Exhibit D(i)
SECOND AMENDMENT TO LEASE AGREEMENT
(Berkshire)
This SECOND AMENDMENT TO LEASE AGREEMENT (this "Agreement") is dated as of
September _____, 2003, by and among ET SUB-BERKSHIRE LIMITED PARTNERSHIP, a
Delaware limited partnership ("Landlord"), and ASSISTED LIVING ASSOCIATES OF
BERKSHIRE, INC., a Pennsylvania corporation ("Tenant").
BACKGROUND
WHEREAS, Landlord and Tenant are parties to that certain Lease Agreement
dated as of January 31, 2001, as amended by that certain First Amendment to
Lease Agreement dated August 5, 2002 (the "Lease"); and
WHEREAS, pursuant to the terms of the Lease, Tenant leases the land
located in Exeter Township, Berks County, Pennsylvania, and the improvements
located thereon consisting of a skilled nursing facility operated by Tenant
and commonly known as Berkshire Commons a/k/a Park Lane at Berkshire (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. 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 Facility for such Test Period less (i) a five percent (5%)
management
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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 June 30, September 30, December 31 and March 31.
2. The following definitions are deleted in their entirety and are
replaced with the following:
"Adjusted Minimum Rent: Means for the Lease Year commencing
February 1, 2009 and ending on January 31, 2010, the greater
of (i) the Minimum Rent for the immediately preceding Lease
Year plus the Incremental Minimum Rent, if any, determined
with respect to the immediately preceding Lease Year or (ii)
the Fair Market Rent of the Leased Property as of the Lease
Year commencing February 1, 2009.
Incremental Minimum Rent: Means for the Lease Year that
commences February 1, 2004 and ends on the next succeeding
January 31, 2005 and for each succeeding Lease Year thereafter,
an amount equal to the greater of:
(x) the product of (A) the Minimum Rent for such Lease Year
and (B) fifty percent (50%) of the percentage increase, if
any, in the CPI during such Lease Year, or
(y) the Minimum Rent for the immediately preceding Lease
Year multiplied by one and five-tenths percent (1.5%).
Minimum Rent: The Minimum Rent payable for the Lease Year that
commenced on February 1, 2003 and ends on January 31, 2004
shall be equal to $278,312.40. The Minimum Rent for each
subsequent Lease Year that commences on February 1 and ends on
the next succeeding January 31, shall be an amount equal to
the Minimum Rent for the immediately preceding Lease Year plus
the Incremental Minimum Rent,
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provided that the Minimum Rent for the period commencing
February 1, 2009 and ending January 31, 2010, the Minimum Rent
shall be the Adjusted Minimum Rent. For the Lease Year
Commencing February 1, 2010 and ending January 31, 2011, and
for each 12 month period thereafter, the Minimum Rent shall be
the Minimum Rent for the immediately preceding Lease Year
increased by the Incremental Minimum Rent.
3. Extension of Lease Term. The Initial Lease Term is hereby extended
until 11:59 p.m. on September 30, 2012.
4. 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 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"
5. Lease Coverage Ratio. The Lease hereby is further amended by the
addition of the following as Section 3.8 of the Lease:
"3.8 Lease Coverage Ratio.
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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
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under this Lease has occurred under the Lease provided that
the amount 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:
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"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."
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
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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 addition of the following subparagraph (n):
"(n) 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:
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"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 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
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the option of Landlord, shall terminate this Lease."
The last sentence of Section 23.4.7 is deleted and is replaced with the
following:
"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."
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
$90,735.00, plus accrued interest, has been returned to Tenant upon execution
of this Agreement and Tenant shall have no further
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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 annual fee for Landlord's cost of inspecting the Facility (the
"Inspection Fee"). The Inspection Fee shall be payable on February 1 of each
Lease Year, including the Extended Term. The amount of the Inspection Fee
shall be $2,000.00 for the payment due on February 1, 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:
ASSISTED LIVING ASSOCIATES OF
BERKSHIRE, INC., a Pennsylvania corporation
By:______________________________________
Name:
Title:
LANDLORD:
ET SUB-BERKSHIRE LIMITED PARTNERSHIP,
a Delaware limited partnership
By:____________________________________
Name:
Title:
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Exhibit A
Lease Guaranty
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LEASE GUARANTY AND SURETYSHIP AGREEMENT
(Sanatoga)
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-BERKSHIRE LIMITED PARTNERSHIP, a Delaware limited
partnership, having an address at 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxxx 00000 (the "Landlord").
WITNESSETH:
WHEREAS, Assisted Living Associates of Berkshire, Inc., a Pennsylvania
corpration ("Tenant") and Landlord are parties to that certain Lease Agreement
dated as of January 31, 2001, as amended by that certain First Amendment to
Lease dated August 5, 2002, 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 Berkshire
Commons, a/k/a Park Lane at Berkshire, Exeter Township, Berks County,
Pennsylvania (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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