EXHIBIT 10.33
SECOND AMENDMENT TO LEASES
THIS SECOND AMENDMENT TO LEASES (this "AMENDMENT") is entered into as
of the 30th day of November, 2001, by and among LTC PROPERTIES, INC., a
Maryland corporation ("LTC"), TEXAS-LTC LIMITED PARTNERSHIP, a Texas limited
partnership ("TEXAS-LTC"), CARRIAGE HOUSE ASSISTED LIVING, INC., a Delaware
corporation ("CARRIAGE") and ASSISTED LIVING CONCEPTS, INC., a Nevada
corporation ("ALC").
A. Currently, Lessor (defined below) and Lessee (defined below) are
parties to Thirty Two (32) separate leases (each a "LEASE," and collectively,
the "LEASES") for Thirty Two (32) separate assisted living facilities (each, a
"FACILITY" and collectively, the "FACILITIES"), as more particularly described
below in Paragraphs B, C and D.
B. Texas-LTC is the landlord, and ALC is the tenant, of Seven (7) of
the Leases relating to assisted living facilities located in the State of Texas
which Leases are identified on EXHIBIT "A" attached hereto as the "TEXAS
LEASES" The Facilities that are the subject of the Texas Leases shall be
referred to as the "TEXAS FACILITIES."
C. LTC is the landlord, and Carriage is the tenant, of Four (4) of the
Leases relating to assisted living facilities located in the State of Nebraska
which Leases are identified on EXHIBIT "A" as the "NEBRASKA LEASES." The
Facilities that are the subject of the Nebraska Leases shall be referred to as
the "NEBRASKA FACILITIES."
D. LTC is the landlord, and ALC is the tenant, of Twenty One (21) of
the Leases relating to assisted living facilities located in the States of
Arizona, Idaho, Indiana, Iowa, New Jersey, Ohio, Oregon and Washington which
Leases are identified on EXHIBIT "A" as the "ALC LEASES." The Facilities that
are the subject of the ALC Leases shall be referred to as the "ALC FACILITIES."
E. In this amendment, the defined term "LEASES" consists of the Thirty
Two (32) Leases comprised of the Texas Leases, the Nebraska Leases and the ALC
Leases, all of which have previously been amended by the Amendment dated as of
December 31, 1998 by and between Lessor and Lessee (the "FIRST
AMENDMENT"). In this Amendment, the terms "LESSOR" and "LESSEE" shall mean,
with respect to each of the respective Leases, as applicable, the applicable
landlord and tenant thereunder as follows: "Lessor" in the case of the Nebraska
Leases and the ALC Leases shall mean LTC. ""Lessor" in the case of the Texas
Leases shall mean Texas-LTC. "Lessor" in the case of the Consolidated Leases
(defined below) shall mean LTC. "Lessee" in the case of the Nebraska Leases
shall mean Carriage. "Lessee" in the case of the Texas Leases and the
Consolidated Leases shall mean ALC (with the exception of the two Consolidated
Leases for the Facilities located in Norfolk, Nebraska and Wahoo, Nebraska,
wherein "Lessee" means Carriage).
F. The First Amendment arranges the Leases into three (3) separate
groups, Group "A", Group "B" and Group "C." In this Amendment, such groups
shall be referred to as "EXISTING GROUP A", "EXISTING GROUP B", and "EXISTING
GROUP C", and collectively as the "EXISTING GROUPS." The Existing Groups were
established in part for the purpose of requiring Lessee to exercise renewal
rights under all of the Leases in any particular group in the event that Lessee
elects to renew any one of the Leases in that same group.
G. One of the purposes of this Amendment is to rearrange the Existing
Groups into new groups (the "NEW GROUPS") whereby the renewal rights under
certain Leases shall be tied together in a way that is different from what is
currently set forth in the First Amendment. The New Groups shall consist of "NEW
GROUP A" and "NEW GROUP B" (as set forth on EXHIBIT "B" attached hereto).
Existing Group "C" shall no longer exist as a group, and shall not be replaced
by a new Group "C".
H. New Group "A" and New Group "B" together comprise Sixteen (16) out
of the total of Thirty Two (32) Leases. Accordingly, there are Sixteen (16)
remaining Leases that are not included in either New Group "A" or New Group "B."
These remaining Sixteen (16) Leases that are not included in either New Group
"A" or New Group "B" shall herein be referred to as the "CONSOLIDATED LEASES"
and are listed on EXHIBIT "B" attached hereto Simultaneously with the
effectiveness of this Amendment, the term of the Consolidated Leases shall
expire (pursuant to the terms below in this Amendment). Simultaneously with the
expiration of the Consolidated Leases, the Sixteen (16) Facilities that are the
subject of the Consolidated Leases (the "CONSOLIDATED FACILITIES") shall become
the subject of a single, master Lease by and between Lessor and Lessee (the
"MASTER LEASE").
I. On or about October 1, 2001, ALC filed for Chapter 11 bankruptcy in
the United States Bankruptcy Court for the District of Delaware, Case No.
01-10674; and on October 1, 2001, Carriage filed for Chapter 11 bankruptcy in
the United States Bankruptcy Court for the District of Delaware (the "BANKRUPTCY
COURT"), Case No. 01-10670 (collectively, the "BANKRUPTCY CASES"). This
Amendment is being prepared and will be submitted as part of a motion by Lessee
to the Bankruptcy Court and the effectiveness of this Amendment is conditioned
upon receiving the requisite approval by the Bankruptcy Court.
J. The provisons below in this Amendment shall become effective on
the date (the "EFFECTIVE DATE") upon which both (i) Bankruptcy Court approval
has been obtained, (ii) Lessee emerges from the Bankruptcy Cases, and (iii)
Lessee has received, in recordable form, a fully executed and notarized
Subordination, Non-Disturbance and Attornment Agreement from Sanwa (as defined
and as more fully set forth in Section 32.1 of the Master Lease).
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Lessor and Lessee hereby agree as
follows:
1. NEW GROUPS. As of the Effective Date, the EXHIBIT "B" attached to
the First Amendment is hereby deleted and replaced in its entirety by the
EXHIBIT "B" attached hereto. As of the Effective Date, Existing Group "A"
Existing Group "B" and Existing Group "C" shall be replaced by New Group "A" and
New Group "B," each as set forth on EXHIBIT "B" attached hereto. As of the
Effective Date, Existing Group "C" shall no longer exist as a separate group.
2. MODIFICATION OF TERM UNDER THE CONSOLIDATED LEASES. The term under
each of the Consolidated Leases is hereby modified to expire upon the
satisfaction of the conditions set forth in (i) and (ii) above in Recital "J" of
this Amendment, and as otherwise set forth in the Master Lease, at which time
the Consolidated Leases shall terminate, and the Consolidated Facilities shall
thereupon become the subject of the Master Lease.
-2-
3. FURTHER ASSURANCES. Lessee and Lessor each agree to execute and
deliver such other instruments as may be reasonably requested by the other
party from time to time to effect and confirm the transactions described herein
and contemplated hereby, including without limitation, (a) a written statement
acknowledging satisfaction of the conditions set forth in (i) and (ii) in
Paragraph 2 above (and the Master Lease, as applicable), and (b) a memorandum
or "short form" of lease in recordable form for recordation in such countries
as may be applicable to reflect the changes set forth in this Amendment (the
recordation costs of which shall be shared equally between Lessor and Lessee).
4. NO FURTHER CHANGES. The Leases, each as amended by this
Amendment, shall otherwise remain unchanged and in full force and effect.
5. COUNTERPART/FACSIMILE SIGNATURE. This Amendment may be executed
by facsimile signature and in separate counterparts, each of which shall be
deemed an original and all of which, taken as a whole, shall be deemed to be
one (1) original. This Amendment shall be deemed fully executed when each party
whose signature is required has signed at least one (1) counterpart even though
no one (1) counterpart contains the signatures of all of the parties to this
Amendment.
[SIGNATURES CONTAINED ON FOLLOWING PAGE]
-3-
IN WITNESS WHEREOF. the parties have caused this Amendment to be duly
executed as of the date first above written.
LESSOR: LESSEE:
LTC Properties, Inc. Carriage House Assisted Living, Inc.
a Maryland corporation a Delaware corporation
By: /s/ Wendy L. Simpson By:
------------------------ --------------------------------
Name: Wendy L. Simpson Name:
----------------------- ------------------------------
Title: Vice Chairman & Chief
Financial Officer Title:
--------------------- -----------------------------
Texas-LTC Limited Partnership, Assisted Living Concepts, Inc.,
a Texas limited partnership a Nevada corporation
By: L-Tex GP, Inc., By:
a Delaware corporation --------------------------------
Its: General Partner
Name:
------------------------------
By: /s/ Wendy L. Simpson Title:
------------------------ -----------------------------
Name: Wendy L. Simpson
----------------------
Title: Vice Chairman & Chief
Financial Officer
---------------------
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IN WITNESS WHEREOF, the parties have caused this Amendment to be
duly executed as of the date first above written.
LESSOR: LESSEE:
LTC Properties, Inc., Carriage House Assisted Living, Inc.,
a Maryland corporation a Delaware corporation
By: By: /s/ Wm. James Nicol
------------------------------- ----------------------------------
Name: Name: Wm. James Nicol
----------------------------- --------------------------------
Title: Title: President and CEO
---------------------------- -------------------------------
Texas-LTC Limited Partnership, Assisted Living Concepts, Inc.,
a Texas limited partnership a Nevada corporation
By: L-Tex GP, Inc., By: /s/ Wm. James Nicol
a Delaware corporation ----------------------------------
Its: General Partner Name: Wm. James Nicol
--------------------------------
Title: President and CEO
-------------------------------
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
EXHIBIT "A"
<Table>
<Caption>
TEXAS LEASES TEXAS FACILITIES
- ------------ -----------------
Athens, Texas Lakeland House
Greenville, Texas Harrison House
Jacksonville, Texas Angelina House
Longview, Texas Alpine House
Lufkin, Texas Neches House
Marshall, Texas Oakwood House
Wichita Falls, Texas Arbor House
<Caption>
NEBRASKA LEASES NEBRASKA FACILITIES
- --------------- --------------------
Beatrice, Nebraska Homestead House
Norfolk, Nebraska Madison House
Wahoo, Nebraska Saunders House
York, Nebraska Mahoney House
<Caption>
ALC LEASES ALC FACILITIES
- ---------- ---------------
Bullhead City, Arizona Davis House
Lake Havasu, Arizona Jasmine House
Burley, Idaho Warren House
Caldwell, Idaho Annabelle House
Hayden, Idaho Sylvan House
Nampa, Idaho Clearwater House
Elkhart, Indiana Beardsley House
Madison, Indiana Jewel House
Denison, Iowa Reed House
Millville, New Jersey Maurice House
Fremont, Ohio Rutherford House
Newark, Ohio Chestnut House
Tiffin, Ohio Seneca House
Troy, Ohio Caldwell Hosue
Wheelersburg, Ohio River Bend House
Eugene, Oregon Sawyer House
Klamath Falls, Oregon Linkville House
Newport, Oregon Spencer Hosue
Battleground, Washington Colonia House
Hoquiam, Washington Karr House
Kelso, Washington Crawford House
</Table>
EXHIBIT "B"
GROUP "A" LEASES
<Table>
<Caption>
LOCATION FACILITY NAME
- -------- -------------
Athens, Texas Lakeland House
Greenville, Texas Harrison House
Newark, Ohio Chestnut House
Millville, New Jersey Maurice House
Marshall, Texas Oakwood House
Lufkin, Texas Neches House
Caldwell, Idaho Annabelle House
Fremont, Ohio Rutherford House
</Table>
GROUP "B" LEASES
<Table>
<Caption>
LOCATION FACILITY NAME
- -------- -------------
Longview, Texas Alpine House
Jacksonville, Texas Angelina House
Battleground, Washington Colonial House
Eugene, Oregon Sawyer House
York, Nebraska Mahoney House
Klamath Falls, Oregon Linkville House
Beatrice, Nebraska Homestead House
Elkhart, Indiana Beardsley House
</Table>
THE CONSOLIDATED LEASES
<Table>
<Caption>
LOCATION CONSOLIDATED FACILITIES
- -------- -----------------------
Bullhead City, Arizona Davis House
Lake Havasu, Arizona Jasmine House
Burley, Idaho Warren House
Wichita Falls, Texas Arbor House
Hayden, Idaho Sylvan House
Nampa, Idaho Clearwater House
Norfolk, Nebraska Madison House
Madison, Indiana Jewel House
Denison, Iowa Reed House
Wahoo, Nebraska Saunders House
Tiffin, Ohio Seneca House
Troy, Ohio Caldwell House
Wheelersburg, Ohio River Bend House
Newport, Oregon Spencer House
Hoquiam, Washington Karr House
Kelso, Washington Crawford House
</Table>