EXHIBIT 10.46
LEASE AGREEMENT,
dated as of November 19, 2004,
by and among
CERTAIN AFFILIATES OF SENIOR HOUSING PROPERTIES TRUST,
AS LANDLORD,
AND
CERTAIN AFFILIATES OF FIVE STAR QUALITY CARE INC.,
AS TENANT
LEASE AGREEMENT
THIS LEASE AGREEMENT is entered into as of November 19, 2004 by and among
(i) each of the parties identified on the signature page hereof as landlord
(collectively, "LANDLORD"), and (ii) each of the parties identified on the
signature page hereof as tenant (collectively "TENANT").
W I T N E S S E T H :
WHEREAS, Landlord collectively owns the sixteen (16) Properties (this and
other capitalized terms used and not otherwise defined herein having the
meanings ascribed to such terms in Article 1) described on EXHIBITS A-1 - A-16
attached hereto and made a part hereof; and
WHEREAS, Landlord wishes to lease the Properties to Tenant and Tenant
wishes to lease the Properties from Landlord, all subject to and upon the terms
and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the mutual receipt and legal
sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree,
as follows:
ARTICLE 1
DEFINITIONS
For all purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires, (a) the terms defined in this Article
shall have the meanings assigned to them in this Article and include the plural
as well as the singular, (b) all accounting terms not otherwise defined herein
shall have the meanings assigned to them in accordance with GAAP, (c) all
references in this Agreement to designated "Articles," "Sections" and other
subdivisions are to the designated Articles, Sections and other subdivisions of
this Agreement, and (d) the words "herein," "hereof," "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision.
1.1 "ADDITIONAL CHARGES" shall have the meaning given such term in
SECTION 3.1.3.
1.2 "ADDITIONAL RENT" shall have the meaning given such term in SECTION
3.1.2(a).
1.3 "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 with respect to such Person or to one or
more of the Persons
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referred to in the preceding clauses (a) and (b), (d) any other Person who is an
officer, director, trustee or employee of, or partner in or member of, such
Person or any Person 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
of any Person referred to in the preceding clauses (a) through (d).
1.4 "AGREEMENT" shall mean this Lease Agreement, including all exhibits
attached hereto, as it and they may be amended from time to time as herein
provided.
1.5 "APPLICABLE LAWS" shall mean all applicable laws, statutes,
regulations, rules, ordinances, codes, licenses, permits and orders, from time
to time in existence, of all courts of competent jurisdiction and Government
Agencies, and all applicable judicial and administrative and regulatory decrees,
judgments and orders, including common law rulings and determinations, relating
to injury to, or the protection of, real or personal property or human health or
the Environment, including, without limitation, all valid and lawful
requirements of courts and other Government Agencies pertaining to reporting,
licensing, permitting, investigation, remediation and removal of underground
improvements (including, without limitation, treatment or storage tanks, or
water, gas or oil xxxxx), or emissions, discharges, releases or threatened
releases of Hazardous Substances, chemical substances, pesticides, petroleum or
petroleum products, pollutants, contaminants or hazardous or toxic substances,
materials or wastes whether solid, liquid or gaseous in nature, into the
Environment, or relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Substances or
Regulated Medical Wastes, underground improvements (including, without
limitation, treatment or storage tanks, or water, gas or oil xxxxx), or
pollutants, contaminants or hazardous or toxic substances, materials or wastes,
whether solid, liquid or gaseous in nature.
1.6 "AWARD" shall mean all compensation, sums or other value awarded,
paid or received by virtue of a total or partial Condemnation of any Property
(after deduction of all reasonable legal fees and other reasonable costs and
expenses, including, without limitation, expert witness fees, incurred by
Landlord, in connection with obtaining any such award).
1.7 "BASE GROSS REVENUES" shall mean the amount of Gross Revenues for
the Leased Property for the Base Year, PROVIDED, HOWEVER, that in the event
that, with respect to any Lease Year, or portion thereof, for any reason
(including, without limitation, a casualty or Condemnation) there shall be a
reduction in the number of units available at any Facility located at the Leased
Property or in the services provided at such Facility from the number of such
units or the services provided during the Base Year, in determining Additional
Rent payable for such Lease Year, Base Gross Revenues shall be reduced as
follows: (a) in the event of the termination of this Agreement with respect to
any Property pursuant to ARTICLE 10, 11 OR 12, all
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Gross Revenues for such Property for the period during the Base Year equivalent
to the period after the termination of this Agreement with respect to such
Property shall be subtracted from Base Gross Revenues; (b) in the event of a
partial closing of any Facility affecting the number of units, or the services
provided, at such Facility, Gross Revenues attributable to units or services at
such Facility shall be ratably allocated among all units in service at such
Facility during the Base Year and all such Gross Revenues attributable to units
no longer in service shall be subtracted from Base Gross Revenues throughout the
period of such closing; and (c) in the event of any other change in
circumstances affecting any Facility, Base Gross Revenues shall be equitably
adjusted in such manner as Landlord and Tenant shall reasonably agree.
1.8 "BASE YEAR" shall mean the 2006 calendar year.
1.9 "BUSINESS DAY" shall mean any day other than Saturday, Sunday, or
any other day on which banking institutions in The Commonwealth of Massachusetts
are authorized by law or executive action to close.
1.10 "CAPITAL ADDITION" shall mean, with respect to any Property, any
renovation, repair or improvement to such Property, the cost of which
constitutes a Capital Expenditure.
1.11 "CAPITAL EXPENDITURE" shall mean any expenditure treated as capital
in nature in accordance with GAAP.
1.12 "CHANGE IN CONTROL" shall mean (a) the acquisition by any Person,
or two or more Persons acting in concert, of beneficial ownership (within the
meaning of Rule 13d-3 of the SEC) of 9.8% or more, or rights, options or
warrants to acquire 9.8% or more, of the outstanding shares of voting stock or
other voting interests of Tenant or any Guarantor, as the case may be, or the
power to direct the management and policies of Tenant or any Guarantor, directly
or indirectly, (b) the merger or consolidation of Tenant or any Guarantor with
or into any other Person (other than the merger or consolidation of any Person
into Tenant or any Guarantor that does not result in a Change in Control of
Tenant or such Guarantor under clauses (a), (c) or (d) of this definition), (c)
any one or more sales or conveyances to any Person of all or any material
portion of its assets (including capital stock or other equity interests) or
business of Tenant or any Guarantor, as the case may be, or (d) the cessation,
for any reason, of the individuals who at the beginning of any twenty-four (24)
consecutive month period (commencing on the date hereof) constituted the board
of directors of Tenant or any Guarantor (together with any new directors whose
election by such Board or whose nomination for election by the shareholders of
Tenant or such Guarantor, as the case may be, was approved by a vote of a
majority of the directors then still in office who were either directors at the
beginning of any such period or whose election or nomination for election was
previously so approved) to constitute a majority of the board of directors of
Tenant or any Guarantor then in office.
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1.13 "CLAIM" shall have the meaning given such term in ARTICLE 8.
1.14 "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.
1.15 "COMMENCEMENT DATE" shall mean the date hereof.
1.16 "CONDEMNATION" shall mean, with respect to any Property, or any
portion thereof, (a) the exercise of any governmental power with respect to such
Property, whether by legal proceedings or otherwise, by a Condemnor of its power
of condemnation, (b) a voluntary sale or transfer of such Property by Landlord
to any Condemnor, either under threat of condemnation or while legal proceedings
for condemnation are pending, or (c) a taking or voluntary conveyance of such
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 such Property, whether or not the same shall have actually
been commenced.
1.17 "CONDEMNOR" shall mean any public or quasi-public Person, having
the power of Condemnation.
1.18 "CONSOLIDATED FINANCIALS" shall mean, for any Fiscal Year or other
accounting period of Five Star, annual audited and quarterly unaudited financial
statements of Five Star prepared on a consolidated basis, including Five Star's
consolidated balance sheet and the related statements of income and cash flows,
all in reasonable detail, and setting forth in comparative form the
corresponding figures for the corresponding period in the preceding Fiscal Year,
and prepared in accordance with GAAP throughout the periods reflected.
1.19 "DATE OF TAKING" shall mean, with respect to any Property, the date
the Condemnor has the right to possession of such Property, or any portion
thereof, in connection with a Condemnation.
1.20 "DEFAULT" shall mean any event or condition which with the giving
of notice and/or lapse of time would ripen into an Event of Default.
1.21 "DISBURSEMENT RATE" shall mean an annual rate of interest, as of
the date of determination, equal to the greater of (i) the Interest Rate and
(ii) the per annum rate for ten (10) year U.S. Treasury Obligations as published
in THE WALL STREET JOURNAL plus four hundred (400) basis points; PROVIDED,
HOWEVER, that in no event shall the Disbursement Rate exceed eleven and one-half
percent (11.5%).
1.22 "DISTRIBUTION" shall mean (a) any declaration or payment of any
dividend (except ordinary cash dividends payable in common stock or other equity
interests of Tenant) on or in respect of any shares of any class of capital
stock or other equity interests of Tenant, (b) any purchase, redemption,
retirement or other acquisition
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of any shares of any class of capital stock of a corporation, (c) any other
distribution on or in respect of any shares of any class of capital stock of a
corporation or (d) any return of capital to shareholders.
1.23 "EASEMENT AGREEMENT" shall mean any conditions, covenants and
restrictions, easements, declarations, licenses and other agreements which are
Permitted Encumbrances and such other agreements as may be granted in accordance
with SECTION 19.1.
1.24 "ENCUMBRANCE" shall have the meaning given such term in SECTION
20.1.
1.25 "ENTITY" shall mean any corporation, general or limited
partnership, limited liability company or partnership, stock company or
association, joint venture, association, company, trust, bank, trust company,
land trust, business trust, cooperative, any government or agency, authority or
political subdivision thereof or any other entity.
1.26 "ENVIRONMENT" shall mean soil, surface waters, ground waters, land,
stream, sediments, surface or subsurface strata and ambient air.
1.27 "ENVIRONMENTAL OBLIGATION" shall have the meaning given such term
in SECTION 4.4.1.
1.28 "ENVIRONMENTAL NOTICE" shall have the meaning given such term in
SECTION 4.4.1.
1.29 "EVENT OF DEFAULT" shall have the meaning given such term in
SECTION 12.1.
1.30 "EXCESS GROSS REVENUES" shall mean, with respect to any Lease Year,
or portion thereof, the amount of Gross Revenues for such Lease Year, or portion
thereof, in excess of Base Gross Revenues for the equivalent period during the
Base Year.
1.31 "EXTENDED TERM" shall have the meaning given such term in SECTION
2.4.
1.32 "FACILITY" shall mean, with respect to any Property, the
independent living/assisted living facility being operated or proposed to be
operated on such Property.
1.33 "FACILITY MORTGAGE" shall mean any Encumbrance placed upon the
Leased Property, or any portion thereof, in accordance with ARTICLE 20.
1.34 "FACILITY MORTGAGEE" shall mean the holder of any Facility
Mortgage.
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1.35 "FINANCIAL OFFICER'S CERTIFICATE" shall mean, as to any Person, a
certificate of the chief executive officer, chief financial officer or chief
accounting officer (or such officers' authorized designee) of such Person, duly
authorized, accompanying the financial statements required to be delivered by
such Person pursuant to SECTION 17.2, in which such officer shall certify (a)
that such statements have been properly prepared in accordance with GAAP and are
true, correct and complete in all material respects and fairly present the
consolidated financial condition of such Person at and as of the dates thereof
and the results of its and their operations for the periods covered thereby, and
(b), in the event that the certifying party is an officer of Tenant and the
certificate is being given in such capacity, that no Event of Default has
occurred and is continuing hereunder.
1.36 "FISCAL YEAR" shall mean the calendar year or such other annual
period designated by Tenant and approved by Landlord.
1.37 "FIVE STAR" shall mean Five Star Quality Care, Inc., a Maryland
corporation, and its permitted successors and assigns.
1.38 "FIXED TERM" shall have the meaning given such term in SECTION 2.3.
1.39 "FIXTURES" shall have the meaning given such term in SECTION
2.1(d).
1.40 "GAAP" shall mean generally accepted accounting principles
consistently applied.
1.41 "GMAC FINANCING" shall mean the financing originally provided by
GMAC Commercial Mortgage Corporation, in the original principal amount of
$37,500,000, with respect to the Properties.
1.42 "GMAC FINANCING DOCUMENTS" shall mean, collectively, each and every
promissory note, mortgage, regulatory agreement and other document or instrument
entered into, or otherwise in effect, with respect to the GMAC Financing.
1.43 "GOVERNMENT AGENCIES" shall mean any court, agency, authority,
board (including, without limitation, environmental protection, planning and
zoning), bureau, commission, department, office or instrumentality of any nature
whatsoever of any governmental or quasi-governmental unit of the United States
or any State or any county or any political subdivision of any of the foregoing,
whether now or hereafter in existence, having jurisdiction over Tenant or any
Property, or any portion thereof, or any Facility operated thereon.
1.44 "GROSS REVENUES" shall mean, for each Fiscal Year during the Term,
all revenues and receipts (determined on an accrual basis and in all material
respects in accordance with GAAP) of every kind derived from renting, using
and/or operating the Leased Property and
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parts thereof, including, but not limited to: all rents and revenues received or
receivable for the use of or otherwise by reason of all units, 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, any other arrangements with third parties
relating to the possession or use of any portion of the Leased Property; and
proceeds, if any, from business interruption or other loss of income insurance;
PROVIDED, HOWEVER, that Gross Revenues shall not include the following: revenue
from professional fees or charges by physicians and unaffiliated providers of
services, when and to the extent such charges are paid over to such physicians
and unaffiliated providers of services, or are separately billed and not
included in comprehensive fees; 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; allowances according to GAAP for
uncollectible accounts, including credit card accounts and charity care or other
administrative discounts; all proper patient billing credits and adjustments
according to GAAP relating to health care accounting; provider discounts for
hospital or other medical facility utilization contracts and credit card
discounts; 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; federal, state or municipal excise, sales, use, occupancy
or similar taxes collected directly from patients, clients or residents or
included as part of the sales price of any goods or services; insurance proceeds
(other than proceeds from business interruption or other loss of income
insurance); Award proceeds (other than for a temporary Condemnation); revenues
attributable to services actually provided off-site or otherwise away from the
Leased Property, such as home health care, to persons that are not patients,
clients or residents at the Leased Property; revenues attributable to child care
services provided primarily to employees of the Leased Property; any proceeds
from any sale of the Leased Property or from the refinancing of any debt
encumbering the Leased Property; proceeds from the disposition of furnishings,
fixture and equipment no longer necessary for the operation of the Facility
located thereon; any security deposits and other advance deposits, until and
unless the same are forfeited to Tenant or applied for the purpose for which
they were collected; and interest income from any bank account or investment of
Tenant.
1.45 "GUARANTOR" shall mean Five Star and each and every other guarantor
of Tenant's obligations under this Agreement, and each such guarantor's
successors and assigns.
1.46 "GUARANTY" shall mean any guaranty agreement executed by a
Guarantor in favor of Landlord pursuant to which the payment or performance of
Tenant's obligations under this Agreement are guaranteed, together with all
modifications, amendments and supplements thereto.
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1.47 "HAZARDOUS SUBSTANCES" shall mean any substance:
(a) the presence of which requires or may hereafter require
notification, investigation or remediation under any federal, state or
local statute, regulation, rule, ordinance, order, action or policy; or
(b) which is or becomes defined as a "hazardous waste",
"hazardous material" or "hazardous substance" or "pollutant" or
"contaminant" under any present or future federal, state or local statute,
regulation, rule or ordinance or amendments thereto including, without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. Section 9601 ET SEQ.) and the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 ET SEQ.) and the
regulations promulgated thereunder; or
(c) which is toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous and
is or becomes regulated by any governmental authority, agency, department,
commission, board, agency or instrumentality of the United States, any
state of the United States, or any political subdivision thereof; or
(d) the presence of which on any Property, or any portion
thereof, causes or materially threatens to cause an unlawful nuisance upon
such Property, or any portion thereof, or to adjacent properties or poses
or materially threatens to pose a hazard to such Property, or any portion
thereof, or to the health or safety of persons on or about such Property,
or any portion thereof; or
(e) without limitation, which contains gasoline, diesel fuel
or other petroleum hydrocarbons or volatile organic compounds; or
(f) without limitation, which contains polychlorinated
biphenyls (PCBs) or asbestos or urea formaldehyde foam insulation; or
(g) without limitation, which contains or emits radioactive
particles, waves or material; or
(h) without limitation, constitutes Regulated Medical Wastes.
1.48 "IMMEDIATE FAMILY" shall mean, with respect to any individual, such
individual's spouse, parents, brothers, sisters, children (natural or adopted),
stepchildren, grandchildren, grandparents, parents-in-law, brothers-in-law,
sisters-in-law, nephews and nieces.
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1.49 "IMPOSITIONS" shall mean, collectively, all taxes (including,
without limitation, all taxes imposed under the laws of any State, as such laws
may be amended from time to time, and all ad valorem, sales and use, or similar
taxes as the same relate to or are imposed upon Landlord, Tenant or the business
conducted upon the Leased Property), assessments (including, without limitation,
all assessments for public improvements or benefit, whether or not commenced or
completed prior to the date hereof), ground rents (including any minimum rent
under any ground lease, and any additional rent or charges thereunder), water,
sewer or other rents and charges, excises, tax levies, fees (including, without
limitation, license, permit, inspection, authorization and similar fees), and
all other governmental charges, in each case whether general or special,
ordinary or extraordinary, foreseen or unforeseen, of every character in respect
of the Leased Property or the business conducted thereon by Tenant (including
all interest and penalties thereon due to any failure in payment by Tenant),
which at any time prior to, during or in respect of the Term hereof may be
assessed or imposed on or in respect of or be a lien upon (a) Landlord's
interest in the Leased Property, (b) the Leased Property or any part thereof or
any rent therefrom or any estate, right, title or interest therein, or (c) any
occupancy, operation, use or possession of, or sales from, or activity conducted
on, or in connection with the Leased Property or the leasing or use of the
Leased Property or any part thereof by Tenant; PROVIDED, HOWEVER, that nothing
contained herein shall be construed to require Tenant to pay and the term
"Impositions" shall not include (i) any tax based on net income imposed on
Landlord, (ii) any net revenue tax of Landlord, (iii) any transfer fee (but
excluding any mortgage or similar tax payable in connection with a Facility
Mortgage) or other tax imposed with respect to the sale, exchange or other
disposition by Landlord of the Leased Property or the proceeds thereof, (iv) any
single business, gross receipts tax, transaction privilege, rent or similar
taxes as the same relate to or are imposed upon Landlord, (v) any interest or
penalties imposed on Landlord as a result of the failure of Landlord to file any
return or report timely and in the form prescribed by law or to pay any tax or
imposition, except to the extent such failure is a result of a breach by Tenant
of its obligations pursuant to SECTION 3.1.3, (vi) any impositions imposed on
Landlord that are a result of Landlord not being considered a "United States
person" as defined in Section 7701(a)(30) of the Code, (vii) any impositions
that are enacted or adopted by their express terms as a substitute for any tax
that would not have been payable by Tenant pursuant to the terms of this
Agreement or (viii) any impositions imposed as a result of a breach of covenant
or representation by Landlord in any agreement governing Landlord's conduct or
operation or as a result of the negligence or willful misconduct of Landlord.
1.50 "INCIDENTAL DOCUMENTS" shall mean the Pledge Agreement and any
Guaranty or Security Agreement, including any Guaranty, Pledge Agreement or
Security Agreement issued or executed pursuant to SECTION 16.1 or SECTION 21.11.
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1.51 "INDEBTEDNESS" shall mean all obligations, contingent or otherwise,
which in accordance with GAAP should be reflected on the obligor's balance sheet
as liabilities.
1.52 "INSURANCE REQUIREMENTS" shall mean all terms of any insurance
policy required by this Agreement and all requirements of the issuer of any such
policy and all orders, rules and regulations and any other requirements of the
National Board of Fire Underwriters (or any other body exercising similar
functions) binding upon Landlord, Tenant, any Manager or the Leased Property.
1.53 "INTEREST RATE" shall mean nine percent (9%) per annum.
1.54 "LAND" shall have the meaning given such term in SECTION 2.1(a).
1.55 "LANDLORD" shall have the meaning given such term in the preambles
to this Agreement and shall also include their respective permitted successors
and assigns.
1.56 "LANDLORD DEFAULT" shall have the meaning given such term in
ARTICLE 14.
1.57 "LANDLORD LIENS" shall mean liens on or against the Leased Property
or any payment of Rent (a) which result from any act of, or any claim against,
Landlord or any owner of a direct or indirect interest in the Leased Property
(other than the lessor under any ground lease affecting any portion of the
Leased Property), or which result from any violation by Landlord of any terms of
this Agreement, or (b) which result from liens in favor of any taxing authority
by reason of any tax owed by Landlord or any fee owner of a direct or indirect
interest in the Leased Property (other than the lessor under any ground lease
affecting any portion of the Leased Property); PROVIDED, HOWEVER, that "LANDLORD
LIEN" shall not include any lien resulting from any tax for which Tenant is
obligated to pay or indemnify Landlord against until such time as Tenant shall
have already paid to or on behalf of Landlord the tax or the required indemnity
with respect to the same.
1.58 "LEASE YEAR" shall mean any Fiscal Year or portion thereof during
the Term.
1.59 "LEASED IMPROVEMENTS" shall have the meaning given such term in
SECTION 2.1(b).
1.60 "LEASED INTANGIBLE PROPERTY" shall mean all agreements, service
contracts, equipment leases, booking agreements and other arrangements or
agreements affecting the ownership, repair, maintenance, management, leasing or
operation of the Leased Property, or any portion thereof, to which Landlord is a
party; all books, records and files relating to the leasing, maintenance,
management or operation of the Leased Property, or any portion thereof,
belonging to Landlord; all transferable or assignable permits, certificates of
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occupancy, operating permits, sign permits, development rights and approvals,
certificates, licenses, warranties and guarantees, rights to deposits, trade
names, service marks, telephone exchange numbers identified with the Leased
Property, and all other transferable intangible property, miscellaneous rights,
benefits and privileges of any kind or character belonging to Landlord with
respect to the Leased Property.
1.61 "LEGAL REQUIREMENTS" shall mean all federal, state, county,
municipal and other governmental statutes, laws, rules, orders, regulations,
ordinances, judgments, decrees and injunctions affecting the Leased Property or
the maintenance, construction, alteration or operation thereof, whether now or
hereafter enacted or in existence, including, without limitation, (a) all
permits, licenses, authorizations, certificates of need, authorizations and
regulations necessary to operate any Property for its Permitted Use, and (b) all
covenants, agreements, restrictions and encumbrances contained in any
instruments at any time in force affecting any Property, including those which
may (i) require material repairs, modifications or alterations in or to any
Property or (ii) in any way materially and adversely affect the use and
enjoyment thereof, but excluding any requirements arising as a result of
Landlord's status as a real estate investment trust.
1.62 "LIEN" shall mean any mortgage, security interest, pledge,
collateral assignment, or other encumbrance, lien or charge of any kind, or any
transfer of property or assets for the purpose of subjecting the same to the
payment of Indebtedness or performance of any other obligation in priority to
payment of general creditors.
1.63 "MANAGER" shall mean, with respect to any Property, the operator or
manager under any Management Agreement from time to time in effect with respect
to such Property, and its permitted successors and assigns.
1.64 "MANAGEMENT AGREEMENT" shall mean, with respect to any Property,
any operating or management agreement from time to time entered into by Tenant
with respect to such Property in accordance with the applicable provisions of
this Agreement, together with all amendments, modifications and supplements
thereto.
1.65 "MINIMUM RENT" shall mean Six Million Sixty-Five Thousand Dollars
($6,065,000) per annum.
1.66 "NOTICE" shall mean a notice given in accordance with SECTION
23.10.
1.67 "OFFICER'S CERTIFICATE" shall mean a certificate signed by an
officer or other duly authorized individual of the certifying Entity duly
authorized by the board of directors or other governing body of the certifying
Entity.
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1.68 "OTHER AGREEMENT" shall mean that certain Amended and Restated
Lease Agreement dated as of March 1, 2004, between certain affiliates of Senior
Housing Properties Trust and Five Star Quality Care Trust, as amended by that
certain Partial Termination and Amendment of Lease Agreement dated as of April
19, 2004, and that certain First Amendment to Amended and Restated Lease, dated
June 23, 2004, as the same may be amended, supplemented, increased, extended,
modified, renewed or replaced from time to time.
1.69 "OVERDUE RATE" shall mean, on any date, a PER ANNUM rate of
interest equal to the lesser of fifteen percent (15%) and the maximum rate then
permitted under applicable law.
1.70 "PARENT" shall mean, with respect to any Person, any Person which
owns directly, or indirectly through one or more Subsidiaries or Affiliated
Persons, twenty percent (20%) or more of the voting or beneficial interest in,
or otherwise has the right or power (whether by contract, through ownership of
securities or otherwise) to control, such Person.
1.71 "PERMITTED ENCUMBRANCES" shall mean, with respect to any Property,
all rights, restrictions, and easements of record set forth on Schedule B to the
applicable owner's or leasehold title insurance policy issued to Landlord with
respect to such Property, plus any other encumbrances as may have been granted
or caused by Landlord or otherwise consented to in writing by Landlord from time
to time.
1.72 "PERMITTED LIENS" shall mean any Liens granted in accordance with
SECTION 21.8(a).
1.73 "PERMITTED USE" shall mean, with respect to any Property, any use
of such Property permitted pursuant to SECTION 4.1.1.
1.74 "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.
1.75 "PLEDGE AGREEMENT" shall mean any pledge agreement made by Tenant
or any Person owning, directly or indirectly, any interest therein, for the
benefit of Landlord, as it may be amended, restated, supplemented or otherwise
modified from time to time.
1.76 "PROPERTY" shall have the meaning given such term in SECTION 2.1.
1.77 "PROVIDER AGREEMENTS" shall mean all participation, provider and
reimbursement agreements or arrangements now or hereafter in effect for the
benefit of Tenant or any Manager in connection with the operation of any
Facility relating to any right of payment or other claim arising out of or in
connection with Tenant's participation in any Third Party Payor Program.
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1.78 "RECORDS" shall have the meaning given such term in SECTION 7.2.
1.79 "REGULATED MEDICAL WASTES" shall mean all materials generated by
Tenant, subtenants, patients, occupants or the operators of the Leased
Properties which are now or may hereafter be subject to regulation pursuant to
the Material Waste Tracking Act of 1988, or any Applicable Laws promulgated by
any Government Agencies.
1.80 "RENT" shall mean, collectively, the Minimum Rent, Additional Rent
and Additional Charges.
1.81 "SEC" shall mean the Securities and Exchange Commission.
1.82 "SECURITY AGREEMENT" shall mean any security agreement made by
Tenant for the benefit of Landlord, as it may be amended, restated, supplemented
or otherwise modified from time to time.
1.83 "STATE" shall mean, with respect to any Property, the state,
commonwealth or district in which the such Property is located.
1.84 "SUBORDINATED CREDITOR" shall mean any creditor of Tenant which is
a party to a Subordination Agreement in favor of Landlord.
1.85 "SUBORDINATION AGREEMENT" shall mean any agreement (and any
amendments thereto) executed by a Subordinated Creditor pursuant to which the
payment and performance of Tenant's obligations to such Subordinated Creditor
are subordinated to the payment and performance of Tenant's obligations to
Landlord under this Agreement.
1.86 "SUBSIDIARY" shall mean, with respect to any Person, any Entity (a)
in which such Person owns directly, or indirectly through one or more
Subsidiaries, twenty percent (20%) or more of the voting or beneficial interest
or (b) which such Person otherwise has the right or power to control (whether by
contract, through ownership of securities or otherwise).
1.87 "SUCCESSOR LANDLORD" shall have the meaning given such term in
SECTION 20.2.
1.88 "TENANT" shall have the meaning given such term in the preambles to
this Agreement and shall also include its permitted successors and assigns.
1.89 "TENANT'S PERSONAL PROPERTY" shall mean all motor vehicles and
consumable inventory and supplies, furniture, furnishings, equipment, movable
walls and partitions, equipment and machinery and all other tangible personal
property of Tenant, if any, located at the Leased Property or used in Tenant's
business at the Leased Property and all modifications, replacements, alterations
and additions to such personal property installed at the expense of Tenant,
other than any items included within the definition of Fixtures.
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1.90 "TERM" shall mean, collectively, the Fixed Term and the Extended
Term, to the extent properly exercised pursuant to the provisions of SECTION
2.4, unless sooner terminated pursuant to the provisions of this Agreement.
1.91 "THIRD PARTY PAYOR PROGRAMS" shall mean all third party payor
programs in which Tenant presently or in the future may participate, including,
without limitation, Medicare, Medicaid, CHAMPUS, Blue Cross and/or Blue Shield,
Managed Care Plans, other private insurance programs and employee assistance
programs.
1.92 "THIRD PARTY PAYORS" shall mean Medicare, Medicaid, CHAMPUS, Blue
Cross and/or Blue Shield, private insurers and any other Person which presently
or in the future maintains Third Party Payor Programs.
1.93 "UNSUITABLE FOR ITS PERMITTED USE" shall mean, with respect to any
Facility, a state or condition of such Facility such that (a) following any
damage or destruction involving a Facility, (i) such Facility cannot be operated
on a commercially practicable basis for its Permitted Use and it cannot
reasonably be expected to be restored to substantially the same condition as
existed immediately before such damage or destruction, and as otherwise required
by SECTION 10.2.4, within twelve (12) months following such damage or
destruction or such longer period of time as to which business interruption
insurance is available to cover Rent and other costs related to the applicable
Property following such damage or destruction, (ii) the damage or destruction,
if uninsured, exceeds $1,000,000 or (iii) the cost of such restoration exceeds
ten percent (10%) of the fair market value of such Property immediately prior to
such damage or destruction, or (b) as the result of a partial taking by
Condemnation, such Facility cannot be operated, in the good faith judgment of
Tenant, on a commercially practicable basis for its Permitted Use.
1.94 "WORK" shall have the meaning given such term in SECTION 10.2.4.
ARTICLE 2
LEASED PROPERTY AND TERM
2.1 LEASED PROPERTY. Upon and subject to the terms and conditions
hereinafter set forth, Landlord leases to Tenant and Tenant leases from Landlord
all of Landlord's right, title and interest in and to all of the following (each
of items (a) through (f) below which, as of the Commencement Date, relates to
any single Facility, a "PROPERTY" and, collectively, the "LEASED PROPERTY"):
(a) those certain tracts, pieces and parcels of land, as more
particularly described in EXHIBITS A-1 THROUGH A-16, attached hereto and
made a part hereof (the "LAND");
15
(b) all buildings, structures 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 buildings and structures
presently situated upon the Land (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 air-conditioning systems and apparatus, sprinkler
systems and fire and theft protection equipment, all of which, to the
maximum extent permitted by law, are hereby deemed by the parties hereto to
constitute real estate, together with all replacements, modifications,
alterations and additions thereto (collectively, the "FIXTURES");
(e) all of the Leased Intangible Property; and
(f) any and all leases of space in the Leased Improvements.
2.2 CONDITION OF LEASED PROPERTY. Tenant acknowledges receipt and
delivery of possession of the Leased Property and Tenant accepts the Leased
Property in its "as is" condition, subject to the rights of parties in
possession, the existing state of title, including all covenants, conditions,
restrictions, reservations, mineral leases, easements and other matters of
record or that are visible or apparent on the Leased Property, all applicable
Legal Requirements, the lien of any financing instruments, mortgages and deeds
of trust existing prior to the Commencement Date or permitted by the terms of
this Agreement, and such other matters which would be disclosed by an inspection
of the Leased Property and the record title thereto or by an accurate survey
thereof. TENANT REPRESENTS THAT IT HAS INSPECTED THE LEASED PROPERTY AND ALL OF
THE FOREGOING AND HAS FOUND THE CONDITION THEREOF SATISFACTORY AND IS NOT
RELYING ON ANY REPRESENTATION OR WARRANTY OF LANDLORD OR LANDLORD'S AGENTS OR
EMPLOYEES WITH RESPECT THERETO AND TENANT WAIVES ANY CLAIM OR ACTION AGAINST
LANDLORD IN RESPECT OF THE CONDITION OF THE LEASED PROPERTY. LANDLORD MAKES NO
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, IN RESPECT OF THE LEASED
PROPERTY OR ANY PART THEREOF, EITHER AS TO ITS 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, IT BEING AGREED THAT ALL
SUCH RISKS ARE TO BE BORNE BY TENANT. To the maximum extent permitted by law,
however, Landlord hereby assigns to Tenant all of Landlord's rights to proceed
against any predecessor in interest or insurer for breaches of
16
warranties or representations or for latent defects in the Leased Property.
Landlord shall fully 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, defend, and hold harmless Landlord from and against any
loss, cost, damage or liability (including reasonable attorneys' fees) incurred
by Landlord in connection with such cooperation.
2.3 FIXED TERM. The initial term of this Agreement (the "FIXED TERM")
shall commence on the Commencement Date and shall expire on December 31, 2020.
2.4 EXTENDED TERMS. Provided that no Event of Default shall have
occurred and be continuing, Tenant shall have the right to extend the Term for
one renewal term of fifteen (15) years (the "EXTENDED TERM").
The Extended Term shall commence on the day succeeding the expiration of
the Fixed Term. All of the terms, covenants and provisions of this Agreement
shall apply to the Extended Term, except that Tenant shall have no right to
extend the Term beyond the expiration of the Extended Term. If Tenant shall
elect to exercise the aforesaid option, it shall do so by giving Landlord Notice
thereof not later than December 31, 2018, it being understood and agreed that
time shall be of the essence with respect to the giving of such Notice. If
Tenant shall fail to give such Notice, this Agreement shall automatically
terminate at the end of the Fixed Term and Tenant shall have no further option
to extend the Term of this Agreement. If Tenant shall give such Notice, the
extension of this Agreement shall be automatically effected without the
execution of any additional documents; it being understood and agreed, however,
that Tenant and Landlord shall execute such documents and agreements as either
party shall reasonably require to evidence the same. Notwithstanding the
provisions of the foregoing sentence, if, subsequent to the giving of such
Notice, an Event of Default shall occur, at Landlord's option, the extension of
this Agreement shall cease to take effect and this Agreement shall automatically
terminate at the end of the Fixed Term, and Tenant shall have no further option
to extend the Term of this Agreement.
ARTICLE 3
RENT
3.1 RENT. Tenant shall pay, in lawful money of the United States of
America which shall be legal tender for the payment of public and private debts,
without offset, abatement, demand or deduction (unless otherwise expressly
provided in this Agreement), Minimum Rent and Additional Rent to Landlord and
Additional Charges to the party to whom such Additional Charges are payable,
during the Term. All payments to Landlord shall be made by wire transfer of
immediately available federal funds or by other means acceptable to
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Landlord in its sole discretion. Rent for any partial calendar month shall be
prorated on a per diem basis.
3.1.1 MINIMUM RENT.
(a) PAYMENTS. Minimum Rent shall be paid in equal monthly
installments in arrears on the first Business Day of each calendar month
during the Term.
(b) ALLOCATION OF MINIMUM RENT. Minimum Rent may be allocated
and reallocated among the Properties comprising the Leased Property by
agreement among Landlord and Tenant; PROVIDED, HOWEVER that in no event
shall the Minimum Rent allocated to any Property be less than the monthly
amount payable by Landlord on account of any Facility Mortgage and/or
ground or master lease with respect to such Property nor shall the
aggregate amount of Minimum Rent allocated among the Properties exceed the
total amount payable for the Leased Property.
(c) ADJUSTMENTS OF MINIMUM RENT FOLLOWING DISBURSEMENTS UNDER
SECTIONS 5.1.2(b), 10.2.3 AND 11.2. Effective on the date of each
disbursement to pay for the cost of any repairs, maintenance, renovations
or replacements pursuant to SECTIONS 5.1.2(b), 10.2.3 OR 11.2, the annual
Minimum Rent shall be increased by a PER ANNUM amount equal to the
Disbursement Rate times the amount so disbursed. If any such disbursement
is made during any calendar month on a day other than the first Business
Day of such calendar month, Tenant shall pay to Landlord on the first
Business Day of the immediately following calendar month (in addition to
the amount of Minimum Rent payable with respect to such calendar month, as
adjusted pursuant to this paragraph (c)) the amount by which Minimum Rent
for the preceding calendar month, as adjusted for such disbursement on a
per diem basis, exceeded the amount of Minimum Rent paid by Tenant for such
preceding calendar month.
(d) ADJUSTMENTS OF MINIMUM RENT FOLLOWING PARTIAL LEASE
TERMINATION. Subject to SECTION 4.1.1(b), if this Agreement shall terminate
with respect to any Property but less than all of the Leased Property,
Minimum Rent shall be reduced by the affected Property's allocable share of
Minimum Rent determined in accordance with the applicable provisions of
this Agreement.
3.1.2 ADDITIONAL RENT.
(a) AMOUNT. Tenant shall pay additional rent ("ADDITIONAL
RENT") with respect to each Lease Year during the Term subsequent to the
Base Year in an amount, not less than zero, equal to four percent (4%) of
Excess Gross Revenues at the Leased Property. Quarterly payments of
Additional Rent for the Leased Property shall be calculated based on Gross
Revenues for such quarter during the preceding year and shall be due and
payable and delivered to Landlord on the first Business Day of each
calendar
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quarter, or portion thereof, thereafter occurring during the Term, together
with an Officer's Certificate setting forth the calculation of Additional
Rent due and payable for such quarter.
(b) QUARTERLY INSTALLMENTS. Installments of Additional Rent
for each Lease Year during the Term, or portion thereof, shall be
calculated and paid quarterly in arrears, together with an Officer's
Certificate setting forth the calculation of Additional Rent due and
payable for such quarter.
(c) RECONCILIATION OF ADDITIONAL RENT. In addition, within
seventy-five (75) days after the end of the Base Year and each Lease Year
thereafter (or any portion thereof occurring during the Term), Tenant shall
deliver, or cause to be delivered, to Landlord (i) a financial report
setting forth the Gross Revenues for each Property for such preceding Lease
Year, or portion thereof, together with an Officer's Certificate from
Tenant's chief financial or accounting officer certifying that such report
is true and correct, (ii) an audit of Gross Revenues prepared by a firm of
independent certified public accountants proposed by Tenant and approved by
Landlord (which approval shall not be unreasonably withheld, delayed or
conditioned), and (iii) a statement showing Tenant's calculation of
Additional Rent due for such preceding Lease Year based on the Gross
Revenues set forth in such financial report, together with an Officer's
Certificate from Tenant's chief financial or accounting officer certifying
that such statement is true and correct.
If the annual Additional Rent for such preceding Lease Year as set
forth in Tenant's statement thereof exceeds the amount previously paid with
respect thereto by Tenant, Tenant shall pay such excess to Landlord at such
time as the statement is delivered, together with interest at the Interest
Rate, which interest shall accrue from the close of such preceding Lease
Year until the date that such statement is required to be delivered and,
thereafter, such interest shall accrue at the Overdue Rate, until the
amount of such difference shall be paid or otherwise discharged. If the
annual Additional Rent for such preceding Lease Year as shown in such
statement is less than the amount previously paid with respect thereto by
Tenant, provided that no Event of Default shall have occurred and be
continuing, Landlord shall grant Tenant a credit against the Additional
Rent next coming due in the amount of such difference, together with
interest at the Interest Rate, which interest shall accrue from the date of
payment by Tenant until the date such credit is applied or paid, as the
case may be. If such credit cannot be made because the Term has expired
prior to application in full thereof, provided no Event of Default has
occurred and is continuing, Landlord shall pay the unapplied balance of
such credit to Tenant, together with interest at the Interest Rate, which
interest shall accrue from the date of payment by Tenant until the date of
payment by Landlord.
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(d) CONFIRMATION OF ADDITIONAL RENT. Tenant shall utilize, or
cause to be utilized, an accounting system for the Leased Property in
accordance with its usual and customary practices and in all material
respects in accordance with GAAP, which will accurately record all Gross
Revenues and Tenant shall retain, for at least three (3) years after the
expiration of each Lease Year, reasonably adequate records conforming to
such accounting system showing all Gross Revenues for such Lease Year.
Landlord, at its own expense, except as provided hereinbelow, shall have
the right, exercisable by Notice to Tenant, by its accountants or
representatives, to audit the information set forth in the Officer's
Certificate referred to in subparagraph (c) above and, in connection with
such audits, to examine Tenant's books and records with respect thereto
(including supporting data and sales and excise tax returns). Landlord
shall begin such audit as soon as reasonably possible following its receipt
of the applicable Officer's Certificate and shall complete such audit as
soon as reasonably possible thereafter. All such audits shall be performed
at the location where such books and records are customarily kept and in
such a manner so as to minimize any interference with Tenant's business
operations. If any such audit discloses a deficiency in the payment of
Additional Rent and, either Tenant agrees with the result of such audit or
the matter is otherwise determined, Tenant shall forthwith pay to Landlord
the amount of the deficiency, as finally agreed or determined, together
with interest at the Interest Rate, from the date such payment should have
been made to the date of payment thereof. If any such audit discloses that
Tenant paid more Additional Rent for any Lease Year than was due hereunder,
and either Landlord agrees with the result of such audit or the matter is
otherwise determined, provided no Event of Default has occurred and is
continuing, Landlord shall, at Landlord's option, either grant Tenant a
credit or pay to Tenant an amount equal to the amount of such overpayment
against Additional Rent next coming due in the amount of such difference,
as finally agreed or determined, together with interest at the Interest
Rate, which interest shall accrue from the time of payment by Tenant until
the date such credit is applied or paid, as the case may be; PROVIDED,
HOWEVER, that, upon the expiration or sooner termination of the Term,
provided no Event of Default has occurred and is continuing, Landlord shall
pay the unapplied balance of such credit to Tenant, together with interest
at the Interest Rate, which interest shall accrue from the date of payment
by Tenant until the date of payment from Landlord. Any dispute concerning
the correctness of an audit shall be settled by arbitration pursuant to the
provisions of ARTICLE 22.
Any proprietary information obtained by Landlord with respect to
Tenant pursuant to the provisions of this Agreement shall be treated as
confidential, except that such information may be disclosed or used,
subject to appropriate confidentiality safeguards, pursuant to court order
or in any litigation between the parties and except further that Landlord
may disclose such
20
information to its prospective lenders, provided that Landlord shall direct
such lenders to maintain such information as confidential. The obligations
of Tenant and Landlord contained in this SECTION 3.1.2 shall survive the
expiration or earlier termination of this Agreement.
3.1.3 ADDITIONAL CHARGES. In addition to the Minimum Rent and
Additional Rent payable hereunder, Tenant shall pay (or cause to be paid) to the
appropriate parties and discharge (or cause to be discharged) as and when due
and payable the following (collectively, "ADDITIONAL CHARGES"):
(a) IMPOSITIONS. Subject to ARTICLE 8 relating to permitted
contests, Tenant shall pay, or cause to be paid, all Impositions before any
fine, penalty, interest or cost (other than any opportunity cost as a
result of a failure to take advantage of any discount for early payment)
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 reasonably
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, or cause to 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, or cause to be
prepared and filed, all tax returns and pay all taxes due 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 or other equity interests, 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 Government Agencies. Provided no Event of
Default shall have occurred and be continuing, if any refund shall be due
from any taxing authority in respect of any Imposition paid by or on behalf
of Tenant, the same shall be paid over to or retained by Tenant. 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 Government Agencies classify any property covered by
this Agreement as personal property, Tenant shall file, or cause to be
filed, 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
21
legally required to file personal property tax returns for property covered
by this Agreement, 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 the last date on which the same may be made without interest or
penalty, subject to the provisions of ARTICLE 8.
Landlord shall give prompt Notice to Tenant of all Impositions
payable by Tenant hereunder of which Landlord at any time has knowledge;
PROVIDED, HOWEVER, that Landlord's failure to give any such notice shall in
no way diminish Tenant's obligation hereunder to pay such Impositions.
(b) UTILITY CHARGES. Tenant shall pay or cause to be paid all
charges for electricity, power, gas, oil, water and other utilities used in
connection with the Leased Property.
(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, including, without limitation,
ground rents, if any, and all amounts payable under any equipment leases
and all agreements to indemnify Landlord under SECTIONS 4.4.2 AND 9.5.
(e) REIMBURSEMENT FOR ADDITIONAL CHARGES. If Tenant pays or
causes to be paid property taxes or similar or other Additional Charges
attributable to periods after the end of the Term, whether upon expiration
or sooner termination of this Agreement (other than termination by reason
of an Event of Default), Tenant may, within a reasonable time after the end
of the Term, provide Notice to Landlord of its estimate of such amounts.
Landlord shall promptly reimburse Tenant for all payments of such taxes and
other similar Additional Charges that are attributable to any period after
the Term of this Agreement.
3.2 LATE PAYMENT OF RENT, ETC. If any installment of Minimum Rent,
Additional Rent or Additional Charges (but only as to those Additional Charges
which are payable directly to Landlord) shall not be paid within ten (10) days
after its due date, Tenant shall pay Landlord, on demand, as Additional Charges,
a late charge (to the extent permitted by law) computed at the Overdue Rate on
the amount of such installment, from the due date of such installment to the
date of payment thereof. To the extent that Tenant pays any Additional Charges
directly to Landlord or any Facility Mortgagee pursuant to any requirement of
this Agreement, Tenant shall be relieved of its obligation to pay such
Additional Charges to the Entity to which they would otherwise be due. If any
payments due from Landlord to Tenant shall not be paid within ten (10) days
after its due date, Landlord
22
shall pay to Tenant, on demand, a late charge (to the extent permitted by law)
computed at the Overdue Rate on the amount of such installment from the due date
of such installment to the date of payment thereof.
In the event of any failure by Tenant to pay any Additional Charges when
due, Tenant shall promptly pay and discharge, as Additional Charges, every fine,
penalty, interest and cost which is 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 Agreement or by statute or otherwise
in the case of non-payment of the Additional Charges as in the case of
non-payment of the Minimum Rent and Additional Rent.
3.3 NET LEASE. The Rent shall be absolutely net to Landlord so that
this Agreement shall yield to Landlord the full amount of the installments or
amounts of the Rent throughout the Term, subject to any other provisions of this
Agreement which expressly provide otherwise, including those provisions for
adjustment or abatement of such Rent.
3.4 NO TERMINATION, ABATEMENT, ETC. Except as otherwise specifically
provided in this Agreement, each of Landlord and Tenant, to the maximum extent
permitted by law, shall remain bound by this Agreement in accordance with its
terms and shall not take any action without the consent of the other to modify,
surrender or terminate this Agreement. In addition, except as otherwise
expressly provided in this Agreement, Tenant shall not seek, or 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 default (other than a monetary
default) or breach of any warranty by Landlord under this Agreement or any other
agreement between Landlord and Tenant, or to which Landlord and Tenant are
parties; (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 (other than a
monetary default by Landlord). Except as otherwise specifically provided in this
Agreement, Tenant hereby waives all rights arising from any occurrence
whatsoever, which may now or hereafter be conferred upon it by law (a) to
modify, surrender or terminate this Agreement or quit or surrender the Leased
Property, or any portion thereof, or (b) which would entitle Tenant to any
abatement, reduction, suspension or deferment of the Rent or other sums payable
or other obligations to be performed by Tenant hereunder. The obligations of
Tenant hereunder shall be separate and independent covenants and agreements, and
the Rent and all other sums payable by Tenant hereunder shall continue to
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be payable in all events unless the obligations to pay the same shall be
terminated pursuant to the express provisions of this Agreement.
ARTICLE 4
USE OF THE LEASED PROPERTY
4.1 PERMITTED USE.
4.1.1 PERMITTED USE.
(a) Tenant shall, at all times during the Term, and at any
other time that Tenant shall be in possession of any Property, continuously
use and operate, or cause to be used and operated, such Property as an
independent living/assisted living facility as currently operated, and any
uses incidental thereto. Tenant shall not use (and shall not permit any
Person to use) any Property, or any portion thereof, for any other use
without the prior written consent of Landlord, which approval shall not be
unreasonably withheld, delayed or conditioned. No use shall be made or
permitted to be made of any Property and no acts shall be done thereon
which will cause the cancellation of any insurance policy covering such
Property or any part thereof (unless another adequate policy is available)
or which would constitute a default under any ground lease affecting such
Property, nor shall Tenant sell or otherwise provide to residents or
patients therein, or permit to be kept, used or sold in or about any
Property 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. Tenant shall, at its
sole cost (except as expressly provided in SECTION 5.1.2(b)), comply or
cause to be complied with all Insurance Requirements. Tenant shall not take
or omit to take, or permit to be taken or omitted to be taken, any action,
the taking or omission of which materially impairs the value or the
usefulness of any Property or any part thereof for its Permitted Use.
(b) In the event that, in the reasonable determination of
Tenant, it shall no longer be economically practical to operate any
Property as currently operated, Tenant shall give Landlord Notice thereof,
which Notice shall set forth in reasonable detail the reasons therefor.
Thereafter, Landlord and Tenant shall negotiate in good faith to agree on
an alternative use for such Property, appropriate adjustments to the
Additional Rent and other related matters; PROVIDED, HOWEVER, in no event
shall the Minimum Rent be reduced or abated as a result thereof. If
Landlord and Tenant fail to agree on an alternative use for such Property
within sixty (60) days after commencing negotiations as aforesaid, Tenant
may market such Property for sale to a third party. If Tenant receives a
bona fide offer (an "OFFER") to purchase such Property from a Person having
the financial capacity to implement the terms of such Offer, Tenant shall
give
24
Landlord Notice thereof, which Notice shall include a copy of the Offer
executed by such third party. In the event that Landlord shall fail to
accept or reject such Offer within thirty (30) days after receipt of such
Notice, such Offer shall be deemed to be rejected by Landlord. If Landlord
shall sell the Property pursuant to such Offer, then, effective as of the
date of such sale, this Agreement shall terminate with respect to such
Property, and the Minimum Rent shall be reduced by an amount equal to nine
percent (9%) of the net proceeds of sale received by Landlord. If Landlord
shall reject (or be deemed to have rejected) such Offer, then, effective as
of the proposed date of such sale, this Agreement shall terminate with
respect to such Property, and the Minimum Rent shall be reduced by an
amount equal to nine percent (9%) of the projected net proceeds determined
by reference to such Offer.
4.1.2 NECESSARY APPROVALS. Tenant shall proceed with all due
diligence and exercise reasonable efforts to obtain and maintain, or cause to be
obtained and maintained, all approvals necessary to use and operate, for its
Permitted Use, each Property and the Facility located thereon under applicable
law and, without limiting the foregoing, shall exercise reasonable efforts to
maintain (or cause to be maintained) appropriate certifications for
reimbursement and licensure.
4.1.3 LAWFUL USE, ETC. Tenant shall not, and shall not permit
any Person to use or suffer or permit the use of any Property or Tenant's
Personal Property, if any, for any unlawful purpose. Tenant shall not, and shall
not permit any Person to, commit or suffer to be committed any waste on any
Property, or in any Facility, nor shall Tenant cause or permit any unlawful
nuisance thereon or therein. Tenant shall not, and shall not permit any Person
to, suffer nor permit any Property, or any portion thereof, to be used in such a
manner as (i) may materially and adversely impair Landlord's title thereto or to
any portion thereof, or (ii) may reasonably allow a claim or claims for adverse
usage or adverse possession by the public, as such, or of implied dedication of
such Property, or any portion thereof.
4.2 COMPLIANCE WITH LEGAL/INSURANCE REQUIREMENTS, ETC. Subject to the
provisions of SECTION 5.1.2(b) and ARTICLE 8, Tenant, at its sole expense, shall
(i) comply with (or cause to be complied with) all material Legal Requirements
and Insurance Requirements in respect of the use, operation, maintenance,
repair, alteration and restoration of any Property and with the terms and
conditions of any ground lease affecting any Property, (ii) perform (or cause to
be performed) in a timely fashion all of Landlord's obligations under any ground
lease affecting any Property and (iii) procure, maintain and comply with (or
cause to be procured, maintained and complied with) all material licenses,
certificates of need, permits, provider agreements and other authorizations and
agreements required for any use of any Property and Tenant's Personal Property,
if any, then being made, and for the
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proper erection, installation, operation and maintenance of the Leased Property
or any part thereof.
4.3 COMPLIANCE WITH MEDICAID AND MEDICARE REQUIREMENTS. Tenant, at its
sole cost and expense, shall make (or shall cause to be made), whatever
improvements (capital or ordinary) as are required to each Property to such
standards as may, from time to time, be required by Federal Medicare (Title 18)
or Medicaid (Title 19) for skilled and/or intermediate care nursing programs, to
the extent Tenant is a participant in such programs with respect to such
Property, or any other applicable programs or legislation, or capital
improvements required by any other governmental agency having jurisdiction over
any Property as a condition of the continued operation of such Property for its
Primary Intended Use.
4.4 ENVIRONMENTAL MATTERS.
4.4.1 RESTRICTION ON USE, ETC. During the Term and any other
time that Tenant shall be in possession of any Property, Tenant shall not, and
shall not permit any Person to, store, spill upon, dispose of or transfer to or
from such Property any Hazardous Substance, except in compliance with all
Applicable Laws. During the Term and any other time that Tenant shall be in
possession of any Property, Tenant shall maintain (or shall cause to be
maintained) such Property at all times free of any Hazardous Substance (except
in compliance with all Applicable Laws). Tenant shall promptly: (a) upon receipt
of notice or knowledge, notify Landlord in writing of any material change in the
nature or extent of Hazardous Substances at any Property, (b) transmit to
Landlord a copy of any report which is required to be filed by Tenant or any
Manager with respect to any Property pursuant to XXXX Title III or any other
Applicable Law, (c) transmit to Landlord copies of any citations, orders,
notices or other governmental communications received by Tenant or any Manager
or their respective agents or representatives with respect thereto
(collectively, "ENVIRONMENTAL NOTICE"), which Environmental Notice requires a
written response or any action to be taken and/or if such Environmental Notice
gives notice of and/or presents a material risk of any material violation of any
Applicable Law and/or presents a material risk of any material cost, expense,
loss or damage (an "ENVIRONMENTAL OBLIGATION"), (d) observe and comply with (or
cause to be observed and complied with) all Applicable Laws relating to the use,
maintenance and disposal of Hazardous Substances and all orders or directives
from any official, 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 (or cause to be paid or
otherwise disposed) of any fine, charge or Imposition related thereto, unless
Tenant or any Manager shall contest the same in good faith and by appropriate
proceedings and the right to use and the value of any of the Leased Property is
not materially and adversely affected thereby.
If, at any time prior to the termination of this Agreement, Hazardous
Substances (other than those maintained in accordance with
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Applicable Laws) are discovered on any Property, subject to Tenant's right to
contest the same in accordance with ARTICLE 8, Tenant shall take (and shall
cause to be taken) all actions and incur any and all expenses, as are required
by any Government Agency and by Applicable Law, (i) to clean up and remove from
and about such Property all Hazardous Substances thereon, (ii) to contain and
prevent any further release or threat of release of Hazardous Substances on or
about such Property and (iii) to use good faith efforts to eliminate any further
release or threat of release of Hazardous Substances on or about such Property.
4.4.2 INDEMNIFICATION OF LANDLORD. Tenant shall protect,
indemnify and hold harmless Landlord and each Facility Mortgagee, their
trustees, officers, agents, employees and beneficiaries, and any of their
respective successors or assigns with respect to this Agreement (collectively,
the "INDEMNITEES" and, individually, an "INDEMNITEE") for, from and against any
and all debts, liens, claims, causes of action, administrative orders or
notices, costs, fines, penalties or expenses (including, without limitation,
reasonable attorney's fees and expenses) imposed upon, incurred by or asserted
against any Indemnitee resulting from, either directly or indirectly, the
presence in, upon or under the soil or ground water of any Property or any
properties surrounding such Property of any Hazardous Substances in violation of
any Applicable Law, except to the extent the same arise from the acts or
omissions of Landlord or any other Indemnitee or during any period that Landlord
or a Person designated by Landlord (other than Tenant) is in possession of such
Property from and after the date hereof. Tenant's duty herein includes, but is
not limited to, costs associated with personal injury or property damage claims
as a result of the presence prior to the expiration or sooner termination of the
Term and the surrender of such Property to Landlord in accordance with the terms
of this Agreement of Hazardous Substances in, upon or under the soil or ground
water of such Property in violation of any Applicable Law. Upon Notice from
Landlord and any other of the Indemnitees, Tenant shall undertake the defense,
at Tenant's sole cost and expense, of any indemnification duties set forth
herein, in which event, Tenant shall not be liable for payment of any
duplicative attorneys' fees incurred by any Indemnitee.
Tenant shall, upon demand, pay (or cause to be paid) to Landlord, as an
Additional Charge, any cost, expense, loss or damage (including, without
limitation, reasonable attorneys' fees) reasonably incurred by Landlord and
arising from a failure of Tenant to observe and perform (or to cause to be
observed and performed) the requirements of this SECTION 4.4, which amounts
shall bear interest from the date ten (10) Business Days after written demand
therefor is given to Tenant until paid by Tenant to Landlord at the Overdue
Rate.
4.4.3 SURVIVAL. The provisions of this SECTION 4.4 shall survive
the expiration or sooner termination of this Agreement.
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ARTICLE 5
MAINTENANCE AND REPAIRS
5.1 MAINTENANCE AND REPAIR.
5.1.1 TENANT'S GENERAL OBLIGATIONS. Tenant shall keep (or cause
to be kept), at Tenant's sole cost and expense, 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 or any Manager'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 or cause to
be made 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 made in a good, workmanlike manner, consistent
with industry standards for comparable Facilities in like locales, in accordance
with all applicable federal, state and local statutes, ordinances, codes, rules
and regulations relating to any such work. Tenant shall not take or omit to take
(or permit any Person to take or omit to take) any action, the taking or
omission of which would materially and adversely impair the value or the
usefulness of the Leased Property or any material part thereof for its Permitted
Use. Tenant's obligations under this SECTION 5.1.1 shall be limited in the event
of any casualty or Condemnation as set forth in ARTICLE 10 and ARTICLE 11 and
Tenant's obligations with respect to Hazardous Substances are as set forth in
SECTION 4.4.
5.1.2 LANDLORD'S OBLIGATIONS.
(a) Except as otherwise expressly provided in this Agreement,
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 nonstructural, foreseen or unforeseen, or to make any
expenditure whatsoever with respect thereto, or to maintain the Leased
Property in any way. Except as otherwise expressly provided in this
Agreement, Tenant hereby waives, to the maximum extent permitted by law,
the right to make repairs at the expense of Landlord pursuant to any law in
effect on the date hereof 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.
(b) If, pursuant to the terms of this Agreement, Tenant is
required to make any expenditures in connection with any repair,
maintenance or renovation with respect to any Property, Tenant
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may, at its election, advance such funds or give Landlord Notice thereof,
which Notice shall set forth, in reasonable detail, the nature of the
required repair, renovation or replacement, the estimated cost thereof and
such other information with respect thereto as Landlord may reasonably
require. Provided that no Event of Default shall have occurred and be
continuing and Tenant shall otherwise comply with the applicable provisions
of ARTICLE 6, Landlord shall, within ten (10) Business Days after such
Notice, subject to and in accordance with the applicable provisions of
ARTICLE 6, disburse such required funds to Tenant (or, if Tenant shall so
elect, directly to the Manager or any other Person performing the required
work) and, upon such disbursement, the Minimum Rent shall be adjusted as
provided in SECTION 3.1.1(c). Notwithstanding the foregoing, Landlord may
elect not to disburse such required funds to Tenant; provided, however,
that if Landlord shall elect not to disburse such required funds as
aforesaid, Tenant's obligation to make such required repair, renovation or
replacement shall be deemed waived by Landlord, and, notwithstanding
anything contained in this Agreement to the contrary, Tenant shall have no
obligation to make such required repair, renovation or replacement.
5.1.3 NONRESPONSIBILITY OF LANDLORD, ETC. All materialmen,
contractors, artisans, mechanics and laborers and other persons contracting
with Tenant with respect to the Leased Property, or any part thereof, are
hereby charged with notice that liens on the Leased Property or on
Landlord's interest therein are expressly prohibited and that they must
look solely to Tenant to secure payment for any work done or material
furnished to Tenant or any Manager or for any other purpose during the term
of this Agreement.
Nothing contained in this Agreement shall be deemed or construed in any way
as constituting the consent or request of Landlord, express or implied, by
inference or otherwise, to any contractor, subcontractor, laborer or materialmen
for the performance of any labor or the furnishing of any materials for any
alteration, addition, improvement or repair to the Leased Property or any part
thereof or as giving Tenant any right, power or authority to contract for or
permit the rendering of any services or the furnishing of any materials that
would give rise to the filing of any lien against the Leased Property or any
part thereof nor to subject Landlord's estate in the Leased Property or any part
thereof to liability under any mechanic's lien law of any State in any way, it
being expressly understood Landlord's estate shall not be subject to any such
liability.
5.2 TENANT'S PERSONAL PROPERTY. Tenant shall provide and maintain (or
cause to be provided and maintained) throughout the Term all such Tenant's
Personal Property as shall be necessary in order to operate in compliance with
applicable material Legal Requirements and Insurance Requirements and otherwise
in accordance with customary practice in the industry for the Permitted Use. If,
from and after the Commencement Date, Tenant acquires an interest in any item of
tangible personal property (other than motor vehicles) on, or in
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connection with, the Leased Property, or any portion thereof, which belongs to
anyone other than Tenant, Tenant shall require the agreements permitting such
use to provide that Landlord or its designee may assume Tenant's rights and
obligations under such agreement upon Landlord's purchase of the same in
accordance with the provisions of ARTICLE 15 and the assumption of management or
operation of the Facility by Landlord or its designee.
5.3 YIELD UP. Upon the expiration or sooner termination of this
Agreement, Tenant shall vacate and surrender the Leased Property to Landlord in
substantially the same condition in which the Leased Property was in on the
Commencement Date, except as repaired, rebuilt, restored, altered or added to as
permitted or required by the provisions of this Agreement, reasonable wear and
tear excepted (and casualty damage and Condemnation, in the event that this
Agreement is terminated following a casualty or Condemnation in accordance with
ARTICLE 10 or ARTICLE 11 excepted).
In addition, upon the expiration or earlier termination of this Agreement,
Tenant shall, at Landlord's sole cost and expense, use its good faith efforts to
transfer (or cause to be transferred) 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 use and operation of the Facility as then
operated. If requested by Landlord, Tenant shall continue to manage one or more
of the Facilities after the expiration of the Term for up to one hundred eighty
(180) days, 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 reasonably request.
5.4 MANAGEMENT AGREEMENT. Tenant shall not, without Landlord's prior
written consent (which consent shall not be unreasonably withheld, delayed or
conditioned), enter into, amend or modify the provisions of any Management
Agreement with respect to any Property. Any Management Agreement entered into
pursuant to the provisions of this SECTION 5.4 shall be subordinate to this
Agreement and shall provide, INTER ALIA, that all amounts due from Tenant to
Manager thereunder shall be subordinate to all amounts due from Tenant to
Landlord (provided that, as long as no Event of Default has occurred and is
continuing, Tenant may pay all amounts due to Manager thereunder pursuant to
such Management Agreement) and for termination thereof, at Landlord's option,
upon the termination of this Agreement. Tenant shall not take any action, grant
any consent or permit any action under any such Management Agreement which might
have a material adverse effect on Landlord, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, delayed or
conditioned.
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ARTICLE 6
IMPROVEMENTS, ETC.
6.1 IMPROVEMENTS TO THE LEASED PROPERTY. Tenant shall not make,
construct or install (or permit to be made, constructed or installed) any
Capital Additions without, in each instance, obtaining Landlord's prior written
consent, which consent shall not be unreasonably withheld, delayed or
conditioned provided that (a) construction or installation of the same would not
adversely affect or violate any material Legal Requirement or Insurance
Requirement applicable to any Property and (b) Landlord shall have received an
Officer's Certificate certifying as to the satisfaction of the conditions set
out in clause (a) above; PROVIDED, HOWEVER, that no such consent shall be
required in the event immediate action is required to prevent imminent harm to
person or property. Prior to commencing construction of any Capital Addition,
Tenant shall submit to Landlord, in writing, a proposal setting forth, in
reasonable detail, any such proposed improvement and shall provide to Landlord
such plans and specifications, and such permits, licenses, contracts and such
other information concerning the same as Landlord may reasonably request.
Landlord shall have thirty (30) days to review all materials submitted to
Landlord in connection with any such proposal. Failure of Landlord to respond to
Tenant's proposal within thirty (30) days after receipt of all information and
materials requested by Landlord in connection with the proposed improvement
shall be deemed to constitute approval of the same. Without limiting the
generality of the foregoing, such proposal shall indicate the approximate
projected cost of constructing such proposed improvement and the use or uses to
which it will be put. No Capital Addition shall be made which would tie in or
connect any Leased Improvements with any other improvements on property adjacent
to any Property (and not part of the Land) including, without limitation,
tie-ins of buildings or other structures or utilities. Except as permitted
herein, Tenant shall not finance the cost of any construction of such
improvement by the granting of a lien on or security interest in the Leased
Property or such improvement, or Tenant's interest therein, without the prior
written consent of Landlord, which consent may be withheld by Landlord in
Landlord's sole discretion. Any such improvements shall, upon the expiration or
sooner termination of this Agreement, remain or pass to and become the property
of Landlord, free and clear of all encumbrances other than Permitted
Encumbrances.
6.2 SALVAGE. All materials which are scrapped or removed in connection
with the making of either Capital Additions or non-Capital Additions or repairs
required by ARTICLE 5 shall be or become the property of the party that paid for
such work.
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ARTICLE 7
LIENS
7.1 LIENS. Subject to ARTICLE 8, Tenant shall use its best efforts not,
directly or indirectly, to create or allow to remain and shall promptly
discharge (or cause to be discharged), at its expense, any lien, encumbrance,
attachment, title retention agreement or claim upon the Leased Property, or any
portion thereof, or Tenant's leasehold interest therein or any attachment, levy,
claim or encumbrance in respect of the Rent, other than (a) Permitted
Encumbrances, (b) restrictions, liens and other encumbrances which are consented
to in writing by Landlord, (c) liens for those taxes of Landlord which Tenant is
not required to pay hereunder, (d) subleases permitted by ARTICLE 16, (e) liens
for Impositions or for sums resulting from noncompliance with Legal Requirements
so long as (i) the same are not yet due and payable, or (ii) are being contested
in accordance with ARTICLE 8, (f) liens of mechanics, laborers, materialmen,
suppliers or vendors incurred in the ordinary course of business that are not
yet due and payable or are for sums that are being contested in accordance with
ARTICLE 8, (g) any Facility Mortgages or other liens which are the
responsibility of Landlord pursuant to the provisions of ARTICLE 20 and (h)
Landlord Liens and any other voluntary liens created by Landlord.
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 loss, cost or damage which Landlord may
suffer by reason of Tenant's breach of this Agreement, Tenant hereby grants unto
Landlord, to the maximum extent permitted by Applicable Law, a security interest
in and an express contractual lien upon Tenant's Personal Property (except motor
vehicles), and Tenant's interest in 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 Facilities
(the "RECORDS") and all proceeds therefrom, subject to any Permitted
Encumbrances; and such Tenant's Personal Property shall not be removed from the
Leased Property at any time when an Event of Default has occurred and is
continuing.
Upon Landlord's request, Tenant shall execute and deliver to Landlord
financing statements in form sufficient to perfect the security interest of
Landlord in Tenant's Personal Property and the proceeds thereof in accordance
with the provisions of the applicable laws of the State. During the continuance
of an Event of Default, 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 and shall be
subordinate to the lien of any Facility Mortgage, including any lien imposed in
connection with the GMAC Financing Documents.
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ARTICLE 8
PERMITTED CONTESTS
Tenant shall have the right to contest the amount or validity of any
Imposition, Legal Requirement, Insurance Requirement, Environmental Obligation,
lien, attachment, levy, encumbrance, charge or claim (collectively, "CLAIMS") as
to the Leased Property, 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 (or
cause to be paid) any Claims as finally determined, (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 portion thereof (Landlord agreeing that
any such mortgage or deed of trust shall permit Tenant to exercise the rights
granted pursuant to this ARTICLE 8) or any interest therein or result in or
reasonably be expected to result in a lien attaching to the Leased Property, or
any portion thereof, (c) no part of the Leased Property nor any Rent therefrom
shall be in any immediate danger of sale, forfeiture, attachment or loss, and
(d) Tenant shall indemnify and hold harmless Landlord from and against any cost,
claim, damage, penalty or reasonable expense, including reasonable attorneys'
fees, incurred by Landlord in connection therewith or as a result thereof.
Landlord agrees to join in any such proceedings if required legally to prosecute
such contest, provided that Landlord shall not thereby be subjected to any
liability therefor (including, without limitation, for the payment of any costs
or expenses in connection therewith) unless Tenant agrees by agreement in form
and substance reasonably satisfactory to Landlord, to assume and indemnify
Landlord with respect to the same. 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 to the extent that Landlord has been fully
reimbursed by Tenant. If Tenant shall fail (x) to pay or cause to be paid any
Claims when finally determined, (y) to provide reasonable security therefor or
(z) to prosecute or cause to be prosecuted any such contest diligently and in
good faith, Landlord may, upon reasonable notice to Tenant (which notice shall
not be required if Landlord shall reasonably determine that the same is not
practicable), pay such charges, together with interest and penalties due with
respect thereto, and Tenant shall reimburse Landlord therefor, upon demand, as
Additional Charges.
ARTICLE 9
INSURANCE AND INDEMNIFICATION
9.1 GENERAL INSURANCE REQUIREMENTS. Tenant shall, at all times during
the Term and at any other time Tenant shall be in possession of any Property, or
any portion thereof, keep (or cause to be kept) such Property and all property
located therein or thereon, insured against the risks and in such amounts as is
against such risks and in such amounts as Landlord shall reasonably require and
may be commercially
33
reasonable. Tenant shall prepare a proposal setting forth the insurance Tenant
proposes to be maintained with respect to each Property during the ensuing
Fiscal Year, and shall submit such proposal to Landlord on or before December 1
of the preceding Lease Year, for Landlord's review and approval, which approval
shall not be unreasonably withheld, delayed or conditioned. In the event that
Landlord shall fail to respond within thirty (30) days after receipt of such
proposal, such proposal shall be deemed approved.
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 any State) with respect to any property loss which
is covered by insurance then being carried by Landlord or Tenant, the party
carrying such insurance and suffering said loss releases the others of and from
any and all claims with respect to such loss; and they further agree that their
respective insurance companies (and, if Landlord or Tenant shall self insure in
accordance with the terms hereof, Landlord or Tenant, as the case may be) 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 insurance policies and endorsements
required pursuant to this ARTICLE 9 shall be fully paid for, nonassessable, and
issued by reputable insurance companies authorized to do business in the State
and having a general policy holder's rating of no less than A in Best's latest
rating guide. All property, business interruption, liability and flood insurance
policies with respect to each Property shall include no deductible in excess of
Two Hundred Fifty Thousand Dollars ($250,000). At all times, all property,
business interruption, liability and flood insurance policies, with the
exception of worker's compensation insurance coverage, shall name Landlord and
any Facility Mortgagee as additional insureds, as their interests may appear.
All loss adjustments shall be payable as provided in ARTICLE 10, except that
losses under liability and worker's compensation insurance policies shall be
payable directly to the party entitled thereto. Tenant shall cause all insurance
premiums to be paid and shall deliver (or cause to be delivered) policies or
certificates thereof to Landlord prior to their effective date (and, with
respect to any renewal policy, prior to the expiration of the existing policy).
All such policies shall provide Landlord (and any Facility Mortgagee if required
by the same) thirty (30) days prior written notice of any material change or
cancellation of such policy. In the event Tenant shall fail to effect (or cause
to be effected) such insurance as herein required, to pay (or cause to be paid)
the premiums therefor or to deliver (or cause to be delivered) such policies or
certificates to Landlord or any Facility Mortgagee at the times required,
Landlord shall have the right, upon Notice to Tenant, but not the obligation, to
acquire such insurance and pay the premiums therefor, which amounts shall be
34
payable to Landlord, upon demand, as Additional Charges, together with interest
accrued thereon at the Overdue Rate from the date such payment is made until
(but excluding) the date repaid.
9.4 NO SEPARATE INSURANCE; SELF-INSURANCE. Tenant shall not take (or
permit any Person to take) out separate insurance, concurrent in form or
contributing in the event of loss with that required by this ARTICLE 9, 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
Agreement. 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 Notice thereof. Tenant shall not self-insure (or permit any
Person to self-insure).
9.5 INDEMNIFICATION OF LANDLORD. Notwithstanding the existence of any
insurance provided for herein and without regard to the policy limits of any
such insurance, Tenant shall protect, indemnify and hold harmless Landlord for,
from and against all liabilities, obligations, claims, damages, penalties,
causes of action, costs and reasonable 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 the following,
except to the extent caused by Landlord's gross negligence or willful
misconduct: (a) any accident, injury to or death of persons or loss of or damage
to property occurring on or about any Property or portion thereof or adjoining
sidewalks or rights of way, (b) any past, present or future use, misuse,
non-use, condition, management, maintenance or repair by Tenant, any Manager or
anyone claiming under any of them 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 relating to the any Property or
portion thereof 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 that are the obligations of Tenant to pay
pursuant to the applicable provisions of this Agreement, 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 Agreement. Tenant, at its expense, shall contest, resist
and defend any such claim, action or proceeding asserted or instituted against
Landlord (and shall not be responsible for any duplicative attorneys' fees
incurred by Landlord) or may compromise or otherwise dispose of the same, with
Landlord's prior written consent (which consent may not be unreasonably
withheld, delayed or conditioned). The obligations of Tenant under this SECTION
9.5 are in addition to the obligations set forth in SECTION 4.4 and shall
survive the termination of this Agreement.
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ARTICLE 10
CASUALTY
10.1 INSURANCE PROCEEDS. Except as provided in the last clause of this
sentence, all proceeds payable by reason of any loss or damage to any Property,
or any portion thereof, and insured under any policy of insurance required by
ARTICLE 9 (other than the proceeds of any business interruption insurance) shall
be paid directly to Landlord (subject to the provisions of SECTION 10.2) and all
loss adjustments with respect to losses payable to Landlord shall require the
prior written consent of Landlord, which consent shall not be unreasonably
withheld, delayed or conditioned; PROVIDED, HOWEVER, that, so long as no Event
of Default shall have occurred and be continuing, all such proceeds less than or
equal to Two Hundred Fifty Thousand Dollars ($250,000) shall be paid directly to
Tenant and such losses may be adjusted without Landlord's consent. If Tenant is
required to reconstruct or repair any Property as provided herein, such proceeds
shall be paid out by Landlord from time to time for the reasonable costs of
reconstruction or repair of such Property necessitated by such damage or
destruction, subject to and in accordance with the provisions of SECTION 10.2.4.
Provided no Default or Event of Default has occurred and is continuing, any
excess proceeds of insurance remaining after the completion of the restoration
shall be paid to Tenant. In the event that the provisions of SECTION 10.2.1 are
applicable, the insurance proceeds shall be retained by the party entitled
thereto pursuant to SECTION 10.2.1.
10.2 DAMAGE OR DESTRUCTION.
10.2.1 DAMAGE OR DESTRUCTION OF LEASED PROPERTY. If, during the
Term, any Property shall be totally or partially destroyed and the Facility
located thereon is thereby rendered Unsuitable for Its Permitted Use, either
Landlord or Tenant may, by the giving of Notice thereof to the other, terminate
this Agreement with respect to such affected Property, whereupon, this Agreement
shall terminate with respect to such affected Property and Landlord shall be
entitled to retain the insurance proceeds payable on account of such damage. In
such event, Tenant shall pay to Landlord the amount of any deductible under the
insurance policies covering such Facility, the amount of any uninsured loss and
any difference between the replacement cost of the affected Property and the
casualty insurance proceeds therefor.
10.2.2 PARTIAL DAMAGE OR DESTRUCTION. If, during the Term, any
Property shall be totally or partially destroyed but the Facility is not
rendered Unsuitable for Its Permitted Use, Tenant shall, subject to SECTION
10.2.3, promptly restore such Facility as provided in SECTION 10.2.4.
10.2.3 INSUFFICIENT INSURANCE PROCEEDS. If the cost of the repair
or restoration of the applicable Facility exceeds the amount of insurance
proceeds received by Landlord and Tenant pursuant to SECTION 9.1, Tenant shall
give Landlord Notice thereof which notice shall set
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forth in reasonable detail the nature of such deficiency and whether Tenant
shall pay and assume the amount of such deficiency (Tenant having no obligation
to do so, except that, if Tenant shall elect to make such funds available, the
same shall become an irrevocable obligation of Tenant pursuant to this
Agreement). In the event Tenant shall elect not to pay and assume the amount of
such deficiency, Landlord shall have the right (but not the obligation),
exercisable at Landlord's sole election by Notice to Tenant, given within sixty
(60) days after Tenant's notice of the deficiency, to elect to make available
for application to the cost of repair or restoration the amount of such
deficiency; PROVIDED, HOWEVER, in such event, upon any disbursement by Landlord
thereof, the Minimum Rent shall be adjusted as provided in SECTION 3.1.1(c). In
the event that neither Landlord nor Tenant shall elect to make such deficiency
available for restoration, either Landlord or Tenant may terminate this
Agreement with respect to the affected Property by Notice to the other,
whereupon, this Agreement shall so terminate and insurance proceeds shall be
distributed as provided in SECTION 10.2.1. It is expressly understood and
agreed, however, that, notwithstanding anything in this Agreement to the
contrary, Tenant shall be strictly liable and solely responsible for the amount
of any deductible and shall, upon any insurable loss, pay over the amount of
such deductible to Landlord at the time and in the manner herein provided for
payment of the applicable proceeds to Landlord.
10.2.4 DISBURSEMENT OF PROCEEDS. In the event Tenant is required
to restore any Property pursuant to SECTION 10.2 and this Agreement is not
terminated as to such Property pursuant to this ARTICLE 10, Tenant shall
commence (or cause to be commenced) promptly and continue diligently to perform
(or cause to be performed) the repair and restoration of such Property
(hereinafter called the "WORK"), so as to restore (or cause to be restored) the
applicable Property in material compliance with all Legal Requirements and so
that such Property shall be, to the extent practicable, substantially equivalent
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 and any additional amounts payable by Landlord
pursuant to SECTION 10.2.3 or otherwise deposited with Landlord to Tenant
regularly during the repair and restoration period so as to permit payment for
the cost of any such restoration and repair. Any such advances shall be made not
more than monthly within ten (10) Business Days after Tenant submits to Landlord
a written requisition and substantiation therefor on AIA Forms G702 and G703 (or
on such other form or forms as may be reasonably acceptable to Landlord).
Landlord may, at its option, condition advancement of such insurance proceeds
and other amounts on (i) the absence of any Event of Default, (ii) its approval
of plans and specifications of an architect satisfactory to Landlord (which
approval shall not be unreasonably withheld, delayed or conditioned), (iii)
general contractors' estimates, (iv) architect's certificates, (v) conditional
lien waivers of general contractors, if available, (vi) evidence of approval by
all governmental authorities and other regulatory bodies whose approval is
required, (vii), if Tenant has
37
elected to advance deficiency funds pursuant to SECTION 10.2.3, Tenant
depositing the amount thereof with Landlord and (viii) such other certificates
as Landlord may, from time to time, reasonably require.
Landlord's obligation to disburse insurance proceeds under this ARTICLE 10
shall be subject to the release of such proceeds by any Facility Mortgagee to
Landlord.
Tenant's obligation to restore the applicable Property pursuant to this
ARTICLE 10 shall be subject to the release of available insurance proceeds by
the applicable Facility Mortgagee to Landlord or directly to Tenant and, in the
event such proceeds are insufficient, Landlord electing to make such deficiency
available therefor (and disbursement of such deficiency).
10.3 DAMAGE NEAR END OF TERM. Notwithstanding any provisions of SECTION
10.1 OR 10.2 to the contrary, if damage to or destruction of any Property occurs
during the last twelve (12) months of the Term and if such damage or destruction
cannot reasonably be expected to be fully repaired and restored prior to the
date that is six (6) months prior to the end of the Term, the provisions of
SECTION 10.2.1 shall apply as if such Property had been totally or partially
destroyed and the Facility thereon rendered Unsuitable for its Permitted Use.
10.4 TENANT'S PROPERTY. All insurance proceeds payable by reason of any
loss of or damage to any of Tenant's Personal Property shall be paid to Tenant
and, to the extent necessary to repair or replace Tenant's Personal Property in
accordance with SECTION 10.5, Tenant shall hold such proceeds in trust to pay
the cost of repairing or replacing damaged Tenant's Personal Property.
10.5 RESTORATION OF TENANT'S PROPERTY. If Tenant is required to restore
any Property as hereinabove provided, Tenant shall either (a) restore all
alterations and improvements made by Tenant and Tenant's Personal Property, or
(b) replace such alterations and improvements and Tenant's Personal Property
with improvements or items of the same or better quality and utility in the
operation of such Property.
10.6 NO ABATEMENT OF RENT. This Agreement shall remain in full force and
effect and Tenant's obligation to make all payments of Rent and to pay all other
charges as and when required under this Agreement shall remain unabated during
the Term notwithstanding any damage involving the Leased Property, or any
portion thereof (provided that Landlord shall credit against such payments any
amounts paid to Landlord as a consequence of such damage under any business
interruption insurance obtained by Tenant hereunder). The provisions of this
ARTICLE 10 shall be considered an express agreement governing any cause of
damage or destruction to the Leased Property, or any portion thereof, and, to
the maximum extent permitted by law, no local or State statute, laws, rules,
regulation or ordinance in effect during the Term which provide for such a
contingency shall have any application in such case.
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10.7 WAIVER. Tenant hereby waives any statutory rights of termination
which may arise by reason of any damage or destruction of the Leased Property,
or any portion thereof.
ARTICLE 11
CONDEMNATION
11.1 TOTAL CONDEMNATION, ETC. If either (i) the whole of any Property
shall be taken by Condemnation or (ii) a Condemnation of less than the whole of
any Property renders any Property Unsuitable for Its Permitted Use, this
Agreement shall terminate with respect to such Property, Tenant and Landlord
shall seek the Award for their interests in the applicable Property as provided
in SECTION 11.5.
11.2 PARTIAL CONDEMNATION. In the event of a Condemnation of less than
the whole of any Property such that such Property is still suitable for its
Permitted Use, Tenant shall, to the extent of the Award and any additional
amounts disbursed by Landlord as hereinafter provided, commence (or cause to be
commenced) promptly and continue diligently to restore (or cause to be restored)
the untaken portion of the applicable 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 such Leased Improvements existing immediately prior to such Condemnation, in
material compliance with all Legal Requirements, subject to the provisions of
this SECTION 11.2. If the cost of the repair or restoration of the affected
Property exceeds the amount of the Award, Tenant shall give Landlord Notice
thereof which notice shall set forth in reasonable detail the nature of such
deficiency and whether Tenant shall pay and assume the amount of such deficiency
(Tenant having no obligation to do so, except that if Tenant shall elect to make
such funds available, the same shall become an irrevocable obligation of Tenant
pursuant to this Agreement). In the event Tenant shall elect not to pay and
assume the amount of such deficiency, Landlord shall have the right (but not the
obligation), exercisable at Landlord's sole election by Notice to Tenant given
within sixty (60) days after Tenant's Notice of the deficiency, to elect to make
available for application to the cost of repair or restoration the amount of
such deficiency; PROVIDED, HOWEVER, in such event, upon any disbursement by
Landlord thereof, the Minimum Rent shall be adjusted as provided in SECTION
3.1.1(c). In the event that neither Landlord nor Tenant shall elect to make such
deficiency available for restoration, either Landlord or Tenant may terminate
this Agreement with respect to the affected Property and the entire Award shall
be allocated as set forth in SECTION 11.5.
Subject to the terms hereof, Landlord shall contribute to the cost of
restoration that part of the Award necessary to complete such repair or
restoration, together with severance and other damages awarded for the taken
Leased Improvements and any deficiency Landlord has agreed to disburse, to
Tenant regularly during the restoration period so as to permit payment for the
cost of such repair or
39
restoration. Landlord may, at its option, condition advancement of such Award
and other amounts on (a) the absence of any Event of Default, (b) its approval
of plans and specifications of an architect satisfactory to Landlord (which
approval shall not be unreasonably withheld, delayed or conditioned), (c)
general contractors' estimates, (iv) architect's certificates, (d) conditional
lien waivers of general contractors, if available, (e) evidence of approval by
all governmental authorities and other regulatory bodies whose approval is
required, (f), if Tenant has elected to advance deficiency funds pursuant to the
preceding paragraph, Tenant depositing the amount thereof with Landlord and (g)
such other certificates as Landlord may, from time to time, reasonably require.
Landlord's obligation under this SECTION 11.2 to disburse the Award and such
other amounts shall be subject to (x) the collection thereof by Landlord and (y)
the satisfaction of any applicable requirements of any Facility Mortgage, and
the release of such Award by the applicable Facility Mortgagee. Tenant's
obligation to restore the Leased Property shall be subject to the release of the
Award by the applicable Facility Mortgagee to Landlord.
11.3 ABATEMENT OF RENT. Other than as specifically provided in this
Agreement, this Agreement shall remain in full force and effect and Tenant's
obligation to make all payments of Rent and to pay all other charges as and when
required under this Agreement shall remain unabated during the Term
notwithstanding any Condemnation involving the Leased Property, or any portion
thereof. The provisions of this ARTICLE 11 shall be considered an express
agreement governing any Condemnation involving the Leased Property and, to the
maximum extent permitted by law, no local or State statute, law, rule,
regulation or ordinance in effect during the Term which provides for such a
contingency shall have any application in such case.
11.4 TEMPORARY CONDEMNATION. In the event of any temporary Condemnation
of any Property or Tenant's interest therein, this Agreement shall continue in
full force and effect and Tenant shall continue to pay (or cause to be paid), in
the manner and on the terms herein specified, the full amount of the Rent.
Tenant shall continue to perform and observe (or cause to be performed and
observed) all of the other terms and conditions of this Agreement on the part of
the Tenant to be performed and observed. Provided no Event of Default has
occurred and is continuing, the entire amount of any Award made for such
temporary Condemnation allocable to the Term, whether paid by way of damages,
rent or otherwise, shall be paid to Tenant. Tenant shall, promptly upon the
termination of any such period of temporary Condemnation, at its sole cost and
expense, restore the affected Property to the condition that existed immediately
prior to such Condemnation, in material compliance with all applicable Legal
Requirements, unless such period of temporary Condemnation shall extend beyond
the expiration of the Term, in which event Tenant shall not be required to make
such restoration.
11.5 ALLOCATION OF AWARD. Except as provided in SECTION 11.4 and the
second sentence of this SECTION 11.5, the total Award shall be
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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, loss of
business during the remainder of the Term, the taking of Tenant's Personal
Property, the taking of Capital Additions paid for by Tenant and Tenant's
removal and relocation expenses shall be the sole property of and payable to
Tenant (subject to the provisions of SECTION 11.2). In any Condemnation
proceedings, Landlord and Tenant shall each seek its own Award in conformity
herewith, at its own expense.
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" hereunder:
(a) should Tenant fail to make any payment of the Rent or any
other sum payable hereunder when due; or
(b) should Tenant fail to maintain the insurance coverages
required under ARTICLE 9; or
(c) should Tenant default in the due observance or performance
of any of the terms, covenants or agreements contained herein to be
performed or observed by it (other than as specified in clauses (a) and (b)
above) and should such default continue for a period of thirty (30) days
after Notice thereof from Landlord to Tenant; PROVIDED, HOWEVER, that if
such default is susceptible of cure but such cure cannot be accomplished
with due diligence within such period of time and if, in addition, Tenant
commences to cure or cause to be cured such default within thirty (30) days
after Notice thereof from Landlord and thereafter prosecutes the curing of
such default with all due diligence, such period of time shall be extended
to such period of time (not to exceed an additional ninety (90) days in the
aggregate) as may be necessary to cure such default with all due diligence;
or
(d) should any obligation of Tenant in respect of any
Indebtedness for money borrowed or for any material property or services,
or any guaranty relating thereto, be declared to be or become due and
payable prior to the stated maturity thereof, or should there occur and be
continuing with respect to any such Indebtedness any event of default under
any instrument or agreement evidencing or securing the same, the effect of
which is to permit the holder or holders of such instrument or agreement or
a trustee, agent or other representative on behalf of such holder or
holders, to cause any such obligations to become due prior to its stated
maturity; or
(e) should an event of default by Tenant, any Guarantor or any
Affiliated Person as to Tenant or any Guarantor occur and be
41
continuing beyond the expiration of any applicable cure period under any of
the Incidental Documents; or
(f) should Tenant or any Guarantor generally not be paying its
debts as they become due or should Tenant or any Guarantor make a general
assignment for the benefit of creditors; or
(g) should any petition be filed by or against Tenant or any
Guarantor under the Federal bankruptcy laws, or should any other proceeding
be instituted by or against Tenant or any Guarantor seeking to adjudicate
Tenant or any Guarantor a bankrupt or insolvent, or seeking liquidation,
reorganization, arrangement, adjustment or composition of Tenant's debts
under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official for
Tenant or any Guarantor or for any substantial part of the property of
Tenant or any Guarantor and such proceeding is not dismissed within one
hundred eighty (180) days after institution thereof; or
(h) should Tenant or any Guarantor cause or institute any
proceeding for its dissolution or termination; or
(i) should the estate or interest of Tenant in the Leased
Property or any part thereof be levied upon or attached in any proceeding
and the same shall not be vacated or discharged within the later of (x)
ninety (90) days after commencement thereof, unless the amount in dispute
is less than $250,000, in which case Tenant shall give notice to Landlord
of the dispute but Tenant may defend in any suitable way, and (y) two
hundred seventy (270) days after receipt by Tenant of Notice thereof from
Landlord (unless Tenant shall be contesting such lien or attachment in good
faith in accordance with ARTICLE 8); or
(j) should there occur any direct or indirect Change in
Control of Tenant or any Guarantor, except as otherwise permitted by
ARTICLE 16;
(k) should a final unappealable determination be made by the
applicable Government Agency that Tenant shall have failed to comply with
applicable Medicare and/or Medicaid regulations in the operation of any
Facility, as a result of which failure Tenant is declared ineligible to
receive reimbursements under the Medicare and/or Medicaid programs for such
Facility;
then, and in any such event, Landlord, in addition to all other remedies
available to it, may terminate this Agreement with respect to any or all of the
Leased Property by giving Notice thereof to Tenant and upon the expiration of
the time, if any, fixed in such Notice, this Agreement shall terminate with
respect to all or the designated portion of the Leased Property and all rights
of Tenant under this Agreement with respect thereto shall cease. Landlord shall
have and
42
may exercise all rights and remedies available at law and in equity to Landlord
as a result of Tenant's breach of this Agreement.
Upon the occurrence of an Event of Default, Landlord may, in addition to
any other remedies provided herein, enter upon the Leased Property, or any
portion thereof, and take possession of any and all of Tenant's Personal
Property, if any, and the Records, 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
Tenant's Personal Property, if any, 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 at least ten (10) days before the date 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 applied as a credit against the
indebtedness which is secured by the security interest granted in SECTION 7.2.
Any surplus shall be paid to Tenant or as otherwise required by law and Tenant
shall pay any deficiency to Landlord, as Additional Charges, upon demand.
12.2 REMEDIES. None of (a) the termination of this Agreement pursuant to
SECTION 12.1, (b) the repossession of the Leased Property, or any portion
thereof, (c) the failure of Landlord to relet the Leased Property, or any
portion thereof, nor (d) the reletting of all or any of portion of the Leased
Property, shall relieve Tenant of its liability and obligations hereunder, all
of which shall survive any such termination, repossession or reletting. In the
event of any such termination, Tenant shall forthwith pay to Landlord all Rent
due and payable with respect to the Leased Property, or terminated portion
thereof, through and including the date of such termination. Thereafter, Tenant,
until the end of what would have been the Term of this Agreement in the absence
of such termination, and whether or not the Leased Property, or any portion
thereof, shall have been relet, shall be liable to Landlord for, and shall pay
to Landlord, as current damages, the Rent (Additional Rent to be reasonably
calculated by Landlord based on historical Gross Revenues) 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, or any portion thereof, after deducting all reasonable expenses
in connection with such reletting, 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
Agreement had not been so terminated with respect to such of the Leased
Property.
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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 beyond the date
of such termination, at Landlord's election, Tenant shall pay to Landlord an
amount equal to the present value (as reasonably determined by Landlord) of the
excess, if any, of the Rent and other charges which would be payable hereunder
from the date of such termination (assuming that, for the purposes of this
paragraph, annual payments by Tenant on account of Impositions and Additional
Rent 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) for what would be the then unexpired term of this Agreement if
the same remained in effect, over the fair market rental for the same period.
Nothing contained in this Agreement 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, or any portion
thereof, as Landlord, in its sole and absolute discretion, 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 any failure to relet all or any
portion of the Leased Property, or, in the event that the Leased Property is
relet, for failure to collect the rent under such reletting. To the maximum
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 occurrence and continuation of an Event of
Default hereunder.
12.3 TENANT'S WAIVER. IF THIS AGREEMENT IS TERMINATED PURSUANT TO
SECTION 12.1 OR 12.2, TENANT WAIVES, TO THE EXTENT PERMITTED BY LAW, ANY RIGHT
TO A TRIAL BY JURY IN THE EVENT OF SUMMARY PROCEEDINGS TO ENFORCE THE REMEDIES
SET FORTH IN THIS ARTICLE 12, AND THE BENEFIT OF ANY LAWS NOW OR HEREAFTER IN
FORCE EXEMPTING PROPERTY FROM LIABILITY FOR RENT OR FOR DEBT.
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12.4 APPLICATION OF FUNDS. Any payments received by Landlord under any
of the provisions of this Agreement during the existence or continuance of any
Event of Default (and any payment made to Landlord rather than Tenant due to the
existence of any Event of Default) shall be applied to Tenant's current and past
due obligations under this Agreement in such order as Landlord may determine or
as may be prescribed by the laws of the State. Any balance shall be paid to
Tenant.
12.5 LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT. If an Event of Default
shall have occurred and be continuing, Landlord, after Notice to Tenant (which
Notice shall not 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 maximum 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 sole and absolute discretion, may be necessary or appropriate
therefor. No such entry shall be deemed an eviction of Tenant. All reasonable
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.
ARTICLE 13
HOLDING OVER
Any holding over by Tenant after the expiration or sooner termination of
this Agreement shall be treated as a daily tenancy at sufferance at a rate equal
to two (2) times the Minimum Rent and other charges herein provided (prorated on
a daily basis). Tenant shall also pay to Landlord all damages (direct or
indirect) sustained by reason of any such holding over. Otherwise, such holding
over shall be on the terms and conditions set forth in this Agreement, to the
extent applicable. Nothing contained herein shall constitute the consent,
express or implied, of Landlord to the holding over of Tenant after the
expiration or earlier termination of this Agreement.
ARTICLE 14
LANDLORD DEFAULT
If Landlord shall default in the performance or observance of any of its
covenants or obligations set forth in this Agreement or any obligation of
Landlord, if any, under any agreement affecting the Leased Property, the
performance of which is not Tenant's obligation pursuant to this Agreement, and
any such default shall continue for a period of thirty (30) days after Notice
thereof from Tenant to
45
Landlord and any applicable Facility Mortgagee, or such additional period as may
be reasonably required to correct the same, Tenant may declare the occurrence of
a "LANDLORD DEFAULT" by a second Notice to Landlord and to such Facility
Mortgagee. 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 thereon (to the extent permitted by law)
from the date Landlord receives Tenant's invoice until paid, at the Overdue
Rate. Tenant shall have no right to terminate this Agreement 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 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 any such
dispute within ten (10) days after Landlord's Notice of dispute, either may
submit the matter for resolution in accordance with Article 22.
ARTICLE 15
PURCHASE RIGHTS
Landlord shall have the option to purchase Tenant's Personal Property, at
the expiration or sooner termination of this Agreement, for an amount equal to
the then fair market value thereof (current replacement cost as determined by
agreement of the parties or, in the absence of such agreement, appraisal),
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. Upon the expiration or sooner
termination of this Agreement, Tenant shall use its reasonable efforts to
transfer and assign, or cause to be transferred and assigned, to Landlord or its
designee, or assist Landlord or its designee in obtaining, any contracts,
licenses, and certificates required for the then operation of the Leased
Property. Notwithstanding the foregoing, Tenant expressly acknowledges and
agrees that nothing contained in this ARTICLE 15 shall diminish, impair or
otherwise modify Landlord's rights under the Security Agreement and that any
amounts paid by Landlord in order to purchase Tenant's Personal Property in
accordance with this Article 15 shall be applied first to Tenant's current and
past due obligations under this Agreement in such order as Landlord may
reasonably determine or as may be prescribed by the laws of the State and any
balance shall be paid to Tenant.
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ARTICLE 16
SUBLETTING AND ASSIGNMENT
16.1 SUBLETTING AND ASSIGNMENT. Except as provided in SECTION 16.3,
Tenant shall not, without Landlord's prior written consent (which consent may be
given or withheld in Landlord's sole and absolute discretion), assign, mortgage,
pledge, hypothecate, encumber or otherwise transfer this Agreement or sublease
or permit the sublease (which term shall be deemed to include the granting of
concessions, licenses and the like), of the Leased Property, or any portion
thereof, or suffer or permit this Agreement or the leasehold estate created
hereby or any other rights arising under this Agreement 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 operation of the Leased Property, or any portion thereof, by anyone other
than Tenant, any Manager approved by Landlord pursuant to the applicable
provisions of this Agreement or residents and patients of Tenant, or the Leased
Property, or any portion thereof, to be offered or advertised for assignment or
subletting.
For purposes of this SECTION 16.1, an assignment of this Agreement shall be
deemed to include, without limitation, any direct or indirect Change in Control
of Tenant.
If this Agreement is assigned or if the Leased Property, or any portion,
thereof is sublet (or occupied by anybody other than Tenant or any Manager,
their respective employees or residents or patients of Tenant), Landlord 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 16.1, 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 Agreement.
Any assignment or transfer of Tenant's interest under this Agreement
(including any sublease which is permitted pursuant to the terms of SECTION 16.3
below) shall be subject to such assignee's or transferee's delivery to Landlord
of (i) a Guaranty, which Guaranty shall be in form and substance satisfactory to
Landlord in its sole discretion and which Guaranty shall constitute an
Incidental Document hereunder; (ii) a pledge of the stock, partnership,
membership or other ownership interests of such assignee or other transferee to
secure Tenant's obligations under this Agreement and the Incidental Documents,
which pledge shall be in form and substance satisfactory to Landlord in its sole
discretion and which pledge shall constitute an Incidental Document hereunder;
(iii) a security agreement granting Landlord a security interest in all of such
assignee's or transferee's right, title and interest in and to any personal
property, intangibles and fixtures (other than accounts receivable) with respect
to any
47
Property which is subject to any such assignment or transfer to secure Tenant's
obligations under this Agreement and the Incidental Documents, which security
agreement shall be in form and substance satisfactory to Landlord in its sole
discretion and which security agreement shall constitute an Incidental Document
hereunder; and (iv) in the case of a sublease, an assignment which assigns all
of such subtenant's right, title and interest in such sublease to Landlord to
secure Tenant's obligations under this Agreement and the Incidental Documents,
which assignment shall be in form and substance satisfactory to Landlord in its
sole discretion and which assignment shall constitute an Incidental Document
hereunder.
No subletting or assignment shall in any way impair the continuing primary
liability of Tenant hereunder (unless Landlord and Tenant expressly otherwise
agree that Tenant shall be released from all obligations hereunder), and no
consent to any subletting or assignment in a particular instance shall be deemed
to be a waiver of the prohibition set forth in this SECTION 16.1. No assignment,
subletting or occupancy shall affect any Permitted Use. Any subletting,
assignment or other transfer of Tenant's interest under this Agreement in
contravention of this SECTION 16.1 shall be voidable at Landlord's option.
16.2 REQUIRED SUBLEASE PROVISIONS. Any sublease of all or any portion of
the Leased Property entered into on or after the date hereof shall provide (a)
that it is subject and subordinate to this Agreement and to the matters to which
this Agreement is or shall be subject or subordinate; (b) that in the event of
termination of this Agreement or reentry or dispossession of Tenant by Landlord
under this Agreement, Landlord may, at its option, terminate such sublease or
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 Agreement, if such mortgagee succeeds to that position,
shall (i) be liable for any act or omission of Tenant under such sublease, (ii)
be subject to any credit, counterclaim, offset or defense which theretofore
accrued to such subtenant against Tenant, (iii) be bound by any previous
modification of such sublease not consented to in writing by Landlord or by any
previous prepayment of more than one (1) month's rent, (iv) be bound by any
covenant of Tenant to undertake or complete any construction of the applicable
Property, or any portion thereof, (v) be required to account for any security
deposit of the subtenant other than any security deposit actually delivered to
Landlord by Tenant, (vi) 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 that are performed after the date of
such attornment, (vii) be responsible for any monies owing by Tenant to the
credit of such subtenant unless actually delivered to Landlord by Tenant, or
(viii) be required to remove any Person occupying any portion of the Leased
Property; and (c), in the event that such subtenant receives a written Notice
from Landlord or any
48
Facility Mortgagee stating that an Event of Default has occurred and is
continuing, such subtenant shall thereafter be obligated to pay all rentals
accruing under such sublease directly to the party giving such Notice or as such
party may direct. All rentals received from such subtenant by Landlord or the
Facility Mortgagee, as the case may be, shall be credited against the amounts
owing by Tenant under this Agreement 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. An original counterpart
of each such sublease and assignment and assumption, duly executed by Tenant and
such subtenant or assignee, as the case may be, in form and substance reasonably
satisfactory to Landlord, shall be delivered promptly to Landlord and (a) in the
case of an assignment, the assignee shall assume in writing and agree to keep
and perform all of the terms of this Agreement on the part of Tenant to be kept
and performed and shall be, and become, jointly and severally liable with Tenant
for the performance thereof and (b) in case of either an assignment or
subletting, Tenant shall remain primarily liable, as principal rather than as
surety, for the prompt payment of the Rent and for the performance and
observance of all of the covenants and conditions to be performed by Tenant
hereunder.
The provisions of this SECTION 16.2 shall not be deemed a waiver of the
provisions set forth in the first paragraph of SECTION 16.1.
16.3 PERMITTED SUBLEASE Notwithstanding the foregoing, including,
without limitation, SECTION 16.2, but subject to the provisions of SECTION 16.4
and any other express conditions or limitations set forth herein, Tenant may, in
each instance after Notice to Landlord, (a) enter into third party residency
agreements with respect to the units located at the Facilities, (b) sublease
space at any Property for laundry, commissary or child care purposes or other
concessions in furtherance of the Permitted Use, so long as such subleases will
not reduce the number of units at any Facility, will not violate or affect any
Legal Requirement or Insurance Requirement, and Tenant shall provide such
additional insurance coverage applicable to the activities to be conducted in
such subleased space as Landlord and any Facility Mortgagee may reasonably
require, and (c) enter into one or more subleases with Affiliated Persons of
Tenant with respect to the Leased Property, or any portion thereof, PROVIDED
Tenant gives Landlord Notice of the material terms and conditions thereof.
Landlord and Tenant acknowledge and agree that if Tenant enters into one (1) or
more subleases with Affiliated Persons of Tenant with respect to any Property,
or any portion thereof, in accordance with the preceding clause (c), Tenant may
allocate the rent and other charges with respect to the affected Property in any
reasonable manner; PROVIDED, HOWEVER, that such allocation shall not affect
Tenant's (nor any Guarantor's) liability for the Rent and other obligations of
Tenant under this Agreement; and, PROVIDED, FURTHER, that Tenant shall give
Landlord prompt written notice of any allocation or reallocation of the rent and
other charges with respect to the affected Property and, in any event, Tenant
shall give Landlord written notice of the amount of such allocations at
49
least ten (10) Business Days prior to the date that Landlord or Senior Housing
Properties Trust is required to file any tax returns in any State where such
affected Lease Property is located.
16.4 SUBLEASE LIMITATION. Anything contained in this Agreement to the
contrary notwithstanding, Tenant shall not sublet the Leased Property, or any
portion thereof, on any basis such that the rental to be paid by any sublessee
thereunder would be based, in whole or in part, on the net income or profits
derived by the business activities of such sublessee, any other formula such
that any portion of such 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 or would otherwise disqualify Landlord for
treatment as a real estate investment trust.
ARTICLE 17
ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS
17.1 ESTOPPEL CERTIFICATES. At any time and from time to time, but not
more than a reasonable number of times per year, upon not less than ten (10)
Business Days prior Notice by either party, the party receiving such Notice
shall furnish to the other an Officer's Certificate certifying that this
Agreement is unmodified and in full force and effect (or that this Agreement is
in full force and effect as modified and setting forth the modifications), the
date to which the Rent has been paid, that no Default or an Event of Default has
occurred and is continuing or, if a Default or an Event of Default shall exist,
specifying in reasonable detail the nature thereof, and the steps being taken to
remedy the same, and such additional information as the requesting party may
reasonably request. Any such certificate furnished pursuant to this SECTION 17.1
may be relied upon by the requesting party, its lenders and any prospective
purchaser or mortgagee of the Leased Property, or any portion thereof, or the
leasehold estate created hereby.
17.2 FINANCIAL STATEMENTS. Tenant shall furnish or cause Five Star to
furnish, as applicable, the following statements to Landlord:
(a) within forty-five (45) days after each of the first three
fiscal quarters of any Fiscal Year, the most recent Consolidated
Financials, accompanied by the Financial Officer's Certificate;
(b) within ninety (90) days after the end of each Fiscal Year,
the most recent Consolidated Financials and financials of Tenant for such
year, certified by an independent certified public accountant reasonably
satisfactory to Landlord and accompanied by a Financial Officer's
Certificate;
(c) within forty-five (45) days after the end of each month,
an unaudited operating statement and statement of capital expenditures
prepared on a Facility by Facility basis and a
50
combined basis, including occupancy percentages and average rate,
accompanied by a Financial Officer's Certificate;
(d) at any time and from time to time upon not less than
twenty (20) days Notice from Landlord or such additional period as may be
reasonable under the circumstances, any Consolidated Financials, Tenant
financials or any other audited or unaudited 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 any litigation to which
Landlord is a party, for purposes of compliance therewith; PROVIDED,
HOWEVER, that, except as to calculations pertaining to Gross Revenues,
Tenant shall not be required to provide audited financials with respect to
any individual Facility unless Landlord shall agree to pay for the cost
thereof;
(e) promptly, after receipt or sending thereof, copies of all
notices given or received by Tenant under any Management Agreement; and
(f) promptly, upon Notice from Landlord, such other
information concerning the business, financial condition and affairs of
Tenant and any Guarantor as Landlord reasonably may request from time to
time.
Landlord may at any time, and from time to time, provide any Facility
Mortgagee with copies of any of the foregoing statements, subject to Landlord
obtaining the agreement of such Facility Mortgagee to maintain such statements
and the information therein as confidential.
17.3 GENERAL OPERATIONS. Tenant covenants and agrees to furnish to
Landlord, within thirty (30) days after receipt or modification thereof, copies
of:
(a) all licenses authorizing Tenant or any Manager to operate
any Facility for its Primary Intended Use;
(b) all Medicare and Medicaid certifications, together with
provider agreements and all material correspondence relating thereto with
respect to any Facility (excluding, however, correspondence which may be
subject to any attorney client privilege);
(c) if required under Applicable Law with respect to any
Facility, a license for each individual employed as administrator with
respect to such Facility;
(d) all reports of surveys, statements of deficiencies, plans
of correction, and all material correspondence relating thereto, including,
without limitation, all reports and material
51
correspondence concerning compliance with or enforcement of licensure,
Medicare/Medicaid, and accreditation requirements, including physical
environment and Life Safety Code survey reports (excluding, however,
correspondence which may be subject to any attorney client privilege); and
(e) with reasonable promptness, such other confirmation as to
the licensure and Medicare and Medicaid participation of Tenant as Landlord
may reasonably request from time to time.
ARTICLE 18
LANDLORD'S RIGHT TO INSPECT
Tenant shall permit Landlord and its authorized representatives to inspect
the Leased Property, or any portion thereof, during usual business hours upon
not less than forty-eight (48) hours' notice and to make such repairs as
Landlord is permitted or required to make pursuant to the terms of this
Agreement, provided that any inspection or repair by Landlord or its
representatives will not unreasonably interfere with Tenant's use and operation
of the Leased Property and further provided that in the event of an emergency,
as determined by Landlord in its reasonable discretion, prior Notice shall not
be necessary.
ARTICLE 19
EASEMENTS
19.1 GRANT OF EASEMENTS. Provided no Event of Default has occurred and
is continuing, Landlord will join in granting and, if necessary, modifying or
abandoning such rights-of-way, easements and other interests as may be
reasonably requested by Tenant for ingress and egress, and electric, telephone,
gas, water, sewer and other utilities so long as:
(a) the instrument creating, modifying or abandoning any such
easement, right-of-way or other interest is satisfactory to and approved by
Landlord (which approval shall not be unreasonably withheld, delayed or
conditioned);
(b) Landlord receives an Officer's Certificate from Tenant
stating (i) that such grant, modification or abandonment is not detrimental
to the proper conduct of business on such Property, (ii) the consideration,
if any, being paid for such grant, modification or abandonment (which
consideration shall be paid by Tenant), (iii) that such grant, modification
or abandonment does not impair the use or value of such Property for the
Permitted Use, and (iv) that, for as long as this Agreement shall be in
effect, Tenant will perform all obligations, if any, of Landlord under any
such instrument; and
52
(c) Landlord receives evidence satisfactory to Landlord that
the Manager has granted its consent to such grant, modification or
abandonment in accordance with the requirements of such Manager's
Management Agreement or that such consent is not required.
19.2 EXERCISE OF RIGHTS BY TENANT. So long as no Event of Default has
occurred and is continuing, Tenant shall have the right to exercise all rights
of Landlord under the Easement Agreements and, in connection therewith, Landlord
shall execute and promptly return to Tenant such documents as Tenant shall
reasonably request. Tenant shall perform all obligations of Landlord under the
Easement Agreements.
19.3 PERMITTED ENCUMBRANCES. Any agreements entered into in accordance
with this ARTICLE 19 shall be deemed a Permitted Encumbrance.
ARTICLE 20
FACILITY MORTGAGES
20.1 LANDLORD MAY GRANT LIENS. Without the consent of Tenant, Landlord
may, 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
secure any borrowing or other means of financing or refinancing.
20.2 SUBORDINATION OF LEASE. This Agreement and any 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 portion thereof, 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 Agreement is, at the time referred to, subject and
subordinate is herein called
53
"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 Agreement 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". Tenant
shall have no obligations under any Superior Lease or Superior Mortgage other
than those expressly set forth in this SECTION 20.2.
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 Agreement (any such person, "SUCCESSOR LANDLORD"), whether
through possession or foreclosure action or delivery of a new lease or deed, or
otherwise, at such Successor Landlord's request, Tenant shall attorn to and
recognize the Successor Landlord as Tenant's landlord under this Agreement and
Tenant shall promptly execute and deliver any instrument that such Successor
Landlord may reasonably request to evidence such attornment (provided that such
instrument does not alter the terms of this Agreement), whereupon, this
Agreement 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 Agreement, except that the Successor Landlord (unless
formerly the landlord under this Agreement 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 any prior Landlord under this Agreement, (b) responsible for any
monies owing by or on deposit with any prior Landlord to the credit of Tenant
(except to the extent actually paid or delivered to the Successor Landlord), (c)
subject to any counterclaim or setoff which theretofore accrued to Tenant
against any prior Landlord, (d) bound by any modification of this Agreement
subsequent to such Superior Lease or Mortgage, or by any previous prepayment of
Rent for more than one (1) month in advance of the date due hereunder, which was
not approved in writing by the Superior Landlord or the Superior Mortgagee
thereto, (e) liable to 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 Agreement to render the Leased
Property ready for occupancy by Tenant (subject to Landlord's obligations under
SECTION 5.1.2(b) or with respect to any insurance or Condemnation proceeds), or
(g) required to 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 and
Landlord agrees to provide Tenant with an instrument of nondisturbance and
attornment from each such Superior Mortgagee and Superior Landlord (other than
the lessors under any ground leases with respect to the Leased Property, or any
portion thereof) in form and substance reasonably satisfactory to Tenant.
Notwithstanding the foregoing, any Successor Landlord shall (a) comply with the
provisions SECTION 5.1.2(b), and (b) pay to Tenant any portions of insurance
proceeds or Awards received by Landlord or the Successor Landlord required to be
paid to Tenant pursuant to the terms of this Agreement, and, as a condition to
any mortgage, lien or lease in respect of the Leased Property, or any portion
thereof, and the subordination of this
54
Agreement thereto, the mortgagee, lienholder or lessor, as applicable, shall
expressly agree, for the benefit of Tenant, to comply with subsections (a) and
(b) above, which agreement shall be embodied in an instrument in form reasonably
satisfactory to Tenant.
20.3 NOTICE TO MORTGAGEE AND SUPERIOR LANDLORD. Subsequent to the
receipt by Tenant of Notice from Landlord as to the identity of any Facility
Mortgagee or Superior Landlord under a lease with Landlord, as ground lessee,
which includes the Leased Property, or any portion thereof, as part of the
demised premises and which complies with SECTION 20.1 (which Notice shall be
accompanied by a copy of the applicable mortgage or lease), no Notice from
Tenant to Landlord as to a default by Landlord under this Agreement shall be
effective with respect to a Facility Mortgagee or Superior Landlord unless and
until a copy of the same is given to such Facility Mortgagee or Superior
Landlord at the address set forth in the above described Notice, and the curing
of any of Landlord's defaults within the applicable notice and cure periods set
forth in ARTICLE 14 by such Facility Mortgagee or Superior Landlord shall be
treated as performance by Landlord. Tenant acknowledges the existence of the
GMAC Financing and agrees to provide notice of any Landlord default to GMAC
Commercial Mortgage Corporation at the following address:
[GMAC Commercial Mortgage Corp.
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Telecopier No. 000-000-0000]
ARTICLE 21
ADDITIONAL COVENANTS OF TENANT
21.1 PROMPT PAYMENT OF INDEBTEDNESS. Tenant shall (a) pay or cause to be
paid when due all payments of principal of and premium and interest on Tenant's
Indebtedness for money borrowed and shall not permit or suffer any such
Indebtedness to become or remain in default beyond any applicable grace or cure
period, (b) pay or cause to be paid when due all lawful claims for labor and
rents with respect to the Leased Property, (c) pay or cause to be paid when due
all trade payables and (d) pay or cause to be paid when due all other of
Tenant's Indebtedness upon which it is or becomes obligated, except, in each
case, other than that referred to in clause (a), to the extent payment is being
contested in good faith by appropriate proceedings in accordance with ARTICLE 8
and if Tenant shall have set aside on its books adequate reserves with respect
thereto in accordance with GAAP, if appropriate, or unless and until
foreclosure, distraint sale or other similar proceedings shall have been
commenced.
21.2 CONDUCT OF BUSINESS. Tenant shall not engage in any business other
than the leasing and operation of the Leased Property (including any incidental
or ancillary business relating thereto) and
55
shall do or cause to be done all things necessary to preserve, renew and keep in
full force and effect and in good standing its corporate existence and its
rights and licenses necessary to conduct such business.
21.3 MAINTENANCE OF ACCOUNTS AND RECORDS. Tenant shall keep true records
and books of account of Tenant in which full, true and correct entries will be
made of dealings and transactions in relation to the business and affairs of
Tenant in accordance with GAAP. Tenant shall apply accounting principles in the
preparation of the financial statements of Tenant which, in the judgment of and
the opinion of its independent public accountants, are in accordance with GAAP,
where applicable, except for changes approved by such independent public
accountants. Tenant shall provide to Landlord either in a footnote to the
financial statements delivered under SECTION 17.2 which relate to the period in
which such change occurs, or in separate schedules to such financial statements,
information sufficient to show the effect of any such changes on such financial
statements.
21.4 NOTICE OF LITIGATION, ETC. Tenant shall give prompt Notice to
Landlord of any litigation or any administrative proceeding to which it may
hereafter become a party of which Tenant has notice or actual knowledge which
involves a potential liability equal to or greater than Two Hundred Fifty
Thousand Dollars ($250,000) or which may otherwise result in any material
adverse change in the business, operations, property, prospects, results of
operation or condition, financial or other, of Tenant. Forthwith upon Tenant
obtaining knowledge of any Default, Event of Default or any default or event of
default under any agreement relating to Indebtedness for money borrowed in an
aggregate amount exceeding, at any one time, Two Hundred Fifty Thousand Dollars
($250,000), 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 furnish Notice thereof to
Landlord specifying the nature and period of existence thereof and what action
Tenant has taken or is taking or proposes to take with respect thereto.
21.5 INDEBTEDNESS OF TENANT. Tenant shall not create, incur, assume or
guarantee, or permit to exist, or become or remain liable directly or indirectly
upon, any Indebtedness except the following:
(a) Indebtedness of Tenant to Landlord;
(b) Indebtedness of Tenant for Impositions, to the extent that
payment thereof shall not at the time be required to be made in accordance
with the provisions of ARTICLE 8;
(c) Indebtedness of Tenant in respect of judgments or awards
(i) which have been in force for less than the applicable appeal period and
in respect of which execution thereof shall have been stayed pending such
appeal or review, or (ii) which are
56
fully covered by insurance payable to Tenant, or (iii) which are for an
amount not in excess of $250,000 in the aggregate at any one time
outstanding and (x) which have been in force for not longer than the
applicable appeal period, so long as execution is not levied thereunder or
(y) in respect of which an appeal or proceedings for review shall at the
time be prosecuted in good faith in accordance with the provisions of
ARTICLE 8, and in respect of which execution thereof shall have been stayed
pending such appeal or review;
(d) unsecured borrowings of Tenant from its Affiliated Persons
which are by their terms expressly subordinate pursuant to a Subordination
Agreement to the payment and performance of Tenant's obligations under this
Agreement; or
(e) Indebtedness for purchase money financing in accordance
with SECTION 21.8 (a) and other operating liabilities incurred in the
ordinary course of Tenant's business; or
(f) Indebtedness of Tenant as guarantor or borrower secured by
Liens permitted under SECTION 21.8(c).
(g) a guaranty of Five Star's obligations under its revolving
line of credit.
21.6 DISTRIBUTIONS, PAYMENTS TO AFFILIATED PERSONS, ETC. Tenant shall
not declare, order, pay or make, directly or indirectly, any Distributions or
any payment to any Affiliated Person of Tenant (including payments in the
ordinary course of business) 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 of Default shall have occurred and be continuing.
Otherwise, as long as no Event of Default shall have occurred and be continuing,
Tenant may make Distributions and payments to Affiliated Persons; PROVIDED,
HOWEVER, that any such payments shall at all times be subordinate to Tenant's
obligations under this Agreement.
21.7 PROHIBITED TRANSACTIONS. Tenant shall not permit to exist or enter
into any agreement or arrangement whereby it engages in a transaction of any
kind with any Affiliated Person as to Tenant or any Guarantor, except on terms
and conditions which are commercially reasonable.
21.8 LIENS AND ENCUMBRANCES. Except as permitted by SECTION 7.1 and
SECTION 21.5, Tenant shall not create or incur or suffer to be created or
incurred or to exist any Lien on this Agreement or any of Tenant's assets,
properties, rights or income, or any of its interest therein, now or at any time
hereafter owned, other than:
(a) Security interests securing the purchase price of
equipment or personal property whether acquired before or after the
Commencement Date; PROVIDED, HOWEVER, that (i) such Lien shall at all times
be confined solely to the asset in question
57
and (ii) the aggregate principal amount of Indebtedness secured by any such
Lien shall not exceed the cost of acquisition or construction of the
property subject thereto;
(b) Permitted Encumbrances;
(c) Security interests in Accounts or Chattel Paper, in
Support Obligations, General Intangibles or Deposit Accounts relating to
such Accounts or Chattel Paper, in any Instruments or Investment Property
evidencing or arising from such Accounts or Chattel Paper, in any
documents, books, records or other information (including, without
limitation, computer programs, tapes, discs, punch cards, data processing
software and related property and rights) maintained with respect to any
property described in this Section 21.8(c) or in any Proceeds of any of the
foregoing (capitalized terms used in this Section 21.8(c) without
definition being used as defined in or for purposes of Article 9 of the
Uniform Commercial Code as in effect in the Commonwealth of Massachusetts);
and
(d) As permitted pursuant to SECTION 21.5.
21.9 MERGER; SALE OF ASSETS; ETC. Without Landlord's prior written
consent (which consent may be given or withheld in Landlord's sole discretion),
Tenant shall not (i) sell, lease (as lessor or sublessor), transfer or otherwise
dispose of, or abandon, all or any material portion of its assets (including
capital stock or other equity interests) or business to any Person, (ii) merge
into or with or consolidate with any other Entity, or (iii) sell, lease (as
lessor or sublessor), transfer or otherwise dispose of, or abandon, any personal
property or fixtures or any real property; PROVIDED, HOWEVER, that,
notwithstanding the provisions of clause (iii) preceding, Tenant may dispose of
equipment or fixtures which have become inadequate, obsolete, worn-out,
unsuitable, undesirable or unnecessary, provided substitute equipment or
fixtures having equal or greater value and utility (but not necessarily having
the same function) have been provided.
21.10 BANKRUPTCY REMOTE ENTITIES. At Landlord's request, Tenant shall
make such amendments, modifications or other changes to its charter documents
and governing bodies (including, without limitation, Tenant's board of
directors), and take such other actions, as may from time to time be necessary
to qualify Tenant as a "bankruptcy remote entity," PROVIDED THAT Landlord shall
reimburse Tenant for all costs and expenses reasonably incurred by Tenant in
connection with the making of such amendments or modifications.
21.11 PLEDGE AGREEMENT. At any time following the repayment in full of
the GMAC Financing, at Landlord's request, Tenant shall execute and deliver, or
cause to be executed and delivered, as the case may be, to Landlord, (i) a
pledge of stock, partnership, membership or other ownership interest in Tenant
to
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secure Tenant's obligations under this Agreement and the Incidental Documents,
which pledge shall be in form and substance satisfactory to Landlord in its sole
discretion, and (ii) a security agreement granting Landlord a security interest
in all of Tenant's right, title and interest in and to any personal property,
intangibles and fixtures with respect any of the Properties to secure Tenant's
obligations under this Agreement and the Incidental Documents, which security
agreement shall be in form and substance satisfactory to Landlord in its sole
discretion.
21.12 GMAC FINANCING.
(a) Tenant shall comply with the terms, covenants and
conditions contained in the GMAC Financing Documents, and shall not take
any action that would cause a default thereunder.
(b) It is expressly understood and agreed that in the event of
any inconsistency between the terms, covenants and conditions hereof and
those provided in the GMAC Financing Documents, the GMAC Financing
Documents shall control.
(c) Landlord and Tenant expressly acknowledge and agree that,
effective automatically upon the repayment in full of the GMAC Financing,
this Lease shall terminate and the Leased Property shall be deemed to be
added to and demised under the Other Agreement for the Rent set forth
herein and otherwise on the terms and conditions of the Other Agreement.
ARTICLE 22
ARBITRATION
Landlord or Tenant may elect to submit any dispute hereunder that has an
amount in controversy in excess of $250,000 to arbitration hereunder. Any such
arbitration shall be conducted in Boston, Massachusetts in accordance with the
Commercial Arbitration Rules of the American Association then pertaining and the
decision of the arbitrators with respect to such dispute shall be binding, final
and conclusive on the parties.
In the event Landlord or Tenant shall elect to submit any such dispute to
arbitration hereunder, Landlord and Tenant shall each appoint and pay all fees
of a fit and impartial person as arbitrator with at least ten (10) years' recent
professional experience in the general subject matter of the dispute. Notice of
such appointment shall be sent in writing by each party to the other, and the
arbitrators so appointed, in the event of their failure to agree within thirty
(30) days after the appointment of the second arbitrator upon the matter so
submitted, shall appoint a third arbitrator. If either Landlord or Tenant shall
fail to appoint an arbitrator, as aforesaid, for a period of twenty (20) days
after written notice from
59
the other party to make such appointment, then the arbitrator appointed by the
party having made such appointment shall appoint a second arbitrator and the two
(2) so appointed shall, in the event of their failure to agree upon any decision
within thirty (30) days thereafter, appoint a third arbitrator. If such
arbitrators fail to agree upon a third arbitrator within forty five (45) days
after the appointment of the second arbitrator, then such third arbitrator shall
be appointed by the American Arbitration Association from its qualified panel of
arbitrators, and shall be a person having at least ten (10) years' recent
professional experience as to the subject matter in question. The fees of the
third arbitrator and the expenses incident to the proceedings shall be borne
equally between Landlord and Tenant, unless the arbitrators decide otherwise.
The fees of respective counsel engaged by the parties, and the fees of expert
witnesses and other witnesses called for the parties, shall be paid by the
respective party engaging such counsel or calling or engaging such witnesses.
The decision of the arbitrators shall be rendered within thirty (30) days
after appointment of the third arbitrator. Such decision shall be in writing and
in duplicate, one counterpart thereof to be delivered to Landlord and one to
Tenant. A judgment of a court of competent jurisdiction may be entered upon the
award of the arbitrators in accordance with the rules and statutes applicable
thereto then obtaining.
Landlord and Tenant acknowledge and agree that, to the extent any such
dispute shall involve any Manager and be subject to arbitration pursuant to such
Manager's Management Agreement, Landlord and Tenant shall cooperate to
consolidate any such arbitration hereunder and under such Management Agreement
into a single proceeding.
ARTICLE 23
MISCELLANEOUS
23.1 LIMITATION ON PAYMENT OF RENT. All agreements between Landlord and
Tenant herein are hereby expressly limited so that in no contingency or event
whatsoever, whether by reason of acceleration of Rent, or otherwise, shall the
Rent or any other amounts payable to Landlord under this Agreement exceed the
maximum permissible under applicable law, the benefit of which may be asserted
by Tenant as a defense, and if, from any circumstance whatsoever, fulfillment of
any provision of this Agreement, at the time performance of such provision shall
be due, shall involve transcending the limit of validity prescribed by law, or
if from any circumstances Landlord should ever receive as fulfillment of such
provision such an excessive amount, then, IPSO FACTO, the amount which would be
excessive shall be applied to the reduction of the installment(s) of Minimum
Rent next due and not to the payment of such excessive amount. This provision
shall control every other provision of this Agreement and any other agreements
between Landlord and Tenant.
60
23.2 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 maximum extent permitted by law, no
waiver of any breach shall affect or alter this Agreement, which shall continue
in full force and effect with respect to any other then existing or subsequent
breach.
23.3 REMEDIES CUMULATIVE. To the maximum extent permitted by law, each
legal, equitable or contractual right, power and remedy of Landlord or Tenant,
now or hereafter provided either in this Agreement 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 (as applicable) of any one or more of such rights, powers and
remedies shall not preclude the simultaneous or subsequent exercise by Landlord
of any or all of such other rights, powers and remedies.
23.4 SEVERABILITY. Any clause, sentence, paragraph, section or provision
of this Agreement held by a court of competent jurisdiction to be invalid,
illegal or ineffective shall not impair, invalidate or nullify the remainder of
this Agreement, but rather the effect thereof shall be confined to the clause,
sentence, paragraph, section or provision so held to be invalid, illegal or
ineffective, and this Agreement shall be construed as if such invalid, illegal
or ineffective provisions had never been contained therein.
23.5 ACCEPTANCE OF SURRENDER. No surrender to Landlord of this Agreement
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.
23.6 NO MERGER OF TITLE. It is expressly acknowledged and agreed that it
is the intent of the parties that there shall be no merger of this Agreement or
of the leasehold estate created hereby by reason of the fact that the same
Person may acquire, own or hold, directly or indirectly this Agreement or the
leasehold estate created hereby and the fee estate or ground landlord's interest
in the Leased Property.
23.7 CONVEYANCE BY LANDLORD. If Landlord or any successor owner of all
or any portion of the Leased Property shall convey all or any portion of the
Leased Property in accordance with the terms hereof other than as security for a
debt, and the grantee or transferee of such 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, Landlord or such successor
owner, as the case may be, shall thereupon be released from all future
liabilities and
61
obligations of Landlord under this Agreement with respect to such of the Leased
Property arising or accruing from and after the date of such conveyance or other
transfer and all such future liabilities and obligations shall thereupon be
binding upon the new owner.
23.8 QUIET ENJOYMENT. Tenant shall peaceably and quietly have, hold and
enjoy the Leased Property for the Term, free of hindrance or molestation by
Landlord or anyone claiming by, through or under Landlord, but subject to (a)
any Encumbrance permitted under ARTICLE 20 or otherwise permitted to be created
by Landlord hereunder, (b) all Permitted Encumbrances, (c) liens as to
obligations of Landlord that are either not yet due or which are being contested
in good faith and by proper proceedings, provided the same do not materially
interfere with Tenant's ability to operate any Facility and (d) liens that have
been consented to in writing by Tenant. Except as otherwise provided in this
Agreement, no failure by Landlord to comply with the foregoing covenant shall
give Tenant any right to cancel or terminate this Agreement or xxxxx, reduce or
make a deduction from or offset against the Rent or any other sum payable under
this Agreement, or to fail to perform any other obligation of Tenant hereunder.
23.9 NO RECORDATION. Neither Landlord nor Tenant shall record this
Agreement.
23.10 NOTICES.
(a) Any and all notices, demands, consents, approvals, offers,
elections and other communications required or permitted under this
Agreement 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 Agreement 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 Agreement 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.
62
(c) All such notices shall be addressed,
if to Landlord:
c/o Senior Housing Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxxx
[Telecopier No. (000) 000-0000]
if to Tenant to:
c/o Five Star Quality Care, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
[Telecopier No. (000) 000-0000]
(d) By notice given as herein provided, the parties hereto and
their respective successors 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 Agreement to the contrary
notwithstanding, all claims against, and liabilities of, Tenant or Landlord
arising prior to any date of termination or expiration of this Agreement with
respect to the Leased Property shall survive such termination or expiration. In
no event shall Landlord be liable for any consequential damages suffered by
Tenant as the result of a breach of this Agreement by Landlord. Neither this
Agreement 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 Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns. Each term or provision of this Agreement to be performed by Tenant
shall be construed as an independent covenant and condition. Time is of the
essence with respect to the provisions of this Agreement. Except as otherwise
set forth in this Agreement, any obligations of Tenant (including without
limitation, any monetary, repair and indemnification obligations) and Landlord
shall survive the expiration or sooner termination of this Agreement. Whenever
it is provided in this Agreement that Tenant shall direct any Manager to take
any action, Tenant shall not be deemed to have satisfied such obligation unless
Tenant shall have exhausted all applicable rights and remedies of Tenant as
"Owner" under such Manager's Management Agreement.
23.12 COUNTERPARTS; HEADINGS. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but which, when
taken together, shall constitute but one instrument
63
and shall become effective as of the date hereof when copies hereof, which, when
taken together, bear the signatures of each of the parties hereto shall have
been signed. Headings in this Agreement are for purposes of reference only and
shall not limit or affect the meaning of the provisions hereof.
23.13 APPLICABLE LAW, ETC. This Agreement shall be interpreted,
construed, applied and enforced in accordance with the laws of The Commonwealth
of Massachusetts applicable to contracts between residents of Massachusetts
which are to be performed entirely within Massachusetts, regardless of (i) where
this Agreement is executed or delivered; or (ii) where any payment or other
performance required by this Agreement is made or required to be made; or (iii)
where any breach of any provision of this Agreement occurs, or any cause of
action otherwise accrues; or (iv) where any action or other proceeding is
instituted or pending; or (v) the nationality, citizenship, domicile, principal
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 Massachusetts; or (vii) any combination of
the foregoing. Notwithstanding the foregoing, the laws of the State shall apply
to the perfection and priority of liens upon and the disposition of any
Property.
23.14 RIGHT TO MAKE AGREEMENT. Each party warrants, with respect to
itself, that neither the execution of this Agreement, nor the consummation of
any transaction contemplated hereby, shall violate any provision of any law, or
any judgment, writ, injunction, order or decree of any court or governmental
authority having jurisdiction over it; nor result in or constitute a breach or
default under any indenture, contract, other commitment or restriction to which
it is a party or by which it is bound; nor require any consent, vote or approval
which has not been given or taken, or at the time of the transaction involved
shall not have been given or taken. Each party covenants that it has and will
continue to have throughout the term of this Agreement and any extensions
thereof, the full right to enter into this Agreement and perform its obligations
hereunder.
23.15 ATTORNEYS' FEES. If any lawsuit or arbitration or other legal
proceeding arises in connection with the interpretation or enforcement of this
Agreement, the prevailing party therein shall be entitled to receive from the
other party the prevailing party's costs and expenses, including reasonable
attorneys' fees incurred in connection therewith, in preparation therefor and on
appeal therefrom, which amounts shall be included in any judgment therein.
23.16 NONLIABILITY OF TRUSTEES. THE DECLARATIONS OF TRUST ESTABLISHING
CERTAIN ENTITIES COMPRISING LANDLORD, COPIES OF WHICH, TOGETHER WITH ALL
AMENDMENTS THERETO (COLLECTIVELY, THE "DECLARATIONS"), ARE DULY FILED WITH THE
DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDE THAT
THE NAMES OF SUCH ENTITIES REFER TO THE TRUSTEES UNDER SUCH DECLARATIONS
COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO
TRUSTEE,
64
OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF SUCH ENTITIES SHALL BE HELD TO ANY
PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM
AGAINST, SUCH ENTITIES. ALL PERSONS DEALING WITH SUCH ENTITIES, IN ANY WAY,
SHALL LOOK ONLY TO THE ASSETS OF SUCH ENTITIES FOR THE PAYMENT OF ANY SUM OR THE
PERFORMANCE OF ANY OBLIGATION.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
65
IN WITNESS WHEREOF, the parties have executed this Agreement as a sealed
instrument as of the date above first written.
LANDLORD:
MSD - MACON, LLC
MSD - BEAUFORT, LLC
MSD - CAMDEN, LLC
MSD - HARTSVILLE, LLC
MSD - LEXINGTON, LLC
MSD - ORANGEBURG, LLC
MSD - SENECA, LLC
MSD - CULLMAN, LLC
MSD - MADISON, LLC
MSD - SHEFFIELD, LLC
MSD - BOWLING GREEN, LLC
MSD - PADUCAH, LLC
MSD - XXXXXXX, LLC
MSD - GAINESVILLE, LLC
MSD - CLEVELAND, LLC
MSD - COOKEVILLE, LLC
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Xxxx X. Xxxxxxx
Treasurer of each of the foregoing
entities
66
TENANT:
MORNINGSIDE OF MACON, LLC,
a Delaware limited liability company
By: GBH/LTA, LLC, a Tennessee limited
liability company, its Sole Member
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: /s/ Xxxxxx X. Xxxxxx
------------------------
Its: Chief Manager
--------------------------
MORNINGSIDE OF BEAUFORT, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF SOUTH CAROLINA, L.P., a
Delaware limited partnership, its Sole Member
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ Xxxxx X. Xxxxxx, Xx.
-------------------------------------
Xxxxx X. Xxxxxx Xx.
Treasurer and Chief Financial Officer
MORNINGSIDE OF CAMDEN, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF SOUTH CAROLINA, L.P., a
Delaware limited partnership, its Sole Member
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ Xxxxx X. Xxxxxx, Xx.
-------------------------------------
Xxxxx X. Xxxxxx Xx.
Treasurer and Chief Financial Officer
67
MORNINGSIDE OF HARTSVILLE, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF SOUTH CAROLINA, L.P., a
Delaware limited partnership, its Sole Member
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ Xxxxx X. Xxxxxx Xx.
-------------------------------------
Xxxxx X. Xxxxxx Xx.
Treasurer and Chief Financial Officer
MORNINGSIDE OF LEXINGTON, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF SOUTH CAROLINA, L.P., a
Delaware limited partnership, its Sole Member
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ Xxxxx X. Xxxxxx Xx.
-------------------------------------
Xxxxx X. Xxxxxx Xx.
Treasurer and Chief Financial Officer
MORNINGSIDE OF ORANGEBURG, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF SOUTH CAROLINA, L.P., a
Delaware limited partnership, its Sole Member
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ Xxxxx X. Xxxxxx Xx.
-------------------------------------
Xxxxx X. Xxxxxx Xx.
Treasurer and Chief Financial Officer
68
MORNINGSIDE OF SENECA, L.P.,
a Delaware limited partnership
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation,
its General Partner
By: /s/ Xxxxx X. Xxxxxx Xx.
------------------------------------------
Xxxxx X. Xxxxxx Xx.
Treasurer and Chief Financial Officer
MORNINGSIDE OF CULLMAN, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF ALABAMA, L.P., a
Delaware limited partnership, its Sole Member
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ Xxxxx X. Xxxxxx Xx.
-------------------------------------
Xxxxx X. Xxxxxx Xx.
Treasurer and Chief Financial Officer
MORNINGSIDE OF MADISON, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF ALABAMA, L.P., a
Delaware limited partnership, its Sole Member
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ Xxxxx X. Xxxxxx Xx.
-------------------------------------
Xxxxx X. Xxxxxx Xx.
Treasurer and Chief Financial Officer
69
MORNINGSIDE OF SHEFFIELD, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF ALABAMA, L.P., a
Delaware limited partnership, its Sole Member
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ Xxxxx X. Xxxxxx Xx.
-------------------------------------
Xxxxx X. Xxxxxx Xx.
Treasurer and Chief Financial Officer
MORNINGSIDE OF BOWLING GREEN, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF KENTUCKY, LIMITED
PARTNERSHIP, a Delaware limited
partnership, its Sole Member
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ Xxxxx X. Xxxxxx Xx.
-------------------------------------
Xxxxx X. Xxxxxx Xx.
Treasurer and Chief Financial Officer
MORNINGSIDE OF PADUCAH, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF KENTUCKY, LIMITED
PARTNERSHIP, a Delaware limited
partnership, its Sole Member
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ Xxxxx X. Xxxxxx Xx.
-------------------------------------
Xxxxx X. Xxxxxx Xx.
Treasurer and Chief Financial Officer
70
MORNINGSIDE OF XXXXXXX, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF GEORGIA, L.P., a
Delaware limited partnership, its Sole Member
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ Xxxxx X. Xxxxxx Xx.
-------------------------------------
Xxxxx X. Xxxxxx Xx.
Treasurer and Chief Financial Officer
MORNINGSIDE OF GAINESVILLE, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF GEORGIA, L.P., a
Delaware limited partnership, its Sole Member
By: LIFETRUST AMERICA, INC.,
a Tennessee Corporation, its
General Partner
By: /s/ Xxxxx X. Xxxxxx Xx.
-------------------------------------
Xxxxx X. Xxxxxx Xx.
Treasurer and Chief Financial Officer
MORNINGSIDE OF CLEVELAND, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF TENNESSEE, LLC, a
Delaware limited liability company,
its Sole Member
By: /s/ Xxxxx X. Xxxxxx Xx.
------------------------------------------
Xxxxx X. Xxxxxx Xx.
Treasurer and Chief Financial Officer
71
MORNINGSIDE OF COOKEVILLE, LLC,
a Delaware limited liability company
By: MORNINGSIDE OF TENNESSEE, LLC, a
Delaware limited liability company,
its Sole Member
By: /s/ Xxxxx X. Xxxxxx Xx.
------------------------------------------
Xxxxx X. Xxxxxx Xx.
Treasurer and Chief Financial Officer
72
EXHIBIT A-1 THROUGH A-16
LAND
[These exhibits have been omitted and will be supplementally furnished to the
Securities and Exchange Commission upon request.]
73
