Fifth Amendment to Amended and Restated Master Lease Agreement between Health Care REIT, Inc. and Alterra Healthcare Corporation

Summary

This amendment updates the master lease agreement between several Health Care REIT entities (as landlords) and Alterra Healthcare Corporation (as tenant). It modifies insurance requirements, allowing the tenant to use a self-funded insurance program, adjusts financial covenants such as portfolio coverage ratios and net worth requirements, and waives certain prior defaults. The amendment also grants landlord consent to Alterra’s reorganization plan and affirms that all other lease terms remain in effect. The agreement is binding on successors and may only be further modified in writing.

EX-10.41.6 80 y10687exv10w41w6.txt EXHIBIT 10.41.6 EXHIBIT 10.41.6 FIFTH AMENDMENT TO AMENDED AND RESTATED MASTER LEASE AGREEMENT THIS FIFTH AMENDMENT TO AMENDED AND RESTATED MASTER LEASE AGREEMENT ("Fifth Amendment") is dated effective as of December 4, 2003 (the "Fifth Amendment Effective Date") by and among HEALTH CARE REIT, INC., a corporation organized under the laws of the State of Delaware ("HCRI" and a "Landlord"), HCRI INDIANA PROPERTIES, LLC, a limited liability company organized under the laws of the State of Indiana ("HCRI-IN" and a "Landlord"), HCRI NORTH CAROLINA PROPERTIES, LLC, a limited liability company organized under the laws of the State of Delaware ("HCRI-NC" and a "Landlord"), HCRI TENNESSEE PROPERTIES, INC., a corporation organized under the laws of the State of Delaware ("HCRI-TN" and a "Landlord"), HCRI TEXAS PROPERTIES, LTD., a limited partnership organized under the laws of the State of Texas ("HCRI-TX" and a "Landlord"), and HCRI WISCONSIN PROPERTIES, LLC, a limited liability company organized under the laws of the State of Wisconsin ("HCRI-WI" and a "Landlord"), each Landlord having its principal office located at One SeaGate, Suite 1500, P.O. Box 1475, Toledo, Ohio ###-###-####, and ALTERRA HEALTHCARE CORPORATION, a corporation organized under the laws of the State of Delaware ("Tenant"), having its chief executive office located at 10000 Innovation Drive, Milwaukee, Wisconsin 53226. R E C I T A L S A. Landlord and Tenant entered into an Amended and Restated Master Lease Agreement dated effective as of July 1, 2001 ("Master Lease"), as amended pursuant to a certain First Amendment to Amended and Restated Master Lease Agreement dated as of July 16, 2001 ("First Amendment"), as further amended pursuant to a certain Second Amendment to Amended and Restated Master Lease Agreement dated as of December 21, 2001 ("Second Amendment"), as further amended pursuant to a certain Third Amendment to Amended and Restated Master Lease Agreement dated as of March 19, 2002 ("Third Amendment") and as further amended pursuant to a certain Fourth Amendment to Amended and Restated Master Lease Agreement dated as of December 27, 2002 ("Fourth Amendment") (the Master Lease together with the First Amendment, Second Amendment, Third Amendment, Fourth Amendment and Fifth Amendment hereinafter referred to as "Lease"). B. Landlord and Tenant desire to further amend the Lease to modify certain provisions thereof and as otherwise set forth herein. NOW, THEREFORE, in consideration of the foregoing recitals and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows. 1. Capitalized Terms. Any capitalized terms not defined in this Fifth Amendment shall have the meaning set forth in the Lease. 2. Liability Insurance. Section 4.2 of the Lease is hereby amended by the addition of paragraph (e) as follows: (e) Landlord acknowledges that due to insurance market conditions, Tenant has secured insurance coverage for the general liability and professional liability insurance through a self-funding insurance program ("Captive Program") under which Tenant originally deposited funds equal to $2,000,000, which deposited funds have increased to $5,000,000 (the "Insurance Deposit"), with United SPC. Tenant represents that [i] the Insurance Deposit is now, and shall during the Term of this Lease be, solely owned by Tenant; and [ii] at the commencement of an insurance period or at least once every 12 months, the Insurance Deposit shall have a minimum balance of readily available funds of $5,000,000. Notwithstanding the terms and conditions set forth in Section 4.2, Landlord hereby [i] waives any prior default or Event of Default as a result of Tenant's failure to previously comply with the insurance requirements of Section 4.2 of the Lease as a result of the Captive Program, including without limitation, the amount of coverage, the ratings requirement and the policy's operation on a "claims made" rather than "occurrence" basis; and [ii] consents to Tenant maintaining general liability and professional insurance through the Captive Program, which Captive Program may operate on a "claims made" rather than "occurrence" basis and may not comply with the ratings requirements of the Lease, provided Tenant [a] agrees to continue to review the availability of insurance in an attempt to find coverage which will comply with Section 4.2 (excluding Section 4.2(e)) and shall comply with Section 4.2 (excluding Section 4.2(e)) as and when such insurance coverage becomes generally available to operators of assisted living facilities owned by institutional landlords and similar to the Facilities at commercially reasonable rates; [b] certifies to Landlord every 90 days the amount of the Insurance Deposit; [c] shall not modify (in any manner materially adverse to Landlord) or terminate the Captive Program without Landlord's prior written consent; [d] names Landlord as the equivalent of an additional insured under the Captive Program; and [e] does not grant a securing interest in the Captive Program to any other entity, other than any other Captive Program certificate holder. Tenant shall otherwise comply with all applicable Legal Requirements regarding general liability and professional liability insurance and shall maintain traditional liability insurance (as opposed to the self-funding program) if so required by applicable law. - 2 - 3. Portfolio Coverage Ratio. Section 15.7.2 of the Lease is hereby deleted in its entirety and substituted with the following: Tenant shall maintain for each fiscal quarter for the year set forth below a Portfolio Coverage Ratio of not less than the following: 0.80 to 1.00 for 2004 1.00 to 1.00 for 2005 1.20 to 1.00 for 2006 and thereafter. 4. Net Worth Requirement Upon Merger. Section 15.7.3 of the Lease is hereby deleted in its entirety and substituted with the following: 15.7.3 Net Worth. If Tenant is seeking to effect a merger, consolidation or other structural change in Tenant as permitted by the parenthetical phrase in clause [i] of Section 18.1, then, in addition to all other requirements set forth herein regarding a merger consolidation or other structural changes in Tenant, immediately following such merger, consolidation or other structural change, Tenant shall have a Net Worth of $50,000,000. As used herein, "Net Worth" means consolidated stockholder's equity as determined in accordance with GAAP. 5. Most Favored Lessor Provisions. Section 15.9 the Lease is hereby deleted in its entirety and Landlord hereby waives any prior default or Event of Default as a result of Tenant's failure to comply with any financial covenant deemed to be included in Section 15.9 pursuant to the terms thereof. 6. Consent to Amended Plan Transactions. Landlord hereby consents to the transactions contemplated by the Second Amended Plan of Reorganization of Alterra Healthcare Corporation dated September 15, 2003, as subsequently amended (the "Plan Transactions") and agrees that such Plan Transactions, as effected, do not and shall not constitute defaults or Events of Default under the Lease. 7. Affirmation. Except as specifically modified by this Fifth Amendment, the terms and provisions of the Lease are hereby affirmed and shall remain in full force and effect. 8. Binding Effect. This Fifth Amendment will be binding upon and inure to the benefit of the successors and permitted assigns of Landlord and Tenant. 9. Further Modification. The Lease may be further modified only by writing signed by Landlord and Tenant. 10. Counterparts. This Fifth Amendment may be executed in multiple counterparts, each of which shall be deemed an original hereof, but all of which will constitute one and the same document. 11. Subtenant. Manlius Clare Bridge Operator, Inc. is signing this Fifth Amendment for the sole purpose of consenting to the terms and conditions set forth herein. - 3 - IN WITNESS WHEREOF, Landlord and Tenant have executed this Fifth Amendment as of the date first set forth above. Signed and acknowledged in the presence of: HEALTH CARE REIT, INC. Signature /s/ Rita J. Regge By: /s/ Erin C. Ibele --------------------------------- ------------------------------ Print Name Rita J. Regge VP & Corp. Secretary -------------------------------- Title:--------------------------- Signature /s/ Kathleen A. Sullivan --------------------------------- Print Name Kathleen A. Sullivan -------------------------------- Signed and acknowledged in the presence of: HCRI INDIANA PROPERTIES, LLC By: Health Care REIT, Inc. Member Signature /s/ Rita J. Regge By: /s/ Erin C. Ibele --------------------------------- ------------------------------ Print Name Rita J. Regge Title: VP & Corp. Secretary -------------------------- Signature /s/ Kathleen A. Sullivan --------------------------------- Print Name Kathleen A. Sullivan -------------------------------- Signed and acknowledged in the presence of: HCRI NORTH CAROLINA PROPERTIES, LLC By: Health Care REIT, Inc. Member Signature /s/ Rita J. Regge By: /s/ Erin C. Ibele --------------------------------- -------------------------- Print Name Rita J. Regge Title: VP & Corp. Secretary -------------------------------- ----------------------- Signature /s/ Kathleen A. Sullivan --------------------------------- Print Name Kathleen A. Sullivan -------------------------------- Signed and acknowledged in the presence of: HCRI TENNESSEE PROPERTIES, INC. Signature /s/ Rita J. Regge By: /s/ Erin C. Ibele --------------------------------- -------------------------- Print Name Rita J. Regge Title: VP & Corp. Secretary -------------------------------- ----------------------- Signature /s/ Kathleen A. Sullivan --------------------------------- Print Name Kathleen A. Sullivan -------------------------------- S-1 Signed and acknowledged in the presence of: HCRI TEXAS PROPERTIES, LTD. By: Health Care REIT, Inc. General Partner Signature /s/ Rita J. Rogge By: /s/ Erin C. Ibele ________________________________ _____________________________ Print Name Rita J. Rogge ________________________________ Title: VP & Corp. Secretary ________________________ Signature /s/ Kathleen A. Sullivan ________________________________ Print Name Kathleen A. Sullivan ________________________________ Signed and acknowledged in the presence of: HCRI WISCONSIN PROPERTIES, LLC By: Health Care REIT, Inc. Member Signature /s/ Rita J. Rogge By: /s/ Erin C. Ibele ________________________________ ______________________________ Print Name Rita J. Rogge ________________________________ Title: VP & Corp. Secretary ________________________ Signature /s/ Kathleen A. Sullivan ________________________________ Print Name Kathleen A. Sullivan ________________________________ Signed and acknowledged in the presence of: ALTERRA HEALTHCARE CORPORATION Signature /s/ Amy Hickman By: /s/ Kristin A. Ferge ________________________________ ______________________________ Print Name Amy Hickman ________________________________ Title: VP ________________________ Signature /s/ Jeff Jensen __________________________________ Print Name Jeff Jensen _________________________________ Tax I.D. No.: 39-1771281 ___________________ Signed and acknowledged in the presence of: MANLIUS CLARE BRIDGE OPERATOR, INC. Signature /s/ Mary J. Quinat By: /s/ Colleen Endsley __________________________________ ______________________________ Print Name Mary J. Quinat _________________________________ Title: President ________________________ Signature /s/ Amy Hickman __________________________________ Print Name Amy Hickman Tax I.D. No.: 16-1564848 _________________________________ __________________ S-2 STATE OF OHIO ) ) SS: COUNTY OF LUCAS ) The foregoing instrument was acknowledged before me this 3 day of December, 2003 by Erin C. Ibele, the VP & Corp. Secretary of Health Care REIT, Inc., a Delaware corporation, on behalf of the corporation. /s/ Rita J. Rogge __________________________________ Notary Public My Commission Expires: 8/26/05 [SEAL] _____________________ STATE OF OHIO ) ) SS: COUNTY OF LUCAS ) The foregoing instrument was acknowledged before me this 3 day of December, 2003 by Erin C. Ibele, the VP & Corp. Secretary of Health Care REIT, Inc., a Delaware corporation and the sole member of HCRI Indiana Properties, LLC, a limited liability company organized under the laws of the State of Indiana on behalf of the limited liability company. /s/ Rita J. Rogge __________________________________ Notary Public My Commission Expires: 8/26/05 [SEAL] _____________________ STATE OF OHIO ) ) SS: COUNTY OF LUCAS ) The foregoing instrument was acknowledged before me this 3 day of December, 2003 by Erin C. Ibele, the VP & Corp. Secretary of Health Care REIT, Inc., a Delaware corporation and the sole member of HCRI North Carolina Properties, LLC, a limited liability company organized under the laws of the State of Delaware on behalf of the limited liability company. /s/ Rita J. Rogge __________________________________ Notary Public My Commission Expires: 8/26/05 [SEAL] _____________________ S-3 STATE OF OHIO ) ) SS: COUNTY OF LUCAS ) The foregoing instrument was acknowledged before me this 3 day of December, 2003 by Erin C. Ibele, the VP & Corp. Secretary of HCRI Tennessee Properties, Inc., a corporation organized under the laws of the State of Delaware on behalf of the corporation. /s/ Rita J. Rogge __________________________________ Notary Public My Commission Expires: 8/26/05 [SEAL] _____________________ STATE OF OHIO ) ) SS: COUNTY OF LUCAS ) The foregoing instrument was acknowledged before me this 3 day of December, 2003 by Erin C. Ibele, the VP & Corp. Secretary of Health Care REIT, Inc., a Delaware corporation and the general partner of HCRI Texas Properties, Ltd., a limited liability partnership organized under the laws of the State of Texas on behalf of the limited partnership. /s/ Rita J. Rogge __________________________________ Notary Public My Commission Expires: 8/26/05 [SEAL] _____________________ STATE OF OHIO ) ) SS: COUNTY OF LUCAS ) The foregoing instrument was acknowledged before me this 3 day of December, 2003 by Erin C. Ibele, the VP & Corp. Secretary of Health Care REIT, Inc., a Delaware corporation and the sole member of HCRI Wisconsin Properties, LLC, a limited liability company organized under the laws of the State of Delaware on behalf of the limited liability company. /s/ Rita J. Rogge __________________________________ Notary Public My Commission Expires: 8/26/05 [SEAL] _____________________ S-4 STATE OF Wisconsin ) _______________ ) SS: COUNTY OF Milwaukee ) _______________ The foregoing instrument was acknowledged before me this 3 day of December, 2003 by Kristin A. Ferge, the VP of Alterra Healthcare Corporation, a Delaware corporation, on behalf of the corporation. /s/ JC Hansen __________________________________ Notary Public My Commission Expires: 5/21/06 [SEAL] _____________________ STATE OF Wisconsin ) ________________ ) SS: COUNTY OF Milwaukee ) _______________ The foregoing instrument was acknowledged before me this 2 day of December, 2003 by Colleen Endsley, the President of Manlius Clare Bridge Operator, Inc., a New York corporation, on behalf of the corporation. /s/ JC Hansen __________________________________ Notary Public My Commission Expires: 5/21/06 [SEAL] _______________ THIS INSTRUMENT PREPARED BY: OKSANA M. LUDD, ESQ. SHUMAKER, LOOP & KENDRICK, LLP 1000 JACKSON TOLEDO, OHIO 43624 S-5