SECOND AMENDMENT TO LEASE
(PAINTED POST FACILITY)
This Second Amendment to Lease ("Amendment")
is dated as of June 24, 1996, by and between
HEALTH CARE PROPERTY INVESTORS, INC. , a Maryland
corporation ("Lessor") and PAINTED POST
PARTNERSHIP, a Pennsylvania general partnership (
" Lessee " ).
RECITALS
A. Lessor and Lessee entered into a lease
dated as of October 19,1995 (the
"Lease") for the Painted Post facility located in
the Town of Xxxxx, County of Steuben, State of New
York. Said lease, as amended by the Amendment to
Lease (Painted Post Facility) dated December
13,1995, is hereinafter referred to as the
"Lease."
X. Xxxxxx and Lessee desire to amend the
Lease on the terms and conditions hereinafter set
forth.
AGREEMENT
Capitalized terms not otherwise defined
herein shall have the meaning ascribed to them in
the Lease. Lessor and Lessee hereby agree as
follows:
Except as amended above, the Lease between
Lessor and Lessee shall remain in full force and
effect. This Amendment may be executed in any
number of counterparts, all of which together
shall constitute one and the same instrument
1. The definition of "Primary Intended Use"
in Section 2 of the Lease is hereby amended to
read in full as follows:
"PRIMARY INTENDED USE: Adult home and such
other uses necessary or incidental to such use. "
2. Section 7. 2. 3 of the Lease is hereby
amended to read in full as follows :
"7.2.3 Lessee shall operate continuously
the Leased Property and all Capital Additions
thereto in accordance with its Primary Intended
Use. Lessee shall devote the entire Facility and
all Capital Additions thereto to the Primary
Intended Use, except for areas reasonably required
for office or storage space uses incidental to the
Primary Intended Use. Lessee shall at all times
maintain an adequate staff for the service of its
residents and/or patients. Lessee shall employ its
best judgment, efforts and abilities to operate
the Facility in such a manner so as to maximize
Gross Revenues and to enhance the reputation and
attractiveness of the Facility. "
3. Section 16.1(m) of the Lease is hereby
amended to read in full as
"(m) Lessee voluntarily transfers ten (10) or
more patients located in the Facility to any other
facility in which Lessee or any Affiliate of
Lessee has any ownership or other financial
interest, including, without limitation, fees
earned under any management
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agreement; provided, however, that Lessee's
transfer of any patient to a different type of
care facility as a result of such patient's
special needs that cannot be met at the Facility
shall not be deemed a voluntary transfer;
provided, further, that for purposes hereof, the
Lessee shall be deemed to have voluntarily
transferred a resident from the Facility if it
does so other than (i) at the request of the
resident or his/her family or (ii) for one of the
reasons permitted under Social Services Law
Sections 461-g and 461-h and 18 NYCRR 487. 5 (f)(
1 )-( 10). "
4. Section 16.2 of the Lease is hereby
amended to read in full as follows:
"16. 2 CERTAIN REMEDIES. If an Event of
Default shall have occurred , Lessor may terminate
this Lease by giving Lessee notice of such
termination and the Term shall terminate and all
rights of Lessee under this Lease shall cease.
Lessor shall have all rights at law and in equity
available to Lessor as a result of any Event of
Default. Lessee shall pay as Additional Charges
all costs and expenses incurred by or on behalf of
Lessor, including reasonable attorneys' fees and
expenses, as a result of any Event of Default
hereunder. If an Event of Default shall have
occurred and be continuing, whether or not this
Lease has been terminated pursuant to Section
16.1, Lessee shall, to the extent permitted by
law, if required by Lessor so to do, immediately
surrender to Lessor possession of the Leased
Property and any Capital Additions thereto and
quit the same and Lessor may enter upon and
repossess the Leased Property and any Capital
Addition thereto by reasonable force, summary
proceedings, ejectment or otherwise, and, to the
extent permitted by law, may remove Lessee and all
other Persons (other than the residents of the
Facility) and any of Lessee's Personal Property
from the Leased Property and any Capital Addition
thereto. Notwithstanding anything in this Lease to
the contrary, the Lessor acknowledges that its
right to re-enter the Leased Property does not
confer upon it the authority to operate an adult
care facility, as defined in the Social Services
Law, on the Leased Property and agrees that, for
the benefit of The New York State Department of
Social Services and not for the benefit of Lessee,
it will give the New York State Department of
Social Services, 00 Xxxxx Xxxxx Xxxxxx, Xxxxxx,
Xxx Xxxx 00000, notification by certified mail of
its intent to re-enter the Leased Property or to
initiate dispossess proceedings at least 30 days
prior to the date on which the Lessor intends to
exercise its right of re-entry or to initiate such
proceedings. Upon receipt of any notice from the
Lessor of its intent to exercise its right of re-
entry or upon the service of process and
dispossess proceedings Lessee agrees to
immediately notify by certified mail the New York
State Department of Social Services, 00 Xxxxx
Xxxxx
Xxxxxx, Xxxxxx, Xxx Xxxx 00000, of the receipt of
such notice or service of such notice. Each party
further agrees to comply with all additional
regulations of the New York State Department of
Social Services or any other agency having
regulatory control over either party. Nothing
herein shall be construed as granting Lessee any
additional notice or cure rights in the event of a
default hereunder other than those notice and cure
rights specifically provided for in this Section
16.2. "
5. Section 16.4 of the Lease is hereby
amended to read in full as follows:
"16.4 RECEIVER. Upon the occurrence of an
Event of Default, and upon commencement of
proceedings to enforce the rights of Lessor
hereunder, Lessor shall be entitled, as a matter
of right, to the appointment of a receiver or
receivers acceptable to I
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Lessor of the Leased Property and any Capital
Addition thereto and of the revenues, earnings,
income, products and profits thereof, pending the
outcome of such proceedings, with such powers as
the court making such appointment shall confer;
provided, however, that Lessor shall give to the
New York State Department of Social Services at
least fifteen (15) days written notice (or such
shorter notice as may be appropriate in the event
of an emergency situation) before seeking the
appointment of a receiver. "
6. The first paragraph of Section 16.10 of
the Lease is hereby amended to read in full as
follows:
"16.10 LANDLORD'S SECURITY INTEREST. The
parities intend that if an Event of Default occurs
under this Lease, Lessor will control Lessee's
Personal Property and the Intangible Property so
that Lessor or its designee or nominee can operate
or re-let the Leased Property intact for its
Primary Intended Use; provided, however, that
Lessor acknowledges and agrees that its right or
its nominee's right to operate the Leased Property
for its Primary Intended Use is subject to any
requirements which may be imposed by New York law
with respect to securing a license to operate the
Leased Property. Accordingly, to implement such
intention, and for the purpose of securing the
payment and performance obligations of Lessee
hereunder, Lessor and Lessee agree as follows:"
7. Section 16.10.1 of the Lease is hereby
amended to read in full as follows:
"16.10.1 Lessee, as debtor, hereby grants to
Lessor, as secured party, a security interest and
an express contractual lien upon all of Lessee's
right, title and interest in and to Lessee's
Personal Property and in and to the Intangible
Property and any and all products, proceeds, rents
and profits thereof in which Lessee now owns or
hereafter acquires an interest or right, including
any leased Lessee's Personal Property; provided,
however, that no security interest in any license
to operate the Facility is granted hereby to the
extent such a security interest is prohibited by
law; provided, further, that Lessor and Lessee
acknowledge that as of the date of the execution
of this Lease such a security interest is in fact
prohibited by New York State law. This Lease
constitutes a security agreement covering all such
Lessee's Personal Property and the Intangible
Property. The security interest granted to Lessor
with respect to Lessee's Personal Property in this
Section 16.10 is intended by Lessor and Lessee to
be subordinate to any security interest granted in
connection with the financing or leasing of all or
any portion of the Lessee's Personal Property so
long as Lessee uses its best efforts to secure an
agreement in Lessor's favor that the lessor or
financier of such Lessee's Personal Property
agrees to give Lessor written notice of any
default by Lessee under the terms of such lease or
financing arrangement, to give Lessor a reasonable
time following such notice to cure any such
default and consents to Lessor's written
assumption of such lease or financing arrangement
upon Lessor's curing of any such defaults. This
security agreement and the security interest
created herein shall survive the termination, but
not the expiration, of this Lease until such time
as Lessor has been fully compensated for all
damages resulting from such termination. "
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8 : Section 17 of the Lease is hereby amended
to read in full as follows :
"17. LESSOR'S RIGHT TO CURE LESSEE'S DEFAULT.
If Lessee shall fail to make any payment or to
perform any act required to be made or performed
hereunder, Lessor, without waiving or releasing
any obligation or default, may, but shall be under
no obligation to, make such payment or perform
such act for the account and at the expense of
Lessee, and may, to the extent permitted by law,
enter upon the Leased Property and any Capital
Addition thereto for such purpose and take all
such action thereon as, in Lessor's opinion, may
be necessary or appropriate therefor; provided,
however, that no operation of the Facility may
occur unless the operator is properly licensed by
the State of New York. No such entry shall be
deemed an eviction of Lessee. All sums so paid by
Lessor and all costs and expenses, including
reasonable attorneys' fees and expenses, so
incurred, together with interest thereon at the
Overdue Rate from the date on which such sums or
expenses are paid or incurred by Lessor, shall be
paid by Lessee to Lessor on demand. "
Except as amended above, the Lease shall
remain in full force and effect. This Amendment
may be executed in any number of counterparts, all
of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties hereto have
caused this Amendment to be executed as of the day
and year first above written.
HEALTH CARE PROPERTY
PAINTED POST PARTNERSHIP, a
INVESTORS, INC., a Maryland
Pennsylvania general partnership
By: /s/ Xxxxxxx X. Macelbetsch
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Its: Senior Vice President
Its: General Partner
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The undersigned Guarantor hereby consents to
this Amendment and reaffirms to Lessor that is
obligations under the Guaranty dated October 19,
1995, remain in full force and effect with respect
to the lease as amended hereby.
EMERITUS CORPORATION, a
Washington corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Its: President
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