FIRST AMENDMENT TO
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FACILITY LEASE AGREEMENT
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THIS FIRST AMENDMENT TO FACILITY LEASE AGREEMENT is made as of the 3rd day
of April, 1998 by and between MEDITRUST COMPANY LLC ("Lessor"), a Delaware
limited liability company having its principal office at 000 Xxxxx Xxxxxx,
Xxxxxxx Xxxxxxx, Xxxxxxxxxxxxx 00000, and CAREMATRIX OF PALM BEACH GARDENS
(SNF), INC., a Delaware corporation ("Lessee"), having an address at 000 Xxxxx
Xxxxxx, Xxxxxxx Xxxxxxx, Xxxxxxxxxxxxx 00000.
W I T N E S S E T H:
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WHEREAS, Meditrust of Florida, Inc. (the "Original Lessor") and PBG Medical
Mall SNF, Ltd. (the "Original Lessee") entered into that certain Facility Lease
Agreement, dated as of April 1, 1996 (the "Lease"), relating to certain real
property located in Palm Beach Gardens, Florida, which real property is more
particularly described on EXHIBIT A attached hereto and incorporated herein by
reference, and the improvements now or hereafter located thereon (collectively,
the "Leased Property"), and all capitalized terms used herein and not expressly
defined herein shall have the same meanings ascribed to such terms in the Lease;
WHEREAS, a Notice of Facility Lease Agreement, dated as of April 1, 1996,
between the Original Lessor and the Original Lessee, relating to the Lease, was
recorded in the Public Records of Palm Beach County in O.R. Book 9193, Page 1282
(the "Notice");
WHEREAS, an Assignment of Subleases and Rents, dated as of April 1, 1996,
granted by the Original Lessee to the Original Lessor, to secure the Lease
Obligations, was recorded in the Public Records of Palm Beach County in O.R.
Book 9193, Page 1311 (the "Assignment of Subleases");
WHEREAS, simultaneously with the execution and delivery of the Lease, the
Original Lessor and the MOB Lessee entered into the MOB Lease and the MOB Lessee
has certain obligations under the Lease Documents;
WHEREAS, Manatee Springs Nursing Center, Inc., a Florida corporation
entered into a Lease Agreement with CCC of Florida, Inc. (hereinafter referred
to as "CCC"), dated as of June 23, 1994, as amended (as so amended, hereinafter
referred to as the "Sublease"), relating to certain premises as more fully
described in the Sublease, consisting of all or a portion of the Leased
Property;
WHEREAS, CCC's interest in the Sublease was assigned to the Original
Lessee, and the Sublease has now terminated in accordance with its terms;
WHEREAS, effective as of March 31, 1998, the Original Lessor was merged
with the Lessor (the "Merger"), with the Lessor as the surviving entity of the
Merger;
WHEREAS, subsequent to, and as a consequence of the Merger, the Lessor
became the holder of all of the Original Lessor's right, title and interest
under the Lease and the other Lease Documents;
WHEREAS, notwithstanding anything to the contrary contained in the Lease
Documents, pursuant to that certain Assignment and Assumption Agreement of even
date by and among the Lessor, the Lessee, the Original Lessee, CareMatrix
Corporation, Xxxxxxx X. Xxxxxx and PBG Medical Mall MOB 1 Properties, Ltd., the
Original Lessee assigned all of its right, title and interest in the Leased
Property and the Lease, the Notice, the Assignment of Subleases and the other
Lease Documents to the Lessee;
WHEREAS, pursuant to that certain First Amendment to Medical Office
Building Lease Agreement of even date, the MOB Lessee and the Lessor have agreed
to amend certain provisions of the MOB Lease; and
WHEREAS, in addition, the Lessee and the Lessor have agreed to amend
certain provisions of the Lease.
NOW THEREFORE, for good and valuable consideration paid by each of the
parties hereto to the other, the receipt and sufficiency of which is hereby
acknowledged and in consideration of the covenants and agreements set forth
herein, the Lessor and the Lessee agree as follows:
1. The Lease is hereby amended by adding the following definitions to
Section 2 immediately after the term "Capital Addition Cost":
CareMatrix: CareMatrix Corporation, a Delaware corporation and its
successors and assigns.
CareMatrix Guaranty: That certain Guaranty, dated as of April 3, 1998,
executed by CareMatrix for the benefit of Lessor, guarantying the
obligations of Lessee under the Lease Documents.
2. The Facility Lease is amended by deleting, in its entirety, the
definition of Leasing Group in Section 2 and substituting therefor the
following:
Leasing Group: Collectively, Lessee, the MOB Lessee, the Guarantor,
CareMatrix, any other guarantor of Lessee's obligations under the Lease
Documents, the MOB General Partner, any Sublessee that is an Affiliate of
Lessee and any Manager.
3. The Facility Lease is amended by deleting, in its entirety, the
definition of Related Party Obligation in Section 2 and substituting therefor
the following:
Related Party Obligations: Collectively, all indebtedness, covenants,
liabilities, obligations, agreements and undertakings due to, or made for
the benefit of, Lessor or any of the other Meditrust Entities by Lessee,
any other member of the Leasing Group or any member of the Xxxxxx Group or
any of their respective Affiliates; whether such indebtedness, covenants,
liabilities, obligations, agreements and/or undertakings are direct or
indirect, absolute or contingent, liquidated or unliquidated, due or to
become due, joint, several or joint and several, primary or secondary, now
existing or hereafter arising, including, without limitation, all of the
obligations of each of the Related Parties under the Brazilian Court Loan
Documents, the Dedham Loan Documents, the Needham Loan Documents, and the
Princeton Loan Documents.
4. The Lease is hereby amended by adding the following definition to
Section 2 immediately after the term "Rent Insurance Proceeds":
Replacement Guaranty: As defined in Section 19.4.
5. The Lease is amended by deleting, in its entirety, clause (i) of Section
11.2.1(a) of the Lease and substituting therefor the following:
(i) a copy of the Consolidated Financials for each of (x) Lessee, (y)
any guarantor of Lessee's obligations under the Lease Documents (other than
the Guarantor), including, without limitation, CareMatrix and (y) any
Sublessee for the preceding fiscal year, certified and audited by, and with
the unqualified opinion of, independent certified public accountants
acceptable to Lessor and certified as true and correct by Lessee or the
applicable Sublessee, as the case may be (and, without limiting anything
else contained herein, the Consolidated Financials for Lessee and for each
Sublessee shall include a detailed balance sheet for Leased Property as of
the last day of such fiscal year and a statement of earnings from the
Leased Property for such fiscal year showing, among other things, all rents
and other income therefrom and all expenses paid or incurred in connection
with the operation of the Leased Property)
6. The Lease is amended by deleting, in its entirety, Section 16 (h) of the
Lease and substituting therefor the following:
(h) in the event that, without the prior written consent of Lessor, in
each instance, which consent may be withheld by Lessor in its sole and
absolute discretion:
i. except as expressly permitted under Section 19.4 hereof, there
shall be a change in the Person or Persons presently in control
of Lessee (whether by operation of law or otherwise);
ii. except as expressly permitted under Section 19.4 hereof or as may
be permitted under Section 19.4 of the MOB Lease, all or any
portion
of the interest of any partner or member of any member of the
Leasing Group shall be, on any one or more occasions, directly or
indirectly, sold, assigned, hypothecated or otherwise transferred
(whether by operation of law or otherwise), if such member of the
Leasing Group shall be a partnership, joint venture, syndicate or
other group;
iii. except as expressly permitted under Section 19.4 hereof or as may
be permitted under Section 19.4 of the MOB Lease, any of the
shares of the issued and outstanding capital stock of any member
of the Leasing Group (other than a publicly traded entity) shall
be, on any one or more occasions, directly or indirectly, sold,
assigned, hypothecated or otherwise transferred (whether by
operation of law or otherwise), if such member of the Leasing
Group shall be a corporation; or
iv. except as expressly permitted under Section 19.4 hereof or as may
be permitted under Section 19.4 of the MOB Lease, all or any
portion of the beneficial interest in any member of the Leasing
Group shall be, directly or indirectly, sold or otherwise
transferred (whether by operation of law or otherwise), if such
member of the Leasing Group shall be a trust;
7. The Lease is amended by deleting, in its entirety, Section 16 (i) of the
Lease and substituting therefor the following:
(i) except in connection with the transfers permitted by Section 19.4
of this Lease or the transfers permitted by Section 19.4 of the MOB Lease,
but, only, after the satisfaction of all requirements of the Lessor
relating to such transfers, (1) the liquidation, dissolution or termination
of existence of the any member of the Leasing Group or (2) the merger or
consolidation of any member of the Leasing Group with any other Person;
8. The Lease is amended by deleting, in its entirety, Section 16 (q) of the
Lease and substituting therefor the following:
(q) if, after completion of the construction of the SNF Project, any
Provider Agreement material to the operation of the SNF Project shall be
terminated prior to the expiration of the term thereof or, without the
prior written consent of Lessor, in each instance, which consent may be
withheld in Lessor's reasonable discretion, shall not be renewed or
extended upon the expiration of the stated term thereof;
9. The Lease is amended by deleting, in its entirety, Section 19.4 of the
Lease and substituting therefor the following:
19.4 Permitted Transfers. Notwithstanding anything to the contrary set
forth herein, (i) subject to the provisions of the paragraph
immediately following this paragraph, any transfer (whether by
operation of law or otherwise) of any shares of the common stock of
CareMatrix or any other publicly traded entity that is a member of the
Leasing Group shall not constitute a Lease Default and (ii) any merger
of CareMatrix with any other Person shall not constitute a Lease
Default, provided, that, (x) Lessor is provided with at least fifteen
(15) days' prior written notice of such merger and Lessor receives
such assurances, estoppels and confirmations that it reasonably
requires with respect to such merger and the execution and deliver of
any Replacement Guaranty, (y) the Tangible Net Worth of the entity
surviving such merger is equal to or greater than the Tangible Net
Worth of CareMatrix immediately prior to such merger and (z) if
CareMatrix is not the survivor of such merger, (a) the direct and
indirect holders of the beneficial interests in such surviving entity
execute and deliver to Lessor a guaranty (in form and substance
acceptable to Lessor) of Lessee's obligations under the Lease
Documents in a form substantially similar to the CareMatrix Guaranty
(each such guaranty shall be referred to herein as a "Replacement
Guaranty") and (b) Lessor shall receive opinions of counsel (from
counsel reasonably acceptable to Lessor), in form and substance
reasonably acceptable to Lessor, opining as to the due authorization
and enforceability of each Replacement Guaranty; provided, however,
that no such Replacement Guaranty shall be required from any Person
solely as a result of such Person's ownership of any capital stock in
any publicly traded entity (which holds any direct or indirect
interest in the survivor of such merger).
Notwithstanding anything to the contrary set forth herein, except
as a result of or in connection with a merger permitted pursuant to
the immediately preceding paragraph, the beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Securities Exchange
Act of 1934, as amended), at any time, by any Person and its
Affiliates, either individually or as a group, of an aggregate of
fifty percent (50%) or more of the common stock of CareMatrix or any
other guarantor of Lessee's obligations under the Lease Documents
shall constitute a Lease Default.
10. The Facility Lease is amended by deleting, in its entirety, the
definition of MOB Lease in Section 2 and substituting therefor the following:
MOB Lease: That certain Medical Office Building Lease Agreement of
even date by and between the MOB Lessee and Lessor, as amended by that
First Amendment to Medical Office Building Lease Agreement dated as of
April 3, 1998 by and between the MOB Lessee and Lessor.
11. This Amendment shall be deemed to amend the Lease solely as expressly
set forth herein, and as amended hereby, the Lease is hereby ratified, approved
and confirmed in every aspect and is valid, binding and in full force and
effect.
This Amendment shall not be deemed to amend any of the other Lease
Documents, each of which are hereby ratified, approved and confirmed in every
aspect and each of which are valid, binding and in full force and effect
notwithstanding and unaffected by this Amendment.
12. This Amendment shall be binding upon the Lessee and the Lessor and
their respective successors and assigns.
13. This Amendment shall be governed by and construed in accordance with
the laws of the State of Florida.
14. This Amendment may be executed in one or more counterparts, each of
which taken together shall constitute one original and all of which shall
constitute one and the same instrument.
WITNESS the execution hereof under seal as of the day and year first above
written.
WITNESSES: LESSEE:
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CAREMATRIX OF PALM BEACH
GARDENS (SNF), INC., a Delaware
corporation
__________________________________ By: ________________________
Name: Name:
Title:
Name:
WITNESSES: LESSOR:
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MEDITRUST COMPANY LLC, a
Delaware limited liability company
__________________________________ By: _______________________
Name: Name:
Title:
Name:
450211
EXHIBIT A
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LEGAL DESCRIPTION OF THE LAND
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Parcel "A", The Medical Mall at Palm Beach Gardens Plat 1, according to the plat
thereof as recorded in Plat Book 74, Page 80, Public Records of Palm Beach
County, Florida (the "Plat") and all easements, rights of way and other rights
appurtenant thereto, including, without limitation, that certain Grant of
Easement dated as of June 30, 1995, granted by CCC of Florida, Inc. to PBG
Medical Mall MOB 1 Properties, Ltd. and PBG Medical Mall SNF, Ltd., recorded in
Book 8816, Page 1200 of said Public Records.
