Exhibit D(iv)
SECOND AMENDMENT TO LEASE AGREEMENT
(Heritage Xxxxx)
This SECOND AMENDMENT TO LEASE AGREEMENT (this "Agreement") is dated as of
September ____, 2003, by and among ET SUB-HERITAGE XXXXX, LLC, a Delaware
limited liability company ("Landlord"), and GENESIS HEALTH VENTURES OF
MASSACHUSETTS, INC., a Pennsylvania 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 ___, _____ (the "Lease"); and
WHEREAS, pursuant to the terms of the Lease, Tenant leases the land
located in Agawam, Massachusetts, and the improvements located thereon
consisting of an assisted living facility operated by Tenant and commonly
known as Heritage Xxxxx Center (the "Facility"); and
WHEREAS, Genesis Health Ventures, Inc. ("GHV") 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.
"Adjusted EBITDARM" means, for any Test Period, EBITDARM for the
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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) commencing on the Effective Date through the end of the then-
current Lease Year, Minimum Rent shall be equal to an annual rent of
$480,720.00, pro-rated for the remaining months of the then-current
Lease Year;
(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)."
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5. Percentage Rent. Section 3.3 of the Lease is deleted in its entirety.
6. Lease Coverage Ratio. The Lease hereby is further amended by the
addition of the following as Section 3.9 of the Lease:
"3.9 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 drawn upon the LC by
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Landlord shall not exceed the amount of the payment default by Tenant."
7. 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."
8. 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 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."
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9. 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."
10. Failure to Deliver LC. Section 17.1 of the Lease hereby is amended by
the 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."
11. 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."
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12. 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."
13. 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 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
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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 consented to the
assignment in accordance with the consent standards of this Lease."
14. 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
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such certificate."
15. 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
$174,194.00, 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.
16. 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.
17. Inspection Fee. Tenant shall pay to Landlord, as an item of Additional
Rent, an 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.
18. 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.
19. 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.
20. Rent Reduction Payment. On the Effective Date, Tenant shall pay to
Landlord the amount of $2,120,000.00 by wire transfer in immediately available
funds in consideration for the reduction of Minimum Rent as reflected in
Section 4 above.
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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EXECUTED as a sealed instrument the day and year first above written.
TENANT:
GENESIS HEALTH VENTURES OF
MASSACHUSETTS, INC.,
a Pennsylvania corporation
By: ____________________________
Name:
Title:
LANDLORD:
ET SUB-HERITAGE XXXXX, LLC, 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
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 000
Xxxx Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000 (the "Guarantor") in
favor of ET SUB-HERITAGE XXXXX, LLC, a Delaware limited liability company,
having an address at 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx
00000 (the "Landlord").
WITNESSETH:
WHEREAS, Genesis Health Ventures of Massachusetts, 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 __, ___, 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 Heritage
Xxxxx Center, Agawam, Massachusetts (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 any portion thereof; (d) notice of
Tenant's nonpayment, nonperformance or nonobservance, other than as expressly
required under the Lease.
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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 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;
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(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.
(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.
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(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 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
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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.
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
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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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