FIFTH AMENDMENT TO SECOND CONSOLIDATED AMENDED AND RESTATED MASTER LEASE Multiple Facilities

 

FIFTH AMENDMENT TO

SECOND CONSOLIDATED AMENDED AND RESTATED MASTER LEASE

Multiple Facilities

THIS FIFTH AMENDMENT TO SECOND CONSOLIDATED AMENDED AND RESTATED MASTER LEASE (“Lease”) is executed and delivered as of this 31st day of December, 2010 and is entered into by OHI ASSET III (PA) TRUST, a Maryland business trust (“Lessor”), the successor by merger to OHI Asset II (OH), LLC, a Delaware limited liability company, and Ohio Lessor – Waterford & Crestwood, Inc., a Maryland corporation, the address of which is 200 International Circle, Suite 3500, Hunt Valley, MD 21030, OMG MSTR LSCO, LLC, an Ohio limited liability company (“Lessee One”), the successor by merger to CSC MSTR LSCO, LLC, and OMG LS LEASING CO., LLC, an Ohio limited liability company (“Lessee Two”, and collectively with Lessee One, “Lessee”), the address of which is 4700 Ashwood Drive, Suite 200, Cincinnati, OH 45241.

 

 

The circumstances underlying the execution and delivery of this Lease are as follows:

 

A. Lessee and Lessor have executed and delivered to each other a Second Consolidated Amended and Restated Master Lease dated as of April 18, 2008, as amended by a First Amendment to Second Consolidated Amended and Restated Master Lease dated as of July 31, 2009, a Second Amendment to Second Consolidated Amended and Restated Master Lease dated as of November 3, 2009, a Third Amendment to Second Consolidated Amended and Restated Master Lease dated as of April 1, 2010, and a Fourth Amendment to Second Consolidated Amended and Restated Master Lease dated as of October 1, 2010 (the “Existing Master Lease”) pursuant to which Lessee leases from Lessor certain healt hcare facilities located in Ohio and Pennsylvania.

B. Lessor and Lessee desire to amend the Existing Master Lease to provide for the payment of additional rent in connection with the transfer to Lessee or a Sublessee of .

The parties agree as follows:

1. Definitions.

(a)           Any capitalized term used but not defined in this Amendment will have the meaning assigned to such term in the Existing Master Lease.

(b)           In addition to the other definitions contained herein, when used in this Amendment the following term shall have the following meaning:

“Bed Additional Rent” means:

 

(1)           During the period from September 1, 2010 thru December 31, 2011, the monthly sum of Four Thousand Six Hundred Sixty Six and 66/100 Dollars ($4,666.66);

(2)           For the Lease Year commencing on January 1, 2012, an annual amount equal to the product of Fifty Six Thousand Dollars ($56,000) multiplied by (i) one hundred percent (100%) plus (ii) the lesser of (a) two (2) times the increase in the CPI (expressed as a percentage) and (b) two and one half percent (2.5%); and

(3)           For the subsequent Lease Year, the product of (A) the Bed Additional Rent for the previous Lease Year multiplied by (i) one hundred percent (100%) plus (ii) the lesser of (a) two (2) times the increase in the CPI (expressed as a percentage) and (b) two and one half percent (2.5%); and

(c)           The following definition defined in §2.1 of the Existing Master Lease is hereby amended in its entirety as follows:

 

Rent:  Collectively, Base Rent, the Golden Years Additional Rent, the Bed Additional Rent and Additional Charges.

 

(d)           From and after the date of this Amendment, each reference in the Transaction Documents to the Existing Master Lease, means the Existing Master Lease as modified by this Amendment.

 

2. Bed Additional Base Rent.   Commencing as of September 1, 2010, Lessee shall pay the Bed Additional Rent pursuant to the terms and conditions of Article III of the Lease.

3. Sections 9.3.2 and 9.3.3.  Sections 9.3.2 and 9.3.3 of the Existing Master Lease are hereby amended by deleting the words “December 31, 2010” in each place it occurs in each Section and inserting the words “December 31, 2011” in place thereof.

4. Schedule 9.3.  Schedule 9.3 to the Existing Master Lease is hereby amended and restated in its entirety by Schedule 9.3 to this Amendment.

5. Section 38.4.  Section 38.4 of the Existing Master Lease is amended and restated in its entirety as follows:

38.4           Option Price.  If Lessee exercises its option to purchase the Lessee Option Property as set forth in this Lease, the purchase price for the Lessee Option Property (the “Lessee Purchase Price”) to be paid by Lessee shall be equal to the greater of (i) the Minimum Purchase Price (listed below) plus the Golden Years Addition Minimum Purchase Price, and (ii) the Allocated Purchase Price (listed below) plus the Golden Years Addition Purc hase Price plus 50% of the amount, if any, that (A) the Fair Market Value of the Lessee Option Facilities on the date of exercise of the option exceeds (B) the Allocated Purchase Price plus the Golden Years Addition Purchase Price.

 

Facility		Allocated Purchase Price				Minimum Purchase Price
Northwestern Center		$	5,378,350.46			$	6,393,168.57
Columbus Center		$	5,395,043.01			$	6,413,010.77
Golden Years Healthcare Center		$	3,219,706.84			$	3,827,219.65
Oak Grove Center		$	2,334,560.33			$	2,775,058.61
Total		$	16,327,660.65			$	19,408,457.60

The Lessee Purchase Price shall be payable by Lessee in immediately available funds at closing.  The Lessee Option Deposit shall be applied against the Lessee Purchase Price at closing. Lessee shall also pay the cost of any revenue or transfer stamps required to be affixed to the deeds, and all reasonable expenses, disbursements and reasonable attorneys’ fees incurred by Lessor in the sale transaction.

6. Costs and Expenses.  Lessee shall pay Lessor’s reasonable costs and expenses, including reasonable attorneys fees, incurred in connection with this Amendment.

7. Execution and Counterparts.  This Amendment may be executed in any number of counterparts, each of which, when so executed and delivered, shall be deemed to be an original, but when taken together shall constitute one and the same Amendment.

8. Headings.  Section headings used in this Amendment are for reference only and shall not affect the construction of the Amendment.

9. Enforceability of Transaction Documents.  Except as expressly and specifically set forth herein, the Transaction Documents remain unmodified and in full force and effect.  In the event of any discrepancy between any other Transaction Document and this Amendment, the terms and conditions of this Amendment will control and such other Transaction Document is deemed amended to conform hereto.

 

 

LESSOR:

 

OHI ASSET III (PA) TRUST

By:

OHI Asset (PA), LLC, a Delaware limited liability company, its sole trustee

By:           Omega Healthcare Investors, a Maryland

corporation, its sole member

 

By:           /s/ Daniel J. Booth                                

Name:           Daniel J. Booth

Title:           Chief Operating Officer

 

 

THE STATE OF MARYLAND        )

                      )

COUNTY OF  BALTIMORE            )

 

This instrument was acknowledged before me on the 28th day of December, 2010, by Daniel J. Booth, the Chief Operating Officer of Omega Healthcare Investors, Inc., a Maryland corporation, the sole member of OHI Asset (PA), LLC, a Delaware limited liability company, the sole trustee of OHI Asset III (PA) Trust, a Maryland business trust, on behalf of said business trust.

 

Notary Public

 

                    Judith A. Jacobs

 

                                                               Baltimore County, MD My Commission Expires:  May 12, 2012

 

 

LESSEE:

 

OMG MSTR LSCO, LLC

By:           HEALTH CARE HOLDINGS, LLC,

its Sole Member

 

By:           /s/ Charles R. Stoltz                                

Name:           Charles R. Stoltz

Title:           Treasurer

 

 

OMG LS LEASING CO., LLC

By:           OMG RE HOLDINGS, LLC,

its Sole Member

 

By:           /s/ Charles R. Stoltz                                

Name:           Charles R. Stoltz

Title:           Treasurer

 

THE STATE OF OHIO                                            )

)

COUNTY OF HAMILTON                                     )

 

This instrument was acknowledged before me on the 29thday of December, 2010, by Charles R. Stoltz, the Treasurer of HEALTH CARE HOLDINGS, LLC, an Ohio limited liability company, the sole member of OMG MSTR LSCO, LLC, an Ohio limited liability company, and of OMG RE HOLDINGS, LLC, an Ohio limited liability company, the sole member of OMG LS LEASING CO., LLC, an Ohio limited liability company, on behalf of said companies.

 

Notary Public

 

Kathleen M. Portman

 

State of Ohio

 

My Commission Expires 3-28-2012

 

The undersigned hereby ratify and affirm their respective Guaranties, Pledge Agreements, Security Agreements, Subordination Agreements and other Transaction Documents, and acknowledge and agree that the performance of the Loan Agreement and the Master Lease and obligations described therein are secured by their Guaranties, Pledge Agreements, Security Agreement, Subordination Agreement and other Transaction Documents on the same terms and conditions in effect prior to this Amendment.

 

CITY VIEW BORROWERS:

CITY VIEW NURSING & REHAB, LLC

CLEVELAND NH ASSET, LLC

By:           /s/ Charles R. Stolz                                

Name:           Charles R. Stolz

Title:           CFO and Treasurer

MARYLAND BORROWERS:

BEL PRE LEASING CO, LLC

RIDGE (MD) LEASING CO, LLC

MARLBORO LEASING CO, LLC

FAYETTE LEASING CO, LLC

LIBERTY LEASING CO, LLC

HOWARD LEASING CO, LLC

PALL MALL LEASING CO, LLC

WASHINGTON (MD) LEASING CO, LLC

MARYLAND NH ASSET, LLC

By:           /s/ Charles R. Stolz                                

Name:           Charles R. Stolz

Title:           CFO and Treasurer

SUBLESSEES:

BELMORE LEASING CO., LLC

WYANT LEASING CO., LLC

BRECKSVILLE LEASING CO., LLC

JARVIS LEASING CO., LLC

KOLBE LEASING CO., LLC

PEARL LEASING CO., LLC

PEARL II LEASING CO., LLC

PEARL III LEASING CO., LLC

MERIT LEASING CO., LLC

FALLING LEASING CO., LLC

FRONT LEASING CO., LLC

MIDLAND LEASING CO., LLC

GARDEN LEASING CO., LLC

SKYLINE (PA) LEASING CO., LLC

OLD LEASING CO., LLC

EMERY LEASING CO., LLC

AVIS LEASING CO., LLC

HERITAGE (OHIO) LEASING CO., LLC

GARDEN II LEASING CO., LLC

WATER LEASING CO., LLC

SOUTH II LEASING CO., LLC

SOUTH I LEASING CO., LLC

SOUTH III LEASING CO., LLC

FAIRCHILD (MD) LEASING CO., LLC

ROCKY RIVER LEASING CO., LLC

CLIME LEASING CO., LLC

ROYCE LEASING CO., LLC

EAST WATER LEASING CO., LLC

By:           /s/ Charles R. Stolz                                

Name:           Charles R. Stolz

Title:           CFO and Treasurer

GUARANTORS:

RESIDENT CARE CONSULTING CO., LLC

HEALTH CARE FACILITY MANAGEMENT, LLC

OMG ASSET OWNERSHIP, LLC

OMG RE LEASING CO., LLC

OMG RE HOLDINGS, LLC

By:           /s/ Charles R. Stoltz                                

Name:           Charles R. Stoltz

Title:           CFO and Treasurer

MANAGERS:

CARNEGIE (OHIO) MANAGEMENT CO., LLC

GARDEN MANAGEMENT CO., LLC

MIDLAND (OHIO) MANAGEMENT CO., LLC

SKYLINE (PA) MGMT CO, LLC

HERITAGE (OHIO) MGMT CO, LLC

AVIS (OHIO) MGMT CO, LLC

SUBURBAN (OHIO) MGMT CO, LLC

OLD MGMT CO, LLC

BELMORE MGT. CO., LLC

WYANT MGT. CO., LLC

BRECKSVILLE MGT CO., LLC

JARVIS MGT. CO., LLC

KOLBE MGT. CO., LLC

PEARL (OHIO) MGT. CO., LLC

PEARL II MGT. CO., LLC

PEARL III MGT. CO., LLC

MERIT (OHIO) MGT. CO., LLC

FALLING MGT. CO., LLC

FRONT MGT. CO., LLC

Each an Ohio limited liability company

By:           /s/ Charles R. Stoltz                                

Name:           Charles R. Stoltz

Title:           CFO and Treasurer

MANAGERS (continued):

WATER MGMT. CO., LLC

SOUTH II MGMT. CO., LLC

SOUTH I MGMT. CO., LLC

SOUTH III MGMT. CO., LLC

FAIRCHILD MGMT. CO., LLC

ROCKY RIVER MGMT. CO., LLC

CLIME MGMT. CO., LLC

ROYCE MGMT. CO., LLC

EAST WATER MGMT. CO., LLC

BEL PRE MGMT. CO., LLC

RIDGE (MD) MGMT. CO., LLC

MARLBORO MGMT. CO., LLC

FAYETTE MGMT. CO., LLC

LIBERTY MGMT. CO., LLC

HOWARD MGMT. CO., LLC

PALL MALL MGMT. CO., LLC

WASHINGTON (MD) MGMT. CO., LLC

Each an Ohio limited liability company

By:           /s/ Charles R. Stoltz                                

Name:           Charles R. Stoltz

Title:           CFO and Treasurer

CONSULTANTS:

CARNEGIE (OHIO) CONSULTING CO., LLC

GARDEN CONSULTING CO., LLC

MIDLAND CONSULTING CO., LLC

SKYLINE (PA) CONSULTING CO, LLC

HERITAGE (OHIO) CONSULTING CO, LLC

AVIS (OHIO) CONSULTING CO, LLC

SUBURBAN (OHIO) CONSULTING CO, LLC

OLD CONSULTING CO, LLC

BELMORE CONSULTING CO., LLC

WYANT CONSULTING CO., LLC

BRECKSVILLE CONSULTING CO., LLC

JARVIS CONSULTING CO., LLC

KOLBE CONSULTING CO., LLC

PEARL CONSULTING CO., LLC

PEARL II CONSULTING CO., LLC

PEARL III CONSULTING CO., LLC

MERIT CONSULTING CO., LLC

FALLING CONSULTING CO., LLC

FRONT CONSULTING CO., LLC

Each an Ohio limited liability company

By:           RESIDENT CARE CONSULTING, LLC, their sole member

By:           /s/ Charles R. Stoltz                                

Name:           Charles R. Stoltz

Title:           CFO and Treasurer

 

 

STATE OF OHIO	)
	) SS
COUNTY OF HAMILTON	)

The foregoing instrument was acknowledged before me this 29th day of December, 2010, by Charles R. Stoltz, who is the CFO and Treasurer of each of the above listed companies, on behalf of such companies.

 

Kathleen M. Portman, Notary Public Hamilton                      County, Ohio                                 My Commission Expires: 3-28-2012

 

Improvements Schedule

Funds will be allocated per Facility as follows:

Facility	Address	City	ST		Allocation of $3.0M CAP-EX (1)
Chardon Healthcare Center	620 Water Street	Chardon	OH			75,000.00
Commons at Greenbriar (ALF)	8060 South Avenue	Boardman	OH			10,000.00
Greenbriar Center (a/k/a Greenbriar North)	8064 South Avenue	Boardman	OH			135,000.00
Greenbriar Rehabilitation Hospital	8064 South Avenue, Ste. One	Boardman	OH			10,000.00
Kent Care Center	1290 Fairchild Avenue	Kent	OH			80,000.00
Northwestern Center	570 North Rocky River Drive	Berea	OH			125,000.00
Columbus Center	4301 Clime Road, North	Columbus	OH			145,000.00
Golden Years Healthcare Center	(P.O. Box 1148) 2125 Royce Street	Portsmouth	OH			45,000.00
Oak Grove Center	620 East Water Street	Deshler	OH			-
		Total			$	625,000

Specific improvements, budgets, and plans must be approved prior to the commencement of any improvement.