100 West Englewood Avenue | Yakima | WA | 98908-2677 | Wynwood of Allenmore | 3615 South 23rd Street | Tacoma | WA | 98405-1331 | Clare Bridge of Spokane | 5329 West Rifle Club Court | Spokane | WA | 99208-9065 | Clare Bridge of Silverdale | 1501 North West Tower View Circle | Silverdale | WA | 98383-8674 | Clare Bridge of Lynnwood | 18706 36th Avenue West | Lynnwood | WA | 98037- | Clare Bridge of Middleton | 6701 Stonefield Road | Middleton | WI | 53562-3857 | Clare Bridge of Brookfield | 15100 West Capitol Drive | Brookfield | WI | 53005-2605 | Wynwood of Madison West | 413 South Yellowstone Drive | Madison | WI | 53719-1042 | Wynwood of Brookfield | 660 Woelfel Road | Brookfield | WI | 53045-292 7 | Clare Bridge of Kenosha | 10108 74th Street | Kenosha | WI | 53142- | Wynwood of Appleton | 5800 Pennsylvania Avenue | Appleton | WI | 54914- | Wynwood of Madison East | 1601 Wheeler Road | Madison | WI | 53704-7059 | Wynwood of Kenosha | 7377 88th Avenue | Kenosha | WI | 53142-8204 | Sterling House of Fond du Lac | 1001 Primrose Lane | Fond du Lac | WI | 54935-1800 | Sterling House of Plymouth | 112 South River Boulevard | Plymouth | WI | 53073-2616 | Sterling House of Onalaska | 949 10th Avenue North | Onalaska | WI | 54650-2165 | Sterling House of Clintonville | 76 W. Green Tree Road | Clintonville | WI | 54929-1009 | Sterling House of Kaukauna | 548 Frances Street | Kaukauna | WI | 54130-3500 | Sterling House of New London | 1706 Taubel Blvd. | New London | WI | 54961-9192 | Sterling House of Shawano | 1377 Lincoln Street | Shawano | WI | 54166-3424 | Sterling House of Neenah | 2330 Bruce Street | Neenah | WI | 54956-4834 |
Sterling House of Sun Prairie | 650 Broadway Drive | Sun Prairie | WI | 53590-1762 | Sterling House of Manitowoc | 5005 Vista Road | Manitowoc | WI | 54220-9377 | Sterling House of Brown Deer | 4015 West Woodale | Brown Deer | WI | 53209-1741 | Sterling House of Sussex | W240 N6351 Maple Avenue | Sussex | WI | 53089- | Sterling House of Oshkosh | 190 Lake Pointe Drive | Oshkosh | WI | 54904-7859 | Sterling House of Middleton | 6916 Century Avenue | Middleton | WI | 53562-1732 | Sterling House of Kenosha | 3109 12th Street | Kenosha | WI | 53144-2915 | Clare Bridge Cottage of LaCrosse | 3161 East Avenue South | Lacrosse | WI | 54601-7228 | Sterling House of Lacrosse | 3141 East Avenue South | Lacrosse | WI | 54601-7228 |
SCHEDULE 5
EXCEPTIONS TO TENANT'S REPRESENTATIONS AND WARRANTIES
1. SECTION 11(h) -Improvements defective; improvements noncompliant with laws.
None
2. SECTION 11(i) - Improvements not properly zoned; noncompliance with subdivision ordinances.
None
3. SECTION 11(j) and (k) – Hazardous Materials; Soil Conditions.
At the time the Alterra Clare Bridge of Manlius facility was acquired (the “Manlius Facility”) by Meditrust Acquisition Corporation III and leased to a subsidiary of Guarantor, a Phase I Environmental Site Assessment and Limited Sub-Surface Investigation Report dated April 30, 1997 was prepared with respect to the property (the "Phase I Report"). Landlord has previously received a copy of the Phase I Report.
The Phase I Report indicates the presence of a gasoline additive and two degradation products from dry cleaning and other solvents in the ground water at the Manlius Facility, which at the time of the Phase I Report exceeded ground water standards. Two (2) gasoline stations located near the Manlius Facility, located on the north side of Flume Road, have reported spills and are registered in the Leaking Underground Storage Tank program with the State of New York. An analysis of the ground water hydrology shows that the ground water appears to flow in a southerly direction across and under Flume Road onto the northern perimeter of the Manlius Facility and then migrates towards Limestone Creek. While there were no on-site sources of contamination, a single on-site spill of hydraulic oil from construction equipment had previously occurred and had been reported to the state authorities. The Phase I Report concluded that this on-site spill was not associated with the ground water contamination.
Meditrust obtained a legal opinion regarding environmental risks associated with this property from Nixon, Hargrave, Devans & Doyle LLP in April, 1997, which opinion concluded that the likelihood of claims being asserted against a subsequent property owner where the property is not the source of the releases and the property has been passively contaminated, is remote. A copy of this opinion was provided for informational purposes to Landlord.
4. SECTION 11 (l) and (m) – Governmental Matters; Lawsuits.
(a) The Manlius Facility is not licensed under the laws of the State of New York because Guarantor has not been the provider of any services at the Facility that were required to be licensed under the New York regulatory system. The Manlius Facility provides hotel-type services to the residents, such as meals and laundry. Health care-type services such as assistance with bathing, grooming and medication administration are currently provided to the residents through independently licensed home health care providers. To the extent a resident needs or desires services (i.e., nursing services, home health aid services, personal care services and other related services), these services are currenty provided directly to the resident by an independently licensed operator known as a Licensed Home Care Services Agency ("LHCSA"). The residents contract directly with the LHCSA. At the facility, a resident can enroll with ALS Home Care, Inc., which is a who lly owned subsidiary of Guarantor and a LHCSA, or with any other LHSCA unaffiliated with Guarantor of the resident's choosing. Some residents, who do not need health care services, do not enroll with any LHCSA.
The New York Department of Health ("DOH") recently took the position that Guarantor's facility needs to obtain Enriched Housing Program ("EHP") licenses, instead of having residents enroll directly with LHCSA's for Home Care Services. If the DOH were to prevail, Guarantor would need to obtain an EHP license for the Manlius Facility. If the Manlius Facility is required to obtain an EHP license, the Manlius Facility will be required to discharge any resident that declines to follow a prescribed treatment program and must discharge residents involuntarily if a resident falls into this category. In addition, EHP license holders must deny admission to any new resident who is in need of assistance to walk, is deemed to be in need of continual supervision or who is chronically bedfast. Residents who have a limited degree of cognitive impairment also would have to be discharged regardless of their attending physician's, legal guardian's or family members' desires.
Guarantor strongly protested DOH's position and filed a lawsuit on December 28, 2001 asking the court to grant relief from this newly imposed requirement. The trial was originally scheduled for March 22, 2002, but deferred for a hearing on procedural matters and no opinion has yet been rendered. Guarantor has provided Landlord with a white paper prepared for Guarantor in connection with the DOH lawsuit and a copy of the petition filed by Guarantor.
b. Miscellaneous Litigation – the attached spreadsheet identifies additional pending or threatened litigation associated with the Facilities identified therein.
5. SECTION 11 (o) – Meditrust Defaults.
Tenants and Guarantor failed to comply with the financial covenants set forth in the Meditrust Leases. It is also likely there was noncompliance with certain provisions of the lease arising from Guarantor's inability to pay its debts generally as they became due. In addition, the operation of the representations and warranties of the Meditrust Leases contained a continuing concept whereby the Tenant was deemed to be re-making the representations and warranties on a continual basis, and the effect of this provision may have resulted in other technical defaults, although Tenant did not receive any notice of such defaults from Meditrust.
Residence | State | Resident Name | Date of Incident | Category | Type | Status | Est. Loss | Est. Fees | Est. Total Loss | Actual Loss | | | | | | | | | | | | Clare Bridge of Fort Myers at the Colony | FL | Beck, Russell | 9/21/99 - 11/15/99 | Resident Litigation | Death | Complaint | $10,000 | $25,000 | $35,000 | $0 | Clare Bridge of Ft. Myers at the Colony | FL | Whitehill, Caroline B. | 4/26/00 - current | Resident Litigation | Other | Complaint | $11,000 | $30,000 | $41,000 | $0 | Clare Bridge of Jacksonville | FL | Saylor, Clare | Resident Litigation | Complaint | $0 | $10,000 | $10,000 | $0 | Clare Bridge of Tampa | FL | Caprio, Michael | 11/27/00 | Resident Litigation | Assault | Complaint | $30,000 | $30,000 | $60,000 | $0 | Clare Bridge of Tampa | FL | Frazier, Betty | 2/15/01 | Other | | Other | $1,000 | $0 | $1,000 | $0 | Clare Bridge of Tampa | FL | Martin, Doris | 2/28/01-3/28/01 | Resident Litigation | Abuse | Complaint | $150,000 | $25,000 | $175,000 | | Wynwood of Grand Blanc | MI | Kolderman, Helen | 2/26/01 | Resident Litigation | Slip & Fall | Complaint | $250,000 | $12,000 | $262,000 | $0 | Wynwood of Grand Blanc | MI | Sefa, Lillian | 2/22/00 - 4/12/01 | Potential Resident Litigation | Slip & Fall | Attorney Demand Letter | $26,000 | $10,000 | $36,000 | $0 | Wynwood of Grand Blanc | MI | Taylor, Dorothy | 2/25/00 | Resident Litigation | Other | Complaint | $750,000 | $50,000 | $800,000 | $0 | Clare Bridge of Lower Makefield | PA | Neff, William | 9/7/00 | Potential Resident Litigation | Slip & Fall/Death | Records Request | $10,000 | $10,000 | $20,000 | $0 | Clare Bridge of Lower Makefield | PA | Paglione, Daniel | 1/28/00 | Potential Resident Litigation | Death | Atty Demand Letter | $75,000 | $30,000 | $105,000 | $0 | Clare Bridge of Lower Makefield | PA | Roberts, Thelma | 8/26/97 | Resident Litigation | Slip & Fall | Discovery | $100,000 | $65,000 | $165,000 | $0 | Sterling House of Lancaster | TX | Marshall, Leon | 7/27/99 | Resident Litigation | Medication Management Issues | Complaint | $25,000 | $25,000 | $50,000 | $0 | Sterling House of Middleton | WI | Farr, Clara | 12/22/97 | Resident Litigation | Elopement | Appeal | $35,000 | $100,000 | $135,000 | $0 |
Residence | Actual Fees | Actual Fees | Actual Total Loss | Comments | Division | | | | | | | Clare Bridge of Fort Myers at the Colony | $790 | $790 | $790 | Suit alleges neglect and abuse leading to pneumonia and death. | Florida | Clare Bridge of Ft. Myers at the Colony | $0 | $0 | $0 | Alleges negligence claim - overall care issues. | Florida | Clare Bridge of Jacksonville | $0 | $0 | $0 | | Florida | Clare Bridge of Tampa | $0 | $0 | $0 | After hearing shouting, res and another res were found wrestling with a mop face to face Claims other res hit him with mop handle Other res denies it . Complaint served 10/18/01. Sent to AM and LM. | Florida | Clare Bridge of Tampa | $0 | $0 | $0 | Letter from atty received 11/7/01 asking for name of insurance co. Sent to Liberty on 11/15/01. | Florida | Clare Bridge of Tampa | | | $0 | Alleges overall negligent care. | Florida | Wynwood of Grand Blanc | $0 | $0 | $0 | Res allegedly dropped by caregiver causing fracture of the right tibia and fibula. | Upper Midwest | Wynwood of Grand Blanc | $0 | $0 | $0 | Falls on 2/22/00, 3/28/00, 7/31/00, 4/12/01 | Upper Midwest | Wynwood of Grand Blanc | $936 | $936 | $936 | Resident discharged to hospital due to the resident excoriation, redness, noted bleeding Right buttocks revealed eschar 55 cm x 2 cm Notice of Intent to File Claim. Complaint filed 6/28/01. | Upper Midwest | Clare Bridge of Lower Makefield | $0 | $0 | $0 | Large bruise noted on left side and left back Criminal investigation being conducted. Records request 6/4/01. | Northeast | Clare Bridge of Lower Makefield | $10,684 | $10,684 | $10,684 | Res alleges neglect and mistreatment Res Dir is confident they didn't do anything wrong | Northeast | Clare Bridge of Lower Makefield | $40,471 | $40,471 | $40,471 | Claimant lost balance and fell hitting her chin landing on rt arm; in the process of taking depositions;plaintiff has no liability expert | Northeast | Sterling House of Lancaster | $649 | $649 | $649 | Claimant alleges receiving too much Dilantin due to transcription error by nurse Investigation by facility. Complaint served on 8/8/01. | Central | Sterling House of Middleton | $77,442 | $77,442 | $77,442 | Resident with memory impairment walked out of facility barefoot in snow and had frostbite Per state investigation, the door she exited is used by employees to smoke and the alarm was bypassed because of this Trial set for 2/5/01Court ordered mediatio | Upper Midwest |
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