10-K: Annual report pursuant to Section 13 and 15(d)

Published on February 28, 2011


 

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.
 
RECITALS
 
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 healthcare 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 Purchase 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.

SIGNATURE PAGES FOLLOW
 

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



 
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
 

                                                             Signature Page  of 2

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



 
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
 


                                                                Signature Page  of 2

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


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


                                                                Ratification - Page  of 7

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


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


                                                                   Ratification - Page  of 7

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


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 on next page)

                                                                     Ratification - Page  of 7

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



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


                                                               Ratification - Page  of 7

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


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


 

                                                                 Ratification - Page  of 7

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





 
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

 

                                                               Ratification - Page  of 7

 
 
 
Schedule 9.3 to
FIFTH AMENDMENT TO SECOND
CONSOLIDATED AMENDED AND RESTATED MASTER LEASE
Multiple Facilities


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.

 

                                                           Schedule 9.3 - Page  of 1