EXHIBIT 10.7
AMENDED AND RESTATED LEASE AGREEMENT
DATED AS OF JANUARY 1, 2000
(originally dated as of February 11, 1994)
BY AND BETWEEN
HRES1 PROPERTIES TRUST
AS LANDLORD,
AND
IHS ACQUISITION NO. 135, INC.
AS TENANT
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS...................................................................................2
1.1 "Additional Rent"....................................................................2
1.2 "Affiliated Person"..................................................................2
1.3 "Assumed Indebtedness"...............................................................2
1.4 "Award"..............................................................................3
1.5 "Bankruptcy Code"....................................................................3
1.6 "Bankruptcy Court"...................................................................3
1.7 "Base Rate"..........................................................................3
1.8 "Business Day".......................................................................3
1.9 "Capital Addition"...................................................................3
1.10 "Capital Additions Cost".............................................................3
1.11 "Capital Expenditure"................................................................4
1.12 "Cases"..............................................................................4
1.13 "Cash Adjustment"....................................................................4
1.14 "Claims".............................................................................4
1.15 "Code"...............................................................................4
1.16 "Commencement Date"..................................................................4
1.17 "Condemnation".......................................................................4
1.18 "Condemnor"..........................................................................4
1.19 "Consolidated Financials"............................................................4
1.20 "Control"............................................................................4
1.21 "Date of Taking".....................................................................5
1.22 "Default"............................................................................5
1.23 "Encumbrance"........................................................................5
1.24 "Entity".............................................................................5
1.25 "Environmental Laws".................................................................5
1.26 "Environmental Notice"...............................................................5
1.27 "Environmental Obligation"...........................................................5
1.28 "Event of Default"...................................................................5
1.29 "Extended Terms".....................................................................5
1.30 "Facility"...........................................................................5
1.31 "Facility Mortgage"..................................................................5
1.32 "Facility Mortgagee".................................................................5
1.33 "Facility Trade Names"...............................................................5
1.34 "Fair Market Added Value"............................................................5
1.35 "Fair Market Rental".................................................................5
1.36 "Fair Market Value"..................................................................6
1.37 "Fair Market Value Purchase Price"...................................................6
1.38 "Fiscal Year"........................................................................6
1.39 "Fixed Term".........................................................................6
1.40 "Fixtures"...........................................................................6
1.41 "Guarantor"..........................................................................6
1.42 "Guaranty"...........................................................................6
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TABLE OF CONTENTS
(continued)
Page
1.43 "Hazardous Substances"...............................................................6
1.44 "IHS Entity".........................................................................6
1.45 "Immediate Family"...................................................................6
1.46 "Impositions"........................................................................6
1.47 "Index"..............................................................................7
1.48 "Initiating Party"...................................................................7
1.49 "Insurance Requirements".............................................................7
1.50 "Land"...............................................................................7
1.51 "Landlord"...........................................................................7
1.52 "Landlord Default"...................................................................7
1.53 "Lease"..............................................................................7
1.54 "Leased Improvements"................................................................7
1.55 "Leased Personal Property"...........................................................7
1.56 "Leased Property"....................................................................7
1.57 "Legal Requirements".................................................................8
1.58 "Lending Institution"................................................................8
1.59 "Minimum Rent".......................................................................8
1.60 "Minimum Repurchase Price"...........................................................8
1.61 "Net Patient Revenues"...............................................................8
1.62 "Non-Capital Additions"..............................................................9
1.63 "Officer's Certificate"..............................................................9
1.64 "Orders".............................................................................9
1.65 "Overdue Rate".......................................................................9
1.66 "Parent".............................................................................9
1.67 "Permitted Encumbrances"............................................................10
1.68 "Person"............................................................................10
1.69 "Primary Intended Use"..............................................................10
1.70 "Qualified Appraiser"...............................................................10
1.71 "Records"...........................................................................10
1.72 "Rent"..............................................................................10
1.73 "Responding Party"..................................................................10
1.74 "SEC"...............................................................................10
1.75 "Settlement Agreement"..............................................................10
1.76 "Settlement Document"...............................................................10
1.77 "State".............................................................................10
1.78 "Subsidiary"........................................................................10
1.79 "Substitute Properties".............................................................10
1.80 "Substitution Date".................................................................10
1.81 "Successor Landlord"................................................................10
1.82 "Superior Lease"....................................................................10
1.83 "Superior Landlord".................................................................10
1.84 "Superior Mortgage".................................................................10
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TABLE OF CONTENTS
(continued)
Page
1.85 "Superior Mortgage".................................................................10
1.86 "Tenant"............................................................................10
1.87 "Tenant's Personal Property"........................................................11
1.88 "Term"..............................................................................11
1.89 "Test Rate".........................................................................11
1.90 "Trustees"..........................................................................11
1.91 "Unavoidable Delays"................................................................11
1.92 "Unsuitable for Its Primary Intended Use"...........................................11
ARTICLE 2 PREMISES AND TERM............................................................................11
2.1 Premises............................................................................11
2.2 Condition of Premises...............................................................12
2.3 Fixed Term..........................................................................13
2.4 Extended Terms......................................................................13
ARTICLE 3 RENT.........................................................................................13
3.1 Rent................................................................................13
3.2 Late Payment of Rent................................................................15
3.3 Net Lease...........................................................................15
3.4 No Termination, Abatement, Etc......................................................15
ARTICLE 4 USE OF THE LEASED PROPERTY...................................................................16
4.1 Permitted Use.......................................................................16
4.2 Compliance with Legal and Insurance Requirements, Instruments, Etc..................17
4.3 Compliance with Medicaid and Medicare Requirements..................................17
4.4 Environmental Matters...............................................................17
ARTICLE 5 MAINTENANCE AND REPAIRS, ETC.................................................................18
5.1 Maintenance and Repair..............................................................18
5.2 Capital Expenditure Cost Sharing....................................................18
5.3 Tenant's Personal Property..........................................................19
5.4 Yield Up............................................................................19
5.5 Encroachments, Restrictions, Etc....................................................19
ARTICLE 6 CAPITAL ADDITIONS, ETC.......................................................................20
6.1 Construction of Capital Additions to the Leased Property............................20
6.2 Capital Additions Financed by Tenant................................................21
6.3 Information Regarding Capital Additions.............................................22
6.4 Non-Capital Additions...............................................................23
6.5 Salvage.............................................................................24
ARTICLE 7 LIENS........................................................................................24
7.1 Liens...............................................................................24
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TABLE OF CONTENTS
(continued)
Page
7.2 Landlord's Lien.....................................................................24
7.3 Mechanic's Liens....................................................................25
ARTICLE 8 PERMITTED CONTESTS...........................................................................25
ARTICLE 9 INSURANCE AND INDEMNIFICATION................................................................26
9.1 General Insurance Requirements......................................................26
9.2 Waiver of Subrogation...............................................................27
9.3 Form Satisfactory, Etc..............................................................27
9.4 No Separate Insurance...............................................................27
9.5 Indemnification of Landlord.........................................................28
9.6 Indemnification of Tenant...........................................................28
ARTICLE 10 CASUALTY.....................................................................................28
10.1 Insurance Proceeds..................................................................28
10.2 Reconstruction in the Event of Damage or Destruction................................28
10.3 Insufficient Insurance Proceeds.....................................................30
10.4 Disbursement of Proceeds............................................................30
10.5 Tenant's Property...................................................................30
10.6 Restoration of Tenant's Property....................................................31
10.7 No Abatement of Rent................................................................31
10.8 Damage Near End of Term.............................................................31
ARTICLE 11 CONDEMNATION.................................................................................31
11.1 Total Condemnation..................................................................31
11.2 Partial Condemnation................................................................31
11.3 Temporary Condemnation..............................................................32
11.4 Tenant's Option.....................................................................32
11.5 Allocation of Award.................................................................32
11.6 Abatement Procedures................................................................32
ARTICLE 12 DEFAULTS AND REMEDIES........................................................................33
12.1 Events of Default...................................................................33
12.2 Remedies............................................................................35
12.3 Waiver..............................................................................36
12.4 Application of Funds................................................................37
12.5 Landlord's Right to Cure Tenant's Default...........................................37
12.6 Trade Names.........................................................................37
ARTICLE 13 HOLDING OVER.................................................................................37
ARTICLE 14 LANDLORD'S DEFAULT...........................................................................38
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TABLE OF CONTENTS
(continued)
Page
ARTICLE 15 PURCHASE OF PREMISES.........................................................................38
ARTICLE 16 SUBSTITUTION OF PROPERTY FOR THE LEASED PROPERTY.............................................39
16.1 Tenant's Substitution Option........................................................39
16.2 Substitution Procedures.............................................................39
16.3 Conditions to Substitution..........................................................41
16.4 Conveyance to Tenant................................................................42
16.5 Expenses............................................................................42
ARTICLE 17 SUBLETTING AND ASSIGNMENT....................................................................43
17.1 Subletting and Assignment...........................................................43
17.2 Required Sublease Provisions........................................................44
17.3 Sublease Limitation.................................................................44
17.4 Assignment and Subletting Procedure.................................................45
ARTICLE 18 CERTIFICATES AND FINANCIAL STATEMENTS........................................................45
18.1 Estoppel Certificates...............................................................45
18.2 Financial Statements................................................................45
18.3 General Operations..................................................................46
ARTICLE 19 LANDLORD ACCESS..............................................................................46
19.1 Landlord's Right to Inspect.........................................................46
19.2 Landlord's Option to Purchase the Tenant's Personal Property: Transfer of Licenses..46
ARTICLE 20 APPRAISAL....................................................................................47
20.1 Appraisal Procedure.................................................................47
ARTICLE 21 MORTGAGES....................................................................................47
21.1 Landlord May Grant Liens............................................................47
21.2 Subordination of Lease..............................................................48
21.3 Notice to Mortgagee and Ground Landlord.............................................49
ARTICLE 22 ADDITIONAL COVENANTS OF TENANT...............................................................49
22.1 Notice of Change of Name, Administrator, Etc........................................49
22.2 Notice of Litigation, Potential Event of Default, Etc...............................49
22.3 Distributions, Payments to Affiliated Persons, Etc..................................50
ARTICLE 23 MISCELLANEOUS................................................................................50
23.1 No Waiver...........................................................................50
23.2 Remedies Cumulative.................................................................50
23.3 Acceptance of Surrender.............................................................50
23.4 No Merger of Title..................................................................50
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TABLE OF CONTENTS
(continued)
Page
23.5 Conveyance by Landlord..............................................................51
23.6 Quiet Enjoyment.....................................................................51
23.7 Landlord's Liability................................................................51
23.8 Landlord's Consent..................................................................51
23.9 Memorandum of Lease.................................................................52
23.10 Notices.............................................................................52
23.11 Construction........................................................................53
23.12 Governing Law.......................................................................53
23.13 Consent to Jurisdiction.............................................................54
EXHIBITS
A - Permitted Encumbrances
B - The Land
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AMENDED AND RESTATED LEASE AGREEMENT
THIS AMENDED AND RESTATED LEASE AGREEMENT, dated as of January 1, 2000,
is made by and between HRES1 PROPERTIES TRUST, a Maryland real estate investment
trust, as landlord ("Landlord"), having its principal office at 000 Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, and IHS ACQUISITION 135, INC., a Delaware
corporation, as tenant ("Tenant"), having its principal office at The Highlands,
000 Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx.
W I T N E S S E T H
WHEREAS, Landlord and Tenant are parties to a Lease Agreement dated as
of February 11, 1994, as amended (the "Original Lease"), originally between HRPT
Properties Trust (f/k/a "Health and Rehabilitation Properties Trust"), a
Maryland real estate investment trust ("HRPT"), as landlord, and Horizon
Healthcare Corporation, a Delaware corporation ("Horizon"), as tenant;
WHEREAS, Landlord has succeeded to the interest of HRPT as landlord
under the original Lease and is the record and beneficial owner of the title to
the Land, the Leased Improvements and the Fixtures (each as defined in Section
2.1 hereof);
WHEREAS, pursuant to an Assignment and Assumption of Real Property
Lease dated as of December 31, 1997 by and between Horizon/CMS Healthcare
Corporation (the successor to Horizon), as assignor, and IHS Acquisition No.
151, Inc., a Delaware corporation ("IHS 151"), as assignee, IHS 151 acquired all
right, title and interest of Horizon/CMS Healthcare Corporation under the
Original Lease;
WHEREAS, pursuant to a Consent, Assumption and Guaranty Agreement dated
as of December 31, 1997 (the "IHS Consent") among Integrated Health Services
Inc., a Delaware Corporation ("IHS"), Tenant and certain other subsidiaries of
IHS, HealthSouth Corporation, Horizon, HRPT and Indemnity Collection
Corporation, IHS and IHS 151 assumed the obligations of Horizon under the
Original Lease;
WHEREAS, pursuant to an Assignment and Assumption of Real Property
Lease dated as of December 31, 1997 by and between IHS 151, as assignor, and
Tenant, as assignee, Tenant acquired all right, title and interest of IHS 151
under the Original Lease;
WHEREAS, Landlord alleges that by a notice dated January 25, 2000, the
Original Lease was terminated by virtue of an Event of Default under the
Original Lease;
WHEREAS, on February 3, 2000, IHS and certain of its subsidiaries,
including Tenant, filed voluntary petitions for relief (collectively, the
"Cases") under chapter 11 of the United States Bankruptcy Code, ss.ss.101 et
seq. (the "Bankruptcy Code") with the United States Bankruptcy Court for the
District of Delaware (the "Bankruptcy Court");
WHEREAS, IHS and Tenant are continuing to operate their businesses and
manage their respective properties as debtors-in-possession pursuant to
ss.ss.1107 and 1108 of the Bankruptcy Code; and
WHEREAS, pursuant to, and in accordance with, a Settlement Agreement
dated as of April 11, 2000, as amended, among, inter alia, IHS, Landlord and
Tenant (the "Settlement Agreement"), Landlord has agreed to rescind its alleged
termination of the Original Lease, Landlord and Tenant have agreed to amend and
restate the Original Lease as set forth herein, and IHS has agreed to guaranty
the obligations of Tenant hereunder pursuant to a Guaranty dated as of even date
herewith by IHS in favor of Landlord (as amended, modified or supplemented from
time to time, the "Guaranty");
NOW, THEREFORE, in consideration of the mutual covenants herein contain
and other good and valuable consideration, the mutual receipt and legal
sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree
to amend and restate the Original Lease in full to read as follows:
ARTICLE 1
DEFINITIONS
Each reference in this Lease to any of the following terms shall be
construed to incorporate the definitions hereinafter set forth and include the
plural as well as the singular. All accounting terms not otherwise defined
herein shall have the meanings assigned to them in accordance with generally
accepted accounting principles.
"Added Value Percentage" shall mean, with respect to any Capital
Addition financed by Tenant hereunder, a percentage bearing the same proportion
to total Net Patient Revenues for the entire Leased Property (including all
Capital Additions) as the Fair Market Added Value of such Capital Addition bears
to the Fair Market Value of the entire Leased Property (including all Capital
Additions) immediately after completion of such Capital Addition. The Added
Value Percentage for Capital Additions financed by Tenant shall remain in effect
until any subsequent Capital Addition financed by Tenant is completed.
1.1 "Additional Rent" shall have the meaning given such term in Section
3.1.2.
1.2 "Affiliated Person" shall mean, with respect to any Person, (a) in
the case of any such Person which is a partnership, any partner in such
partnership; (b) in the case of any such Person which is a limited liability
company, any member of such company; (c) any other Person which is a Parent, a
Subsidiary, or a Subsidiary of a Parent of the Persons referred to in the
preceding clauses (a) and (b); (d) any other Person otherwise directly or
indirectly controlling or under common control with such Person or one or more
of the Persons referred to in the preceding clauses (a), (b) and (c); and (e)
any other Person who is a member of the Immediate Family of such Person or any
Person referred to in the preceding clauses (a) through (d).
1.3 "Assumed Indebtedness" shall mean any indebtedness or other
obligations existing at the time of acquisition of the Leased Property by
Landlord secured by a mortgage, deed of trust or other security agreement
creating a lien on the Leased Property and assumed by Landlord, and any
indebtedness resulting from the refinancing thereof, and/or any subsequent
indebtedness resulting from Landlord's financing of, or Landlord's reimbursement
of Tenant's
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financing of, any Capital Additions during the Term, except any indebtedness or
other obligations of Tenant not assumed by Landlord prior to or during the Term.
1.4 "Award" shall mean all compensation, sums or other value awarded,
paid or received by virtue of a total or partial Condemnation of the Leased
Property (after deduction of all reasonable legal fees and other reasonable
costs and expenses incurred by Landlord in connection with obtaining any such
award).
1.5 "Bankruptcy Code" shall have the meaning given such term in the
recitals.
1.6 "Bankruptcy Court" shall have the meaning given such term in the
recitals.
1.7 "Base Rate" shall mean the rate of interest, determined daily and
expressed as a percentage, announced by Citibank, N.A., in New York, New York,
from time to time, as Citibank, N.A.'s "base rate" or "prime rate", so-called,
or, if at any time Citibank, N.A. ceases to announce such a rate, as announced
by the largest national or state chartered banking institution other than
Citibank, N.A. then having its principal office in New York, New York and
announcing such a rate. If at any time neither Citibank, N.A. nor any of the
five largest other national or state chartered banking institutions having their
principal offices in New York, New York is announcing such a floating rate,
"Base Rate" shall mean a rate of interest, determined daily, which is two (2)
percentage points above the 14-day moving average closing trading price of
90-day Treasury Bills.
1.8 "Business Day" shall mean any day other than Saturday, Sunday, or
any other day on which banking institutions in The Commonwealth of Massachusetts
or in New York, New York are authorized by law or executive action to close.
1.9 "Capital Addition" shall mean one or more new buildings, or one or
more additional structures annexed to any portion of any of the Leased
Improvements, or the material expansion of existing improvements, which are
constructed on any parcel or portion of the Land during the Term, including, but
not limited to, the construction of a new wing or new story, the renovation of
existing improvements on the Leased Property in order to provide a functionally
new facility needed to provide services not previously offered, or any
expansion, construction, renovation or conversion in order to increase the bed
capacity of the Facility, to change the purpose for which such beds are utilized
or to improve the quality of the Facility.
1.10 "Capital Additions Cost" shall mean the cost of any Capital
Addition proposed to be made by Tenant, whether paid for by Tenant or Landlord.
Such cost shall include (a) the cost of construction of the Capital Addition,
including, site preparation and improvement, materials, labor, supervision,
developer and administrative fees, legal fees, and related design, engineering
and architectural services, the cost of any fixtures, the cost of construction
financing (including, but not limited to, capitalized interest) and other
miscellaneous costs approved by Landlord, (b) if agreed to by Landlord in
writing, in advance, the cost of any land contiguous to the Leased Property
which is to become a part of the Leased Property purchased for the purpose of
placing thereon the Capital Addition or any portion thereof or for providing
means of access thereto, or parking facilities therefor, including the cost of
surveying the same, (c) the cost of insurance, real estate taxes, water and
sewage charges and other carrying charges for such Capital Addition
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during construction, (d) title insurance charges, (e) reasonable attorneys,
fees, (f) filing and registration fees and recording taxes, (g) documentary
stamp or transfer taxes, and (h) all actual and reasonable costs and expenses of
Landlord and any Lending Institution committed to finance the Capital Addition,
including but not limited to, (i) reasonable attorneys, fees, (ii) printing
expenses, (iii) filing, registration and recording taxes and fees, (iv)
documentary stamp or transfer taxes, (v) title insurance charges and appraisal
fees, (vi) rating agency fees, and (vii) loan commitment fees.
1.11 "Capital Expenditure" shall mean any single required improvement,
alteration, replacement or repair of the Leased Property, or any part thereof,
(a) having a cost in excess of One Hundred Thousand Dollars ($100,000.00) (which
amount shall be increased each year of the Lease by the product determined by
multiplying such amount by the percentage increase in the Index), and (b) having
a useful life in excess of the longer of (i) twelve (12) months, or (ii) the
remaining period of the Term, except capital improvements necessitated by
destruction or Condemnation of the Leased Property, or any portion thereof.
1.12 "Cases" shall have the meaning given such term in the recitals.
1.13 "Cash Adjustment" shall have the meaning given such term in
Section 16.3(d).
1.14 "Claims" shall have the meaning given such term in Article 8.
1.15 "Code" shall mean the Internal Revenue Code of 1986 and, to the
extent applicable, the Treasury Regulations promulgated thereunder, each as from
time to time amended.
1.16 "Commencement Date" shall mean January 1, 2000.
1.17 "Condemnation" shall mean (a) the exercise of any governmental
power, whether by legal proceedings or otherwise, by a Condemnor, (b) a
voluntary sale or transfer by Landlord to any Condemnor, either under threat of
condemnation or while legal proceedings for condemnation are pending, and (c) a
taking or voluntary conveyance of all or part of the Leased Property, or any
interest therein, or right accruing thereto or use thereof, as the result or in
settlement of any Condemnation or other eminent domain proceeding affecting any
portion of the Leased Property, whether or not the same shall have actually been
commenced.
1.18 "Condemnor" shall mean any public or quasi-public authority, or
private corporation or individual having the power of Condemnation.
1.19 "Consolidated Financials" shall mean, for any Fiscal Year or other
accounting period of Tenant, a statement of earnings prepared in accordance with
generally accepted accounting principles, consistently applied, and in the form
consistently prepared by Tenant.
1.20 "Control" and any variations thereof shall mean, with respect to
any Person, the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person, through the
ownership of voting securities, partnership interests or other equity interests.
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1.21 "Date of Taking" shall mean the date the Condemnor has the right
to possession of the Leased Property, or any portion thereof, in connection with
a Condemnation.
1.22 "Default" shall mean any event, act or omission which with the
giving of notice and/or lapse of time could constitute an Event of Default.
1.23 "Encumbrance" shall have the meaning given such term in Section
21.1.
1.24 "Entity" shall mean any corporation, general or limited
partnership, limited liability company, stock company or association, joint
venture, association, company, trust, bank, trust company, land trust, business
trust, any government or agency or political subdivision thereof or any other
entity.
1.25 "Environmental Laws" shall mean all applicable Federal, state or
local statutes, laws, ordinances, rules and regulations, licensing requirements
or conditions, whether now existing or hereafter arising, relating to Hazardous
Substances.
1.26 "Environmental Notice" shall have the meaning given such term in
Section 4.4.
1.27 "Environmental Obligation" shall mean any cost, expense, loss or
damage arising under any Environmental Law or in connection with any Hazardous
Substance.
1.28 "Event of Default" shall have the meaning given such term in
Section 12.1.
1.29 "Extended Terms" shall have the meaning given such term in Section
2.4.
1.30 "Facility" shall mean the licensed nursing home being operated on
the Leased Property.
1.31 "Facility Mortgage" shall mean any mortgage, deed of trust or
other security agreement securing any Assumed Indebtedness or any other
encumbrance placed upon the Leased Property in accordance with Article 21.
1.32 "Facility Mortgagee" shall mean the holder of any Facility
Mortgage.
1.33 "Facility Trade Names" shall mean any of the names under which
Tenant operates, or has operated, the Facility at any time during the Term.
1.34 "Fair Market Added Value" shall mean the Fair Market Value of the
Leased Property (including all Capital Additions) less the Fair Market Value of
the Leased Property determined as if no Capital Additions financed by Tenant had
been constructed.
1.35 "Fair Market Rental" shall mean the rental which a willing tenant
not compelled to rent would pay a willing landlord not compelled to lease for
the use and occupancy of the Leased Property, or applicable portion thereof, on
the terms and conditions of this Lease, for the term in question, and determined
in accordance with the appraisal procedures set forth in Article 20 or in such
other manner as shall be mutually acceptable to Landlord and Tenant.
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1.36 "Fair Market Value" shall mean the price that a willing buyer riot
compelled to buy would pay a willing seller not compelled to sell for the Leased
Property, (a) assuming the same is unencumbered by this Lease, (b) determined in
accordance with the appraisal procedures set forth in Article 20 or in such
other manner as shall be mutually acceptable to Landlord and Tenant, (c)
assuming such seller shall pay the closing costs generally paid by a seller of
real property in the state in which such property is located and that such buyer
shall pay closing costs generally paid by a buyer of real property in the state
in which such property is located, and (d) not taking into account any reduction
in value resulting from any indebtedness to which such property is subject,
except the positive or negative effect on the value of such property
attributable to the interest rate, amortization schedule, maturity date,
prepayment penalty and other terms and conditions of any lien or encumbrance
which is not removed at or prior to the closing of the transaction as to which
such Fair Market Value determination is being made.
1.37 "Fair Market Value Purchase Price" shall mean the Fair Market
Value of the Leased Property less the Fair Market Added Value.
1.38 "Fiscal Year" shall mean each twelve (12) month period from
January 1 to December 31.
1.39 "Fixed Term" shall have the meaning given such term in Section
2.3.
1.40 "Fixtures" shall have the meaning given such term in Section
2.1(d).
1.41 "Guarantor" shall mean Integrated Health Services, Inc., a
Delaware corporation.
1.42 "Guaranty" shall have the meaning given such term in the recitals.
1.43 "Hazardous Substances" shall mean hazardous substances (as defined
by the Comprehensive Environmental Response, Compensation and Liability Act, as
now in effect or as hereafter from time to time amended), hazardous wastes (as
defined by the Resource Conservation and Recovery Act, as now in effect or as
hereafter from time to time amended), any hazardous waste, hazardous substance,
pollutant or contaminant, oils, radioactive materials, asbestos in any form or
condition, or any pollutant or contaminant or hazardous, dangerous or toxic
chemicals, materials or substances within the meaning of any other applicable
Federal, state or local law, regulation, ordinance or requirements relating to
or imposing liability or standards of conduct concerning any hazardous, toxic or
dangerous waste, substance or materials, all as now in effect or hereafter from
time to time amended.
1.44 "IHS Entity" shall have the meaning given such term in the
Settlement Agreement.
1.45 "Immediate Family" shall mean, with respect to any Person, his
spouse, parents, brothers, sisters, children (natural or adopted), stepchildren,
grandchildren, grandparents, parents-in-law, brothers-in-law, sisters-in-law,
nephews and nieces.
1.46 "Impositions" shall mean all taxes, assessments, and ad valorem,
sales, and use, single business, gross receipts, transaction privilege, rent or
similar taxes as the same are imposed on either Landlord or Tenant with respect
to the Leased Property and/or the business
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conducted thereon by Tenant and other charges and impositions (including, but
not limited to, fire protection service fees and similar charges) levied,
assessed or imposed at any time during the Term by any governmental authority,
upon or against the Leased Property, or taxes in lieu thereof, and additional
types of taxes to supplement real estate taxes due to legal limits imposed
thereon. If, at any time during the Term, any tax or excise on rents or other
taxes, however described, are levied or assessed against Landlord with respect
to the rent reserved hereunder, either wholly or, partially in substitution for,
or in addition to, real estate taxes assessed or levied on the Leased Property,
such tax or excise on rents shall be included in Impositions; provided, however,
that Impositions shall not include franchise, estate, inheritance, succession,
capital levy, transfer, income or excess profits taxes assessed on Landlord.
Impositions shall include any estimated payment, whether voluntary or required,
made by Landlord on account of a fiscal tax period for which the actual and
final amount of taxes for such period has not been determined by the
governmental authority as of the date of any such estimated payment.
1.47 "Index" shall mean the Consumer Price Index, Urban Wage Earners
and Clerical Workers, All Items, Base 1982-84=100. The Index is presently
published by the Bureau of Labor Statistics of the United States Department of
Labor. In the event publication of the Index ceases, the computation of the
Minimum Rent due from Tenant or other amount during each year with respect to
which the Index is to be applied shall be computed upon the basis of whatever
index published by the United States Department of Labor at that time is most
nearly comparable as a measure of general changes in price levels in urban
areas. In the event the Index ceases to use 1982-84=100 as the basis of
calculation, then the Index shall be converted to the amount(s) that would have
resulted had the manner of calculating the Index in effect at the date of this
Lease not been altered.
1.48 "Initiating Party" shall have the meaning given such term in
Section 20.1.
1.49 "Insurance Requirements" shall mean all terms of any insurance
policy required by this Lease and all requirements of the issuer of any such
policy.
1.50 "Land" shall have the meaning given such term in Section 2.1(a).
1.51 "Landlord" shall have the meaning given such term in the preambles
to this Lease.
1.52 "Landlord Default" shall have the meaning given such term in
Article 14.
1.53 "Lease" shall mean this Amended and Restated Lease Agreement,
including Exhibits A and B hereto, as it and they may be amended from time to
time as herein provided.
1.54 "Leased Improvements" shall have the meaning given such term in
Section 2.1(b).
1.55 "Leased Personal Property" shall have the meaning given such term
in Section 2.1(e).
1.56 "Leased Property" shall have the meaning given such term in
Section 2.1.
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1.57 "Legal Requirements" shall mean all federal, state, county,
municipal and other governmental statutes, laws, rules, orders, regulations,
ordinances, judgments, decrees and injunctions, including, but not limited to,
Environmental Laws, affecting the Leased Property or the maintenance,
construction, use or alteration thereof, whether now or hereafter enacted,
including those which may (a) require repairs, modifications or alterations in
or to the Leased Property or any portion thereof or (b) in any way adversely
affect the use and enjoyment thereof, and all permits, licenses and
authorizations and regulations relating thereto, and all covenants, agreements,
restrictions and encumbrances contained in any instruments, either of record or
known to Tenant (other than encumbrances hereinafter created by Landlord without
the consent of Tenant), at any time in force affecting the Leased Property.
1.58 "Lending Institution" shall mean any insurance company, federally
insured commercial or savings bank, national banking association, savings and
loan association, employees, welfare, pension or retirement fund or system,
corporate profit sharing or pension trust, college or university, or real estate
investment trust, including any corporation qualified to be treated for federal
tax purposes as a real estate investment trust, having a net worth of at least
$10,000,000.
1.59 "Minimum Rent" shall mean $100,000 per month, provided that (i)
commencing January 1, 2004, and on the first day of each calendar year
thereafter during the Fixed Term, the amount of each installment of Minimum Rent
shall be adjusted to be equal to the product of (x) Minimum Rent as at December
31 of the prior year multiplied by (y) 1.0 plus the percentage increase (not in
excess of 2%) in the Index as reported for December 31st of the prior year as
compared to the Index as reported for January 1st of such prior year, and (ii)
commencing the first anniversary of the first day of each Extended Term, and on
the first day of each calendar year thereafter during such Extended Term, the
amount of each installment of Minimum Rent shall be adjusted to be equal to the
product of (x) Minimum Rent as at December 31st of the prior year of such
Extended Term (as determined in accordance with Section 2.4 hereof) multiplied
by (y) 1.0 plus the percentage increase (not in excess of 2%) in the Index as
reported for December 31st of the prior year of such Extended Term as compared
to the Index as reported for January 1st of such prior year.
1.60 "Minimum Repurchase Price" shall mean that portion of the
aggregate purchase price of the Leased Property paid by Landlord in cash or in
kind, plus the aggregate of unpaid principal balance of all encumbrances against
the Leased Property at the time of purchase thereof by Tenant, plus any amounts
paid by Landlord to reduce the principal balance of any Assumed Indebtedness,
less all proceeds received by Landlord from any refinancing of the Leased
Property (after payment of the debt refinanced and net of any costs and expenses
incurred in connection with such refinancing, including, without limitation,
loan points, commitment fees and commissions) and less the net amount (after
deduction of all reasonable legal fees and other costs and expenses, including,
without limitation, expert witness fees, incurred by Landlord in connection with
obtaining any such award) of all awards received by Landlord from any partial
Condemnation of the Leased Property or any portion thereof which are not applied
to restoration.
1.61 "Net Patient Revenues" shall mean all revenues received or
receivable from or by reason of the operation of the Facility, or any portion
thereof, or any other use of the Leased Property, or any portion thereof,
including, without limitation, all patient revenues received or
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receivable for the use of or otherwise by reason of all rooms, beds and other
facilities provided, meals served, services performed, space or facilities
subleased or goods sold on the Leased Property, or any portion thereof,
including, without limitation, and except as provided below, any other
arrangements with third parties relating to the possession or use of any portion
of any portion of the Leased Property; provided, however, Net Patient Revenues
shall not include: (a) revenue from professional fees or charges by physicians
and providers (other than Tenant or Tenant's employees) of ancillary services,
when and to the extent such charges are paid over to such physicians or
providers of ancillary services, or are separately billed and not included in
comprehensive fees; (b) nonoperating revenues such as interest income or income
from the sale of assets not sold in the ordinary course of business; (c)
contractual allowances (relating to any period during the Term) for xxxxxxxx not
paid by or received from the appropriate governmental agencies or third party
providers; (d) allowances according to generally accepted accounting principles
for uncollectible accounts, including credit card accounts and charity care or
other administrative discounts; (e) all proper patient billing credits and
adjustments according to generally accepted accounting principles relating to
health care accounting; (f) federal, state or local sales or excise taxes and
any tax based on or measured by such revenues which is added to or made a part
of the amount billed to the patient or other recipient of such services or
goods, whether included in the billing or stated separately; (g) provider
discounts for hospital or other medical facility utilization contracts and
credit card discounts; (h) revenues attributable to Capital Additions financed
by Tenant as provided in Section 6.2; (i) revenues attributable to services
actually provided off the Leased Property, such as home health care; and (j) any
amounts actually paid by Tenant for the cost of any federal, state or local
governmental programs imposed specially to provide or finance indigent patient
care. To the extent the Leased Property or any portion thereof is subleased by
Tenant, Net Patient Revenues shall include (x) the Net Patient Revenues
generated from the operations conducted on such subleased portion of the Leased
Property and (y) the rent received or receivable by Tenant from or under any
such sublease to the extent such rent is not based on Net Patient Revenues and,
therefore, has not already been included in the calculation of Net Patient
Revenues pursuant to clause (x) preceding.
1.62 "Non-Capital Additions" shall have the meaning given such term in
Section 6.4.
1.63 "Officer's Certificate" shall mean a certificate signed by the
chief financial officer or another officer of Tenant authorized by the board of
directors or by-laws of Tenant, or any other Person whose power and authority to
act has been so authorized.
1.64 "Orders" shall mean, collectively, the Approval Order and the
Licensure Order, as such terms are defined in the Settlement Agreement.
1.65 "Overdue Rate" shall mean a rate equal to the lesser of the Base
Rate plus four percent (4%) and the maximum rate then permitted under applicable
law.
1.66 "Parent" shall mean, with respect to any Person, any Person which
owns directly, or indirectly, through one or more Subsidiaries, twenty percent
(20%) or more of the voting or beneficial interests in such Person or otherwise
Controls such Person.
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1.67 "Permitted Encumbrances" shall mean the matters set forth in
Exhibit A, attached hereto and made a part hereof.
1.68 "Person" shall mean any individual or Entity, and the heirs,
executors, administrators, legal representatives, successors and assigns of such
Person where the context so admits.
1.69 "Primary Intended Use" shall have the meaning given such term in
Section 4.1.1.
1.70 "Qualified Appraiser" shall mean any disinterested person who is a
member in good standing of the American Institute of Real Estate Appraisers or
the American Society of Real Estate Counselors (or the successor to either of
such organizations) and who has had not less than ten (10) years experience in
appraising and valuing, commercial buildings in the State.
1.71 "Records" shall have the meaning given such term in Section 7.2.
1.72 "Rent" shall mean, collectively, the Minimum Rent and Additional
Rent.
1.73 "Responding Party" shall have the meaning given such term in
Section 20.1.
1.74 "SEC" shall mean the Securities and Exchange Commission.
1.75 "Settlement Agreement" shall have the meaning given such term in
the recitals.
1.76 "Settlement Document" shall have the meaning given such term in
the Settlement Agreement.
1.77 "State" shall mean the Commonwealth of Pennsylvania.
1.78 "Subsidiary" shall mean, with respect to any Person, any Entity in
which such Person shall own, directly or indirectly, through one or more
Subsidiaries, twenty percent (20%) or more of the voting or beneficial interests
or any other entity Controlled by such Person.
1.79 "Substitute Properties" shall have the meaning given such term in
Section 16.1.
1.80 "Substitution Date" shall have the meaning given such term in
Section 16.1.
1.81 "Successor Landlord" shall have the meaning given such term in
Section 21.2.
1.82 "Superior Lease" shall have the meaning given such term in Section
21.2.
1.83 "Superior Landlord" shall have the meaning given such term in
Section 21.2.
1.84 "Superior Mortgage" shall have the meaning given such term in
Section 21.2.
1.85 "Superior Mortgage" shall have the meaning given such term in
Section 21.2.
1.86 "Tenant" shall have the meaning given such term in the preambles
to this Lease.
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1.87 "Tenant's Personal Property" shall mean all motor vehicles and
consumable inventory and supplies, furniture, equipment and machinery and all
other personal property of Tenant located on the Leased Property or used in
Tenant's business on the Leased Property and all modifications, replacements,
alterations and additions to the Leased Personal Property installed at the
expense of Tenant, other than any items included within the definition of
Fixtures or Leased Personal Property and expressly excluding Tenant's accounts
receivable.
1.88 "Term" shall mean, collectively, the Fixed Term and any Extended
Terms, to the extent properly exercised pursuant to the provisions of Section
2.4, unless sooner terminated pursuant to the provisions of this Lease.
1.89 "Test Rate" shall mean the minimum interest rate necessary to
avoid imputation of original issue discount income under Sections 483 or 1272 of
the Code or any similar provision.
1.90 "Trustees" shall mean the trustees of Landlord.
1.91 "Unavoidable Delays" shall mean delays due to strikes, lock-outs,
inability to procure materials, power failure, acts of God, governmental
restrictions, enemy action, civil commotion, fire, unavoidable casualty or other
causes beyond the reasonable control of the party responsible for performing an
obligation hereunder, but in no event to exceed sixty (60) days so long as the
affected party shall use reasonable efforts to alleviate the cause of such delay
and thereafter promptly perform such obligation; provided, however, that (x) in
no event shall Tenant's obligation to pay the Rent be affected by Unavoidable
Delays, and (y) in no event shall lack of funds be deemed a cause beyond the
control of either party.
1.92 "Unsuitable for Its Primary Intended Use" shall mean a state or
condition of the Facility such that by reason of damage or destruction, or a
partial Condemnation, in the good faith judgment of Landlord and Tenant,
reasonably exercised, the Facility cannot be operated on a commercially
practicable basis for its Primary Intended Use taking into account, among other
relevant factors, the number of usable beds, the amount of square footage, or
revenues affected by such damage or destruction or partial taking.
ARTICLE 2
PREMISES AND TERM
2.1 Premises. Upon and subject to the terms and conditions herein set
forth, Landlord leases to Tenant and Tenant leases from Landlord all of the
following (collectively, the "Leased Property").
(a) those certain tracts, pieces and parcels of land as more
particularly described in Exhibit B, attached hereto and made a part
hereof (collectively, the "Land");
(b) all buildings, structures, Fixtures and other improvements
of every kind, including, but not limited to, alleyways and connecting
tunnels, sidewalks, utility pipes, conduits and lines (on-site and
off-site), parking areas and roadways appurtenant to such
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buildings and structures presently situated upon the Land and Capital
Additions financed by Landlord (collectively, the "Leased
Improvements");
(c) all easements, rights and appurtenances relating to the
Land and the Leased Improvements;
(d) all equipment, machinery, fixtures and other items of
property, now or hereafter permanently affixed to or incorporated into
the Leased Improvements, including, without limitation, all furnaces,
boilers, heaters, electrical equipment, heating, plumbing, lighting,
ventilating, refrigerating, incineration, air and water pollution
control, waste disposal, air-cooling and airconditioning systems and
apparatus, sprinkler systems and fire and theft protection equipment,
all of which, to the greatest extent permitted by law, are hereby
deemed by the parties hereto to constitute real estate, together with
all replacements, modifications, alterations and additions thereto, but
specifically excluding all items included within the category of
Tenant's Personal Property (collectively, the "Fixtures");
(e) all machinery, equipment, furniture, furnishings, moveable
walls or partitions, computers or trade fixtures or other personal
property used or useful in Tenant's business on or in the Leased
Improvements, and located on or in the Leased Improvements on the
Commencement Date, except items, if any, included within the category
of Fixtures, but specifically excluding all items included within the
category of Tenant's Personal Property (collectively the "Leased
Personal Property"); and
(f) all existing leases of space (including any security
deposits held pursuant thereto), if any, in the Leased Improvements to
tenants thereof.
2.2 Condition of Premises. On the Commencement Date, Landlord shall
deliver and Tenant shall accept the Leased Property in "as is" condition,
subject to the rights of parties in possession, the existing state of title,
including all covenants, conditions, restrictions, easements and other matters
of record, all applicable Legal Requirements, the lien of financing instruments,
mortgages and deeds of trust, and such other matters which would have been
disclosed by an inspection of the Leased Property and the record title thereto
or by an accurate survey thereof. LANDLORD MAKES NO WARRANTY OR REPRESENTATION,
EXPRESS OR IMPLIED, IN RESPECT OF THE LEASED PROPERTY OR ANY PART THEREOF,
EITHER AS THE FITNESS FOR USE, DESIGN OR CONDITION FOR ANY PARTICULAR USE OR
PURPOSE OR OTHERWISE, AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN,
LATENT OR PATENT, WITH RESPECT TO THE LEASED PROPERTY OR ANY PORTION THEREOF, OR
AS TO TITLE, IT BEING AGREED THAT ALL SUCH RISKS SHALL BE BORNE BY TENANT. To
the extent permitted by law, however, Landlord grants and assigns to Tenant all
of Landlord's rights to proceed against any predecessor in title (other than
HRPT) for breaches of warranties or representations or for latent defects in the
Leased Property. Landlord shall cooperate with Tenant in the prosecution of any
such claims, in Landlord's or Tenant's name, all at Tenant's sole cost and
expense. Tenant shall indemnify, and hold harmless Landlord from and against any
loss, cost, damage or liability (including attorneys, fees) incurred by Landlord
in connection with such cooperation.
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2.3 Fixed Term. The initial term of this Lease (the "Fixed Term") shall
commence on the date hereof and, unless sooner terminated in accordance with the
terms and conditions of this Lease, shall expire on December 31, 2010.
2.4 Extended Terms. Provided no Event of Default shall have occurred
and be continuing, Tenant shall have the right to extend the Fixed Term for
three additional periods of ten (10) years each (each, an "Extended Term").
Each Extended Term shall commence on the day succeeding the expiration
of the Fixed Term or the preceding Extended Term, as the case may be, and shall
end on the day immediately preceding the tenth anniversary of the commencement
of such Extended Term. All of the terms, covenants and provisions of this Lease
shall apply to each such Extended Term, except that (a) the Minimum Rent for the
first year of each Extended Term shall be the greater of (x) the Minimum Rent
payable during the last year of the Fixed Term (for the first Extended Term) or
the last year of the immediately preceding Extended Term (for the second and
third Extended Terms), as the case may be, and (y) the Fair Market Rental for
the Leased Property determined as of the commencement of such Extended Term, and
(b) Tenant shall have no further right to extend the Term beyond the Extended
Terms hereinabove provided. If Tenant shall elect to exercise either of the
aforesaid options, it shall do so by giving Landlord written notice thereof not
later than one (1) year prior to the expiration of the then current term of this
Lease (Fixed or Extended, as applicable); it being understood and agreed that
time is of the essence with respect to the giving of such notice. If Tenant
shall fail to give any such notice, this Lease shall automatically terminate at
the end of the term then in effect and Tenant shall have no further option to
extend the term of this Lease. If Tenant shall give such notice, the extension
of this Lease shall be automatically effected, without the execution of any
additional documents.
ARTICLE 3
RENT
3.1 Rent. Tenant shall pay to Landlord, by check or wire transfer of
immediately available federal funds, as Tenant may elect, without offset,
abatement, demand or deduction, Minimum Rent and Additional Rent during the
Term, as herein provided.
3.1.1 Minimum Rent. Tenant shall pay Minimum Rent in equal monthly
installments, in advance, on the first day of each and every calendar month
during the Term; provided that, notwithstanding the foregoing, the first
installment of Minimum Rent shall be paid on the Closing Date, shall cover the
period from the Commencement Date to the end of the calendar month in which the
Closing Date occurs (the "Initial Period"), and shall be in an amount equal to
the product of (x) $100,000 multiplied by (y) the number of calendar months
during the Initial Period. Minimum Rent for any partial month shall be pro-rated
on a daily basis.
3.1.2 Additional Rent. In addition to the Minimum Rent, Tenant
shall pay and discharge as and when due and payable all other amounts,
liabilities, obligations and Impositions which Tenant assumes or agrees to pay
under this Lease (collectively, "Additional Rent"), including, but not limited
to the following:
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(A) Impositions. Subject to Article 8, Tenant shall pay, or
cause to be paid, all Impositions before any fine, penalty, interest or
cost may be added for non-payment, such payments to be made directly to
the taxing authorities where feasible, and shall promptly, upon
request, furnish to Landlord copies of official receipts or other
satisfactory proof evidencing such payments. If any such Imposition
may, at the option of the taxpayer, lawfully be paid in installments
(whether or not interest shall accrue on the unpaid balance of such
Imposition), Tenant may exercise the option to pay the same (and any
accrued interest on the unpaid balance of such Imposition) in
installments and, in such event, shall pay such installments during the
Term as the same become due, and before any fine, penalty, premium,
further interest or cost may be added thereto. Landlord, at its
expense, shall, to the extent required or permitted by applicable law,
prepare and file all tax returns in respect of Landlord's net income,
gross receipts, sales and use, single business, transaction privilege,
rent, ad valorem, franchise taxes and taxes on its capital stock, and
Tenant, at its expense, shall, to the extent required or permitted by
applicable laws and regulations, prepare and file all other tax returns
and reports in respect of any Imposition as may be required by
governmental authorities. If any refund shall be due from any taxing
authority in respect of any Imposition paid by Tenant, the same shall
be paid over to or retained by Tenant if no Event of Default shall have
occurred and be continuing. Landlord and Tenant shall, upon request of
the other, provide such data as is maintained by the party to whom the
request is made with respect to the Leased Property as may be necessary
to prepare any required returns and reports. In the event governmental
authorities classify any property covered by this Lease as personal
property, Tenant shall file all personal property tax returns in such
jurisdictions where it may legally so file. Each party shall, to the
extent it possesses the same, provide the other, upon request, with
cost and depreciation records necessary for filing returns for any
property so classified as personal property. Where Landlord is legally
required to file personal property tax returns, Landlord shall provide
Tenant with copies of assessment notices in sufficient time for Tenant
to file a protest. All Impositions assessed against such personal
property shall be (irrespective of whether Landlord or Tenant shall
file the relevant return) paid by Tenant not later than thirty (30)
days prior to the last date on which the same may be made without
interest or penalty.
Landlord shall give prompt written notice to Tenant of all
Impositions payable by Tenant hereunder of which Landlord at any time
has knowledge; provided, however, Landlord's failure to give any such
notice shall in no way diminish Tenant's obligation hereunder to pay
such Impositions.
Impositions imposed in respect of the tax-fiscal period during
which the Term terminates shall be prorated between Landlord and
Tenant, whether or not such Imposition is imposed before or after such
termination.
(B) Utility Charges. Tenant shall pay or cause to be paid all
charges for electricity, power, gas, oil, water and other utilities
used at the Leased Property during the Term.
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(C) Insurance Premiums. Tenant shall pay or cause to be paid
all premiums for the insurance coverage required to be maintained
pursuant to Article 9.
(D) Other Charges. Tenant shall pay or cause to be paid all
other amounts, liabilities and obligations which Tenant assumes or
agrees to pay under this Lease.
3.2 Late Payment of Rent. If any installment of Minimum Rent or
Additional Rent (but only as to those items of Additional Rent which are payable
directly to Landlord) shall not be paid when due, Tenant shall pay Landlord, on
demand, as Additional Rent, a late charge (to the extent permitted by law)
computed, during the first ten (10) days such payment is delinquent at the
greater of the Base Rate and eleven and one-half percent (11.5%) per annum and,
thereafter, at the Overdue Rate on the amount of such installment, from the date
such installment was due until the date paid. To the extent that Tenant pays any
Additional Rent directly to Landlord pursuant to any requirement of this Lease,
Tenant shall be relieved of its obligation to pay such Additional Rent to the
entity to which they would otherwise be due.
In the event of any failure by Tenant to pay any Additional Rent when
due, Tenant shall promptly pay and discharge, as Additional Rent, every fine,
penalty, interest and cost which may be added for non-payment or late payment of
such items. Landlord shall have all legal, equitable and contractual rights,
powers and remedies provided either in this Lease or by statute or otherwise in
the case of non-payment of the Additional Rent as in the case of non-payment of
the Minimum Rent.
3.3 Net Lease. The Rent shall be absolutely net to Landlord, so that
this Lease shall yield to Landlord the full amount of the installments of
Minimum Rent and Additional Rent throughout the Term, subject to any other
provisions of this Lease which expressly provide for adjustment or abatement of
Rent or other charges.
3.4 No Termination, Abatement, Etc. Except as otherwise specifically
provided in this Lease, Tenant, to the maximum extent permitted by law, shall
remain bound by this Lease in accordance with its terms and shall neither take
any action without the consent of Landlord to modify, surrender or terminate the
same, nor seek, nor I be entitled to any abatement, deduction, deferment or
reduction of the Rent, or set-off against the Rent, nor shall the respective
obligations of Landlord and Tenant be otherwise affected by reason of (a) any
damage to, or destruction of, the Leased Property or any portion thereof from
whatever cause or any Condemnation; (b) the lawful or unlawful prohibition of,
or restriction upon Tenant's use of the Leased Property, or any portion thereof,
or the interference with such use by any Person or by reason of eviction by
paramount title; (c) any claim which Tenant may have against Landlord by reason
of any Landlord Default; (d) any bankruptcy, insolvency, reorganization,
composition, readjustment, liquidation, dissolution, winding up or other
proceedings affecting Landlord or any assignee or transferee of Landlord; or (e)
for any other cause whether similar or dissimilar to any of the foregoing.
Tenant hereby waives all rights arising from any occurrence whatsoever, which
may now or hereafter be conferred upon it by law to modify, surrender or
terminate this Lease or quit or surrender the Leased Property or any portion
thereof or which may entitle Tenant to any abatement, reduction, suspension or
deferment of the Rent or other sums payable or other
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obligations to be performed by Tenant hereunder, except as otherwise
specifically provided in this Lease. The obligations of Landlord and Tenant
hereunder shall be separate and independent covenants and agreements and the
Rent and all other sums payable by Tenant hereunder shall continue to be payable
in all events unless the obligations to pay the same shall be terminated
pursuant to the express provisions of this Lease.
ARTICLE 4
USE OF THE LEASED PROPERTY
4.1 Permitted Use.
4.1.1 Primary Intended Use. Tenant shall use or cause to be used
the Leased Property as a nursing home or subacute facility and/or other facility
offering any higher level health care services and for such other uses as may be
necessary or incidental thereto (the particular use to which the Leased Property
is put at any particular time, its "Primary Intended Use"). Tenant shall not use
the Leased Property or any portion thereof for other than its Primary Intended
Use without the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed; provided, however, that such consent shall not
be deemed to be unreasonably withheld if, in the reasonable opinion of Landlord,
the proposed use will significantly alter the character or purpose or detract
from the value or operating efficiency of the Leased Property or significantly
impair the revenue-producing capability of the Leased Property or adversely
affect the ability of Tenant to comply with this Lease. No use shall be made or
permitted to be made of the Leased Property and no acts shall be done thereon
which will cause the cancellation of any insurance policy covering the Leased
Property or any part thereof, nor shall Tenant sell or otherwise provide to
residents or patients therein, or permit to be kept, used or sold in or about
the Leased Property, or any portion thereof, any article which may be prohibited
by law or by the standard form of fire insurance policies, or any other
insurance policies required to be carried hereunder, or fire underwriter's
regulations.
4.1.2 Necessary Approvals. Tenant shall proceed with all due
diligence and exercise best efforts to obtain and maintain all approvals
necessary to use and operate the Leased Property and the Facility for the
Primary Intended Use under applicable local, state and federal law and, without
limiting the generality of the foregoing, shall use its best efforts to maintain
appropriate certifications for reimbursement licensure.
4.1.3 No Actions Impairing Value, Etc. Tenant shall not take, or
omit to take, any action, the taking or omission of which may materially impair
the value or the usefulness of the Leased Property for the Primary Intended Use.
4.1.4 Lawful Use, Etc. Tenant shall not use or suffer or permit
the use of the Leased Property and Tenant's Personal Property for any unlawful
purpose. Tenant shall not commit or suffer to be committed any waste on the
Leased Property or the Facility, nor shall Tenant cause or permit any nuisance
thereon or therein. Tenant shall neither suffer nor permit the Leased Property
or any portion thereof, including any Capital Addition, whether or not financed
by Landlord, or Tenant's Personal Property, to be used in such a manner as might
reasonably tend to impair Landlord's (or Tenant's, as the case may be) title
thereto or to any
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portion thereof, or may reasonably make possible any claim for adverse usage or
adverse possession by the public, as such, or of implied dedication of the
Leased Property or any portion thereof.
4.2 Compliance with Legal and Insurance Requirements, Instruments, Etc.
Subject to the provisions of Article 8, Tenant, at its sole expense, shall
promptly (i) comply with all Legal Requirements and Insurance Requirements in
respect of the use, operation, maintenance, repair, alteration and restoration
of the Leased Property and Tenant's Personal Property, and (ii) procure,
maintain and comply with all appropriate licenses, certificates of need,
permits, provider agreements and other authorizations required for any use of
the Leased Property and Tenant's Personal Property then being made, and for the
proper erection, installation, operation and maintenance of the Leased Property
or any part thereof, including, without limitation, any Capital Additions.
4.3 Compliance with Medicaid and Medicare Requirements. Tenant shall,
at its sole cost and expense, make whatever improvements (capital or ordinary)
as are required to conform the Leased Property to such standards as may, from
time to time, be required by Federal Medicare (Title 18) or Medicaid (Title 19)
skilled and/or intermediate care nursing programs, if applicable, or any other
applicable programs or legislation, or capital improvements required by any
other governmental agency having jurisdiction over the Leased Property as a
condition of the continued operation of the Leased Property for the Primary
Intended Use.
4.4 Environmental Matters. Tenant shall not store, spill upon, dispose
of or transfer to or from the Leased Property any Hazardous Substance, except
that Tenant may store, transfer and dispose of Hazardous Substances in
compliance with all Environmental Laws. Tenant shall maintain the Leased
Property at all times free of any Hazardous Substance (except such Hazardous
Substances as are maintained in compliance with all Environmental Laws). Tenant
shall promptly: (a) notify Landlord in writing of any change in the nature or
extent of such Hazardous Substances maintained, (b) transmit to Landlord a copy
of any report which is required to be filed with respect to the Leased Property
pursuant to any Environmental Law, (c) transmit to Landlord copies of any
citations, orders, notices or other governmental communications received by
Tenant or its agents or representatives with respect thereto (collectively,
"Environmental Notice"), (d) observe and comply with any and all Environmental
Laws relating to the use, maintenance and disposal of Hazardous Substances and
all orders or directives from any officials court or agency of competent
jurisdiction relating to the use or maintenance or requiring the removal,
treatment, containment or other disposition thereof, and (e) pay or otherwise
dispose of any fine, charge or Imposition related thereto, unless Tenant shall
contest the same in accordance with Article 8.
If at any time prior to the termination of this Lease, Hazardous
Substances are discovered on the Leased Property, Tenant hereby agrees to take
all actions, and to incur any and all expenses, as may be reasonably necessary
and as may be required by any municipal, State or Federal agency or other
governmental entity or agency having jurisdiction thereof, (a) to clean up and
remove from and about the Leased Property all Hazardous Substances thereon, (b)
to contain, and prevent any further release or threat of release of Hazardous
Substances on or about the Leased Property and (c) to eliminate any further
release or threat of release of Hazardous Substances on or about the Leased
Property.
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Tenant shall indemnify and hold harmless Landlord and each Facility
Mortgagee from and against all liabilities, obligations, claims, damages,
penalties, costs and expenses (including, without limitation, reasonable
attorney's fees and expenses) imposed upon, incurred by or asserted against any
of them by reason of any failure by Tenant or any Person claiming under Tenant
to perform or comply with any of the terms of this Section 4.4.
ARTICLE 5
MAINTENANCE AND REPAIRS, ETC.
5.1 Maintenance and Repair.
5.1.1 Tenant's Obligations. Tenant shall, at its sole cost and
expense, keep the Leased Property and all private roadways, sidewalks and curbs
appurtenant thereto (and Tenant's Personal Property) in good order and repair,
reasonable wear and tear excepted (whether or not the need for such repairs
occurs as a result of Tenant's use, any prior use, the elements or the age of
the Leased Property or Tenant's Personal Property, or any portion thereof), and
shall promptly make all necessary and appropriate repairs and replacements
thereto of every kind and nature, whether interior or exterior, structural or
nonstructural, ordinary or extraordinary, foreseen or unforeseen or arising by
reason of a condition existing prior to the commencement of the Term (concealed
or otherwise). All repairs shall be at least equivalent in quality to the
original work.
5.1.2 Landlord's Obligations. Landlord shall not, under any
circumstances, be required to build or rebuild any improvement on the Leased
Property, or to make any repairs, replacements, alterations, restorations or
renewals of any nature or description to the Leased Property, whether ordinary
or extraordinary, structural or non-structural, foreseen or unforeseen, or to
make any expenditure whatsoever with respect thereto, in connection with this
Lease, or to maintain the Leased Property in any way, except as specifically
provided herein. Tenant hereby waives, to the extent permitted by law, the right
to make repairs at the expense of Landlord pursuant to any law in effect at the
time of the execution of this Lease or hereafter enacted. Landlord shall have
the right to give, record and post, as appropriate, notices of nonresponsibility
under any mechanic's lien laws now or hereafter existing.
5.2 Capital Expenditure Cost Sharing. Replacement of or major repairs
to all structural or mechanical systems shall be undertaken by Tenant, at its
sole cost and expense in the exercise of its reasonable business judgment,
pursuant to and in accordance with plans and specifications approved in advance
by Landlord; provided, however, that if the useful life of any improvement or
repair for which a Capital Expenditure is made extends beyond the termination of
the Term (other than any early termination resulting from the occurrence of an
Event of Default), provided Tenant shall have obtained Landlord's prior written
consent with respect to the making thereof, the cost of such replacement or
repair shall be apportioned between Landlord and Tenant so that Landlord shall
pay for that portion of the useful life of such item occurring on or after such
termination date. Landlord shall have no obligation to reimburse Tenant for
Landlord's share of the cost of such replacement or repair until the date of the
termination of this Lease. Notwithstanding the foregoing, Landlord agrees to
make any such payment to Tenant within sixty (60) days after Tenant's written
request therefor.
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5.3 Tenant's Personal Property. Tenant may (and shall as provided
hereinbelow), at its expense, install, affix or assemble or place on any parcels
of the Land or in any of the Leased Improvements, any items of Tenant's Personal
Property, and Tenant may, subject to the conditions set forth below, remove the
same upon the expiration or sooner termination of the Term. Tenant shall provide
and maintain during the entire Term all such Tenant's Personal Property as shall
be necessary in order to operate the Facility in compliance with all licensure
and certification requirements, applicable Legal Requirements and Insurance
Requirements and otherwise in accordance with customary practice in the industry
for the Primary Intended Use. All of Tenant's Personal Property not removed by
Tenant on or prior to the expiration or earlier termination of this Lease shall
be considered abandoned by Tenant and may be appropriated, sold, destroyed or
otherwise disposed of by Landlord without the necessity of first giving notice
thereof to Tenant, without any payment to Tenant and without any obligation to
account therefor. Tenant shall, at its expense, restore the Leased Property to
the condition required by Section 5.4, including repair of all damage to the
Leased Property caused by the removal of Tenant's Personal Property, whether
effected by Tenant or Landlord.
If Tenant uses any item of tangible personal property (other than motor
vehicles) on, or in connection with, the Leased Property which belongs to anyone
other than Tenant, Tenant shall use its best efforts to require the agreement
permitting such use to provide that Landlord or its designee may assume Tenant's
rights under such agreement upon management of the Facility by Landlord or its
designee.
5.4 Yield Up. Upon the expiration or sooner termination of this Lease,
Tenant shall vacate and surrender the Leased Property to Landlord in the
condition in which the Leased Property was on the Commencement Date, except as
repaired, rebuilt, restored, altered or added to as permitted or required by the
provisions of this Lease, ordinary wear and tear excepted.
In addition, upon the expiration or earlier termination of this Lease,
Tenant shall, at Landlord's reasonable cost and expense, use its best efforts to
transfer to and cooperate with Landlord or Landlord's nominee in connection with
the processing of all applications for licenses, operating permits and other
governmental authorizations and all contracts, including, contracts with
governmental or quasi-governmental entities, which may be necessary for the
operation of the Facility. If requested by Landlord, Tenant shall continue to
manage the Facility after the termination of this Lease and for so long
thereafter as is necessary to obtain all necessary licenses, operating permits
and other governmental authorizations, on such reasonable terms (which shall
include an agreement to reimburse Tenant for its reasonable out-of-pocket costs
and expenses and reasonable administrative costs) as Landlord shall request.
5.5 Encroachments, Restrictions, Etc. If any of the Leased Improvements
shall, at Any time, encroach upon any property, street or right-of-way adjacent
to the Leased Property, or shall violate the agreements or conditions contained
in any lawful restrictive covenant or other agreement affecting the Leased
Property, or any part thereof, or shall impair the rights of others under any
easement or right-of-way to which the Leased Property is subject, upon the
request of Landlord or of any person affected by any such encroachment,
violation or impairment, Tenant shall, at its sole cost and expense, subject to
its right to contest the existence of any encroachment, violation or impairment
and in such case, in the event of an adverse final determination, either (a)
obtain, in form and substance satisfactory to Landlord, valid and
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effective waivers or settlements of all claims, liabilities and damages
resulting from each such encroachment, violation or impairment, whether the same
shall affect Landlord or Tenant, or (b), subject to Landlord's approval (which
shall not be unreasonably withheld or delayed), make such changes in the Leased
Improvements and take such other actions, as Tenant, in the good faith exercise
of its judgment, deems reasonably practicable, to remove such encroachment, and
to end such violation or impairment, including, if necessary, the alteration of
any of the Leased Improvements and, in any event, take all such actions as may
be necessary in order to ensure the continued operation of the Leased
Improvements for the Primary Intended Use substantially in the manner and to the
extent the Leased Improvements were operated prior to the assertion of such
violation, impairment or encroachment. Any such alteration shall be made in
conformity with the applicable requirements of this Article 5. Tenant's
obligations under this Section 5.5 shall be in addition to and shall in no way
discharge or diminish any obligation of any insurer under any policy of title or
other insurance and Tenant shall be entitled to a credit for any sums recovered
by Landlord under any such policy of title or other insurance.
ARTICLE 6
CAPITAL ADDITIONS, ETC.
6.1 Construction of Capital Additions to the Leased Property. Provided
no Event of Default shall have occurred and be continuing, Tenant shall have the
right, subject to obtaining Landlord's prior written consent (which consent
shall not be unreasonably withheld or delayed), upon and subject to the terms
and conditions set forth below, to construct or install Capital Additions on the
Leased Property. Landlord's consent shall not be deemed to be unreasonably
withheld if such Capital Addition will significantly alter the character or
purpose or detract from the value or operating efficiency or the
revenue-producing capability of the Leased Property, or adversely affect the
ability of Tenant to comply with this Lease. Any withholding of consent shall be
express and shall be effected within thirty (30) days after receipt by Landlord
of such documents or information as Landlord may reasonably require, notice of
which requirements shall be sent to Tenant within thirty (30) days after
Tenant's request. Failure to give notice of the withholding of such consent
within such thirty (30) day period shall be deemed approval. Prior to commencing
construction of any Capital Addition, Tenant shall submit to Landlord, in
writing, a proposal setting forth, in reasonable detail any proposed Capital
Addition and shall provide Landlord with such plans and specifications, permits,
licenses, contracts and other information concerning the proposed Capital
Addition as Landlord may reasonably request. Without limiting the generality of
the foregoing, such proposal shall indicate the approximate projected cost of
constructing such Capital Addition, the use or uses to which it will be put and
a good faith estimate of the change, if any, in the Net Patient Revenues that
Tenant anticipates will result from such Capital Addition. Prior to commencing
construction of any Capital Addition, Tenant shall request in writing that
Landlord provide funds to pay for such Capital Addition. If, within sixty (60)
days after receipt of such request, Landlord shall not elect to provide such
financing on terms reasonably acceptable to Tenant (and, for purposes of this
Section 6.1, the failure of Landlord to respond within such 60 day period shall
be deemed an election not to provide such funding), the provisions of Section
6.2 shall apply. Landlord's notice of its election to provide such financing
shall set forth the terms and conditions of such proposed financing, including
the terms of any amendment to this Lease (including, without limitation, an
increase in Minimum Rent to compensate Landlord for the additional funds
advanced). In no event shall the
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portion of the projected Capital Additions Cost comprised of land, if any,
materials, labor charges and fixtures be less than eighty percent (80%) of the
total amount of such cost. Tenant may withdraw its request by written notice to
Landlord at any time before Tenant's written acceptance of Landlord's terms and
conditions. If Landlord declines to finance a Capital Addition or if Landlord's
proposed financing terms are unacceptable to Tenant, Tenant may solicit and
negotiate a commitment for such financing from another Person, provided Landlord
shall approve all the terms and conditions of such financing (which approval
shall not be unreasonably withheld or delayed). If Landlord shall finance the
proposed Capital Addition, Tenant shall pay to Landlord, as Additional Rent, all
reasonable costs and expenses paid or incurred by Landlord and any Lending
Institution which has committed to provide financing for such Capital Addition
to Landlord in connection therewith, including, but not limited to, (a) the
reasonable attorneys, fees and expenses, (b) all printing expenses, (c) all
filing, registration and recording taxes and fees, (d) documentary stamp taxes,
(e) title insurance charges, appraisal fees, and rating agency fees, and (f)
commitment fees.
No Capital Addition shall be made which would tie in or connect any
Leased Improvement or any Leased Property with any other improvements on
property adjacent to such Leased Property (and not part of the Land) including,
without limitation, tie-ins of buildings or other structures or utilities,
unless Tenant shall have obtained the prior written approval of Landlord, which
approval may be withheld by Landlord in Landlord's sole discretion. Any Capital
Additions shall, upon the expiration or sooner termination of this Lease, become
the property of Landlord, free and clear of all encumbrances, subject to the
provisions of Section 6.2.
6.2 Capital Additions Financed by Tenant. Provided that Tenant has
obtained the prior written consent of Landlord in each instance (which approval
shall not be unreasonably withheld or delayed), Tenant may arrange for financing
for Capital Additions from third party lenders; provided however, that (i) the
terms and conditions of any such financing shall be subject to the prior
approval of Landlord and (ii) any security interests in any property of Tenant,
including, without limitation, the Leased Property, shall be expressly and fully
subordinated to this Lease and to the interest of Landlord in the Leased
Property and to the rights of any Facility Mortgagee. If, pursuant to the
provisions of this Lease, Tenant provides or arranges financing with respect to
any Capital Addition, this Lease shall be and hereby is amended to provide as
follows:
(a) There shall be no adjustment in the Minimum Rent by reason
of any such Capital Addition.
(b) Upon the expiration or earlier termination of this Lease
(but if this Lease is terminated by reason of an Event of Default, only
after Landlord is fully compensated for all damages resulting
therefrom), Landlord shall compensate Tenant for all Capital Additions
financed by Tenant in any of the following ways determined in
Landlord's sole discretion:
(i) By purchasing such Capital Additions from Tenant for cash in
the amount of the then Fair Market Added Value of such Capital
Additions;
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(ii) By purchasing such Capital Additions from Tenant by delivering
to Tenant Landlord's purchase money promissory note in the
amount of the Fair Market Added Value, which note shall be due
and payable as to both principal and interest on the second
anniversary of the making thereof, shall be on then
commercially reasonable terms and shall be secured by a
mortgage on the Leased Property and such Capital Additions
subject to all existing mortgages and encumbrances on the
Leased Property and such Capital Additions at the time of such
purchase;
(iii) By assigning to Tenant the right to receive an amount equal to
the Added Value Percentage (determined as of the date of the
expiration or earlier termination of this Lease) of all rent
and other consideration receivable by Landlord under any
re-letting or other disposition of the Leased Property and
such Capital Additions, after deducting from such rent all
costs and expenses incurred by Landlord in connection with
such re-letting or other disposition of the Leased Property
and such Capital Additions and all costs and expenses of
operating and maintaining the Leased Property and such Capital
Additions during the term of any such new lease which are not
borne by the tenant thereunder, with the provisions of this
Section 6.2(c) to remain in effect until the sale or other
final disposition of the Leased Property and such Capital
Additions, at which time the Fair Market Added Value of such
Capital Addition shall be immediately due and payable, such
obligation to be secured by a mortgage on the Leased Property
and such Capital Additions, subject to all existing mortgages
and encumbrances on the Leased Property at the time of such
purchase and assignment; or
(iv) By making such other arrangement regarding such compensation
as shall be mutually acceptable to Landlord and Tenant.
6.3 Information Regarding Capital Additions. Regardless of the source
of financing of any proposed Capital Addition, Tenant shall provide Landlord
with such information as Landlord may from time to time reasonably request with
respect to such Capital Addition, including, without limitation, the following:
(a) Evidence that such Capital Addition will be, and upon
completion has been, completed in compliance with the applicable
requirements of State and federal law with respect to capital
expenditures for nursing facilities;
(b) Upon completion of such Capital Addition, a copy of the
certificate of occupancy for the Facility updated, if required;
(c) Such information, certificates, licenses, permits or other
documents necessary to confirm that Tenant will be able to use the
Capital Addition upon completion thereof in accordance with the Primary
intended Use, including all required federal, State or local government
licenses and approvals;
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(d) An Officer's Certificate and a certificate from Tenant's
architect setting forth, in reasonable detail, the projected (or
actual, if available) Capital Additions Cost and invoices and lien
waivers from Tenant's contractors for such work;
(e) A deed conveying to Landlord title to any land acquired
for the purpose of constructing the Capital Addition free and clear of
any liens or encumbrances, except those approved by Landlord and, upon
completion of the Capital Addition, a final as-built survey thereof
reasonably satisfactory to Landlord;
(f) Endorsements to any outstanding policy of title insurance
covering the Leased Property or commitments therefor, satisfactory in
form and substance to Landlord, (i) updating the same without any
additional exceptions except as approved by Landlord, and (ii)
increasing the coverage thereof by an amount equal to the Fair Market
Value of the Capital Addition (except to the extent covered by the
owner's policy of title insurance referred to in subparagraph (g)
below);
(g) If appropriate, (i) an owner's policy of title insurance
insuring fee simple title to any land conveyed to Landlord pursuant to
subparagraph (e) above, free and clear of all liens and encumbrances,
except those approved by Landlord, and (ii) a lender's policy of title
insurance, reasonably satisfactory in form and substance to Landlord
and the Lending Institution advancing any portion of the Capital
Additions Cost;
(h) An appraisal of the Leased Property by a Qualified
Appraiser, acceptable to Landlord, and an Officer's Certificate stating
that the value of the Leased Property upon completion of the Capital
Addition exceeds the Fair Market Value thereof prior to the
commencement of such Capital Addition by an amount not less than 80% of
the Capital Additions Cost; and
(i) Prints of architectural and engineering drawings relating
to such Capital Addition and such other certificates, documents,
opinions of counsel, appraisals, surveys, certified copies of duly
adopted resolutions of the board of directors of Tenant authorizing the
execution and delivery of any lease amendment or other instruments
reasonably required by Landlord and any Lending Institution advancing
or reimbursing Tenant for any portion of the Capital Additions Cost.
6.4 Non-Capital Additions. Tenant shall have the right, at Tenant's
sole cost and expense, to make additions, modifications or improvements to the
Leased Property which are not Capital Additions ("Non-capital Additions") from
time to time as Tenant, in its reasonable discretion, may deem desirable for the
Primary Intended Use, provided that such action will not adversely alter the
character or purpose or detract from the value, operating efficiency or
revenue-producing capability of the Leased Property, or adversely affect the
ability of Tenant to comply with the provisions of this Lease. All such
Non-Capital Additions shall,- upon expiration or earlier termination of this
Lease, become the property of Landlord, free and clear of all encumbrances other
than Permitted Encumbrances.
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6.5 Salvage. All materials which are scrapped or removed in connection
with the making of either Capital Additions or repairs required by Article 5
shall be the property of the party paying or providing the financing for such
work.
ARTICLE 7
LIENS
7.1 Liens. Subject to Article 8, Tenant shall not, directly or
indirectly, create or allow to remain and shall promptly discharge, at its
expense, any lien, encumbrance, attachment, title retention agreement or claim
upon the Leased Property or any attachment, levy, claim or encumbrance in
respect of the Rent, other than (a) this Lease, (b) the Permitted Encumbrances,
(c) restrictions, liens and other encumbrances which are consented to in writing
by Landlord, (d) liens for those taxes of Landlord which Tenant is not required
to pay hereunder, (e) subleases permitted by Article 17, (f) liens for
Impositions or for sums resulting from noncompliance with Legal Requirements so
long as (i) the same are not yet payable, or (ii) are payable without fine or
penalty and such liens are being contested in accordance with Article 8, (g)
liens of mechanics, laborers, material men, suppliers or vendors for sums
disputed, provided that (i) the payment of such sums shall not be postponed
under any related contract for more than sixty (60) days after the completion of
the action giving rise to such lien and a reserve or another appropriate
provision as shall be required by law or generally accepted accounting
principles shall have been made therefor, and (ii) any such liens are being
contested in accordance with Article 8, and (h) any liens which are the
responsibility of Landlord pursuant to Article 21.
7.2 Landlord's Lien. In addition to any statutory landlord's lien and
in order to secure payment of the Rent and all other sums payable hereunder by
Tenant, and to secure payment of any lose, cost or damage which Landlord may
suffer by reason of Tenant's breach of this Lease, Tenant hereby grants unto
Landlord a security interest in and an express contractual lien upon Tenant's
Personal Property (except motor vehicles sold from time to time in the ordinary
course of Tenant's operations), and all ledger sheets, files, records, documents
and instruments (including, without limitation, computer programs, tapes and
related electronic data processing) relating to the operation of the Facility
(collectively, the "Records") and all proceeds therefrom; and Tenant's Personal
Property shall not be removed from the Leased Property without the Landlord's
prior written consent, unless no Default or Event of Default shall have occurred
and be continuing.
Upon Landlord's request, Tenant shall execute and deliver to Landlord
security agreements and financing statements in form sufficient to perfect the
security interests of Landlord in Tenant's Personal Property and the proceeds
thereof in accordance with the provisions of the applicable laws of the State
and otherwise in form and substance reasonably satisfactory to Landlord. Tenant
hereby grants Landlord an irrevocable limited power of attorney, coupled with an
interest, to execute all such financing statements in Tenant's name, place and
stead. The security interest herein granted is in addition to any statutory lien
for the Rent.
Landlord agrees, at Tenant's request, to execute such documents as
Tenant may reasonably require to subordinate the lien granted pursuant to this
Section 7.2 in Tenant's
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Personal Property (but not the Records) to the lien of any Person providing
purchase money financing with respect thereto.
7.3 Mechanic's Liens. Except as permitted with respect to Capital
Additions, nothing contained in this Lease and no action or inaction by Landlord
shall be construed as (a) constituting the consent or request of Landlord,
expressed or implied, to any contractor, subcontractor, laborer, material man or
vendor to or for the performance of any labor or services or the furnishing of
any materials or other property for the construction, alteration, addition,
repair or demolition of or to the Leased Property or any part thereof, or (b)
giving Tenant any right, power or permission, to contract for or permit the
performance of any labor or services or the furnishing of any materials or other
property in such fashion as would permit the making of any claim against
Landlord in respect thereof or to make any agreement that may create, or in any
way be the basis for any right, title, interest, lien, claim or other
encumbrance upon the Leased Property, or any portion thereof.
ARTICLE 8
PERMITTED CONTESTS
Tenant shall have the right to contest the amount or validity of any
Imposition, Legal Requirement, Insurance Requirement, lien, attachment, levy,
encumbrance, charge or claim (collectively "Claims") by appropriate legal
proceedings conducted in good faith and with due diligence, provided that (a)
the foregoing shall in no way be construed as relieving, modifying or extending
Tenant's obligation to pay any Claims as finally determined or prior to the time
the Leased Property may be sold in satisfaction thereof, (b) such contest shall
not cause Landlord or Tenant to be in default under any mortgage or deed of
trust encumbering the Leased Property or any interest therein or result in or
reasonably be expected to result in a lien attaching to the Leased Property, and
(c) Tenant shall indemnify and hold harmless Landlord from and against any cost,
claim, damage, penalty or expense, including reasonable attorneys' fees,
incurred by Landlord in connection therewith or as a result thereof. Upon
Landlord's request, Tenant shall either (a) provide a bond or other assurance
reasonably satisfactory to Landlord that all Claims which may be assessed
against the Leased Property, together with all interest and penalties thereon
will be paid, or (b) deposit within the time otherwise required for payment with
a bank or trust company, as trustee, as security for the payment of such Claims,
an amount sufficient to pay the same, together with interest and penalties in
connection therewith and all Claims which may be assessed against or become a
Claim against the Leased Property, or any part thereof, in connection with any
such contest. Tenant shall furnish Landlord and any Facility Mortgagee with
reasonable evidence of such deposit within five (5) days after request therefor.
Landlord agrees to join in any such proceedings if required legally to prosecute
such contest; provided, however, that Landlord shall not thereby be subjected to
any liability therefor (including, for the payment of any costs or expenses in
connection therewith). Tenant shall be entitled to any refund of any Claims and
such charges and penalties or interest thereon which have been paid by Tenant or
paid by Landlord and for which Landlord has been fully reimbursed by Tenant. If
Tenant shall fail (a) to pay any Claims when due, (b) to provide security
therefor as provided in this Article 8, or (c) to prosecute any such contest
diligently and in good faith, Landlord may, upon reasonable notice to Tenant
(which notice may be oral and shall not be required if Landlord shall determine
the same is not practicable), pay such charges, together with interest and
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penalties due with respect thereto, and Tenant shall reimburse Landlord
therefor, upon demand, as Additional Rent.
ARTICLE 9
INSURANCE AND INDEMNIFICATION
9.1 General Insurance Requirements. Tenant shall at all times during
the Term and any other time Tenant shall be in possession of the Leased
Property, keep the Leased Property, and all property located in or on the Leased
Property, including Tenant's Personal Property, insured against the risks in the
amounts as follows:
(a) Commercial general liability insurance, including bodily
injury and property damage (in the broadest form available, including
broad form contractual liability, fire legal liability, products and
completed operations coverage) and healthcare facility professional
liability insurance, under which Tenant is named as an insured and
Landlord and any Facility Mortgagee are named as additional insureds as
their interests may appear, in an amount which shall be at least equal
to $1,000,000 per occurrence with respect to bodily injury liability,
property damage liability or professional liability, and umbrella
coverage of all such claims in an amount not less than $10,000,000;
(b) "All-risk" property insurance on a "replacement cost"
basis (including boiler and machinery) with the usual extended coverage
endorsements (including increased costs of construction, demolition and
ordinance or law) covering the Leased Property and Tenant's Personal
Property;
(c) Business interruption and loss of (i) rent or rental
income under a rental value insurance policy covering risk of loss
during the lesser of the first twelve (12) months of reconstruction or
(ii) the actual reconstruction period necessitated by the occurrence of
any of the hazards described in paragraph (b) above, in such amounts as
may be customary for comparable properties in the area and in an amount
sufficient to prevent Landlord or Tenant from becoming a co-insurer;
(d) Flood (if the Leased Property which is located in whole or
in part within a designated flood plain area) and such other hazards
and in such amounts as may be customary for comparable properties in
the area, provided the same is available at rates which are
economically practical in relation to the risks covered, as determined
by Tenant and approved by Landlord, which approval shall not be
unreasonably withheld or delayed;
(e) Worker's compensation insurance coverage for all persons
employed by Tenant on the Leased Property with statutory limits and
otherwise with limits of and provisions in accordance with the
requirements of applicable local, state and federal law, and employer's
liability insurance in such amounts as necessary to satisfy the
aforementioned underlying insurance requirements; and
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(f) Such additional insurance as may be reasonably required,
from time to time, by Landlord or any Facility Mortgagee.
9.2 Waiver of Subrogation. Landlord and Tenant agree that (insofar as
and to the extent that such agreement may be effective without invalidating or
making it impossible to secure insurance coverage from responsible insurance
companies doing business in the State) with respect to any property loss which
is covered by insurance then being carried by Landlord or Tenant or would be
covered by insurance if insurance were maintained in accordance with the
applicable provisions of this Lease, respectively, the party carrying such
insurance and suffering said loss releases the other of and from any and all
claims with respect to such loss; and they further agree that their respective
insurance companies shall have no right of subrogation against the other on
account thereof, even though extra premium may result therefrom. In the event
that any extra premium is payable by Tenant as a result of this provision,
Landlord shall not be liable for reimbursement to Tenant for such extra premium.
9.3 Form Satisfactory, Etc. All policies of insurance required under
this Article 9 shall be written in a form reasonably satisfactory to Landlord
and written by insurance companies authorized to do business in the State, which
insurance companies shall be reasonably satisfactory to Landlord. All policies
of insurance required under this Article 9 shall include no deductible in excess
of $250,000 and (with the exception of the insurance described in paragraph (e)
of Section 9.1) shall name Landlord and any Facility Mortgagee as additional
insureds, as their interests may appear. Losses shall be payable to Landlord or
Tenant as provided in Article 10. Any loss adjustment shall require the written
consent of Landlord, Tenant and each Facility Mortgagee. Evidence of insurance
shall be deposited with Landlord and, if requested, any Facility Mortgagee.
Tenant shall pay all insurance premiums, and deliver policies or certificates
thereof to Landlord prior to their effective date (and, with respect to any
renewal policy, five (5) days prior to the expiration of the existing policy),
and in the event Tenant shall fail either to effect such insurance as herein
required, to pay the premiums therefor or, to deliver such policies or
certificates to Landlord at the times required. Landlord shall have the right,
but not the obligation, to effect such insurance and pay the premiums therefor,
which amounts shall be payable to Landlord, upon demand, as Additional Rent,
together with interest accrued thereon at the Base Rate from the date such
payment is made until the date repaid. All such policies shall provide Landlord
(and any Facility Mortgagee, if required by the same) thirty (30) days prior
written notice of any cancellation or non-renewal of such policy (except in the
event of any cancellation or non-renewal for non-payment of premium, in which
case such policy shall provide for ten (10) days prior written notice thereof).
9.4 No Separate Insurance. Tenant shall not take out separate
insurance, concurrent in form or contributing in the event of loss with that
required by Sections 9.1(b), (c) and (d) or increase the amount of any existing
insurance by securing an additional policy or additional policies, unless all
parties having an insurable interest in the subject matter of such insurance,
including, Landlord and all Facility Mortgagees, are included therein as
additional insureds, and the loss is payable under such insurance in the same
manner as losses are payable under this Lease. In the event Tenant shall take
out any such separate insurance or increase any of the amounts of the then
existing insurance, Tenant shall give Landlord prompt written notice thereof.
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9.5 Indemnification of Landlord. Tenant shall indemnify and hold
harmless Landlord from and against all liabilities, obligations, claims,
damages, penalties, causes of action, costs and expenses (including, without
limitation, reasonable attorneys' fees), to the maximum extent permitted by law,
imposed upon or incurred by or asserted against Landlord by reason of: (a) any
accident, injury to or death of persons or loss of or damage to property
occurring on or about the Leased Property or adjoining sidewalks, including,
without limitation, any claims of malpractice, (b) any past, present or future
use, misuse, non-use, condition, management, maintenance or repair by Tenant or
anyone claiming under Tenant of the Leased Property or Tenant's Personal
Property or any litigation, proceeding or claim by governmental entities or
other third parties to which Landlord is made a party or participant related to
the Leased Property or Tenant's Personal Property or such use, misuse, non-use,
condition, management, maintenance, or repair thereof including, failure to
perform obligations (other than Condemnation proceedings) to which Landlord is
made a party, (c) any Impositions (which are the obligations of Tenant to pay
pursuant to the applicable provisions of this Lease), and (d) any failure on the
part of Tenant or anyone claiming under Tenant to perform or comply with any of
the terms of this Lease. Tenant shall pay all amounts payable under this Section
9.5 within ten (10) days after demand therefor, and if not timely paid, such
amounts shall bear interest at the overdue rate from the date of determination
to the date of payment. Tenant, at its expense, shall contest, resist and defend
any such claim, action or proceeding asserted or instituted against Landlord or
may compromise or otherwise dispose of the same as Tenant sees fit.
9.6 Indemnification of Tenant. Landlord shall indemnify and hold
harmless Tenant from and against all liabilities, obligations, claims, damages,
penalties, causes of action, costs and expenses imposed upon or incurred by or
asserted against Tenant as a result of the gross negligence or willful
misconduct of Landlord.
ARTICLE 10
CASUALTY
10.1 Insurance Proceeds. All proceeds payable by reason of any loss or
damage to the Leased Property and insured under any policy of insurance required
by Article 9 shall be paid to Landlord and held in trust by Landlord in an
interest-bearing account (subject to the provisions of Section 10.2) and shall
be paid out by Landlord from time to time for the reasonable costs of
reconstruction or repair of the Leased Property necessitated by damage or
destruction. Any excess proceeds of insurance remaining after the completion of
the restoration shall be paid to Tenant. In the event neither Landlord nor
Tenant is required or elects to restore the Leased Property and this Lease is
terminated without purchase or substitution by Tenant pursuant to Section 10.2,
all insurance proceeds therefrom shall be retained by Landlord. All salvage
resulting from any risk covered by insurance shall belong to Landlord, except
any salvage related to Capital Additions paid for by Tenant or Tenant's Personal
Property shall belong to Tenant.
10.2 Reconstruction in the Event of Damage or Destruction.
10.2.1 Material Damage or Destruction of Premises. Except as
provided in Section 10.8, if, during the Term, the Leased Property shall be
totally or partially damaged or destroyed by fire or other casualty and the
Facility is thereby rendered Unsuitable for Its Primary
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Intended Use, Tenant shall, at Tenant's option, exercisable by written notice to
Landlord within thirty (30) days after the date of such damage or destruction,
elect either (a) to restore the Facility to substantially the same condition as
existed immediately before such damage or destruction, or (b) to offer (i) to
purchase the Leased Property from Landlord for a purchase price equal to the
greater of the Minimum Repurchase Price or the Fair Market Value Purchase Price
of the Leased Property immediately prior to such damage or destruction, or (ii)
to substitute a new property for the Leased Property in accordance with the
provisions of Article 16. Failure of Tenant to give Landlord written notice of
any such election within such 30-day period shall be deemed an election by
Tenant to restore the Facility. In the event Tenant shall proceed in accordance
with clause (b) preceding and Landlord does not accept Tenant's offer to
purchase the Leased Property or substitute another property for the Leased
Property within thirty (30) days after receipt of Tenant's notice thereof,
Tenant may either (a) withdraw such offer and proceed promptly to restore the
Facility to substantially the same conditions as existed immediately before the
damage or destruction, or (b) terminate this Lease without further liability
hereunder and Landlord shall be entitled to retain the insurance proceeds. In
the event Tenant shall acquire the Leased Property or substitute a new property
therefor, the insurance proceeds payable on account of such damage shall be Paid
to Tenant.
10.2.2 Partial Damage or Destruction. Except as provided in
Section 10.8, if, during the Term, all or any portion of the Leased Property
shall be totally or partially destroyed by fire or other casualty and the
Facility is not thereby rendered Unsuitable for its Primary Intended Use, Tenant
shall promptly restore the Facility to substantially the same condition as
existed immediately before such damage or destruction; provided, however, that
if Tenant cannot, using diligent efforts, obtain all government approvals,
including building permits, licenses, conditional use permits and certificates
of need, necessary to perform all required repair and restoration and to operate
the Facility for its Primary Intended Use in substantially the same manner as
existed immediately prior to such damage or destruction within one hundred
eighty (180) days after the date of such fire or casualty, Tenant shall, within
thirty (30) days thereafter elect, by written notice to Landlord, either (a) to
substitute a new property or properties for the Leased Property in accordance
with the provisions of Article 16, or (b) purchase the Leased Property for a
purchase price equal to the greater of the then Minimum Repurchase Price or the
Fair Market Value Purchase Price of the Leased Property immediately prior to
such damage or destruction. Failure of Tenant to give such notice within such
period shall be deemed an election by Tenant to purchase the Leased Property.
Within thirty (30) days after receipt of Tenant's notice, Landlord shall give
Tenant written notice as to whether Landlord accepts such offer. Failure of
Landlord to give such notice shall be deemed an election by Landlord to accept
Tenant's offer. If Landlord shall reject such offer, Tenant shall elect, by
written notice to Landlord, given within thirty (30) days thereafter, either (a)
to withdraw such offer, in which event this Lease shall remain in full force and
effect with and Tenant shall proceed to restore the Facility as soon as
reasonably practicable to substantially the same condition as existed
immediately before such damage or destruction, or (b) terminate this Lease.
Failure of Tenant to give such notice within such period shall be deemed an
election by Tenant to restore the Leased Property.
In the event Landlord shall accept Tenant's offer to purchase the
Leased Property, this Lease shall terminate with respect thereto upon payment of
the purchase price. In the event Landlord shall accept Tenant's offer to
substitute a new property or properties, this Lease shall
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be deemed modified to substitute such new property for the Leased Property
(effective as of the date of such substitution pursuant to Article 16) and all
insurance proceeds pertaining to the Leased Property shall be paid to Tenant.
Landlord and Tenant shall promptly execute appropriate instruments to confirm
the foregoing, although the failure to do so shall not affect this Lease.
10.3 Insufficient Insurance Proceeds. If the cost of the repair or
restoration exceeds the amount of insurance proceeds received by Landlord
pursuant to Article 9, Tenant shall contribute any excess amounts needed to
complete such restoration. Such difference shall be paid by Tenant to Landlord
and held by Landlord in trust in an interest bearing account, together with any
other insurance proceeds, for application to the cost of repair and restoration
in accordance with Section 10.4.
10.4 Disbursement of Proceeds. In the event Tenant is required to
restore the Leased Property pursuant to Sections 10.1 or 10.2, Tenant shall, at
its sole cost and expense, commence promptly and continue diligently to perform,
or cause to be performed, the repair and restoration of the Leased Property so
as to restore the Leased Property in full compliance with all Legal Requirements
and otherwise in compliance with any other applicable provisions of this Lease,
so that the Leased Property shall be at least equal in value and general utility
to its general utility and value immediately prior to such damage or
destruction. Subject to the terms hereof, Landlord shall advance the insurance
proceeds (other than proceeds of business interruption insurance which shall be
advanced as provided below) and the amounts paid to it pursuant to Section 10.3
to Tenant regularly during the repair and restoration period so as to permit
payment for the cost of such restoration and repair. Any such advances shall be
for not less than $50,000 (or such lesser amount as equals the entire balance of
the repair and restoration costs) and Tenant shall submit to Landlord a written
requisition and substantiation therefor on AIA Forms G702 and G703 (or on such
other form or forms as may be acceptable to Landlord). Landlord may, at its
option, condition advancement of such insurance proceeds and other amounts on
(i) the absence of any Default (as to which Landlord has given notice to Tenant)
or Event of Default, (ii) its approval of plans and specifications of an
architect satisfactory to Landlord (which approval shall not be unreasonably
withheld or delayed), (iii) general contractors, estimates, (iv) architect's
certificates, (v) unconditional lien waivers of general contractors, (vi)
evidence of approval by all governmental authorities and other regulatory bodies
whose approval is required and (vii) such other certificates as Landlord may,
from time to time, reasonably require. Provided no Default (as to which Landlord
has given notice to Tenant) or Event of Default has occurred and is continuing,
on the first day of each calendar month during which proceeds of business
interruption insurance are disbursed to Landlord under the policy of business
interruption insurance maintained pursuant to Article 9, Landlord shall disburse
proceeds of business interruption insurance received by it to Tenant upon notice
from Tenant accompanied by a certification from Tenant that such moneys will be
used for costs or expenses of owning or operating the Leased Property.
Landlord's obligation to disburse insurance proceeds under this Article
10 shall be subject to the release of such proceeds by any Facility Mortgagee.
10.5 Tenant's Property. All insurance proceeds payable by reason of any
loss of or damage to any of Tenant's Personal Property or Capital Additions
financed by Tenant shall be
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paid to Tenant and Tenant shall hold such proceeds in trust to pay the cost of
repairing or replacing damaged Tenant's Personal Property or Capital Additions
paid for or financed by Tenant.
10.6 Restoration of Tenant's Property. If Tenant shall be required or
elect to restore the Facility as hereinabove provided Tenant shall either (a)
restore all alterations and improvements made by Tenant, Tenant's Personal
Property and all Capital Additions paid for or financed by Tenant, or (b)
replace such alterations and improvements, Tenant's Personal Property, and/or
Capital Additions with improvements or items of the same or better quality and
utility in the operation of the Facility.
10.7 No Abatement of Rent. Unless this Lease shall be terminated as
herein provided, during the first twelve (12) months of any period required for
repair or restoration, this Lease shall remain in full force and effect and
Tenant's obligation to make rental payments and to pay all other charges
required by this Lease shall remain unabated during the Term notwithstanding any
damage affecting the Leased Property. Thereafter, payments of Minimum Rent shall
be adjusted in the manner provided in Section 11.6.
10.8 Damage Near End of Term. Notwithstanding any provisions of this
Article 10 to the contrary, if (a) damage to or destruction of the Facility
occurs during the last twelve (12) months of the Term, (b) Tenant has not
elected to extend the Term, (c) no Default (as to which Landlord has given
notice to Tenant) or Event of Default shall have occurred and be continuing, and
(d) such damage or destruction cannot be fully repaired and restored within one
hundred eighty (180) days immediately following the date of loss, Tenant shall
have the right to terminate this Lease by the giving of written notice thereof
to Landlord within thirty (30) days after the date of casualty. Failure of
Tenant to give such notice within such 30 day period shall be a waiver of
Tenant's right to terminate this Lease pursuant to this section.
ARTICLE 11
CONDEMNATION
11.1 Total Condemnation. If the whole of the Leased Property shall be
taken by Condemnation, this Lease shall terminate as of the Date of Taking. In
the event a Condemnation of less than the whole of the Leased Property renders
the Leased Property Unsuitable for Its Primary Intended Use, Tenant and Landlord
shall each have the option, by written notice to the other, given at any time
prior to the date title vests in a third party, to terminate this Lease as of
the Date of Taking, whereupon this Lease shall terminate as of such date.
11.2 Partial Condemnation. In the event of a Condemnation of less than
the whole of the Leased Property such that Leased Property is still suitable for
its Primary Intended Use, or if neither Tenant nor Landlord shall terminate this
Lease as provided in Section 11.1, Tenant, at its sole cost and expense, shall,
with all reasonable dispatch, restore the untaken portion of the Leased
Improvements so that such Leased Improvements shall constitute a complete
architectural unit of the same general character and condition (as nearly as may
be possible under the circumstances) as the Leased Improvements existing
immediately prior to such Condemnation. Landlord shall, subject to and in
accordance with the applicable provisions of
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Section 10.4, contribute to the cost of restoration that part of its Award
allocable to such restoration. In such event, the Minimum Rent shall be
permanently reduced as set forth in Section 11.6.
11.3 Temporary Condemnation. In the event of any temporary Condemnation
of all or any part of the Leased Property or Tenant's interest under this Lease,
this Lease shall continue in full force and effect and Tenant shall continue to
pay, in the manner and on the terms herein specified, the full amount of the
Rent. To the extent reasonably practicable, Tenant shall continue to perform and
observe all of the other terms and conditions thereof, on the part of Tenant to
be performed and observed. The entire amount of any Award made for such
temporary Taking or Condemnation allocable to the Term, whether paid by way of
damages, rent or otherwise, shall be paid to Tenant. Tenant shall, upon the
termination of any such period of temporary Condemnation, at its sole cost and
expense (but only to the extent of the Award payable to Tenant), restore the
Leased Property as nearly as may be reasonably possible, to the condition that
existed immediately prior to such Condemnation, unless such period of temporary
use or occupancy shall extend beyond the expiration of the Term, in which case
Tenant shall not be required to make such restoration.
11.4 Tenant's Option. In the event of the termination of this Lease as
provided in Section 11.1, Tenant shall have the right, exercisable by written
notice to Landlord given within thirty (30) days after receipt by Tenant of
notice of Condemnation, to elect (a) to acquire the Leased Property from
Landlord for a purchase price equal to the greater of its Minimum Repurchase
Price or the Fair Market Value Purchase Price of the Leased Property immediately
prior to such Condemnation, in which event, upon the closing of such
acquisition, Tenant shall have the right to receive the entire Award, or (b) to
substitute a new property therefor in accordance with the provisions of Article
16, in which event Tenant shall receive the entire Award. Failure of Tenant to
give such notice within such 30-day period shall be deemed a waiver of Tenant's
rights pursuant to this Section 11.4. In the event Landlord shall, by written
notice to Tenant given within thirty (30) days after receipt of Tenant's
election notice, reject Tenant's offer so to purchase or substitute, Tenant
shall restore the Leased Property to substantially the same condition as existed
immediately before such Condemnation in accordance with the applicable
provisions of this Lease and, in such event, Landlord shall, subject to and in
accordance with the applicable provisions of Section 10.4, contribute to the
cost of restoration that part of its Award allocable to such restoration.
11.5 Allocation of Award. Except as provided in the second sentence of
this Section 11.5, the total Award shall be solely the property of and payable
to Landlord. Any portion of the Award made for the taking of Tenant's leasehold
interest in the Leased Property, Capital Additions paid for or financed by
Tenant, loss of business at the Leased Property during the remainder of the
Term, the taking of Tenant's Personal Property, or Tenant's removal and
relocation expenses shall be the sole property of and payable to Tenant. In any
Condemnation proceedings, Landlord and Tenant shall each seek its own Award in
conformity herewith, at its own expense.
11.6 Abatement Procedures. In the event of a partial Condemnation as
described in Section 11.2, this Lease shall not terminate, but the Minimum Rent
shall be abated in the manner and to the extent that is fair, just and equitable
to both Tenant and Landlord, taking into
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consideration, among other relevant factors, the number of usable beds, the
amount of square footage, or the revenues affected by such partial or temporary
taking or damage or destruction. If Landlord and Tenant are unable to agree upon
the amount of such abatement within thirty (30) days after such Condemnation or
damage, the matter may be submitted by either party to a court of competent
jurisdiction for resolution or, if the parties so agree, the matter may be
submitted by the parties for resolution by arbitration in accordance with the
rules of the American Arbitration Association.
ARTICLE 12
DEFAULTS AND REMEDIES
12.1 Events of Default. The occurrence of any one or more of the
following events shall constitute an "Event of Default" under this Lease:
(a) If Tenant shall fail to make any payment of Rent or any
other sum payable hereunder when due and such failure shall continue
for ten (10) days after written notice thereof;
(b) If Tenant shall fail to observe any term, covenant or
condition set forth in Section 9 of this Lease and such failure shall
continue for ten (10) days after written notice thereof;
(c) If Tenant or the Guarantor shall fail to observe or
perform any other term, covenant or condition of this Lease and such
failure shall continue for thirty (30) days after written notice
thereof; provided, however, if any such failure, not involving the
payment of money, cannot with due diligence be cured within such thirty
(30) day period, an Event of Default shall not be deemed to have
occurred for such additional period (not to exceed 120 days in the
aggregate) required to cure the same so long as Tenant or Guarantor
commences sure cure within such thirty (30) day period and thereafter
diligently prosecutes such cure to completion;
(d) If, following confirmation of a plan of reorganization for
Tenant or Guarantor, as applicable,
(A) Tenant or Guarantor shall (i) admit in writing
its inability, or be unable, to pay its debts generally as
they become due; (ii) file a petition in bankruptcy or a
petition to take advantage of any insolvency law; (iii) make a
general assignment for the benefit of its creditors; (iv)
consent to the appointment of a receiver of itself or of the
whole or any substantial part of its property; or (v) file a
petition or answer seeking reorganization or arrangement under
the federal bankruptcy laws or any other applicable law or
statute of the United States of America or any state thereof;
or
(B) Tenant or Guarantor shall be adjudicated a
bankrupt or shall have an order for relief thereunder entered
against it or a court of competent jurisdiction shall enter an
order or decree appointing a receiver for it or of the
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whole or substantially all of its property, or approving a
petition filed against it seeking reorganization or
arrangement of Tenant or Guarantor under the Bankruptcy Code
or any other applicable law or statute of the United States of
America or any state thereof, and such judgment, order or
decree shall not be vacated or set aside within sixty (60)
days from the date of entry thereof;
(e) If Tenant or Guarantor shall be liquidated or
dissolved, or shall begin proceedings toward such liquidation
or dissolution, or, in any manner, permit the sale or
divestiture of substantially all of its assets;
(f) If the estate or interest of Tenant in the Leased
Property or any part thereof shall be levied upon or attached
in any proceeding and the same shall not be vacated or
discharged within thirty (30) days after commencement thereof
(unless Tenant shall be contesting such lien or attachment in
accordance with Article 8);
(g) If, except as a result of damage, destruction,
strikes, lock-outs or a partial or complete Condemnation,
Tenant shall voluntarily cease operations on the Leased
Property for a period in excess of thirty (30) days; or
(h) If any representation or warranty of Tenant or
Guarantor and contained in this Lease or the Guaranty shall
prove to be untrue in any material respect on the date when
made which materially and adversely affects Landlord, and the
same shall not be cured within ninety (90) days after written
notice thereof;
(i) If the Cases of the Tenant or Guarantor shall be
dismissed or converted to a Case under Chapter 7 of the
Bankruptcy Code; or a trustee under Chapter 7 or Chapter 11 of
the Bankruptcy Code, a responsible officer or an examiner with
enlarged powers relating to the operation of the business
(powers beyond those set forth in ss.1106(a)(3) and (4) of the
Bankruptcy Code) under ss.1106(b) of the Bankruptcy Code shall
be appointed in any of the Cases of the Tenant or Guarantor
and the order appointing such trustee, responsible officer or
examiner shall not be reversed or vacated within 60 days after
the entry thereof; or
(j) If an order of the Bankruptcy Court shall be
entered reversing, amending, supplementing, staying for a
period in excess of 10 days, vacating or otherwise modifying
the Orders in a manner that is materially adverse to Landlord.
Upon the occurrence of any Event of Default, and without further order
of or application to the Bankruptcy Court, Landlord and the agents and servants
of Landlord lawfully may, in addition to and not in derogation of any remedies
for any preceding breach of covenant, immediately or at any time thereafter,
without demand or notice and with or without process of law (forcibly, if
necessary), enter into and upon the Leased Property or any part thereof in the
name of the whole or mail a notice of termination addressed to Tenant, and
repossess the same and expel Tenant and those claiming through or under Tenant
and remove its and their effects (forcibly, if necessary), without being deemed
guilty of any manner of trespass and without prejudice to any remedies which
might otherwise be used for arrears of rent or prior breach of covenant, and,
upon such entry or mailing as aforesaid, this Lease shall terminate, Tenant
hereby
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waiving all statutory rights to the Leased Property (including, without
limitation, rights of redemption, if any, to the extent such rights may be
lawfully waived) and Landlord, without notice to Tenant, may store Tenant's
effects, and those of any person claiming through or under Tenant, at Tenant's
sole expense and risk, and, if Landlord so elects, may sell such effects at
public auction or private sale and apply the net proceeds to the payment of all
sums due to Landlord from Tenant, if any, and pay over the balance, if any, to
Tenant. In addition, subject solely to the terms of the Orders, the automatic
stay provided in ss.362 of the Bankruptcy Code shall be deemed automatically
vacated without further action or order of the Bankruptcy Court and the Landlord
shall be entitled to exercise all of its respective rights and remedies under
this Lease Agreement and the Guaranty, including, without limitation, all rights
and remedies with respect to the Tenant's Personal Property and Guarantor.
Upon the occurrence of an Event of Default, Landlord may, in addition
to any other remedies provided herein, enter upon the Leased Property and take
possession of any and all of Tenant's Personal Property and the Records (subject
to any prohibitions or limitations to disclosure of any such data as described
in Section 3.1.2(d)) on the Leased Property, without liability for trespass or
conversion (Tenant hereby waiving any right to notice or hearing prior to such
taking of possession by Landlord) and sell the same at public or private sale,
after giving Tenant reasonable notice of the time and place of any public or
private sale, at which sale Landlord or its assigns may purchase all or any
portion of such Personal Property unless otherwise prohibited by law. Unless
otherwise provided by law, and without intending to exclude any other manner of
giving Tenant reasonable notice, the requirement of reasonable notice shall be
met if such notice is given in the manner prescribed in this Lease at least ten
(10) days before the day of sale. The proceeds from any such disposition, less
all expenses incurred in connection with the taking of possession, holding and
selling of such property (including, reasonable attorneys, fees) shall be
deducted from the proceeds of such sale. Any surplus shall be paid to Tenant or
as otherwise required by law and Tenant shall pay any deficiency to Landlord, as
Additional Rent, upon demand.
The automatic stay provided in ss.362 of the Bankruptcy Code shall be
modified so as to permit Landlord to deliver notices of default to Tenant and/or
Guarantor pursuant to the appropriate paragraphs of Section 12.1 and to take all
other actions provided for above without further action or order of the
Bankruptcy Court.
12.2 Remedies. In the event of any termination pursuant to Section
12.1, Tenant shall pay the Rent and other charges payable hereunder up to the
time of such termination and, thereafter, Tenant, until the end of what would
have been the Term of this Lease in the absence of such termination, and whether
or not the Leased Property, or any portion thereof, shall have been re-let,
shall be liable to Landlord for, and shall pay to Landlord, as current damages,
the Rent and other charges which would be payable hereunder for the remainder of
the Term had such termination not occurred, less the net proceeds, if any, of
any reletting of the Leased Property, after deducting all expenses in connection
with such re-letting, including, without limitation, all repossession costs,
brokerage commissions, legal expenses, attorneys' fees, advertising, expenses of
employees, alteration costs and expenses of preparation for such reletting.
Tenant shall pay such current damages to Landlord monthly on the days on which
the Minimum Rent would have been payable hereunder if this Lease had not been
terminated.
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At any time after such termination, whether or not Landlord shall have
collected any such current damages, as liquidated final damages and in lieu of
all such current damages beyond the date of such demand, at Landlord's election,
Tenant shall pay to Landlord either (a) an amount equal to the excess, if any,
of the Rent and other charges which would be payable hereunder from the date of
such demand (assuming that, for the purposes of this paragraph, annual payments
by Tenant on account of Impositions would be the same as payments required for
the immediately preceding twelve calendar months, or if less than twelve
calendar months have expired since the Commencement Date, the payments required
for such lesser period projected to an annual amount shall be determined in the
manner set forth above) for what would be the then unexpired term of this Lease
if the same remained in effect, over the Fair Market Rental for the same period,
or (b) an amount equal to the lesser of (i) the Rent and other charges that
would have been payable for the balance of the Term had it not been terminated,
or (ii) the aggregate of the Minimum Rent and other charges accrued in the
twelve (12) months ended next prior to such termination (without reduction for
any free rent or other concession or abatement). In the event this Lease is so
terminated prior the expiration of the first, full year of the Term, the
liquidated damages which Landlord may elect to recover pursuant to clause
(b)(ii) of this paragraph shall be calculated as if such termination had
occurred on the first anniversary of the Commencement Date. Nothing contained in
this Lease shall, however, limit or prejudice the right of Landlord to prove and
obtain in proceedings for bankruptcy or insolvency an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, the damages are to be proved, whether or not
the amount be greater than, equal to, or less than the amount of the loss or
damages referred to above.
In case of any Event of Default, re-entry, expiration and dispossession
by summary proceedings or otherwise, Landlord may (a) relet the Leased Property
or any part or parts thereof, either in the name of Landlord or otherwise, for a
term or terms which may at Landlord's option, be equal to, less than or exceed
the period which would otherwise have constituted the balance of the Term and
may grant concessions or free rent to the extent that Landlord considers
advisable and necessary to relet the same, and (b) may make such reasonable
alterations, repairs and decorations in the Leased Property as Landlord, in its
sole judgment, considers advisable and necessary for the purpose of reletting
the Leased Property; and the making of such alterations, repairs and decorations
shall not operate or be construed to release Tenant from liability hereunder as
aforesaid. Landlord shall in no event be liable in any way whatsoever for
failure to relet the Leased Property, or any portion thereof, or, in the event
that the Leased Property is relet, for failure to collect the rent under such
reletting. To the fullest extent permitted by law, Tenant hereby expressly
waives any and all rights of redemption granted under any present or future laws
in the event of Tenant being evicted or dispossessed, or in the event of
Landlord obtaining possession of the Leased Property, by reason of the violation
by Tenant of any of the covenants and conditions of this Lease.
12.3 Waiver. If this Lease is terminated pursuant to Section 12.1 or
12.2, Tenant waives, to the extent permitted by law, (a) any right to a trial by
jury in the event of summary proceedings to enforce the remedies set forth in
this Article 12, and (b) the benefit of any laws now or hereafter in force
exempting property from liability for rent or for debt.
WITHOUT LIMITING THE EFFECT OR GENERALITY OF OTHER WAIVERS PROVIDED FOR
IN THIS LEASE, TENANT EXPRESSLY WAIVES
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THOSE BENEFITS CONFERRED ON TENANTS BY ACT NO. 20, APPROVED APRIL 6, 1951,
ENTITLED "THE LANDLORD AND TENANT ACT OF 1951", AS AMENDED, WHICH GOVERN
REQUIREMENTS OF NOTICE TO VACATE THE LEASED PREMISES IN THE EVENT OF ANY DEFAULT
OR AT THE END OF THE TERM AND REQUIREMENTS REGARDING SECURITY DEPOSITS, THE
RETURN THEREOF AND THE ACCOUNTING AND DELIVERY OF INTEREST THEREON.
12.4 Application of Funds. Any payments received by Landlord under any
of the provisions of this Lease during the existence or continuance of any Event
of Default (and any payment made to Landlord rather than Tenant due to the
existence of an Event of Default) shall be applied to Tenant's obligations in
such order as Landlord may determine or as may be prescribed by the laws of the
State.
12.5 Landlord's Right to Cure Tenant's Default. If an Event of Default
shall have occurred and be continuing, Landlord, after written notice to Tenant
(provided that no such notice shall be required if Landlord shall reasonably
determine immediate action is necessary to protect person or property), without
waiving or releasing any obligation of Tenant, and without waiving or releasing
any Event of Default, may (but shall not be obligated to), at any time
thereafter, make such payment or perform such act for the account and at the
expense of Tenant, and may, to the extent permitted by law, enter upon the
Leased Property, or any portion thereof, for such purpose and take all such
action thereon as, in Landlord's opinion, may be necessary or appropriate
therefor, including, the management of the Facility by Landlord or its designee,
and Tenant hereby irrevocably appoints, in the event of such election by
Landlord, Landlord or its designee as manager of the Facility and its attorney
in fact for such purpose, irrevocably and coupled with an interest, in the name,
place and stead of Tenant. All costs and expenses (including, without
limitation, reasonable attorneys, fees) incurred by Landlord in connection
therewith, together with interest thereon (to the extent permitted by law) at
the Overdue Rate from the date such sums are paid by Landlord until repaid,
shall be paid by Tenant to Landlord, on demand.
12.6 Trade Names. If this Lease is terminated for any reason, Landlord
shall, upon the request of Tenant, cause the name of the business conducted upon
the Leased Property to be changed to a name other than a Facility Trade Name or
any approximation or abbreviation thereof and sufficiently dissimilar to such
name as to be unlikely to cause confusion with such name; provided, however,
that Tenant shall not thereafter use a Facility Trade Name in the same market in
which the Facility is located in connection with any business that competes with
the Facility.
ARTICLE 13
HOLDING OVER
Any holding over by Tenant after the expiration of the Term shall be
treated as a daily tenancy at sufferance at a rate equal to two (2) times the
Minimum Rent then in effect plus Additional Rent and other charges herein
provided (prorated on a daily basis). Tenant shall also pay to Landlord all
damages, direct and/or consequential (foreseeable and unforeseeable),
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sustained by reason of any such holding over. otherwise, such holding over shall
be on the terms and conditions set forth in this Lease, to the extent
applicable.
ARTICLE 14
LANDLORD'S DEFAULT
If Landlord shall default in the performance or observance of any of
its covenants or obligations set forth in this Lease and such default shall
continue for a period of thirty (30) days after written notice thereof, or such
additional period as may be reasonably required to correct the same (except if
such default shall constitute an immediate threat to life or property, five (5)
Business Days) Tenant may declare the occurrence of a "Landlord Default" by a
second notice to Landlord. Thereafter, Tenant may forthwith cure the same and,
subject to the provisions of the following paragraph, invoice Landlord for costs
and expenses (including reasonable attorneys' fees and court costs) incurred by
Tenant in curing the same, together with interest from the date Landlord
receives Tenant's invoice, at a rate equal to the Base Rate. Tenant shall have
no right to terminate this Lease for any default by Landlord hereunder and no
right, for any such default, to offset or counterclaim against any rent or other
charges due hereunder.
If Landlord shall in good faith dispute the occurrence of any Landlord
Default and Landlord, before the expiration of the applicable cure period, shall
give written notice thereof to Tenant, setting forth, in reasonable detail, the
basis therefor, no Landlord Default shall be deemed to have occurred and
Landlord shall have no obligation with respect thereto until final adverse
determination thereof. If Tenant and Landlord shall fail, in good faith, to
resolve the dispute within five (5) days after Landlord's notice of dispute,
either may submit the matter to arbitration for resolution in accordance with
the commercial arbitration rules of the American Arbitration Association. Such
arbitration shall be final and binding on Landlord and Tenant and judgment
thereon may be entered into any court of competent jurisdiction. Within five (5)
days after submission to arbitration, Landlord and Tenant shall submit all
information required for such arbitration and shall take all other actions
required for such arbitration to proceed and the arbitrators shall be instructed
to render a determination as soon as possible and in any event not later than
thirty (30) days after submission.
ARTICLE 15
PURCHASE OF PREMISES
In the event Tenant shall purchase the Leased Property from Landlord
pursuant to any of the terms of this Lease, Landlord shall, upon receipt from
Tenant of the applicable purchase price, together with full payment of any
unpaid Rent and other charges due and payable with respect to any period ending
on or before the date of the purchase, deliver to Tenant a title insurance
policy, together with an appropriate deed or other instruments, conveying the
entire interest of Landlord in and to the Leased Property to Tenant, free and
clear of all encumbrances other than (a) those Tenant has agreed hereunder to
pay or discharge, (b) those liens, if any, which Tenant has agreed in writing to
accept and take title subject to, (c) the Permitted Encumbrances, and (d) any
other encumbrances permitted to be imposed on the Leased Property (x) pursuant
to the terms of this Lease or (y) otherwise permitted to be imposed under the
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provisions of Section 21.1 which are assumable at no cost to Tenant or to which
Tenant may take subject without cost to Tenant. The difference between the
applicable purchase price and the total of the encumbrances assumed or taken
subject to shall be paid in cash to Landlord or as Landlord may direct, in
federal or other immediately available funds. The closing of any such sale shall
be contingent upon and subject to Tenant's obtaining all required governmental
consents and approvals for such transfer and if such sale shall fail to be
consummated by reason of the inability of Tenant to obtain all such approvals
and consents, any options to extend the Term of this Lease which otherwise would
have expired during the escrow period of such proposed sale shall be deemed to
remain in effect for 30 days after termination thereof. All expenses of such
conveyance, including, without limitation, the cost of title examination or
standard coverage title insurance, usually paid by a purchaser of real property
in the State shall be paid by Tenant; all expenses of such conveyance usually
paid by a seller of real property in the State shall be paid by Landlord.
ARTICLE 16
SUBSTITUTION OF PROPERTY FOR THE LEASED PROPERTY
16.1 Tenant's Substitution Option. Provided (a) in the good faith
judgment of Tenant, the Leased Property shall become Unsuitable for its Primary
Intended Use, (b) no Default or Event of Default shall have occurred and be
continuing, and (c) not less than one (1) year shall remain in the Term, Tenant
shall have the right, subject to the conditions set forth in this Article 16,
upon not less than thirty (30) days prior written notice to Landlord, to
substitute one or more properties (collectively, the "Substitute Properties" or
individually, "Substitute Property") on the date specified in such notice (the
"Substitution Date"); provided, however, that if Tenant is required by court
order or administrative action to divest or otherwise dispose of the Leased
Property in less than thirty (30) days and Tenant shall have given Landlord
prior written notice of the filing of such court or administrative action and
kept Landlord reasonably apprised of the status thereof, the time period shall
be shortened appropriately to meet the reasonable needs of Tenant, but in no
event less than ten (10) Business Days after the receipt by Landlord of such
notice. Such notice shall include (a) an Officer's Certificate, setting forth in
reasonable detail the reason(s) for the substitution and the proposed
Substitution Date, and (b) designate not less than two properties (or groups of
properties), each of which properties (or groups of properties) shall provide
Landlord with a yield (i.e., annual return on its equity in such property)
substantially equivalent to Landlord's yield from the Leased Property at the
time of such proposed substitution (or in the case of substitution because of
damage or destruction, the yield immediately prior to such damage or
destruction) and as reasonably projected over the remaining Term of this Lease
(and giving effect to projected residual values).
16.2 Substitution Procedures.
(a) If Tenant shall initiate a substitution pursuant to
Section 16.1 or 16.2, Landlord shall have a period of thirty (30) days
within which to review the designated properties and such additional
information and either accept or reject the Substitute Properties so
presented, unless Tenant is required by a court order or administrative
action to divest or otherwise dispose of the Leased Property within a
shorter time period, in which case the time period shall be shortened
appropriately to meet the reasonable
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needs of Tenant, but in no event shall such period be less than five
(5) Business Days after Landlord's actual receipt of Tenant's notice
(subject to further extension for any period of time in which Landlord
is not timely provided with the information provided for in this
Section 16.3 and Section 16.4 below). Landlord and Tenant shall use
good faith efforts to agree on a Substitute Property.
(b) In the event that, on or before the expiration of the
applicable time period for Landlord's review, Landlord has rejected
both of the Substitute Properties so presented, Tenant shall, for a
period of sixty (60) days after the expiration of such period, have the
right to terminate this Lease, by the giving of written notice thereof
to Landlord, accompanied by an offer to purchase the Leased Property on
the date set forth in such notice, but in no event less than ninety
(90) days thereafter, for a purchase price equal to the greater of the
then Fair Market Value Purchase Price or the Minimum Repurchase Price,
and, subject to the provisions of Article 15, this Lease shall
terminate on such purchase date.
(c) Landlord shall not unreasonably withhold its consent to an
offer by Tenant to substitute a property as set forth in this Article
provided (i) Landlord shall determine the Substitute Property shall
provide Landlord with a yield substantially equivalent to Landlord's
yield from the Leased Property immediately before such substitution or
such damage or destruction, as the case may be, and as projected over
the remainder of the Term and (ii) the delivery of an opinion of
counsel for Landlord confirming that (w) the substitution of the
Substitute Property for the Leased Property will qualify as an exchange
solely of property of a like-kind under Section 1031 of the Code, in
which, generally, except for "boot", no gain or loss will be recognized
by Landlord, (x) the substitution will not result in ordinary recapture
income to Landlord pursuant to Section 1250(d)(4) of the Code or any
other provision of the Code, (y) the substitution will result in
income, if any, to Landlord of a type described in Section 856(c)(2) or
(3) of the Code and will not result in income of the types described in
Section 856(c)(4) of the Code or result in the tax imposed under
Section 857(b)(6) of the Code, and (z) the substitution, together with
all other substitutions made or requested by Tenant of all or any
portion of the Leased Property during the relevant time period, will
not jeopardize the qualification of Landlord as a real estate
investment trust under Sections 856-860 of the Code.
(d) In the event that the then Fair Market Value of the
Substitute Property or group of Substitute Properties minus the
encumbrances assumed by Landlord, or as to which Landlord will take the
Substitute Property or group of Substitute Properties subject, as of
the Substitution Date is greater than the then Fair Market Value of the
Leased Property minus the encumbrances assumed by Tenant, or as to
which the Tenant will take the Leased Property subject, as of the
Substitution Date (or in the case of damage or destruction, the Fair
Market Value immediately prior to such damage or destruction), Landlord
shall pay to Tenant an amount equal to the difference, subject to the
limitation set forth below; in the event that such value of the
Substitute Property or group of Substitute Properties is less than such
value of the Leased Property, Tenant shall pay to Landlord an amount
equal to the difference, subject to the limitation set forth below;
provided, however, neither Landlord nor Tenant shall be obligated to
consummate such substitution if such party would be required to make a
payment (the "Cash
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Adjustment") to the other in excess of an amount equal to five percent
(5%) of the Fair Market Value of the Leased Property.
(e) The Rent for such Substitute Property shall, in all
respects, provide Landlord with a yield (i.e., annual return on its
equity in such property) substantially equivalent to Landlord's yield
from the Leased Property at the time of such substitution (or in the
case of substitution because of damage or destruction the yield
immediately prior to such damage or destruction) and as reasonably
projected over the remaining Term, taking into account the Cash
Adjustment paid or received by Landlord and any other relevant factors,
as reasonably determined by Landlord.
(f) The Minimum Repurchase Price of the Substitute Property
shall be an amount equal to the Minimum Repurchase Price of the Leased
Property (i) increased by any Cash Adjustment paid by Landlord pursuant
to paragraph (d) above, or (ii) decreased by any Cash Adjustment paid
by Tenant pursuant to paragraph (d) above.
16.3 Conditions to Substitution. On the Substitution Date, the
Substitute Property shall become the Leased Property hereunder, upon delivery by
Tenant to Landlord of the following:
(a) an Officer's Certificate certifying that (i) the
Substitute Property has been accepted by Tenant for all purposes of
this Lease and there has been no material damage to the improvements
located thereon, nor is any Condemnation pending or threatened with
respect thereto; (ii) all appropriate permits, licenses and
certificates (including, but not limited to, a permanent, unconditional
certificate of occupancy and all certificates of need, licenses and
provider agreements) which are necessary to permit the use of the
Substitute Property in accordance with the provisions of this Lease
have been obtained and are in full force and effect; (iii) under
applicable zoning and use laws, ordinances, rules and regulations, the
Substitute Property may be used for the purposes contemplated by this
Lease and all necessary subdivision approvals, if any, have been
obtained; (iv) there are no mechanics, or materialmen's liens
outstanding or threatened to the knowledge of Tenant against the
Substitute Property arising out of or in connection with the
construction of the improvements thereon, other than those being
contested by Tenant pursuant to Article 8; (v) to the best knowledge of
Tenant, there exists no Default or Event of Default, and no defense,
offset or claim with respect to any sums payable by Tenant hereunder;
and (vi) any exceptions to Landlord's title to the Substitute Property
do not materially interfere with the intended use of the Substitute
Property by Tenant;
(b) a deed with full warranties or assignment of a leasehold
estate with full warranties (as applicable) conveying to Landlord title
to the Substitute Property free and clear of any liens or encumbrances,
except those approved by Landlord;
(c) an amendment duly executed, acknowledged and delivered by
Tenant, in form and substance satisfactory to Landlord, amending this
Lease to correct the legal description of the Land and make such other
changes herein as may be necessary or appropriate under the
circumstances;
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(d) counterparts of a standard owner's or lessee's (as
applicable) policy of title insurance covering the Substitute Property
(or a valid, binding, unconditional commitment therefor), dated as of
the Substitution Date, in current form and including mechanics' and
materialmen's lien coverage, issued to Landlord by a title insurance
company and in the form reasonably satisfactory to Landlord, which
policy shall (i) insure (x) Landlord's fee title or leasehold estate to
the Substitute Property, subject to no liens or encumbrances except
those approved by Landlord and (y) that any restrictions affecting the
Substitute Property have not been violated; (ii) be in an amount at
least equal to the Fair Market Value of the Substitute Property; and
(iii) contain such affirmative coverage endorsements as Landlord shall
reasonably request;
(e) certificates of insurance with respect to the Substitute
Property fulfilling the requirements of Article 9;
(f) current appraisals or other evidence satisfactory to
Landlord, in its sole discretion, as to the then current Fair Market
Values and the projected residual values of such Substitute Property
and the Leased Property as to which such substitution is being made;
(g) all available revenue data relating to the Substitute
Property for the period from the date of opening for business of the
Facility on such Substitute Property to the date of Tenant's most
recent Fiscal Year end or for the most recent three (3) years,
whichever is less; and
(h) such other certificates, documents, opinions of counsel
and other instruments as may be reasonably required by Landlord.
16.4 Conveyance to Tenant. On the Substitution Date, Landlord shall
convey the Leased Property to Tenant in accordance with the provisions of
Article 15 (except as to payment of any expenses in connection therewith which
shall be governed by Section 16.6) upon either (a) payment in cash therefor or
(b) conveyance to Landlord of the Substitute Property, as appropriate.
16.5 Expenses. Tenant shall pay or cause to be paid, on demand, all
reasonable costs and expenses paid or incurred by Landlord in connection with
the substitution and conveyance of the Leased Property and Substitute Property,
including, but not limited to, (a) reasonable fees and expenses of counsel, (b)
all printing expenses, (c) the amount of filing, registration and recording
taxes and fees, (d) the cost of preparing and recording, if appropriate, a
release of the Leased Property from the lien of any mortgage, (e) brokers, fees
and commissions, (f) documentary stamp and transfer taxes, (g) title insurance
charges and premiums, and (h) escrow fees.
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ARTICLE 17
SUBLETTING AND ASSIGNMENT
17.1 Subletting and Assignment. Except as hereinafter provided, Tenant
shall not assign, mortgage, pledge, hypothecate, encumber or otherwise transfer
this Lease or sublease (which term shall be deemed to include the granting of
concessions and licenses and the like) all or any part of the Leased Property or
suffer or permit this Lease or the leasehold estate hereby created 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, or permit the use or occupancy of the
Leased Property by anyone other than Tenant, or the Leased Property to be
offered or advertised for assignment or subletting except as hereinafter
provided. For purposes of this Section 17.1, an assignment of this Lease shall
be deemed to include any transaction pursuant to which Tenant is merged or
consolidated with another entity or pursuant to which all or substantially all
of Tenant's assets are transferred to any other entity, as if such transaction
were an assignment of this Lease.
If this Lease is assigned or if the Leased Property or any part thereof
are sublet (or occupied by anybody other than Tenant and its employees)
Landlord, after default by Tenant hereunder, may collect the rents from such
assignee, subtenant or occupant, as the case may be, and apply the net amount
collected to the Rent herein reserved, but no such collection shall be deemed a
waiver of the provisions set forth in the first paragraph of this Section 17.1,
the acceptance by Landlord of such assignee, subtenant or occupant, as the case
may be, as a tenant, or a release of Tenant from the future performance by
Tenant of its covenants, agreements or obligations contained in this Lease.
No subletting or assignment shall in any way impair the continuing
primary liability of Tenant hereunder, and no consent to any subletting or
assignment in a particular instance shall be deemed to be a waiver of the
obligation to obtain the Landlord's written approval in the case of any other
subletting or assignment. No assignment, subletting or occupancy shall affect
the Primary Intended Use. Any subletting, assignment or other transfer of
Tenant's interest in this Lease in contravention of this Section 17.1 shall be
voidable at Landlord's option.
Tenant shall have the right, without the consent of Landlord, (A) to
assign Tenant's interest in this Lease to a corporation or other entity which
shall (1) control, (2) be under the control of, or (3) be under common control
with the Tenant (the term "control" and "controlling" as used herein shall be
deemed to mean ownership or control (direct or indirect) of more than 50% of the
outstanding voting stock of a corporation, or an equivalent majority and
controlling interest in another form of entity) (any such entity being a
"Related Entity"); (B) to sublease all or part of the Leased Property to a
Related Entity; and (C) to grant concessions and licenses (subject and
subordinate to this Lease and to the matters to which the Lease is subject and
subordinate), in the ordinary course of Tenant's business, for portions of the
Leased Property to be used in connection with Tenant's Primary Intended Use.
If the rent and other sums (including, without limitation, the
reasonable value of any services performed by any assignee or subtenant in
consideration of such assignment or sublease) either initially or over the term
of any assignment or sublease (excluding any
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assignment or sublease to a Related Entity), payable by such assignee or
subtenant on account of an assignment or sublease exceed the Rent called for
hereunder with respect to the space assigned or sublet, Tenant shall pay to
Landlord as Additional Rent one hundred percent (100%) of such excess net of the
costs and expenses incurred by Tenant in procuring such sublease payable monthly
at the time for payment Minimum Rent.
17.2 Required Sublease Provisions. Any sublease of all or any portion
of the Leased Property shall provide that it is subject and subordinate to this
Lease and to the matters to which this Lease is or shall be subject or
subordinate, and that in the event of termination of this Lease or reentry or
dispossession of Tenant by Landlord under this Lease, Landlord may, at its
option, take over all of the right, title and interest of Tenant, as sublessor
under such sublease, and such subtenant shall, at Landlord's option, attorn to
Landlord pursuant to the then executory provisions of such sublease, except that
neither Landlord nor any Facility Mortgagee, as holder of a mortgage or as
Landlord under this Lease, if such mortgagee succeeds to that position, shall
(a) be liable for any act or omission of Tenant under such sublease, (b) be
subject to any credit, counterclaim, offset or defense which theretofore accrued
to such subtenant against Tenant, (c) be bound by any previous modification of
such sublease or by any previous prepayment of more than one (1) month's rent,
(d) be bound by any covenant of Tenant to undertake or complete any-construction
of the Leased Property or any portion thereof, (e) be required to account for
any security deposit of the subtenant other than any security deposit actually
delivered to Landlord by Tenant, (f) be bound by any obligation to make any
payment to such subtenant or grant any credits, except for services, repairs,
maintenance and restoration provided for under the sublease to be performed
after the date of such attornment, (g) be responsible for any monies owing by
Tenant to the credit of such Subtenant, or (h) be required to remove any person
occupying the Leased Property or any part thereof; and such sublease shall
provide that the subtenant thereunder shall, at the request of Landlord, execute
a suitable instrument in confirmation of such agreement to attorn. The
provisions of this paragraph shall not be deemed a waiver of the provisions set
forth in the first paragraph of Section 17.1.
17.3 Sublease Limitation. Anything contained in this Lease to the
contrary notwithstanding, (a) Tenant shall not sublet the Leased Property on any
basis such that the rental to be paid by the sublessee thereunder would be
based, in whole or in part, on either (i) the income or profits derived by the
business activities of the sublessee, or (ii) any other formula such that any
portion of the sublease rental would fail to qualify as "rents from real
property" within the meaning of Section 856(d) of the Code, or any similar or
successor provision thereto and (b) Tenant will neither assign (including
through merger or consolidation) or sublet the Leased Property to any Person
performing management or servicing functions to, or on behalf of, Landlord or
any Affiliated Person thereof if either Landlord or its Affiliated Person
intends such Person to qualify as an "independent contractor from whom" neither
Landlord nor any Affiliated Person thereof "derives or receives any income"
within the meaning of Section 856 of the Code, nor will Tenant acquire any asset
or enter into any merger, consolidation or other transactions that would require
it to perform such functions in the capacity of a Person that either Landlord or
any Affiliated Person thereof intends to be an "independent contractor from
whom" neither Landlord nor any Affiliated Person "derives or receives any
income" within the meaning of Section 856 of the Code.
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17.4 Assignment and Subletting Procedure. Anything contained in this
Lease to the contrary notwithstanding, if Tenant wishes to enter into a sublease
with respect to any portion of the Leased Property or an assignment of this
Lease, Tenant shall give Landlord notice of such intent, which notice ("Tenant's
Notice") shall state, in the event of a proposed sublease, the location and
amount of area intended to be covered by such sublease and the term of the
proposed sublease, the proposed effective date of such sublease or assignment,
and the identity of such proposed subtenant or assignee and such other
information with respect thereto as Landlord may reasonably require. Landlord
shall not unreasonably withhold its consent to any proposed assignment or
sublease, and Landlord shall be deemed to have consented to any proposed
assignment or sublease with a Related Entity, provided that in any such case
Tenant shall deliver to Landlord a written instrument, in form and substance
reasonably satisfactory to Landlord, pursuant to which such assignee agrees
directly with Landlord to be bound by all the terms of this Lease and to be
jointly and severally liable with Tenant for all of Tenant's obligations under
this Lease.
ARTICLE 18
CERTIFICATES AND FINANCIAL STATEMENTS
18.1 Estoppel Certificates. At any time and from time to time, upon not
less than twenty (20) days prior written notice by Landlord, Tenant shall
furnish to Landlord an Officer's Certificate certifying that this Lease is
unmodified and in full force and effect (or that this Lease is in full force and
effect as modified and setting forth the modifications), the date to which the
Rent has been paid, that, to the best of Tenant's knowledge and belief after
making due inquiry, Tenant is not in default in the performance or observance of
any of the terms of this Lease and that no event exists which with the giving of
notice, lapse of time, or both, would constitute a default hereunder, or if
Tenant shall be in default or any such event shall exist, specifying in
reasonable detail all such defaults or events, and the steps being taken to
remedy the same, and such additional information as Landlord may reasonably
request. Any such certificate furnished pursuant to this section may be relied
upon by Landlord and any prospective purchaser or mortgagee of the Leased
Property.
18.2 Financial Statements. Tenant shall furnish the following
statements to Landlord:
(a) Within forty-five (45) days after each of the first three
quarters of each Fiscal Year, the most recent Consolidated Financials
of Tenant, together with an Officer's Certificate certifying to the
accuracy of such Consolidated Financials;
(b) Within one hundred twenty (120) days after the end of each
Fiscal Year, the most recent Consolidated Financials of Tenant for such
year, together with an Officer's Certificate certifying to the accuracy
of such Consolidated Financials; and
(c) At any time and from time to time upon not less than
twenty (20) business days notice from Landlord, any Consolidated
Financials or any other financial reporting information required to be
filed by Landlord with any securities and exchange commission, the SEC
or any successor agency, or any other governmental authority, or
required pursuant to any order issued by any court governmental
authority or arbitrator in
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any litigation to which Landlord is a party, for purposes of compliance
therewith, but only to the extent such information is reasonably
available and then all at the sole cost and expense of Landlord.
18.3 General Operations. Tenant covenants and agrees to furnish to
Landlord:
18.3.1 Reimbursement, Licensure, Etc. Within thirty (30) days
after request therefor by Landlord (but in each case only to the extent such
information is reasonably available and then at the sole cost and expense of
Landlord), copies of:
(A) The primary operating license authorizing Tenant to
operate the Facility for its Primary Intended Use;
(B) All Medicare and Medicaid certifications and provider
agreements with respect to the Facility;
(C) A Nursing Home Administrator License for the individuals
employed in such capacity with respect to the Facility; and
(D) All reports of surveys, statements of deficiencies, plans
of correction, and all material correspondence relating thereto,
including, without limitation, all reports and material correspondence
concerning compliance with or enforcement of licensure and
Medicare/Medicaid requirements, including physical environment and Life
Safety Code survey reports (excluding, however, correspondence which
may be subject to any attorney-client privilege).
ARTICLE 19
LANDLORD ACCESS
19.1 Landlord's Right to Inspect. Tenant shall permit Landlord and its
authorized representatives to inspect the Leased Property during usual business
hours, and to do and make such repairs as Landlord is permitted or required to
make pursuant to the terms of this Lease, subject to any security, health,
safety or patient or business confidentiality requirements of Tenant or any
governmental agency or Insurance Requirement relating to the Leased Property or
imposed by law.
19.2 Landlord's Option to Purchase the Tenant's Personal Property:
Transfer of Licenses. Effective on not less than ninety (90) days' prior notice
given at any time within one hundred eighty (180) days after the expiration of
the Term (or such shorter period as shall be appropriate if this Lease is
terminated prior to its expiration date), Landlord shall have the option to
purchase all (but not less than all) of Tenant's Personal Property (except motor
vehicles), if any, at the expiration or termination of this Lease, for an amount
equal to the then net market value thereof (current replacement cost as
determined by appraisal less accumulated depreciation on Tenant's books
pertaining thereto), subject to, and with appropriate price adjustments for, all
equipment leases, conditional sale contracts, UCC-1 financing statements and
other encumbrances to which such Personal Property is subject; provided,
however, Landlord shall not have the right to purchase any Facility Trade Name
or logo.
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ARTICLE 20
APPRAISAL
20.1 Appraisal Procedure. In the event that it becomes necessary to
determine the Fair Market Value, Fair Market Value Purchase Price or Fair Market
Rental of the Leased Property or a Substitute Property for any purpose of this
Lease, the party required or permitted to give notice of such required
determination (the "Initiating Party") shall include in such notice the name of
a designated Qualified Appraiser (hereinafter defined) on its behalf. Within 10
days after notice, the party receiving such notice (the "Responding Party")
shall, by written notice to the other, appoint a second Qualified Appraiser. If
the Responding Party shall fail, neglect or refuse within said ten-day period to
designate another appraiser willing so to act, the appraiser designated by the
Initiating Party shall designate the second Qualified Appraiser within ten (10)
days thereafter. The two appraisers so designated shall meet within ten (10)
days after the second appraiser is designated, and, if within ten (10) days
after the second appraiser is designated, the two appraisers do not agree upon
the Fair Market Value, Fair Market Value Purchase Price or Fair Market Rental,
as the case may be, of the applicable property as of the relevant date, the two
appraisers shall designate a third Qualified Appraiser, within ten (10) days
thereafter. In the event that the two appraisers are unable to agree upon the
appointment of a third Qualified Appraiser within such ten (10) day period,
either Landlord or Tenant, on behalf of both, may then request appointment of
such appraiser the then president of the American Arbitration Association. In
the event of a failure, refusal or inability of any appraiser to act, a new
appraiser shall be appointed in his stead, which appointment shall be made in
the same manner as hereinabove provided for the appointment of such appraiser so
failing, refusing or being unable to act. In the event that all appraisers
cannot agree upon such value ten (10) days as aforesaid, each appraiser shall
submit his appraisal of such value to the other two appraisers in writing, and
such value shall be determined by calculating the average of the two numerically
closest (or, if the values are equidistant, all three) values determined by the
three appraisers.
The costs, other than counsel fees, of such appraisal shall be borne
equally by the parties. Upon determining such value, the appraisers shall
promptly notify Landlord and Tenant in writing of such determination. If any
party shall fail to appear at the hearings appointed by the appraisers, the
appraisers may act in the absence of such party.
The determination of the board of appraisers (or the single additional
Qualified Appraiser, as appropriate) made in accordance with the foregoing
provisions shall be final and binding upon the parties, such determination may
be entered as an award in arbitration in a court of competent jurisdiction, and
judgment thereon may be entered.
ARTICLE 21
MORTGAGES
21.1 Landlord May Grant Liens. Without the consent of Tenant, Landlord
may, subject to the terms and conditions set forth in this Section 21.1, from
time to time, directly or indirectly, create or otherwise cause to exist any
lien, encumbrance or title retention agreement ("Encumbrance") upon the Leased
Property, or any portion thereof or interest therein, whether to
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secure any borrowing or other means of financing or refinancing. Any such
Encumbrance, other than one the proceeds of which are used to finance
construction of a Capital Addition pursuant to the provisions of Sections 6.1
and 6,3, shall include the right to prepay (whether or not subject to a
prepayment penalty) and shall provide (subject to Section 21.2) that it is
subject to the rights of Tenant under this Lease.
21.2 Subordination of Lease. Subject to Section 21.1 and the last
paragraph of this Section 21.2, this Lease, and all rights of Tenant hereunder,
are and shall be subject and subordinate to any ground or master lease, and all
renewals, extensions, modifications and replacements thereof, and to all
mortgages and deeds of trust, which may now or hereafter affect the Leased
Property or any improvements thereon and/or any of such leases, whether or not
such mortgages or deeds of trust shall also cover other lands and/or buildings
and/or leases, to each and every advance made or hereafter to be made under such
mortgages and deeds of trust, and to all renewals, modifications, replacements
and extensions of such leases and such mortgages and deeds of trust and all
consolidations of such mortgages and deeds of trust. This section shall be
self-operative and no further instrument of subordination shall be required. In
confirmation of such subordination Tenant shall promptly execute, acknowledge
and deliver any instrument that Landlord, the lessor under any such lease or the
holder of any such mortgage or the trustee or beneficiary of any deed of trust
or any of their respective successors in interest may reasonably request to
evidence such subordination. Any lease to which this Lease is, at the time
referred to, subject and subordinate is herein called "Superior Lease" and the
lessor of a Superior Lease or its successor in interest at the time referred to,
is herein called "Superior Landlord" and any mortgage or deed of trust to which
this Lease is, at the time referred to, subject and subordinate, is herein
called "Superior Mortgage" and the holder, trustee or beneficiary of a Superior
Mortgage is herein called "Superior Mortgagee".
If any Superior Landlord or Superior Mortgagee or the nominee or
designee of any Superior Landlord or Superior Mortgagee shall succeed to the
rights of Landlord under this Lease, whether through possession or foreclosure
action or delivery of a new lease or deed, or otherwise, then at the request of
such party so succeeding to Landlord's rights (herein called "Successor
Landlord") and upon such Successor Landlord's written agreement to accept
Tenant's attornment, Tenant shall attorn to and recognize such Successor
Landlord as Tenant's landlord under this Lease and shall promptly execute and
deliver any instrument that such Successor Landlord may reasonably request to
evidence such attornment. Upon such attornment this Lease shall continue in full
force and effect as a direct lease between the Successor Landlord and Tenant
upon all of the terms, conditions and covenants as are set forth in this Lease,
except that the Successor Landlord (unless formerly the landlord under this
Lease or its nominee or designee) shall not be (a) liable in any way to Tenant
for any act or omission, neglect or default on the, part of Landlord under this
Lease, (b) responsible for any monies owing by or on deposit with Landlord to
the credit of Tenant, (c) subject to any counterclaim or setoff which
theretofore accrued to Tenant against Landlord, (d) bound by any modification of
this Lease subsequent to such Superior Lease or Mortgage, or by any previous
prepayment of Minimum Rent for more than one (1) month, which was not approved
in writing by the Superior Landlord or the Superior Mortgagee thereto, (e)
liable to the Tenant beyond the Successor Landlord's interest in the Leased
Property and the rents, income, receipts, revenues, issues and profits issuing
from the Leased Property, (f) responsible for the performance of any work to be
done by the Landlord under this Lease to render the Leased Property ready for
occupancy by Tenant, or (g) required to
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remove any person occupying the Leased Property or any part thereof, except if
such person claims by, through or under the Successor Landlord. Tenant agrees at
any time and from time to time to execute a suitable instrument in confirmation
of Tenant's agreement to attorn, as aforesaid.
Tenant's obligation to subordinate this Lease and Tenant's rights
hereunder to any Superior Mortgage or Superior Lease shall be conditioned upon
Landlord obtaining from any Superior Mortgagee or Superior Landlord, an
agreement which shall be executed by Tenant and such Superior Mortgagee or
Superior Landlord which shall provide in substance that so long as no Event of
Default exists as would entitle Landlord or any such Superior Mortgagee or
Superior Landlord to terminate this Lease or would cause, without any further
action of Landlord or such Superior Mortgagee or Superior Landlord, the
termination of this Lease or would entitle Landlord or such Superior Mortgagee
or Superior Landlord to dispossess Tenant, this Lease shall not be terminated,
nor shall Tenant's use, possession or enjoyment of the Leased Property, in
accordance with the terms and provisions of this Lease, be interfered with, nor
shall the leasehold estate granted by this Lease be affected in any other
manner, in any foreclosure or any action or proceeding instituted under or in
connection with such Superior Mortgage or Superior Lease, or in the event such
Superior Mortgagee or Superior Landlord takes possession of the Leased Property
pursuant to any provisions of such Superior Mortgage or Superior Lease, unless
Landlord or such Superior Mortgagee or Superior Landlord would have had such
right of termination pursuant to this Lease. Such agreement shall be in form
customarily used by the holder of any such Superior Mortgage or Superior Lease.
21.3 Notice to Mortgagee and Ground Landlord. Subsequent to the receipt
by Tenant of notice from any person, firm or other entity that it is a Facility
Mortgagee, or that it is the ground lessor under a lease with Landlord, as
ground lessee, which includes the Leased Property as part of the demised
premises, no notice from Tenant to Landlord shall be effective unless and until
a copy of the same is given to such Facility Mortgagee or ground lessor and the
curing of any of Landlord's defaults by such Facility Mortgagee or ground lessor
shall be treated as performance by Landlord.
ARTICLE 22
ADDITIONAL COVENANTS OF TENANT
22.1 Notice of Change of Name, Administrator, Etc. Tenant shall give
prompt notice to Landlord of any change in (a) the name (operating or otherwise)
of Tenant or the Facility, (b) the individual licensed as administrator of the
Facility, (c) the number of beds in any bed category for which the Facility is
licensed or the number of beds in any bed category available for use at the
Facility (except for changes in the number of certified distinct part beds made
for reimbursement maximization purposes), and (d) the patient and/or child care
services that are offered at the Facility.
22.2 Notice of Litigation, Potential Event of Default, Etc. Tenant
shall give prompt notice to Landlord of any litigation or any administrative
proceeding to which it may hereafter become a party which involves a potential
liability equal to or greater than $250,000, or which may otherwise result in
any material adverse change in the business, operations, property,
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prospects, results of operation or condition, financial or other, of Tenant.
Forthwith upon Tenant obtaining knowledge of any Default or Event of Default, or
any event or condition that would be required to be disclosed in a current
report filed by Tenant on Form 8-K or in Part II of a quarterly report on Form
10-Q if Tenant were required to file such reports under the Securities Exchange
Act, of 1934, as amended, Tenant shall give Landlord notice thereof, which
notice shall set forth in reasonable detail the nature and period of existence
thereof and what action Tenant has taken or is taking or proposes to take with
respect thereto.
22.3 Distributions, Payments to Affiliated Persons, Etc. Tenant will
not declare, order, pay or make, directly or indirectly, any distribution or any
payment to any Affiliated Person as to Tenant (including payments in the
ordinary course of business and payment pursuant to management agreements with
any such Affiliated Person) or set apart any sum or property therefor, or agree
to do so, if, at the time of such proposed action, or immediately after giving
effect thereto, any event or condition shall exist which constitutes a Default
(as to which Landlord has given notice to Tenant) or an Event of Default.
ARTICLE 23
MISCELLANEOUS
23.1 No Waiver. No failure by Landlord or Tenant to insist upon the
strict performance of any term hereof or to exercise any right, power or remedy
consequent upon a breach thereof, and no acceptance of full or partial payment
of rent during the continuance of any such breach, shall constitute a waiver of
any such breach or of any such term. To the extent permitted by law, no waiver
of any breach shall affect or alter this Lease, which shall continue in full
force and effect with respect to any other then existing or subsequent breach.
23.2 Remedies Cumulative. To the extent permitted by law, each legal,
equitable or contractual right, power and remedy of Landlord, now or hereafter
provided either in this Lease or by statute or otherwise, shall be cumulative
and concurrent and shall be in addition to every other right, power and remedy
and the exercise or beginning of the exercise by Landlord or Tenant of any one
or more of such rights, powers and remedies shall not preclude the simultaneous
or subsequent exercise by Landlord or Tenant of any or all of such other rights,
powers and remedies.
23.3 Acceptance of Surrender. No surrender to Landlord of this Lease or
of the Leased Property or any part thereof, or of any interest therein, shall be
valid or effective unless agreed to and accepted in writing by Landlord and no
act by Landlord or any representative or agent of Landlord, other than such a
written acceptance by Landlord, shall constitute an acceptance of any such
surrender.
23.4 No Merger of Title. There shall be no merger of this Lease or of
the leasehold estate created hereby by reason of the fact that the same person,
firm, corporation or other entity may acquire, own or hold, directly or
indirectly (a) this Lease or the leasehold estate created hereby or any interest
in this Lease or such leasehold estate and (b) the fee estate or ground
landlord's interest in the Leased Property.
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23.5 Conveyance by Landlord. If Landlord or any successor owner of the
Leased Property shall convey the Leased Property in accordance with the terms
hereof other than as security for a debt, and the grantee or transferee of the
Leased Property shall expressly assume all obligations of Landlord hereunder
arising or accruing from and after the date of such conveyance or transfer and
shall be reasonably capable of performing the obligations of Landlord hereunder,
Landlord or such successor owner, as the case may be, shall thereupon be
released from all future liabilities and obligations of Landlord under this
Lease arising or accruing from and after the date of such conveyance or other
transfer as to the Leased Property and all such future liabilities and
obligations shall thereupon be binding upon the new owner.
23.6 Quiet Enjoyment. So long as Tenant shall pay the Rent as the same
becomes due and shall substantially comply with all of the terms of this Lease
and perform its obligations hereunder, Tenant shall peaceably and quietly have,
hold and enjoy the Leased Property for the Term hereof, free of any claim or
other action by Landlord or anyone claiming by, through or under Landlord, but
subject to all liens and encumbrances of record as of the date hereof or
hereafter consented to by Tenant. Except as otherwise provided in this Lease, no
failure by Landlord to comply with the foregoing covenant shall give Tenant any
right to cancel or terminate this Lease or xxxxx, reduce or make a deduction
from or offset against the Rent or any other sum payable under this Lease, or to
fail to perform any other obligation of Tenant hereunder. Notwithstanding the
foregoing, Tenant shall have the right, by separate and independent action to
pursue any claim it may have against Landlord as a result of a breach by
Landlord of the covenant of quiet enjoyment contained in this Section.
23.7 Landlord's Liability. THE DECLARATION OF TRUST OF LANDLORD, DATED
APRIL 2, 1999, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE
"DECLARATION"), IS DULY FILED IN THE OFFICE OF THE DEPARTMENT OF ASSESSMENTS AND
TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME "HRES1 PROPERTIES
TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES,
BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER,
EMPLOYEE OR AGENT OF LANDLORD SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY
OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, LANDLORD. ALL PERSONS
DEALING WITH LANDLORD, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF LANDLORD,
FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION. Tenant, its
successors and assigns, shall not assert nor seek to enforce any claim for
breach of this Lease against any of Landlord's assets other than Landlord's
interest in the Leased Property and in the rents, issues and profits thereof,
and Tenant agrees to look solely to such interest for the satisfaction of any
liability or claim against Landlord under this Lease, it being specifically
agreed that in no event whatsoever shall Landlord (which term shall include,
without limitation, any general or limited partner, trustees, beneficiaries,
officers, directors, or stockholders of Landlord) ever be personally liable for
any such liability. In no event shall Landlord ever be liable to Tenant for any
indirect or consequential damages.
23.8 Landlord's Consent. Where provisions are made in this Lease for
Landlord's consent and Landlord shall fail or refuse to give such, consent,
Tenant shall not be entitled to any damages for any withholding by Landlord of
its consent, it being intended that Tenant's sole
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remedy shall be an action for specific performance or injunction, and that such
remedy shall be available only in those cases where Landlord has expressly
agreed in writing not to unreasonably withhold its consent.
23.9 Memorandum of Lease. Neither Landlord nor Tenant shall record this
Lease. However, Landlord and Tenant shall promptly, upon the request of either,
enter into a short form memorandum of this Lease, in form suitable for recording
under the laws of the State in which reference to this Lease, and all options
contained herein, shall be made. Tenant shall pay all costs and expenses of
recording such memorandum of this Lease.
23.10 Notices.
(a) Any and all notices, demands, consents, approvals, offers,
elections and other communications required or permitted under this
Lease shall be deemed adequately given if in writing and the same shall
be delivered either in hand, by telecopier with written acknowledgment
of receipt, or by mail or Federal Express or similar expedited
commercial carrier, addressed to the recipient of the notice, postpaid
and registered or certified with return receipt requested (if by mail),
or with all freight charges prepaid (if by Federal Express or similar
carrier).
(b) All notices required or permitted to be sent hereunder
shall be deemed to have been given for all purposes of this Lease upon
the date of acknowledged receipt, in the case of a notice by
telecopier, and, in all other cases, upon the date of receipt or
refusal, except that whenever under this Lease a notice is either
received on a day which is not a Business Day or is required to be
delivered on or before a specific day which is not a Business Day, the
day of receipt or required delivery shall automatically be extended to
the next Business Day.
(c) All such notices shall be addressed,
if to Landlord to it at:
c/o SENIOR HOUSING PROPERTIES TRUST
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy no.: (000) 000-0000
Attention: President,
with copy to:
XXXXXXXX & WORCESTER LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy no.: (000) 000-0000
Attention: Xxxxxxxxx X. Xxxxxxxxxx, Xx. Esq.,
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and if to any Tenant, to it:
c/o Integrated Health Services, Inc.
The Highlands
000 Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Telecopy no.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Senior Vice President,
Finance
with a copy to:
Xxxxxx Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy no.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
(d) By notice given as herein provided, the parties hereto and
their respective successor and assigns shall have the right from time
to time and at any time during the term of this Agreement to change
their respective addresses effective upon receipt by the other parties
of such notice and each shall have the right to specify as its address
any other address within the United States of America.
23.11 Construction. Anything contained in this Lease to the contrary
notwithstanding, all claims against, and liabilities of, Tenant or Landlord
arising prior to any date of termination of this Lease shall survive such
termination. If any term or provision of this Lease or any application thereof
shall be invalid or unenforceable, the remainder of this Lease and any other
application of such term or provisions shall not be affected thereby. If any
late charges or any interest rate provided for in any provision of this Lease
are based upon a rate in excess of, the maximum rate permitted by applicable
law, the parties agree that such charges shall be fixed at the maximum
permissible rate. Neither this Lease nor any provision hereof may be changed,
waived, discharged or terminated except by an instrument in writing signed by
the party to be charged. All the terms and provisions of this Lease shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. The headings in this Lease are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. This
Lease represents the entire agreement among the parties and amends and restates
the original Leases in their entirety. This Lease may not be amended or modified
in any respect except by the written agreement of Landlord and Tenant. Landlord
and Tenant intend that this Lease shall be construed as a post-petition
agreement of Tenant, notwithstanding that it is dated January 1, 2000.
23.12 Governing Law. This Lease shall be interpreted, construed,
applied and enforced in accordance with the laws of the State applicable to
contracts between residents of the State which are to be performed entirely
within the State, regardless of (i) where this Lease is executed or delivered;
or (ii) where any payment or other performance required by this Lease is made or
required to be made; or (iii) where any breach of any provision of this Lease
occurs, or any cause of action otherwise accrues; or (iv) where any action or
other proceeding is instituted or pending;
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or (v) the nationality, citizenship, domicile, principle place of business, or
jurisdiction of organization or domestication of any party; or (vi) whether the
laws of the forum jurisdiction otherwise would apply the laws of a jurisdiction
other than the State; or (vii) any combination of the foregoing.
23.13 Consent to Jurisdiction. To the maximum extent permitted by
applicable law, any action to enforce, arising out of, or relating in any way
to, any of the provisions of this Lease may be brought and prosecuted in such
court or courts located in the State as is provided by law; and the parties
consent to the jurisdiction of said court or courts located in the State and, to
service of process by registered mail, return receipt requested, or by any other
manner provided by law.
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IN WITNESS WHEREOF, the parties have executed this Lease, as a sealed
instrument, as of the date first above written.
LANDLORD:
HRES1 PROPERTIES TRUST
BY: /s/ Xxxx Xxxxx
Its: Treasurer
TENANT:
IHS ACQUISITION 135, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
Its (Vice) President
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