Exhibit D(vi)
SECOND AMENDMENT TO LEASE AGREEMENT
(Lopatcong)
This SECOND AMENDMENT TO LEASE AGREEMENT (this "Agreement") is dated as of
September____, 2003, by and among ET SUB-LOPATCONG L.L.C., a Delaware limited
liability company ("Landlord"), and GERIATRIC AND MEDICAL SERVICES, INC., a
New Jersey corporation ("Tenant").
BACKGROUND
WHEREAS, Landlord and Tenant are parties to that certain Lease Agreement
dated as of January 30, 1998, as amended by that certain First Amendment to
Lease dated November 23, 1999, (the "Lease"); and
WHEREAS, pursuant to the terms of the Lease, Tenant leases the land
located in Lopatcong Township, ▇▇▇▇▇▇ County, New Jersey, and the improvements
located thereon consisting of a skilled nursing facility operated by Tenant
and commonly known as Lopatcong Care Center (the "Facility"); and
WHEREAS, Genesis Health Ventures, Inc. and ElderTrust Operating Limited
Partnership have entered into that certain Master Agreement dated September
11, 2003 (the "Master Agreement"), pursuant to which, among other things,
Landlord and Tenant have agreed to modify and amend the Lease; and
WHEREAS, Landlord and Tenant desire to amend the Lease on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, Landlord and Tenant
agree as follows:
1. Definitions. All terms not otherwise defined herein shall have the
meaning ascribed to them in the Lease.
(a) The following are added to Article 1,
Interpretations and Definitions:
"EBITDARM" means, for any Test Period, gross
revenues from the Facility without any deduction
from such gross revenues for interest, taxes,
depreciation, amortization, Rent and any fees
payable to any manager of the Facility.
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"Adjusted EBITDARM" means, for any Test Period,
EBITDARM for the Facility for such Test Period
less (i) a five percent (5%) management fee, and
(ii) an annualized $400 per bed capital
expenditure allowance."
"Effective Date" means _________, 2003.
"Fair Market Rent" means the fair market rental
value of the Leased Property as determined in
accordance with Exhibit C to the Lease.
"Lease Coverage Ratio" means, for any Test
Period, the ratio of (i) Adjusted EBITDARM for
such Test Period to (ii) the Minimum Rent
payable under the Lease during such Test Period.
"Test Period" means each period of twelve
calendar months that ends on March 31, June 30,
September 30 and December 31.
(b) The definition of Minimum Rent is deleted in
its entirety and is replaced with the following:
"Minimum Rent: As defined in Section 3.2."
(c) The following defined terms are deleted in
their entirety:
"Incremental Minimum Rent"
2. Extension of Lease Term. The Initial Lease Term is hereby extended
until 11:59 p.m. on September 30, 2012.
3. Modification of Extension Option. Section 2.3 of the Lease is deleted
in its entirety and is replaced with the following:
"2.3 Extended Term. Provided that no Event of
Default shall have occurred and be continuing,
and that the Lease shall be in full force and
effect, Tenant shall have the right to extend
the Term for one extended term of ten (10) years
(the "Extended Term"); provided, however, that
Tenant shall exercise such right no later than
ten (10) months prior to the end of the then
current term (i.e. Tenant must give notice of
exercise on or before November 30, 2011).
The Extended Term shall commence on the day
succeeding the expiration of the Initial Term
(the "Extended Term Commencement Date"), and
shall expire on the day prior to the tenth
(10th) anniversary of such Extended Term
Commencement Date. During the Extended Term the
Minimum Rent shall continue to increase as
provided in Section 3.1 herein. All of the other
terms, conditions, covenants and provisions of
this Lease Document shall apply for such
Extended Term. If Tenant shall fail
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to give any such notice, this Lease shall
automatically terminate at the end of the then
current Term, and Tenant shall have no further
right to extend the Term of this Lease. If
Tenant shall give such notice, the extension of
the Lease shall be automatically effected
without the execution of any additional
documents; it being understood and agreed,
however, that Tenant and Landlord shall execute
such documents and agreements as either party
shall reasonably require to evidence the same."
4. Modification of Minimum Rent. Effective as of the Effective Date,
Section 3.2 of the Lease is deleted in its entirety and is replaced with the
following (and, as a consequence thereof, an appropriate adjustment shall be
made for any Rent heretofore paid at the rate(s) in effect prior to the
Effective Date):
"3.2 Minimum Rent. Tenant shall pay to Landlord
Minimum Rent with respect to the Lease for each
month in advance. Minimum Rent shall be payable
in twelve equal monthly installments on or
before the fifth (5th) Business Day of each
month. The annual Minimum Rent payable with
respect to the Leased Property (the "Minimum
Rent") shall be as follows:
(a) for the twelve months commencing January 30,
2003 and ending January 29, 2004 shall be equal
to $1,311,348.12;
(b) for each subsequent twelve month period that
commences on January 30 and ends on the next
succeeding January 29, Minimum Rent shall be an
amount equal to the greater of :
(x) the Minimum Rent for the immediately preceding 12
month period plus the product of (A) the Minimum Rent
for such twelve month period and (B) fifty percent
(50%) of the percentage increase, if any, in the CPI
during such twelve month period, or
(y) the Minimum Rent for the immediately preceding
twelve month period multiplied by one hundred one and
five tenths percent (101.5%)
provided, however, that solely for the twelve
month period commencing January 30, 2009 and
ending on January 29, 2010, the Minimum Rent
shall be equal to the greater of (A) the amount
determined pursuant to the above calculation, or
(B) the annual Fair Market Rent; and for the 12
month period that commences on July 1, 2011 and
for each 12 month period thereafter, Minimum
Rent shall be further increased pursuant to this
Section 3.2 (b).
5. Lease Coverage Ratio. The Lease hereby is further amended by the
addition of
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the following as Section 3.8 of the Lease:
"3.8 Lease Coverage Ratio.
Commencing with the Test Period that ends on
September 30, 2004, if the Facility fails to
maintain a Lease Coverage Ratio of 1.25 to 1.00
("Minimum Lease Coverage Ratio") for any Test
Period, the Tenant shall deliver to Landlord a
letter of credit ("LC") from a financial
institution reasonably acceptable to Landlord
and in form reasonably acceptable to Landlord in
an amount representing the difference between
(x) Adjusted EBITDARM for such Test Period and
(y) the product of (i) the Minimum Rent payable
during such Test Period and (ii) 1.25 (the
"Shortfall"). Tenant's obligation to deliver a
LC to Landlord for failure to meet the Minimum
Lease Coverage Ratio is subject to the following
conditions:
(a) At any time when Landlord does not hold
an LC pursuant to this Section 3.8, if the
Shortfall for any Test Period is less than
$50,000.00, then Tenant shall not be required to
deliver an LC;
(b) In the event Landlord holds an LC
pursuant to this Section 3.8 and a Shortfall
occurs for a subsequent Test Period, Tenant
shall be required to increase the amount of the
LC (or deliver to Landlord an additional LC) in
the amount, if any, by which the Shortfall for
such Test Period exceeds the amount of the LC or
LCs then held by Landlord.
(c) Landlord shall be obligated to release
any LCs held by Landlord in the event Tenant
meets or exceeds the Minimum Lease Coverage
Ratio as of the end of any subsequent Test
Period.
(d) In the event Tenant is obligated to
deliver an LC to Landlord (or increase the
amount of the LC then held by Landlord), Tenant
shall deliver the LC (or increase the LC) not
later than forty-five (45) days following the
end of the applicable Test Period.
(e) Any LC or LCs delivered by Tenant
pursuant to this Section 3.8 shall (x) be for a
term not less than the balance of the Initial
Term of the Lease and shall be automatically
extended in the event this Lease is extended for
the Extended Term and (y) provide that, upon
advance notice to Tenant, Landlord may draw upon
the LC upon notice from Landlord to the issuer
that an Event of Default involving the payment
of Rent or the other sums due under this Lease
has occurred under the Lease provided that the
amount
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drawn upon the LC by Landlord shall not exceed the
amount of the payment default by Tenant."
6. Management Agreements. Section 7.5 of the Lease is deleted in its
entirety and is replaced with the following:
"7.5 Management Agreements.
Throughout the Term, Tenant shall not enter into
any Management Agreement except with a Manager
that satisfies the definition of "Manager"
herein, or such other party approved by Landlord
in Landlord's reasonable discretion, and, if
required, the prior written approval of a
Facility Mortgagee, in each instance, which
approval of Landlord and a Facility Mortgagee
shall not be unreasonably withheld, conditioned
or delayed; provided, however, that Tenant shall
provide Landlord with a copy of any such
proposed Management Agreement and any other
documents relating thereto which Landlord may
reasonably request. Tenant shall not, without
the prior written consent of Landlord or such
Facility Mortgagee, which consent may not be
unreasonably withheld or delayed, agree to: (i)
any change in the Manager under any Management
Agreement; (ii) any material change in any
Management Agreement or any material change in
the ownership or control of any Manager; (iii)
the termination of any Management Agreement; or
(iv) the assignment of any Management Agreement
by any Manager. Each Management Agreement shall
provide that Landlord shall receive notice of
any defaults thereunder and, at Landlord's
option, an opportunity to cure any such
defaults. If Landlord shall cure any of Tenant's
defaults under any Management Agreement, the
cost of any such cure shall be payable upon
demand by Landlord to Tenant as Additional Rent.
All management fees, payments in connection with
any extension of credit and fees for services
provided in connection with the operation of the
Facility, and all other payments and fees,
payable by Tenant to any Affiliate of Tenant,
shall be subordinated to the obligations of
Tenant under this Lease. Tenant shall deliver to
Landlord any instrument requested by Landlord to
implement the intent of the foregoing
provision."
7. Flood Insurance. Section 14.1.3 is deleted in its entirety and is
replaced with the following:
"Flood (when the Leased Property is located
in whole or in material part in a designated
flood plain area) and such other hazards and in
such amounts as may be customary for comparable
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properties in the area; provided however, that
Tenant shall not be required to participate in
the National Flood Insurance Program. Any flood
insurance obtained by Tenant may be obtained as
part of Tenant's property insurance policy or,
it Tenant so elects, through the National Flood
Insurance Program."
8. Insurance Company Satisfactory. Section 14.4 is deleted in its
entirety and is replaced with the following:
"All of the policies of insurance referred to in
Section 14.1 shall comply with applicable legal
requirements of the State in which the Leased
Property is located. Any insurance, other than
self-insurance or insurance maintained by an
off-shore insurance company wholly-owned by an
Affiliate of Tenant, shall be maintained with a
company rated not less than A:X by A.M. Best Co.
All insurance carried by Tenant hereunder shall
have deductible amounts which are reasonably
acceptable to Landlord. Tenant shall pay all
premiums for the policies of insurance referred
to in Section 14.1 and shall deliver
certificates thereof to Landlord prior to their
effective date (and with respect to any renewal
policy, at least five (5) days prior to the
expiration of the existing policy). In the event
Tenant fails to satisfy its obligations under
this Section 14.4, Landlord shall be entitled,
but shall have no obligation, to effect such
insurance and pay the premiums therefor, which
premiums shall be repayable to Landlord upon
written demand as Additional Rent. Tenant shall
use its best efforts to cause each insurer
mentioned in Section 14.1 to agree, by
endorsement on the policy or policies issued by
it, or by independent instrument furnished to
Landlord, that it will give to Landlord thirty
(30) days' written notice before the policy or
policies in question shall be altered, allowed
to expire or canceled. Each such policy shall
also provide that any loss otherwise payable
thereunder shall be payable notwithstanding (i)
any act or omission of Landlord or Tenant which
might, absent such provision, result in a
forfeiture of all or a part of such insurance
payment, (ii) the occupation or use of the
Leased Property for purposes more hazardous than
those permitted by the provisions of such
policy, (iii) any foreclosure or other action or
proceeding taken by the Facility Mortgagee
pursuant to any provision of a mortgage, note,
assignment or other document evidencing or
securing a loan upon the happening of an event
of default therein or (iv) any change in title
to or ownership of the Leased Property."
9. Failure to Deliver LC. Section 17.1 of the Lease hereby is amended by
the
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addition of the following subparagraph (m):
"(m) if Tenant shall fail to deliver to Landlord
an LC (or an increase to an LC held by Landlord)
when required to do so pursuant to Section 3.8."
10. LC Draw. The following new Section 17.10 hereby is added to the
Lease. "17.10 Letter of Credit. Following the occurrence of an Event of
Default, Landlord may draw upon any LC held by Landlord pursuant to Section
3.8 to recover any damages incurred by Landlord and Tenant shall promptly
thereafter restore the LC to its amount immediately prior to such draw."
11. Default. Section 17.1(a) of the Lease is deleted in its entirety and
is replaced with the following:
"(a) (x) if Tenant shall fail to make payment of
the Minimum Rent payable by Tenant under this
Lease when the same becomes due and payable and
such failure is not cured by Tenant within a
period of five (5) business days after the due
date, or, (y) if Tenant shall fail to make
payment of any Impositions on or before the due
date thereof, or (z) if Tenant shall fail to
make payment of any other Rent payable by Tenant
under this Lease and if the failure shall
continue uncured beyond the period, if any,
allowed for such payment by the terms of this
Lease or if no period or any lesser period is
specified, then for more than ten (10) days
after receipt of written notice from Landlord;
provided, however, that with respect to the
first time within any calendar year that Tenant
shall fail to make payment of Minimum Rent by
the due date, Tenant shall not be deemed to be
in default until Landlord has furnished written
notice of such default to Tenant, and unless
Tenant has failed to make the payment in
question within three (3) business days after
Tenant receives such notice."
12. Subletting and Assignment. Section 23.1 is deleted in its entirety
and is replaced with the following:
"23.1 Prohibition Against Subletting and
Assignment.
Except as provided in Section 23.3 or Section
23.4 and where required pursuant to Section
23.2, Tenant shall not, without the prior
written consent of Landlord (which consent may
not be unreasonably withheld, conditioned or
delayed except that Landlord may grant or
withhold its consent in its sole discretion for
a proposed mortgage, pledge, hypothecation or
encumbrance), assign, mortgage, pledge,
hypothecate, encumber or otherwise
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transfer (except to an Affiliate of Tenant) this
Lease or any interest in this Lease, all or any
part of the Leased Property or suffer or permit
this Lease or the leasehold estate created
hereby or any other rights arising under this
Lease to be assigned, transferred, mortgaged,
pledged, hypothecated or encumbered, in whole or
in part, whether voluntarily, involuntarily or
by operation of law. For purposes of this
Section 23.1, an assignment of this Lease shall
be deemed to include any Change of Control of
Tenant, as if such Change of Control were an
assignment of this Lease."
The first paragraph of Section 23.4 is deleted in its entirety and is
replaced with the following:
"23.4 Assignment.
Except as expressly provided in this Section
23.4 and Section 23.2, Tenant may not assign
this Lease (including, without limitation, upon
a Change of Control of Tenant as provided in
Section 23.2) without the written consent of
Landlord, which consent may not be unreasonably
withheld or delayed. Landlord may base its
consent, among other criteria, on the
experience, creditworthiness and reputation of
the assignee or its Affiliates. If Tenant
desires at any time to assign this Lease, it
shall first notify Landlord of its desire to do
so and shall submit in writing to Landlord: (i)
the name of the proposed assignee; (ii) the
terms and provisions of the proposed assignment;
and (iii) such financial information as Landlord
reasonably may request concerning the proposed
assignee. Except as provided in Section 23.4.3
below, any assignment by Tenant of this Lease
shall be solely of Tenant's entire interest in
and under this Lease. The consent by Landlord to
any assignment shall not constitute a consent to
any subsequent or successive assignment by the
assignee. Any purported assignment or other
transfer of all or any portion of Tenant's
interest in this Lease in contravention of this
Section 23.4 shall be void and, at the option of
Landlord, shall terminate this Lease."
The following shall be added to the end of Section 23.4.7:
"Notwithstanding the foregoing, Tenant and any
guarantor of Tenant's obligations shall be fully
released from their obligations under and with
respect to this Lease in the event of an
assignment of this Lease that satisfies the
following conditions (i) the assignee or its
affiliates owns, operates or manages hospitals,
assisted living facilities or nursing homes (ii)
the assignee or any proposed substitute
guarantor of this Lease has sufficient
creditworthiness in the reasonable judgment of
Landlord, and (iii) Landlord has
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consented to the assignment in accordance with
the consent standards of this Lease."
13. Financial Statements. Section 24.2 is deleted in its entirety and is
replaced with the following:
"Tenant will furnish to Landlord, within one
hundred twenty (120) days after the end of
Tenant's fiscal year, a copy of its financial
statements, which shall, if requested or
required by a Facility Mortgagee, be audited by
a certified public accountant. Within thirty
(30) days after the end of each quarter, Tenant
shall provide to Landlord internally generated
financial statements, which statements shall
include a calculation of the Lease Coverage
Ratio. All financial statements shall be
accompanied by a certificate of an officer and
the chief accounting officer of Tenant delivered
with such report, stating (i) that the officers
know of no Event of Default, or event which,
upon notice or the passage of time or both,
would become an Event of Default, which has
occurred and is continuing under this Lease or,
if any such event has occurred or is continuing,
specifying the nature and period of existence
thereof and what action Tenant has taken or
proposes to take with respect thereto, and (ii)
except as otherwise specified in such
certificate, that to the best of such officers'
knowledge, Tenant has fulfilled all of its,
obligations under this Lease which are required
to be fulfilled on a prior date to such
certificate."
14. Security Deposit. With reference to Section 8.1 of the Lease, the
parties confirm that the Security Deposit held by Landlord in the amount of
$208,408.00, plus accrued interest, has been returned to Tenant upon execution
of this Agreement and Tenant shall have no further obligation to Landlord with
respect to the Security Deposit.
15. Guaranty. Landlord acknowledges and agrees that, pursuant to a
corporate Reorganization (as that term is defined in the Master Agreement)
contemplated by Genesis Health Ventures, Inc. ("GHV"), parent corporation of
Tenant, Genesis HealthCare Corporation ("GHC") shall become the parent entity
of Tenant, and, contemporaneously therewith, GHC shall replace GHV as
guarantor of the Lease. Upon the execution and delivery by the parties of the
this Amendment, GHC shall execute and deliver to Landlord a Guaranty (the "GHC
Guaranty") in the form attached hereto as Exhibit A which shall be effective
only upon the date of the Reorganization, and Landlord hereby (i) consents to
the Reorganization as described in the Master Agreement, and (ii) agrees that
upon the effective date of the Reorganization, the GHV Guaranty shall be
automatically terminated and the GHC Guaranty shall be automatically
effective.
16. Inspection Fee. Tenant shall pay to Landlord, as an item of
Additional Rent, an
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annual fee for Landlord's cost of inspecting the Facility (the "Inspection
Fee"). The Inspection Fee shall be payable on January 30 of each Lease Year,
including the Extended Term. The amount of the Inspection Fee shall be
$2,000.00 for the payment due on January 30, 2004 for the first Lease Year,
which amount shall increase each Lease Year by multiplying the Inspection Fee
for the immediately preceding year by the increase in the CPI.
17. Effectiveness of this Agreement. Except as expressly modified by this
Agreement, all other terms and provisions of the Lease are hereby ratified and
confirmed and shall remain in full force and effect. Each of Landlord and
Tenant confirms to the other that there are not presently outstanding any
defaults or Events of Default of the other under the Lease and hereby waives
and releases the other from any prior defaults or Events of Default.
18. Counterparts; Facsimile Execution. The parties hereto agree that: (a)
this Agreement may be executed in counterparts, each of which shall be deemed
an original and all of which counterparts together shall constitute one and
the same instruments, and that executed counterpart originals shall be
satisfactory for purposes of enforcing this Agreement; and (b) original
signatures transmitted via facsimile shall be acceptable for purposes of
executing this Agreement. If counterpart originals are executed and/or
original signatures are transmitted by facsimile, the parties hereto shall
endeavor in good faith to deliver to each other executed counterpart originals
within ten (10) days from the date hereof.
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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EXECUTED as a sealed instrument the day and year first above written.
TENANT:
GERIATRIC AND MEDICAL SERVICES, INC.,
New Jersey corporation
By:______________________________________
Name:
Title:
LANDLORD:
ET SUB-LOPATCONG, L.L.C., a Delaware
limited liability company
By:______________________________________
Name:
Title:
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EXHIBIT A
Form of GHC Guaranty
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LEASE GUARANTY AND SURETYSHIP AGREEMENT
(Lopatcong)
THIS LEASE GUARANTY AND SURETYSHIP AGREEMENT (sometimes herein referred to
as the "Guaranty"), dated as of the ______ day of _________, 200__, by GENESIS
HEALTHCARE CORPORATION, a Pennsylvania corporation, having an address at ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Guarantor") in
favor of ET SUB-HERITAGE LOPATCONG, L.L.C., a Delaware limited liability
company, having an address at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Landlord").
WITNESSETH:
WHEREAS, Geriatric and Medical Services, Inc., a Pennsylvania corpration
("Tenant") and Landlord are parties to that certain Lease Agreement dated as
of January 30, 1998, as amended by that certain First Amendment to Lease dated
November 23, 1999, and that certain Second Amendment to Lease of even date
herewith (the "Second Amendment"), pursuant to which Tenant leases from
Landlord the real property and buildings and improvements known as Lopatcong
Care Center, Lopatcong Township, ▇▇▇▇▇▇ County, New Jersey (the "Lease");
WHEREAS, the Tenant is a wholly owned subsidiary of Guarantor; and
WHEREAS, Landlord has required that the Guarantor guaranty and act as
surety for Tenant's performance under the Lease in the manner hereinafter set
forth; and
WHEREAS, the Guarantor shall receive direct and indirect benefits from the
entry by the Landlord into the Lease with Tenant.
NOW, THEREFORE, Guarantor hereby agrees as follows:
1. The Guarantor unconditionally guarantees to the Landlord and agrees to
be surety for the full and punctual payment, performance and observance by the
Tenant, of all the terms, covenants and conditions in the Lease contained on
Tenant's part to be kept, performed or observed. This Guaranty shall include
any liability of Tenant that shall accrue under the Lease for any period
preceding as well as any period following the term in the Lease specified.
Without limitation of the foregoing, if at any time Tenant shall default in
the payment, performance or observance of any of the terms, covenants or
conditions in the Lease contained on the Tenant's part to be kept, performed
or observed, the Guarantor will keep, perform and observe the same, as the
case may be, in place and stead of the Tenant.
2. The Guarantor hereby waives: (a) notice of acceptance of this Guaranty;
(b) presentment and demand for any payments due Landlord; (c) protest and
notice of dishonor or default to the Guarantor or to any other person or party
with respect to the terms of the Lease or
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any portion thereof; (d) notice of Tenant's nonpayment, nonperformance or
nonobservance, other than as expressly required under the Lease.
3. This is a guaranty of performance and payment and not of collection,
and the Guarantor waives any right to require that any action be brought
against the Tenant or to require that resort be had to any credit on the books
of the Landlord in favor of the Guarantor or any other person or party.
4. Any act of the Landlord, or the successors or assigns of the Landlord,
consisting of a waiver of any of the terms or conditions of the Lease, or the
giving of any consent to any manner or thing relating to the Lease, or the
granting of any indulgences or extensions of time to the Tenant, may be done
without notice to the Guarantor and without releasing the obligations of the
Guarantor hereunder.
5. The obligations of the Guarantor hereunder shall not be released by
Landlord's receipt, application or release of security given for the
performance and observance of covenants and conditions in the Lease contained
on Tenant's part to be performed or observed; nor by any modification of the
Lease, but in case of any such modification, the liability of the Guarantor
shall be deemed modified in accordance with the terms of any such modification
of the Lease.
6. The obligations, covenants and agreements of Guarantor under this
Guaranty shall in no way be affected or impaired by reason of the happening
from time to time of any of the following, although without notice to or the
further consent of Guarantor:
(a) the waiver by Landlord of the performance or observance by
Guarantor, Tenant or any other party of any of the agreements,
covenants or conditions contained in the Lease or this Guaranty;
(b) the extension, in whole or in part, of the time for payment by
Guarantor or Tenant of any sums owing or payable under the Lease or
this Guaranty, or of any other sums or obligations under or arising
out of or on account of the Lease or this Guaranty, or the renewal
of the Lease or this Guaranty;
(c) any assignment of the Lease or subletting of the Premises or any
part thereof;
(d) the modification or amendment (whether material or otherwise) of
any of the obligations of Guarantor or Tenant under the Lease or
this Guaranty;
(e) the doing or the omission of any of the acts referred to in the
Lease or this Guaranty (including, without limitation, the giving of
any consent referred to therein);
(f) any failure, omission or delay on the part of Landlord to
enforce, assert or
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exercise any right, power or remedy conferred on or available to
Landlord in or by the Lease or this Guaranty, or any action on the
part of Landlord granting indulgence or extension in any form
whatsoever;
(g) the voluntary or involuntary liquidation, dissolution, sale of
all or substantially all of the assets, marshaling of assets and
liabilities, receivership, conservatorship, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of, or other similar
proceeding affecting Tenant or Guarantor or any of its assets; or
(h) the release of Guarantor or Tenant from the performance or
observance of any of the agreements, covenants, terms or conditions
contained in the Lease or this Guaranty by operation of law; or
(i) the release of any other guarantor of the Lease.
7. Until all the covenants and conditions in the Lease to be performed and
observed on the Tenant's part are fully and indefeasibly performed and
observed, the Guarantor: (a) shall have no right of subrogation against the
Tenant by reason of any payments or acts of performance by the Guarantor, in
compliance with the obligations of the Guarantor hereunder; (b) subordinates
to the rights of Landlord any right to enforce any remedy which the Guarantor
now or hereafter shall have against the Tenant by reason of any one or more
payment or acts of performance in compliance with the obligations of the
Guarantor hereunder; and (c) subordinates any liability or indebtedness of the
Tenant now or hereafter held by the Guarantor to the obligations of the Tenant
to the Landlord under the Lease.
8. This Guaranty shall apply to the Lease, any extension or renewal
thereof and to any holdover term following the term thereby granted.
9. The Guarantor represents and warrants to Landlord that, as of the date
hereof:
(a) It is a Pennsylvania corporation, duly constituted and validly
existing under the laws of such state, and has the power and authority to own
its assets and to conduct its business.
(b) It has full corporate power and authority to execute and deliver this
Guaranty and to perform its obligations hereunder.
(c) This Guaranty has been duly authorized, executed and delivered by the
Guarantor and constitutes the legal, valid and binding obligation of the
Guarantor enforceable against the Guarantor in accordance with its terms.
(d) The Tenant is a wholly owned subsidiary of Guarantor.
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(e) All recent financial statements and other information concerning the
Guarantor delivered to the Landlord by or on behalf of the Tenant or the
Guarantor are true, correct and complete in all material respects, fairly
represent Guarantor's financial condition as of the date hereof and thereof,
and no information has been omitted which would make the information
previously furnished misleading or incorrect in any material respect.
(f) All consents, approvals, filings and registrations with or of any
court, governmental authority or regulatory body or any political subdivision
thereof required in connection with the execution, delivery and performance by
the Guarantor of the Guaranty have been obtained or made; and the execution,
delivery and performance by the Guarantor of this Guaranty will not conflict
with or result in a violation of any of the terms or provisions of, or
constitute a default under, any law or the regulations thereunder,
organizational documents of the Guarantor, or any material agreement or
material instrument to which the Guarantor is a party or by which it is bound.
(g) The execution, delivery and performance of this Guaranty constitutes
private and commercial acts rather than public or governmental acts.
10. Each notice and other communication under this Guaranty shall be in
writing. Each notice, communication or document to be delivered to any party
under this Guaranty shall be sent by hand delivery or facsimile transmission
(promptly confirmed by courier) to it at the address herein contained, and
marked for the attention of the person (if any), from time to time designated
by such party for the purpose of this Guaranty. The initial address and person
(if any) so designated by each party are set out opposite such party's
signature to this Guaranty. Any communication or document shall be deemed to
be received, if sent by facsimile transmission, when the recipient confirms
legible transmission thereof or, if sent by hand delivery or by courier, when
delivered at the address specified by the addressee for purposes of this
Guaranty.
11. Solely with respect to any suit, action or proceeding arising out of
or relating to this Guaranty (each, a "Proceeding"), the Guarantor hereby
irrevocably submits to the jurisdiction of any United States federal or state
court sitting in the Commonwealth of Pennsylvania. The Guarantor hereby
irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such
Proceeding brought in such court and any claim that any such Proceeding
brought in such court has been brought in an inconvenient forum. The Guarantor
hereby agrees that a final, non-appealable judgment in any such Proceeding
brought in such court shall be conclusive and binding upon it.
12. Each reference herein to the Landlord shall be deemed to include its
successors and assigns, in whose favor the provisions of this Guaranty shall
also inure. Each reference herein to the Guarantor shall be deemed to include
any permitted successors and assigns of the Guarantor (including any successor
entity resulting from a merger or consolidation), in whose favor the
provisions of this Guaranty shall also inure and all of whom shall be bound by
the
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provisions of this Guaranty. In connection therewith, the Guarantor shall
execute such reaffirmations of this Guaranty as may be reasonably requested
from time to time by the Landlord. Notwithstanding the foregoing, it is hereby
agreed that Guarantor shall have no rights to transfer or assign this Guaranty
by operation of law or otherwise, without the express written consent of the
Landlord, which consent may be withheld by the Landlord in the Landlord's sole
discretion, and any such transfer or assignment made without the Landlord's
consent shall be null and void and shall be deemed a default hereunder.
13. No delay on the part of the Landlord in exercising any rights
hereunder or failure to exercise the same shall operate as a waiver of such
rights; no notice to or demand on the Guarantor shall be deemed to be a waiver
of the obligation of the Guarantor or of the right of the Landlord to take
further action without notice or demand as provided herein; nor in any event
shall any modification or waiver of the provisions of this Guaranty be
effective unless in writing nor shall any such waiver be applicable except in
the specific instance for which given.
14. In the event of a default under any of the terms of the Lease,
Landlord shall have the right to proceed directly and immediately against the
Guarantor and such proceeding is not to be deemed an irrevocable election of
remedies.
15. This Guaranty is, and shall be deemed to be entered into, under and
pursuant to the laws of the Commonwealth of Pennsylvania and shall be in all
respects governed, construed, applied and enforced in accordance with the laws
of said Commonwealth; and no defense given or allowed by the laws of any other
state or country shall be interposed in any action or proceeding hereon unless
such defense is also given or allowed by the laws of the Commonwealth of
Pennsylvania.
16. Guarantor shall furnish to Landlord, within one hundred twenty (120)
days of the end of each fiscal year of Tenant during the Term of the Lease, an
audited consolidated balance sheet of Guarantor as of the end of such fiscal
year and an audited consolidated statement of income and consolidated cash
flow of Guarantor for such fiscal year, setting forth in each case, in
comparative form, the corresponding figures for the preceding fiscal year,
prepared in accordance with GAAP, and a copy of its financial statements for
such year certified by an appropriate officer of Guarantor and audited by an
independent certified public accountant. Landlord may provide such financial
statements to its consultants, lenders and investors, but otherwise shall not
provide the financial statements to third parties without the prior consent of
Guarantor.
17. This instrument may not be changed, modified, discharged or terminated
orally or in any manner other than by an agreement in writing signed by the
Guarantor and the Landlord.
18. If any term or provision of this Guaranty or the application thereof
to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Guaranty, or the application of such term
or provision to persons or circumstances other than those to which it is held
invalid or unenforceable, shall not be affected thereby and all other terms
and provisions of this Guaranty shall be valid and enforced to the fullest
extent permitted by law.
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19. THE GUARANTOR AND THE LANDLORD AGREE THAT ANY SUIT, ACTION OR
PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, BROUGHT BY THE LANDLORD OR THE
GUARANTOR ON OR WITH RESPECT TO THIS GUARANTY OR THE LEASE, SHALL BE TRIED
ONLY BY A COURT AND NOT BY A JURY. THE LANDLORD AND THE GUARANTOR EACH HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN
ANY SUCH SUIT, ACTION OR PROCEEDING.
20. Landlord has previously received a Guaranty of the Lease from GHV (the
"GHV Guaranty"). Pursuant to the terms of the Second Amendment, GHV shall be
released as a guarantor and the GHV Guaranty shall terminate upon the
occurrence of certain events and transactions. Landlord, for itself and its
parents, subsidiaries and affiliates (collectively, the "ET Entities") hereby
agree that so long as the GHV Guaranty remains in effect, the ET Entities
shall not file any claim, action or suit against Guarantor under this Guaranty
nor seek any recovery under this Guaranty but the foregoing shall not
otherwise impair the enforeceability of this Guaranty. Upon the release of GHV
under the GHV Guaranty, Landlord and the ET Entities, without the necessity
for any further action or the execution of any further documents by Guarantor
or any other party, shall have full recourse against Guarantor under this
Guaranty and the right to file any claim, action or suit against Guarantor
hereunder and Guarantor shall be fully liable hereunder, whether such claim,
action or suit arose prior to or subsequent to the release of GHV under the
GHV Guaranty.
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IN WITNESS WHEREOF, the Guarantor has hereunto executed and delivered this
Guaranty as of the day and year first above written.
Witness: GENESIS HEALTHCARE
CORPORATION
_______________________________ By:_______________________________
Name:
Title:
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