EXHIBIT 10.26
LEASE AGREEMENT
DATED October 1, 1996
XXXXXXX - LIBERTY HOSPITAL ASSOCIATION, INC., LESSOR
AND
WELCARE PROPERTIES CORPORATION, LESSEE
INDEX TO LEASE AGREEMENT
1. Lease of Real and Chattel Property, Term
2. Title to Demised Premises
3. Rent
4. Mortgages
5. Taxes
6. Repair and Replacement
7. Compliance with Law
8. Alterations
9. Use of Demised Premises
10. Protection Against Claims by Public
11. Independence of Demised Premises
12. Mechanics' Liens
13. Liability Insurance
14. Indemnity
15. Hazard Insurance
16. Fire and Other Casualty
17. Condemnation
18. Restoration after Fire or Condemnation
19. Environmental Matters
20. Assignment an Subletting
21. Bankruptcy
22. Access to Project; Books, Records, Accounts and Annual Reports
23. Default; Termination
24. Waiver of Rights of Redemption
25. Lessors Right to Cure Lessee's Defaults
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26. Default by Lessor
27. Injunction
28. No Merger
29. Definition of "Lessor" and "Lessee"
30. Quiet Enjoyment
31. Lessor's Right of Entry
32. Estoppel Certificates
33. Right Cumulative
34. Payments of Money, Interest
35. Surrender, Obligations Upon Expiration or Termination
36. No Waiver
37. Severability
38. Benefit
39. Construction
40. Entire Agreement; Written Modifications
41. Governing Law
42. Captions
43. Notices
44. Counterparts
45. Costs of Enforcement
46. Radon
47. Agreement Regarding Lease
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LEASE AGREEMENT
THIS LEASE, made this 1st day of October, 1996, by and between
XXXXXXX-LIBERTY HOSPITAL ASSOCIATION, INC., a not for profit corporation
organized and existing under the laws of the State of Florida, having its
principal office and place of business, and its mailing address at 000 Xxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxx, 00000 (hereinafter referred to as the "CLHA"), and
XXXXXXXX X. XXXXX, (hereinafter referred to as "Xxxxx") (CLHA and Xxxxx are
collectively hereinafter referred to as "Lessor") and WELCARE PROPERTIES
CORPORATION, a corporation organized and existing under the laws of the State of
Georgia, having its principal office and place of business and its mailing
address at 000 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000
(hereinafter referred to as the "Lessee").
W I T N E S S E T H :
WHEREAS, CLHA owns that certain rural hospital having a licensed bed
capacity of thirty-six (36) beds ("Licensed Bed Capacity) (herein the
"Facility") identified in Item I of Exhibit A attached hereto and made a part
hereof; and
WHEREAS, CLHA also owns a licensed hospital based home health care agency
(the "Parent Agency") with branches located in Chipley, Florida and Quincy,
Florida (the "Branch Agencies") (collectively the Parent Agency and the Branch
Agencies are referred to as the "Home Health Agencies"); and
WHEREAS, CLHA also contracts (through its Parent Agency) for home health
care services provided by the following independent contractors identified as
follows: Beach Bay, Care First, Home Nursing, Emerald Coast, Evergreen, and
Nightingale (collectively, the "Contract Home Health Agencies"); and
WHEREAS, Xxxxx owns a children's clinic located in Blountstown, Xxxxxxx
County, Florida (the "Children's Clinic") and a general medical clinic (which is
closed) also located in Blountstown, Xxxxxxx County, Florida (the "General
Clinic") (collectively the Children's Clinic and the General Clinic are herein
referred to as the "Clinics"), both of which are licensed for operation under
the applicable laws and regulations of the State of Florida; and
WHEREAS, CLHA also contracts with Xxxxxxx County, Florida to provide such
county with emergency ambulance services (the "Ambulance Services Contract");
and
WHEREAS, Lessor desires to lease to Lessee, and Lessee desires to lease
from Lessor, the real and chattel property of the Hospital Facility, the Home
Health Agencies, and the Clinics (collectively, the "Facilities"); and
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WHEREAS, Lessors desire to assign (or cause to be assigned) to Lessee the
rights, duties, benefits and burdens of the contracts and contractual
relationships associated with the Contract Home Health Agencies and the
Ambulance Service Contract;
NOW, THEREFORE, in consideration of the premises and of their mutual
undertakings, the parties hereto agree as follows:
1. Lease of Real and Chattel Property, Term. Lessor, in consideration of
the rents hereinafter reserved, and the terms, covenants, conditions and
agreements set forth herein to be kept and performed by Lessee, does hereby
agree to demise and let unto Lessee and Lessee, subject to and in reliance on
the conditions, terms, covenants, warranties and representations of Lessor
contained herein, does hereby agree to hire and take from Lessor, the following
described assets, rights, interests and other properties owned by Lessor and
relating to the Facility (herein the "Demised Premises"):
(a) Land: Those parcels of land more particularly described in Item 2 of
Exhibit A (herein "Parcels");
(b) Improvements: All buildings, structures, fixtures and improvements erected
or located on the Parcel, or affixed thereto (herein the "Improvements");
(c) Appurtenances: All tenements, hereditaments, rights, privileges,
interests, easements and appurtenances belonging or in any wise pertaining
to the Parcel and/or the Improvements (the Parcels, the Improvements and
the aforesaid appurtenances thereto being herein referred to collectively
as the "Real Property"); and
(d) Tangible Personal Property: All machinery and equipment, building
materials, appliances, apparatus, motor vehicles, furniture, furnishings,
fixtures, tools, instruments, parts, and other tangible personal property
of every kind or nature whatsoever, owned, being purchased on contract or
being leased by Lessor as of the date hereof, and located at or relating
to the Facility, other than inventories (collectively herein the "Personal
Property"); such tangible personal property on the effective date hereof
shall include, but not be limited to, any and all items identified in the
attached Exhibit B which is made a part hereof and incorporated herein by
reference.
TO HAVE AND TO HOLD the Demised Premises unto Lessee, its successors and
permitted assigns, upon and subject to all of the terms, covenants, conditions,
conditional limitations and agreements herein contained, for a term commencing
on October 1, 1996 (herein the "Commencement Date") and expiring on September
30, 2006, (herein the "Term") or until said term is sooner terminated pursuant
to any of the conditional limitations or other provisions hereof; provided,
however, that Lessee shall have the right to extend the Term of this Lease for
two (2) successive extension
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terms of five (5) years each (the "Extension Terms") by giving Lessor written
notice thereof not less than ninety (90) days prior to the expiration of the
Term (or any prior Extension Term). Such Extension Terms shall be upon the same
rental and other terms and conditions as are set forth in this Lease as
applicable to the Initial Term of this Lease.
For purposes of this Lease, the term "Lease Year" means a period of one
(1) year commencing on the Commencement Date or the annual anniversary date
thereof.
2. Title to Demised Premises. The Demised Premises shall be demised and
let by Lessor unto Lessee free and clear of any and all liens, leases,
mortgages, pledges, security interests, conditional sale agreements, charges,
claims, options, and other encumbrances of any kind or nature whatsoever
(collectively "Encumbrances"), except the following (collectively the "Permitted
Encumbrances"):
(a) Zoning Laws: The provisions of all applicable zoning laws;
(b) Taxes: The liens of current real estate and personal property taxes not
delinquent; and
(c) Other Existing Encumbrances: The other existing Encumbrances set forth in
Item 3 of Exhibit A.
Lessor warrants and will forever defend the right and title to the Demised
Premises unto Lessee against the claims of all persons whomsoever, except for
claims arising under and by virtue of the Permitted Encumbrances.
3. Rent. Lessee shall pay to Lessor rent for the Demised Premises (herein
"Rent") an annual amount of Two Hundred Forty Thousand and no/100 Dollars
($240,000.00), in equal monthly installments of Twenty Thousand and no/100
Dollars ($20,000.00) in advance on the first (1st) day of each calendar month
during the term hereof (provided, however, that if the term hereof commences on
a day other than the first day of a calendar month or is terminated on a day
other than the last day of a calendar month, then the Rent for such partial
month shall be prorated on the basis of the number of days included in the Term
of this Lease without set-off or abatement.
4. Mortgages. Lessor hereby warrants and represents to Lessee that there
are no mortgages or other security interests in, to or affecting the Demised
Premises or any part, parcel or portion thereof. Provided that any mortgagee
shall have executed and delivered to Lessee a nondisturbance agreement in form
and substance satisfactory to Lessee, Lessee agrees to subordinate its leasehold
interest under this Lease to the lien of any future mortgage on Lessor's
interest in the Demised Premises (herein a "Fee Mortgage"). Upon request by the
holder of any Fee Mortgage, and subject to the foregoing stipulation that Lessee
receive a non-disturbance agreement, Lessee agrees to execute and deliver an
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appropriate instrument or writing to evidence such subordination, to confirm the
validity and effectiveness of this Lease, and to certify as to the payment
status of rentals due under this Lease and the existence or non-existence, to
the best knowledge of Lessee, of any default or condition which would, with the
passage of time or giving of notice or both, affect or impair the obligations of
Lessee under this Lease to pay rent and perform other obligations of Lessee
under this Lease, including, without limitation, any such default or condition
which would constitute a defense to Lessor's enforcement of this Lease or
entitle Lessee to xxxxx, set off, or withhold rental.
5. Taxes. Lessor shall, at its cost and expense, bear, pay and discharge,
on or before the last day upon which the same may be paid without interest or
penalty for late payment thereof, all taxes, assessments, sewer rents, water
rents and charges, duties, impositions, license and permit fees, charges for
public utilities of any kind, payments and other charges of every kind or nature
whatsoever, ordinary or extraordinary, foreseen or unforeseen, general or
special (collectively herein "Impositions"), which shall, pursuant to present or
future law or otherwise, prior to or during the term hereof, have been or be
levied, charged, assessed or imposed upon, or grow or become due and payable out
of or for, or become or have become a lien on, the Demised Premises or any part
thereof, or the rents and income received by Lessor hereunder or received by
Lessee from any permitted subtenants of the Demised Premises or of any part
thereof, or any use or occupation of the Demised Premises. Lessor shall also
bear, pay and discharge any and all income taxes assessed against Lessor, any
franchise, estate, succession, inheritance or transfer taxes of Lessor, or any
tax or charge in replacement or substitution of the foregoing or of a similar
character. Lessor agrees to pay in advance any such Impositions if the holder of
any Fee Mortgage requires that Lessor escrow or deposit such Impositions.
Lessor shall use its best efforts to cause the Demised Premises to be
assessed and taxed separate and apart from all other premises. If, however, any
Imposition payable by Lessor as aforesaid shall also be levied, charged,
assessed or imposed upon, or grow or become due and payable out of or for, or
become a lien on, or be based upon the value of, any other premises not
constituting a part of the Demised Premises, then Lessor shall pay or cause to
be paid the full amount of said Imposition, notwithstanding that all or a
portion thereof is allocable to such other premises, but Lessor reserves all
rights which Lessor may have, whether pursuant to law or agreement or otherwise,
to recover all or a portion of said Imposition from the owner or owners of such
other premises.
Lessor shall pay all interest and penalties imposed upon the late payment
of any Imposition which Lessor is obligated to pay hereunder.
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Upon obtaining the Lessee's prior written consent, Lessor may take the
benefit of the provisions of any law or regulation permitting any Imposition to
be paid in installments.
If Lessor shall fail, for ten (10) days after notice and demand given to
Lessor, to pay any Imposition on or before the last day upon which the same may
be paid without the imposition of interest or penalties for the late payment
thereof, then Lessee may pay the same with all interest and penalties lawfully
imposed upon the late payment thereof, and the amounts so paid by Lessee shall
thereupon be and become immediately due and payable by Lessor to Lessee
hereunder, and may be offset against Rent or other sums payable under this
Lease.
So long as Lessor is not in default hereunder, Lessor, at its own cost and
expense may, if it shall in good faith so desire, contest the validity or amount
of any Imposition, in which event Lessor may defer the payment thereof for such
period as such contest shall be prosecuted actively and shall be pending
undetermined; provided, however, that no provision hereof shall be construed so
as to require Lessee to allow any such item so contested or intended to be
contested to remain unpaid for such length of time as shall permit the Demised
Premises, or the lien thereon created by such item to be contested, to be sold
by federal, state, county or municipal authority for the nonpayment thereof.
An official certificate or statement issued or given by any sovereign or
municipal authority, or any agency thereof, or any public utility, showing the
existence of any Imposition, or interest or penalties thereon, the payment of
which is the obligation of Lessor as herein provided, shall be prima facie
evidence for all purposes hereof of the existence, amount and validity of such
Imposition.
6. Repair and Replacement. Lessee acknowledges that Lessor has made no
representation whatsoever regarding the physical condition of the Demised
Premises except those contained in this Agreement, and that Lessee freely
accepts the Demised Premises in their present "as is" condition, subject,
however, to any "punchlist" repairs or replacement items identified by Lessee's
inspection of the Demised Premises, any latent or concealed conditions and any
respects in which the Demised Premises fails to comply with all laws, rules,
orders, ordinances, regulations, and requirements, including, without
limitation, applicable health, building, fire and life safety codes and
ordinances, now or hereafter enacted or promulgated by any government or
municipality having jurisdiction over the Demised Premises, or Lessee's
operations of the Facilities as licensed health care facilities (the
"Governmental Requirements"). Lessor shall provide Lessee with reasonable access
to the Demised Premises at all times prior to the Commencement Date to
facilitate Lessee's inspection and shall cooperate with and assist Lessee in the
testing and evaluation of the operating condition of building systems,
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equipment and similar items. Subject to the foregoing, Lessee shall at all times
during the Term (including any renewals or extensions thereof), at its own cost
and expense, make such ordinary, non-structural repairs to the Demised Premises
as may be required to keep the Demised Premises (other than the Personal
Property) in good and reasonable operating condition and repair. Lessee's
liability and total aggregate expenditures for repairs to the Demised Premises
(excluding repair and replacement of Personal Property) over the initial Term of
the Lease (including renewals or extensions thereof) shall not exceed the sum of
One Hundred Thousand and no/100 Dollars ($100,000.00). Lessor shall make, at its
sole cost and expense, all other or additional repairs or replacements to the
Demised Premises as may be required to place, keep and maintain the Demised
Premises (i) in good and reasonable operating condition and repair and (ii) in
compliance with applicable Governmental Requirements.
Lessee acknowledges that the items of Personal Property listed on Exhibit
"B" attached hereto are the property of Lessor and that Lessee has only the
right to the exclusive possession and use thereof as provided herein.
Notwithstanding any contrary provision set forth herein, Lessee shall keep all
of the aforesaid items of Personal Property in as good working order and
condition as existing on the Commencement Date, and at the expiration of the
Term of this Lease shall return and deliver all of such Personal Property to
Lessor in as good order and condition as when received hereunder, reasonable
wear and tear and damage by Acts of God or insurable peril excepted; provided,
that Lessee agrees, if necessary for the proper operation of the Demised
Premises, or to comply with or maintain all pertinent licensure, certification,
insurance policy or other legal requirements and otherwise in accordance with
customary practice in the industry, that Lessee shall replace all items of
Personal Property which may be damaged or destroyed through no fault or neglect
of Lessor or which may become worn out or obsolete during the Term of this Lease
(i.e., the "New Personal Property"), and such New Personal Property and
replacements thereof shall be the property of and owned by Lessor, subject to
the terms and provisions of this Lease. Upon expiration or termination of this
Lease, all Personal Property and New Personal Property shall become the property
of Lessor, if not already owned by Lessor, and Lessee shall execute all
documents and take any actions reasonably necessary to evidence such ownership.
All maintenance and repair work undertaken by Lessee shall be done in a
workmanlike manner, leaving the Demised Premises free of liens for labor and
materials. It is the intent of the parties hereto that the Demised Premises be
maintained at all times and returned upon the termination or expiration of this
Agreement in a condition equal to that at the time of execution of this
Agreement, reasonable wear and tear excepted. Lessee hereby grants to Lessor the
right to inspect and access to the Demised Premises at all reasonable times;
provided, however, that Lessor shall have no duty to conduct any inspections
unless requested to do so by Lessee.
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7. Compliance with Law. Lessor and Lessee mutually covenant and agree,
Lessee as to its manner of use of the Demised Premises and its repair
obligations as set forth in this Lease, and Lessor as to the condition of the
Demised Premises, its repair obligations and all other matters not related to
the Lessee's operation of the Facilities, to substantially perform and comply
with all laws, rules, orders, ordinances, regulations and requirements, now or
hereafter enacted or promulgated, of every government or municipality having
jurisdiction over the Demised Premises, Lessee's operation of the Facilities as
licensed health care facilities, and the franchises and privileges connected
therewith, whether or not such laws, rules, orders, ordinances, regulations and
requirements so involved shall necessitate structural changes, improvements,
interference with use and enjoyment of the Demised Premises, replacements or
repairs, extraordinary or ordinary, and Lessor or Lessee, as the particular
circumstances may warrant, shall so perform and comply whether or not such laws,
rules, orders, ordinances, regulations and requirements shall now exist or shall
hereafter be enacted or promulgated, and whether or not such laws, rules,
orders, ordinances, regulations and requirements are within the present
contemplation of the parties hereto.
Each party shall have the right, provided it does so with due diligence
and dispatch, to contest by appropriate legal proceedings, without cost or
expense to the other party, the validity of any law, rule, order, ordinance,
regulation or requirement of the nature referred to above. The party contesting
such Governmental Requirement may postpone compliance with such law, rule,
order, ordinance, regulation or requirement until the final determination of
such proceedings so long as such postponement of compliance will not subject the
Demised Premises to an encumbrance or the other party to any criminal
prosecution. No provision hereof shall be construed so as to permit a party to
postpone compliance with any such law, rule, order, ordinance, regulation or
requirement if any sovereign, municipal or other governmental authority shall
threaten to carry out or comply with the same or to foreclose or sell any lien
affecting all or any part of the Demised Premises that shall have arisen by
reason of such postponement or failure of compliance. If requested by the other
party, the party contesting such Governmental Requirement shall post a bond or
other adequate security for the costs of compliance and any monetary fines,
penalties, damages or other liabilities which might be imposed, in Lessor's sole
judgment, in connection with such contest.
Notwithstanding any other provision of this Agreement to the contrary,
each party shall inform the other party immediately by telephone, telecopy or
telegraph of any action taken, commenced or instituted by any state or federal
authority having jurisdiction over the Demised Premises as a health care
facility to terminate or revoke any license certification of such party. Such
notice shall be given to Lessor at the address or telephone number set forth in
Paragraph 43 herein.
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8. Alterations. Except as may be required of Lessee by Paragraphs 6 and 7
above, Lessee shall not make any alterations or additions to the Demised
Premises without Lessor's written prior approval, which approval may not be
unreasonably withheld. Lessor shall not withhold written consent to minor
alterations or additions or alterations or additions necessary in the reasonable
opinion of Lessee to maintain services to residents as provided in their
admission agreements, to maintain licensure, or to maintain certification under
the Medicaid or Medicare or any other public or private program now or hereafter
applicable to the Demised Premises. Nothing herein shall be deemed to obligate
Lessee to make alterations or additions constituting repairs or replacements
required to be made by Lessor pursuant to Paragraphs 6 and 7, provided, however,
that if Lessor fails to perform its repairs and replacement obligation, Lessee
shall have the right to do so at Lessor's expense and to offset the reasonable
cost thereof against Rental or other sums due under this Lease.
9. Use of Demised Premises. Lessee may use the Demised Premises for
healthcare and related purposes and for any other lawful use. Lessee shall not
commit, or allow to be committed, any waste upon the Demised Premises, or any
public or private nuisance. Lessee shall not use or keep or allow the Demised
Premises or any portion thereof to be used or occupied for any unlawful purpose
and shall not suffer any act to be done or any condition to exist within the
Demised Premises or any portion thereof, or knowingly permit any article to be
brought therein, which may be dangerous, unless safeguarded as required by law,
or which may make void or voidable any insurance in force with respect thereto.
10. Protection Against Claims by Public. During such period or periods of
the term hereof as any portion of the Parcels shall be unenclosed by any walled
structure, fence or gate, such portion shall be subject to such reasonable
directions as Lessor may from time to time make or give to Lessee with respect
to the maintenance and use thereof, for the purpose of Lessor's protection
against possible claims of the public, as such. Lessee hereby acknowledges that
Lessor does not hereby consent, expressly or by implication, to the unrestricted
use or possession of the whole or any portion of the Demised Premises by the
public, as such, and Lessee covenants and agrees that all such reasonable
directions so given shall be deemed to be and become incorporated herein by
reference and shall be fully and promptly performed and enforced by Lessee at
its cost and expense. Lessor hereby warrants and represents to Lessee that the
Demised Premises independently of any premises not demised under this Lease
complies with all zoning and land use requirements, including, without
limitation, offsite parking, drainage, and utility requirements.
11. Independence of Demised Premises. Lessee shall not by act or omission
permit any building or other improvement on premises not demised hereunder to
rely on the Real Property or any part thereof or any interest therein to fulfill
any municipal or governmental requirement, including without limitation,
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requirements for offsite parking, drainage and utilities, and Lessee shall not
take any action which shall cause an Improvement to rely on any premises not
demised hereunder or any interest therein to fulfill any governmental or
municipal requirement. Lessee shall not by act or omission impair the integrity
of the Demised Premises as units separate and apart from all other premises. Any
act or omission by Lessee which would result in a violation of any of the
provisions of this Paragraph shall be void.
12. Mechanics' Liens. Notice is hereby given that Lessor shall not be
liable for any work performed or to be performed on the Demised Premises for
Lessee or any subtenant, or for any materials furnished or to be furnished at
the Demised Premises for Lessee or any subtenant, and that no mechanic's or
other lien for such work or materials shall attach to the reversionary or other
interest of Lessor. If, in connection with any work being performed by Lessee or
any subtenant, or in connection with any materials being furnished to Lessee or
any subtenant, any mechanics or other lien or charge shall be filed or made
against the Demised Premises or any part thereof, or if any such lien or charge
shall be filed or made against Lessor as owner, then Lessee, at its cost and
expense, within thirty (30) days after such lien or charge shall have been filed
or made, shall cause the same to be canceled and discharged of record by payment
thereof or filing a bond or otherwise, and shall also defend any action, suit or
proceeding which may be brought for the enforcement of such lien or charge, and
shall pay any damages, costs and expenses, including reasonable attorneys' fees,
suffered or incurred thereby by Lessor, and shall satisfy and discharge any
judgment entered therein within thirty (30) days from the entering of such
judgment by payment thereof, or by filing of a bond, or by furnishing to Lessor
an unconditional letter of credit issued by a bank and in an amount reasonably
acceptable to Lessor, or otherwise. In the event of the failure of Lessee to
discharge within such thirty (30) day period any hen, charge or judgment herein
required to be paid or discharged by Lessee, Lessor may pay such item or
discharge such liability by payment or bond or both, and Lessee shall repay to
Lessor, upon demand, any and all amounts paid by Lessor therefor, or by reason
of any liability on any such bond, and also any and all incidental expenses,
including reasonable attorneys' fees, incurred by Lessor in connection
therewith.
13. Liability Insurance. At all times during the term hereof, Lessee
shall, at its own cost and expense, provide and keep in force policies as
follows:
(a) Comprehensive general public liability insurance including, without
limitation upon the generality of the provisions of this Paragraph,
elevator and boiler risks, protecting Lessor and Lessee against accident
or disaster in or about the Demised Premises with limits not less than
Three Million Dollars ($3,000,000.00) combined single limit for bodily
injury (including death) and One Million Dollars ($1,000,000.00) for
property damage;
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(b) Comprehensive automobile liability insurance, with limits not less than
One Million Dollars ($1,000,000.00);
(c) Professional liability insurance, with limits not less than Three Million
Dollars ($3,000,000.00); and
(d) Workers' compensation insurance, with limits not less than those required
by law.
Certificates evidencing all such policies of insurance shall be delivered to
Lessor. Such policies of insurance, as well as any policies of insurance to be
obtained by Lessee pursuant to Paragraphs 14 and 15 hereof, shall be issued by
companies having a Best's rating of "A-1" or better. Such insurance coverage, as
well as any insurance to be obtained by Lessee pursuant to Paragraphs 14 and 15
hereof, may be effected pursuant to a combination of primary and excess coverage
insurance policies. Such insurance coverages may also be effected pursuant to
blanket coverage insurance policies which cover losses in addition to those
required to be insured against hereunder.
If at any time Lessee shall neglect or fail, for fifteen (15) days after
notice and demand given to Lessee, so to provide and keep in force insurance
policies as aforesaid, or indemnity insurance policies pursuant to Paragraph 14
hereof or fire or other casualty insurance policies pursuant to Paragraph 15
hereof, or so to deliver to Lessor certificates evidencing any of such policies
of insurance, as required by the provisions hereof, Lessor may effect such
insurance as the agent of Lessee, by taking out a policy or policies in a
company or companies satisfactory to Lessor, running for a period not exceeding
one (1) year under any one (1) policy; and the amount of premium paid for such
insurance by Lessor shall be paid by Lessee to Lessor upon demand; and Lessor
shall not be limited in the proof of any damages which Lessor may claim against
Lessee arising out of or by reason of Lessee's failure to provide and keep in
force general liability insurance policies as aforesaid to the amount of the
insurance premium not paid or incurred by Lessee which would have been payable
upon such insurance, but shall also be entitled to recover as damages for such
breach the uninsured amount of any loss, liability, damage, claim, costs and
expenses of suit, judgment and interest suffered or incurred by Lessor.
Lessee agrees that any insurance coverage required of it pursuant to this
Lease shall also be subject to the following terms and conditions:
(a) Insurance coverage shall be occurrence based. The Lessor, at its sole
discretion, may approve liability policies issued on a "claims made" basis
provided that, in Lessor's sole opinion, there is sufficient "tail"
coverage;
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(b) The Lessee shall furnish to Lessor copies of all policies of insurance
required by this Lease which shall be delivered to the Lessor no later
than each such policy's renewal date;
(c) The Lessor, or its successors and assigns, as their interest may appear
shall be listed as an additional insured on the liability and indemnity
policies required by Paragraph 13 and 14 of this Lease.
14. Indemnity. Lessor and Lessee mutually agree to the following
indemnification provisions. Lessor or Lessee, as the case may be (herein the
"Indemnitor"), hereby agrees to indemnify and save harmless the other party
(herein the "Indemnitee") from and against any and all liability, loss, damages,
expenses, costs of action, suits, interest, fines, penalties, claims and
judgments (to the extent that the same are not paid out of the proceeds of any
policy of insurance furnished by the Indemnitor to the Indemnitee pursuant to
this Lease) arising from injury, or claim of injury, during the term hereof to
person or property of any and every nature, and from any matter or thing,
arising from the occupation, possession, use, management, alteration, repair,
maintenance or control of the Demised Premises, or the franchises and privileges
connected therewith, or arising out of Indemnitor's failure to perform, fully
and promptly, or Indemnitor's postponement of compliance with, each and every
term, covenant, condition and agreement herein provided to be performed by
Indemnitor, excepting liability of Indemnitee for Indemnitee's negligence and
willful misconduct. Except as hereinbefore provided, Indemnitor, at its own cost
and expense, will defend by counsel reasonably acceptable to Indemnitee, any and
all suits that may be brought, and claims which may be made, against Indemnitee,
or in which Indemnitee may be impleaded with others, whether Indemnitee shall be
liable or not, in respect of any such injury or claim of injury during the Term
hereof growing out of the occupation, possession, use, management, alteration,
repair, maintenance or control of the Demised Premises, and Indemnitor shall
satisfy, pay and discharge any and all judgments that may be recovered against
Indemnitee in any such action in which Indemnitee may be a party defendant, or
that may be filed against the Demised Premises or any interest therein, and in
the event of the failure of Indemnitor, for ten (10) days after notice and
demand given to Indemnitor, to pay any such sum for which Indemnitor shall
become liable as aforesaid, then Indemnitee may pay such sum, with all interest
and charges which may have accrued thereon, and the amount so paid by Indemnitee
shall be payable by Indemnitor to Indemnitee upon demand.
At all times during the term hereof, Indemnitor shall, at its own cost and
expense, provide and keep in force a policy or policies of insurance (which may
be effected by blanket coverage insurance as provided in Paragraph 13 hereof)
insuring Indemnitor against all liability of Indemnitor under this Paragraph 14.
Certificates evidencing all such policies of insurance shall be delivered to
Indemnitee. If at any time or times Indemnitor shall
11
neglect or fail, for five (5) days after notice and demand given to Indemnitor,
so to provide and keep in force insurance policies as aforesaid, or so to
deliver to Indemnitee certificates evidencing any of such policies of insurance,
as required by the provisions hereof, Indemnitee shall have all rights set forth
in Paragraph 13 hereof.
15. Hazard Insurance. At all times during the term hereof, Lessee shall,
at its own cost and expense, keep:
(a) The Demised Premises (including, without limitation, the Personal
Property) insured against loss or damage by fire, lightning, windstorm,
hail, explosion, riot, damage from aircraft, smoke damage, sprinkler
leakage damage, war damage (when available) and such other insurance
risks, casualties and hazards as are insured against by owners of
comparable premises in an amount equal to one hundred percent (100%) of
the replacement cost thereof, said replacement cost to be determined, on
Lessor's request not more frequently than at annual intervals, by one or
more of the insurers, or by an architect, contractor, appraiser or
appraisal company selected by Lessor. Any of the Demised Premises located
in special flood hazard areas shall be insured against loss or damage by
flood, in an amount equal to the maximum amount of insurance obtainable
under the federal flood insurance program; and
(b) The net rental value of the Demised Premises insured against loss or
damage by fire, lightning, windstorm, hail, explosion, riot, damage from
aircraft, smoke damage, war damage (when available) and such other
insurance risks, casualties and hazards as are insured against by owners
of comparable premises, in an amount equal to twice the sum of the
following amounts: (i) all Rent payable by Lessee under Paragraph 3 hereof
for the ensuing twelve (12) month period, plus (ii) all Impositions
payable by Lessor under Paragraph 5 hereof for the ensuing twelve (12)
month period (if the amount of any such Imposition shall not have been
fixed, then the same may be estimated based upon the tax rate for the
preceding period and/or upon such other factors as are relevant, plus
(iii) the cost of obtaining, for a one (1) year period, all insurance then
required to be maintained by Lessee hereunder.
All insurance to be furnished by Lessee under this Paragraph 15 shall be
by policies which shall name as insureds Lessor, Lessee, and any fee or
leasehold mortgagee, as their interests may appear, shall provide a minimum
cancellation provision of sixty (60) days after notice to all parties, shall not
contain a deductible in excess of $2,500, and shall provide that the loss, if
any, shall be payable to Lessor and Lessee, as their interests may appear,
subject to the rights of any Fee Mortgage. Such policies may be blanket coverage
insurance policies as provided in Paragraph 13 hereof. Certificates evidencing
all such policies of insurance shall be delivered to Lessor.
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If at any time Lessee shall, for fifteen (15) days after notice and demand
given to Lessee, neglect to insure the Demised Premises and rental value as
aforesaid, or to deliver such certificates of insurance as aforesaid, Lessor
shall have all of the rights conferred upon Lessor set forth in Paragraph 13
hereof, relating to Lessor's right to obtain liability insurance upon a failure
by Lessee to maintain such coverage.
Lessee shall comply with the terms of each insurance policy required by
the terms hereof to be furnished by Lessee.
Lessor and Lessee expressly waive any and all rights and claims as against
each other for losses and damages to the extent that such losses and damages are
covered by insurance, provided that such waiver is not prohibited by the terms
of the applicable insurance policies.
16. Fire and Other Casualty. If any Improvement or any Personal Property
shall be damaged or destroyed by fire or other casualty, then, irrespective of
the cause and whether or not such damage or destruction shall have been insured,
Lessee shall give prompt written notice thereof to Lessor, and Lessor shall
proceed with reasonable diligence to carry out any necessary demolition and to
restore, repair, replace and rebuild such Improvements or Personal Property at
Lessor's own cost and expense. If, as a result of the actions of any Fee
Mortgagee or otherwise, insurance proceeds are not made available to the Lessor,
and if the Lessor is unable after reasonable diligent efforts to secure and
provide replacement funds, the Lessee shall have the right to terminate this
Lease without further liability on the part of Lessee or Lessor unless the
unavailability of such insurance proceeds is the result of Lessor's acts or
omissions. If at any time Lessor shall fail or neglect to supply sufficient
workmen or sufficient materials of proper quality, or fail in any other respect
to prosecute such work of demolition, restoration, repair, replacement or
rebuilding with diligence and promptness, then Lessee may give Lessor notice of
such failure or neglect, and, if such failure or neglect continues for twenty
(20) days after such notice, then Lessee, in addition to all other rights which
Lessee may have, including, without limitation, the right to cancel and
terminate this Lease, may enter upon the Demised Premises, provide labor and/or
materials, cause the performance of any contract, and/or do such other acts and
things as Lessee may deem advisable to prosecute such work. All costs and
expenses incurred by Lessee in carrying out such work shall be borne by Lessor
and shall be payable by Lessor to Lessee upon demand, which demand may be made
by Lessee from time to time as such costs and expenses are incurred, in addition
to any and all damages to which Lessee shall be entitled hereunder.
Rent shall xxxxx hereunder as of the date of damage or destruction in
proportion to the percentage of the Demised Premises thereby rendered unusable
(in Lessee's sole opinion). Lessor shall in such event look solely to proceeds
of its insurance (including
13
its loss of rents coverage. Any proceeds of loss of rents insurance received by
Lessor by reason of such damage or destruction shall be applied by Lessor to the
payment of Rent which would otherwise be due from Lessee under Paragraph 3
hereof, Impositions payable by Lessee under Paragraph 5 hereof and premiums for
any insurance required to be maintained by Lessee hereunder. In the event rent
insurance proceeds received by Lessor are insufficient to pay the same or for
any reason such rent insurance proceeds are not actually applied by Lessor to
the payment of such amounts, Lessor shall nevertheless have no claim against
Lessee for Rental abated hereunder.
17. Condemnation.
(a) Entire Condemnation. If at any time during the Term (including renewals or
extensions of this Lease) all or substantially all of the Demised Premises
shall be taken in the exercise of the power of eminent domain by any
sovereign, municipality or other public or private authority, then this
Lease shall terminate on the date of taking of possession by such
authority. Substantially all of the Demised Premises shall be deemed to
have been taken if the remaining Improvements cannot feasibly be repaired
and restored so that they shall constitute a complete structural unit or
units which can be operated as a health care facility on an economically
feasible basis under the provisions hereof. The award or awards for any
such taking of all or substantially all of the Parcel and the Improvements
shall be paid to the Lessor and Lessee, as their interests may appear.
(b) Partial Condemnation. If less than all or substantially all of the Demised
Premises shall be taken in the exercise of the power of eminent domain by
any sovereign, municipality or other public or private authority, then
this Lease shall continue in force and effect and Lessor shall proceed
with reasonable diligence to carry out any necessary repair and
restoration so that the remaining Improvements shall constitute a complete
structural unit or units which can be operated as a health care facility
on an economically feasible basis under the provisions hereof. If Lessor
shall fail or neglect to supply sufficient workmen or sufficient materials
of proper quality, or shall fail in any other respect to prosecute such
work of repair or restoration with diligence and promptness, then Lessee
may give Lessor written notice of such failure or neglect, and, if such
failure or neglect continues for twenty (20) days after such notice, then
Lessee, in addition to all rights which Lessee may have, including,
without limitation, the right to cancel and terminate this Lease, may
enter upon the Demised Premises, provide labor and/or materials, cause the
performance of any contract, and/or do such other acts and things as
Lessee may deem advisable to prosecute such work. All costs and expenses
incurred by Lessee in carrying out such work shall be borne by Lessor and
shall be payable by Lessor to Lessee upon demand,
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which demand may be made by Lessee from time to time as such costs and
expenses are incurred, in addition to any and all damages to which Lessee
may be entitled hereunder.
The award(s) for any such partial taking shall be paid to Lessor or
Lessee, as their interests may appear; provided, however, that Lessor
shall be excused from obligation to repair and restore the Improvements if
Lessee shall fail to make any such award available to Lessor to pay the
cost of the repair and restoration work required of Lessor hereunder.
The Rent shall, as of the date of taking of possession by such authority,
be decreased by an amount equal to that proportion of such Rent which the
value of that portion so taken has to the value of the Demised Premises
immediately prior to such taking.
In the event that, by reason of subordination of this Lease to any Fee
Mortgage, any such award for any such taking is not paid or made available
for restoration of the Improvements as hereinbefore provided, then Lessee,
at Lessee's option, may elect to terminate this Lease by giving ten (10)
days notice in writing to Lessor, electing to terminate this Lease, and
the Term hereof shall expire by limitation at the expiration of said ten
(10) days notice as fully and completely as if said date were the date
herein originally fixed for the expiration of the term hereof.
(c) Temporary Taking. If the temporary use of the whole or any part of the
Demised Premises shall be taken at any time during the Term hereof in the
exercise of the power of eminent domain by any sovereign, municipality or
other authority, the Term hereof shall not be reduced or affected in any
way and Lessee shall continue to pay in full the Rent and other sums of
money and charges herein reserved and provided to be paid by Lessee, and
the award for such taking shall be divided and paid out in the following
order of priority: First, there shall be paid to Lessee that portion of
said award paid for use and occupancy of the Demised Premises during the
Term hereof, and second, the remainder, if any, of said award shall be
paid to Lessor.
(d) Interest. Interest upon any award paid for a taking of the type referred
to in Sections (a), (b) or (c) of this Paragraph 17 shall be divided and
paid out to those persons entitled to the award upon which such interest
shall have been paid, in proportion to the respective amounts received by
such persons.
(e) Personal Property and Moving Expenses. Any award or part of an award paid
as compensation for the taking of personal property owned by Lessee or for
moving expenses of Lessee, shall be payable to Lessee.
18. Restoration after Fire or Condemnation. Whenever Lessee shall be
required or shall elect to carry out any work of
15
demolition, restoration, repair, replacement or rebuilding pursuant to Paragraph
16 hereof or Section (b) of Paragraph 17 hereof, Lessee, prior to the
commencement of such work (unless such work is of a minor nature, as that term
is hereinafter defined) shall:
(a) Furnish Lessor complete plans and specifications for such work bearing the
signed approval thereof by a licensed architect.
(b) Furnish Lessor certified or photostatic copies of all permits and
approvals required by law in connection with the commencement and conduct
of such work.
Lessee shall not commence any of said demolition, restoration, repair,
replacement or rebuilding work until Lessee shall have complied with the above
requirements, and thereafter Lessee shall carry out such work diligently and in
good faith in accordance with the plans and specifications referred to above.
If the above-mentioned work shall be of a minor nature, as that term is
hereinafter defined, then the requirements set forth above in this Paragraph 18
shall not be applicable, except that Lessee shall obtain and furnish to Lessor
all permits and approvals required by law in connection with the commencement
and carrying out of such work. Such work shall be deemed to be of a minor nature
only if in one continuous project the aggregate cost of such work is less than
Ten Thousand Dollars ($10,000.00).
19. Environmental Matters.
(a) Lessor hereby warrants and represents to Lessee that: the Demised Premises
are in compliance with all Federal, state and local laws and ordinances relating
to clean air, water, waste disposal, toxic substances and other environmental
regulations. The Demised Premises are in compliance with all laws and ordinances
relating to occupational health and safety. During the period of Lessor's
ownership of the Demised Premises, Lessor has not caused or permitted the
Demised Premises to be used, to generate, manufacture, refine, transport, treat,
store, handle, dispose, transfer, produce or process Hazardous Material (as
hereinafter defined), or other dangerous or toxic substances, or solid waste,
except in compliance with all applicable federal, state, and local laws or
regulations. During the period of Lessors' ownership of the Demised Premises,
there has been no release of Hazardous Material (as hereafter defined) on or
off-site of the Demised Premises, nor have any "Hazardous Materials Claims" been
made against Lessor to Lessor's knowledge in respect of the Demised Premises.
There has not been incorporated into the Demised Premises and the Demised
Premises do not contain, any asbestos products, urea-formaldehyde, and other
known building products which may be harmful or injurious to human health or
constitute Hazardous Materials.
(b) Lessee hereby indemnifies and agrees to defend, protect and hold the
Lessor, any successor or successors to Lessor's
16
interest in and to the Demised Premises, and any mortgagee on the Lessor's
interest in and to the Demised Premises harmless from and against any and
all losses, liabilities, fines, charges, damages, injuries, penalties,
response cost, expenses and claims of any and every kind whatsoever paid,
incurred or suffered by, or asserted against, the Lessor including,
without limitation, (i) all consequential damages; (ii) the costs of any
required or necessary repair, cleanup or detoxification of the Demised
Premises, and the preparation and implementation of any closure, remedial
or other required plans; and (iii) all reasonable costs and expenses
incurred by Lessor in connection with clauses (i) and (ii), including, but
not limited to, reasonable attorneys' fees for, with respect to, or as a
direct or indirect result of the presence on or under, or the escape,
seepage, leakage, spillage, discharge, emission, or actual threatened
release of any Hazardous Material (as hereinafter defined) from the
Demised Premises by the Lessee (including, without limitation, any losses,
liabilities, damages, injuries, costs, expenses or claims asserted or
arising under any federal or state or local statute, law, ordinance, code,
rule, regulation, order or decree regulating, relating to, or imposing
liability or standard of conduct concerning any Hazardous Material), to
the extent caused by, or within the control of, Lessee, or any employees,
agents, contractors or subcontractors of Lessee, or any third persons,
occupying or present on the Demised Premises, during the period of
ownership, operation or control of the Demised Premises by Lessee, unless
such activities were or will be undertaken in accordance with applicable
laws, regulations, codes or means. The warranties, representations and
indemnities made by Lessee in this section are expressly agreed by Lessor
and Lessee to survive the termination of this Lease Agreement. Hazardous
material(s) shall be defined as flammable, explosives, radioactive
materials, or hazardous, toxic or dangerous waste, substances of related
material including, but not limited to, substances defined as such in (or
for purposes of) the Comprehensive Environmental Response, Compensation,
and Liability Act, as amended 42 U.S.C Sections 9601, et seq.; the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et seq.;
the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et
seq.; those substances defined as hazardous or toxic under any other
federal, state or local statute, relating to, or imposing liability or
standards of conduct concerning, any hazardous, toxic and dangerous waste,
substance or material, as now or at any time hereafter in effect.
Notwithstanding anything to the contrary herein, Lessee shall have no
liability or responsibility to remediate, except as may be expressly
provided herein, with respect to any Hazardous Material which Lessor fails
to prove has its origin on the Demised Premises after the Commencement
Date of this Lease and during Lessee's possession and control of the
17
Demised Premises (whether directly or through a subtenant's occupancy
thereof).
(c) Lessee shall keep and maintain the Demised Premises in compliance with,
and shall not cause or permit the Demised Premises to be in violation of,
any federal, state or local laws, ordinances, statutes or regulations
relating to industrial hygiene or to the environmental conditions on,
under or about the Demised Premises including, but not limited to, soil
and groundwater conditions. Lessee shall not use, generate, manufacture,
store or dispose of on, under or about the Demised Premises or transport
to or from the Demised Premises any Hazardous Material, except in
compliance with applicable "Hazardous Materials Laws" (as defined below).
Lessee hereby agrees at all times to comply fully and in a timely manner
with, and to cause all of its employees, agents, suppliers, contractors
and subcontractors and any other persons occupying or present on the
Demised Premises to so comply with, all applicable federal, state and
local laws, regulations, guidelines, codes, statutes, and ordinances
applicable to the use, generation, handling, storage, treatments,
transport and disposal of any Hazardous Material now or hereafter located
or present on or under the Demised Premises. Lessee shall not install, or
allow to be installed, any underground storage tanks on the Demised
Premises without the prior written consent of Lessor. Lessee shall keep
all such underground storage tanks properly registered with appropriate
federal, state, and local authorities and shall pay in a timely manner all
fees required by such authorities in connection with any clean-up fund or
other program relating to underground storage tanks. Lessee shall furnish
evidence satisfactory to Lessor reflecting any and all such payments.
Should Lessee fail to pay any such fees, Lessor may pay the same on
Lessee's behalf and any amount, together with interest at the rate of
twelve (12%) percent per annum from the date paid by Lessor until paid by
Lessee, shall become additional rent due from Lessee.
(d) Lessee shall immediately advise Lessor in writing of (i) any and all
enforcement, cleanup, removal or other governmental or regulatory actions
instituted, completed or threatened pursuant to any applicable federal
state or local laws, ordinances, or regulations relating to any Hazardous
Material affecting the Demised Premises ("Hazardous Material Laws"); (ii)
all claims made or threatened by any third party against Lessee relating
to damage, contribution, cost recovery compensation, loss or injury
resulting from any Hazardous Material affecting the Demised Premises (the
matters set forth in clauses (i) and (ii) above are hereinafter referred
to as "Hazardous Materials Claims"); and (iii) Lessee's discovery of any
occurrence or condition on the Demised Premises or any real property
adjoining or in the vicinity of the Demised Premises or to be otherwise
subject to any restrictions on the ownership, occupancy, transferability
or use of the property
18
under any Hazardous Materials Laws. Lessor shall have the right, but not
the obligation, to join and participate in, as a party if it so elects,
any legal proceedings or actions initiated in connection with any
Hazardous Materials Claims.
(e) Without Lessor's prior written consent, Lessee shall not take any remedial
action in response to the presence of any Hazardous Materials on, under,
or about the Demised Premises, not enter into any settlement agreement,
consent decree, or other compromise in respect to any Hazardous Materials
Claims, which remedial action, settlement, consent or compromise might, in
Lessor's reasonable judgment, impair the value of Lessor's security
hereunder or of Lessor's interest in the reversion; provided, however,
that Lessor's prior consent shall not be necessary in the event that the
presence of any Hazardous Material on, under, or about the Demised
Premises either poses an immediate threat to the health, safety or welfare
of any individual or is of such a nature that an immediate remedial
response is necessary and it is not reasonably possible to obtain Lessor's
consent before taking such action, provided that in such event Lessee
shall notify Lessor as soon as practicable thereafter of any action so
taken. Lessor agrees not to withhold its consent, where such consent is
required hereunder, if either (i) a particular remedial action is ordered
by a court of competent jurisdiction, or (ii) Lessee establishes to the
reasonable satisfaction of Lessor that there is no reasonable alternative
to such remedial action which would result in less impairment of Lessor's
security hereunder or of Lessor's interest in the reversion.
20. Assignment and Subletting. Lessee may not assign this Lease or any
interest herein, or make any sublease of all or any part of the Demised
Premises, without Lessor's prior written consent, which consent may not be
unreasonably withheld, and any such attempted assignment or subletting without
such prior written consent shall be void; provided, however, that such prior
written consent shall not be required for (i) any assignment or sublease by
Lessee to an affiliate of Lessee, (ii) any residency agreement or admission
agreement with respect to the Facility made by Lessee in the ordinary course of
its business, and/or (iii) any sublease of the portions of space in the Facility
for any accessory use made by Lessee in the ordinary course of business,
including, without limitation, for physician offices, laboratories or similar
related uses. No consent by Lessor to any assignment or subletting shall be
deemed or construed to relieve Lessee from obtaining the express written consent
of Lessor to any further assignment or subletting. Lessor shall have the right,
in its sole discretion, to withhold consent to a proposed assignment of Lessee's
entire interest in the Lease or to a proposed sublease of the entirety of the
Demised Premises.
For purposes hereof, the term "affiliate of Lessee" means a person
controlling, controlled by or under common control with
19
Lessee, and shall be deemed and construed to include, but not be limited to, a
corporation, limited liability company, or general, limited or limited liability
partnership, of which Lessee or an affiliate of Lessee is, respectively, a
majority or controlling shareholder, a managing or majority member, or a general
or managing partner, regardless of the percentage of Lessee or its affiliate's
beneficial interest in such person.
No consent by Lessor to a proposed assignment or subletting and no
acceptance by Lessor of any performance or rent herein provided to be done or
paid by Lessee from any person other than Lessee shall discharge Lessee or any
other person liable for performance of Lessee's obligations hereunder (except to
the extent of the performance and payments so accepted by Lessor) from liability
to pay all of the rent herein provided to be paid by Lessee or from liability to
perform any of the terms, covenants, conditions and agreements set forth herein.
All references herein to a sublease shall be deemed to include all
arrangements for occupancy or other use by any person of all or any part of the
Demised Premises, and all references herein to a subtenant shall include any
occupant or other user of all or any part of the Demised Premises.
In the event of a termination hereof, each subtenant of space within the
Demised Premises shall attorn to the Lessor unless the Lessor shall, at the
Lessor's option, elect to dispossess such subtenant or otherwise terminate the
sublease held by such subtenant. Each subtenant who hereafter subleases space
within the Demised Premises shall be deemed to have agreed to the provisions of
this Paragraph.
Lessee hereby assigns to Lessor the right, following any default by Lessee
hereunder which is not cured by Lessee within any applicable cure period, to
collect from any and all subtenants all rents and other sums payable by them,
and to apply the same to the payment of Rent and all other amounts payable by
Lessee hereunder, and any balance shall be paid over to Lessee; but no exercise
by Lessor of rights under this Paragraph shall be deemed a waiver by Lessor of
any other rights hereunder or be deemed an acceptance by Lessor of such
subtenant or an acquiescence by Lessor to the occupancy of any part of the
Demised Premises by such subtenant or a release of Lessee from the performance
of any of the obligations of Lessee hereunder.
21. Bankruptcy. If at any time during the term hereof there shall be filed
by or against Lessee in any court or other tribunal pursuant to any statute or
other rule of law, either of the United States or of any state or of any other
authority now or hereafter exercising jurisdiction, a petition in bankruptcy or
insolvency proceedings or for reorganization or for the appointment of a
receiver or trustee of all or substantially all of Lessee's property or if
Lessee makes a general assignment for the benefit of creditors then, subject to
the provisions of this Paragraph 21,
20
this Lease may, at the option of Lessor to be exercised by thirty (30) days
written notice to Lessee, be canceled and terminated, and in that event neither
Lessee nor any person claiming through or under Lessee by virtue of any statute
or other rule or of an order of any court or other tribunal shall be entitled to
possession or to remain in possession of the Demised Premises or any part
thereof but shall forthwith quit and surrender the Demised Premises; provided
however, that if any such petition shall be filed against Lessee and if in good
faith Lessee shall promptly thereafter commence and diligently prosecute any and
all proceedings appropriate to secure the dismissal of such petition, Lessor's
right to cancel and terminate this Lease by reason of the filing of such
petition shall be suspended during such period as said proceedings for the
dismissal of such petition shall continue. Any provision of this Paragraph 21
providing for the suspension of Lessor's right to cancel and terminate this
Lease is intended only to suspend Lessor's right to cancel and terminate
pursuant to this Paragraph 21, and shall not be deemed to suspend or otherwise
restrict Lessor's right to cancel and terminate this Lease, in the event of a
default by Lessee under any other paragraph hereof pursuant to Paragraph 23
hereof or otherwise.
In the event of the termination hereof pursuant to this Paragraph 23,
Lessor shall forthwith at Lessor's option, notwithstanding any other provision
hereof to the contrary, be entitled to recover from Lessee, in addition to any
other proper claims for rent and other sums of money payable hereunder, as and
for liquidated damages, a sum equal to the amount by which the Rent reserved
under Paragraphs 3 and 4 hereof for the unexpired portion of the term hereof
exceeds the net rental value of the Demised Premises at the time of such
termination for the said unexpired portion of the term hereof, both discounted
at the rate of eight percent (8%) per annum to their present worth. Nothing
herein contained shall limit or prejudice the right of Lessor to prove or obtain
as liquidated damages by reason of a termination hereof pursuant to this
Paragraph 23 an amount equal to the maximum allowed by any statute or other rule
of law in effect at the time when, and governing the proceedings in which, such
damages are to be proved, whether or not such amount be greater than, equal to
or less than the amount of the damages referred to above.
22. Access to Project; Books, Records, Accounts and Annual Reports. Lessee
shall keep and maintain or shall cause to be kept and maintained at the Demised
Premises, at Lessee's cost and expense and in accordance with sound accounting
practice, proper and accurate books, records and accounts reflecting all items
of income and expense in connection with the operation of the Facilities or in
connection with any services, equipment or furnishings provided in connection
with the operation thereof. Lessor shall have the right, from time to time, to
examine by Lessor's agents, accountants and attorneys employed at Lessor's
expense, such books, records and accounts at the office either of Lessee or such
other person or entity maintaining said books, records and accounts and to make
copies or extracts thereof as
21
Lessor shall desire and to discuss Lessee's affairs, finances and accounts with
Lessee and with the officers and principals of Lessee at such reasonable times
as may be requested by Lessor. Lessee will furnish to Lessor on or before April
30th of each year, for the preceding calendar year, a balance sheet, profit and
loss statement, and all supporting schedules covering operation of the
Facilities and the Lessee, all in reasonable detail, prepared in accordance with
sound accounting practices and certified by the principal financial or
accounting officer of Lessee; and Lessee will furnish to Lessor, at any time
within thirty (30) days after demand by Lessor, statements certified by Lessee's
principal financial or accounting officer covering such additional financial
matters respecting the Facilities and the Lessee as Lessor may reasonably
request including, without limitation, quarterly operating statements with
respect to the Facilities and the Lessee.
23. Default; Termination. If at any time during the term hereof (i) Lessee
shall default in the payment of any Rent or of any other sum of money whatsoever
which Lessee shall be obligated to pay under the provisions hereof for ten (10)
days after written notice and demand, or (ii) Lessee shall default in the
performance or observance of any of the other terms, covenants, conditions or
agreements hereof for thirty (30) days after written notice and demand for cure,
or if such default shall be of such a nature that the same cannot practicably be
cured within said thirty (30) day period, Lessee shall not within said thirty
(30) day period commence with due diligence and dispatch to cure and perform
such defaulted term, covenant, condition or agreement, or Lessee shall within
said thirty (30) day period commence with due diligence and dispatch to cure and
perform such defaulted term, covenant, condition or agreement but shall
thereafter fail or neglect to prosecute and complete with due diligence and
dispatch the curing and performance of such defaulted term, covenant, condition
or agreement, or (iii) the taking, commencement or institution of any action or
proceeding, including fast track proceedings, by any state or federal authority
having jurisdiction over the Demised Premises as a health care facility to
terminate or revoke any license certification of Lessee of which Lessor is not
immediately notified or which is not resolved within fifteen (15) days for fast
track proceedings or thirty (30) days for any other action or proceeding, or
(iv) the receipt by Lessee of a Level A deficiency on any licensure inspection
or survey of the Demised Premises which is not resolved within a period of
twenty (20) days; THEN AND IN ANY SUCH CASE, if such default shall be
continuing, Lessor, at Lessor's option, may elect (1) to terminate this Lease at
any time by giving ten (10) days notice in writing to Lessee, electing to
terminate this Lease, and the term hereof shall expire by limitation at the
expiration of said ten (10) days notice as fully and completely as if said date
were the date herein originally fixed for the expiration of the term hereof, and
Lessee shall thereupon quit and peacefully surrender the Demised Premises to
Lessor, without any payment therefor by Lessor, and Lessor, upon the expiration
of said ten (10) days notice, or at any time thereafter may re-enter and remove
all persons and property
22
therefrom, either by summary proceedings or by any suitable action or proceeding
at law, or by force or otherwise, without being liable to indictment,
prosecution or damages therefor, and may have, hold and enjoy the Demised
Premises.
If Lessor shall obtain possession of the Demised Premises by reason of or
following any default of Lessee, then Lessee shall pay to Lessor on demand all
reasonable expenses incurred by Lessor in obtaining possession and in altering,
repairing and putting the Demised Premises in good order and condition, and in
reletting the same, including reasonable fees of architects, attorneys and
agents, and any other reasonable expenses and commissions and Lessee further
agrees to pay to Lessor upon the rent days specified herein in each month
following any termination hereof by reason of a default of Lessee hereunder,
until the end of the period which would have constituted the Term hereof
(whether or not Lessor shall have terminated this Lease), the Rent and all other
sums of money whatsoever which would have been payable by Lessee during such
period, deducting only the net amount of rent, if any, which Lessor shall
actually receive (after deducting therefrom all reasonable expenses and costs of
operation and maintenance of the Demised Premises) from and by any reletting of
the Demised Premises, and Lessee hereby agrees to be and remain liable for all
sums aforesaid as well as for any deficiency therein. Lessor shall have the
right from time to time to bring and maintain successive actions or other legal
proceedings against Lessee for the recovery of such amounts, which liability it
is expressly covenanted shall survive the issuance of any warrant of dispossess
or other court process. Nothing herein contained shall be deemed to require
Lessor to wait to bring any such action or other legal proceedings until the
date when this Lease would have expired had there been no such default by
Lessee. In reletting the Demised Premises as aforesaid, Lessor may make leases
and lettings of the whole or less than the whole of the same, for a term or
terms greater or less than the term hereof, and for a rental or rentals and upon
such terms, covenants, conditions, agreements and provisions as Lessor may elect
in its sole discretion.
In addition to the right of Lessor to cancel the Agreement as provided in
this Section, and without waiver of such right, Lessor may xxx Lessee for
damages for noncompliance with any covenant, agreement or warranty contained in
this Agreement or for nonpayment of any sum required to be paid by Lessee to
Lessor or for specific performance of any covenant of this Agreement. The waiver
of any one Event of Default shall not be construed as the waiver of any other
Event of Default.
Upon the occurrence of a default by Lessee under this Agreement, Lessor
shall have the absolute right, at any time without notice to have a receiver
appointed to take possession of the Demised Premises, collect the rents, issues,
profits, patient contract accounts, Medicare and Medicaid payments, accounts
receivable and all other payments or obligations owing to Lessee with respect to
the Demised Premises, and apply the same against
23
Lessee's obligations hereunder. Neither the filing of a petition for the
appointment of a receiver nor the appointment itself shall constitute an
election by Lessor to terminate this Agreement.
No receipt of moneys by Lessor from Lessee after a termination hereof by
Lessor shall reinstate, continue or extend the Term hereof or affect any notice
theretofore given to Lessee, or operate as a waiver of the right of Lessor to
enforce the payment of rent when due or thereafter falling due, it being agreed
that after the commencement of suit for possession of the Demised Premises, or
after final order or judgment for possession of the Demised Premises, Lessor may
demand, receive and collect any moneys due or thereafter falling due without in
any manner affecting such suit, order or judgment; all such monies collected
being deemed payments on account of the use and occupation of the Demised
Premises or, at the election of Lessor, on account of Lessee's liability
hereunder. Lessor shall have, receive and enjoy, as Lessor's sole and absolute
property, any and all sums collected by Lessor as rent or otherwise upon
reletting the Demised Premises after Lessor shall resume possession thereof as
hereinbefore provided, including, without limitation upon the generality of the
foregoing, any amounts by which the sum or sums collected exceed the continuing
liability of Lessee hereunder.
24. Waiver of Rights of Redemption. If at any time hereafter Lessor shall
obtain possession of the Demised Premises under legal proceedings or pursuant to
the terms and conditions hereof or pursuant to present or future law, because of
default by Lessee in observing or performing any term, covenant, condition or
agreement hereof, all rights of redemption provided by any law, statute or
ordinance now in force or hereafter enacted shall be and are hereby waived by
Lessee to the extent permitted by law.
25. Lessors Right to Cure Lessee's Defaults. Whenever and as often as
Lessee shall fail or neglect to comply with and perform any term, covenant,
condition or agreement to be complied with or performed by Lessee hereunder,
then, upon thirty (30) days prior written notice to Lessee (except where a
shorter notice period is provided herein, in which event such shorter period
shall apply), if such default shall be continuing, Lessor, at Lessor's option,
in addition to all other remedies available to Lessor, may perform, or cause to
be performed, such work, labor, services, acts or things, and take such other
steps, including entry onto the Demised Premises as Lessor may reasonably deem
advisable, to comply with and perform any such term, covenant, condition or
agreement which is in default, in which event Lessee shall reimburse Lessor upon
demand, and from time to time, for all reasonable costs and expenses suffered or
incurred by Lessor in so complying with or performing such term, covenants,
condition or agreement. The commencement of any work or the taking of any other
steps or performance of any other act by Lessor pursuant to this paragraph shall
not be deemed to obligate Lessor to complete the curing of any term, covenant,
condition or agreement which is in default. Lessee hereby waives any claim and
releases Lessor and Lessor's
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agents, contractors and employees from all liability for damage occasioned by
any action taken by Lessor pursuant to this paragraph, excepting liability of
Lessor for negligence and willful misconduct of Lessor and Lessor's agents,
contractors and employees.
26. Lessor Default. In the event Lessor shall default in the performance
of any of the terms and provisions of this Lease and shall fail to cure such
default within thirty (30) days after written notice and demand from Lessee,
Lessee shall have the right, at its option, to exercise one or more of the
following remedies: (a) to terminate this Lease and recover against Lessor for
all damages, general, special and consequential, incurred as a proximate result
of Lessor's breach and termination; (b) to do and perform the act or action
required of Lessor under this Lease and to offset against Rental and other sums
payable by Lessee any and all costs of Lessee's performance; (c) to proceed with
an action, proceeding or suit at law or in equity, seeking damages or equitable
relief (including, in an appropriate case, an injunction, a decree of specific
performance, or a declaratory judgment). Such remedies are cumulative of any and
all other rights and remedies available to Lessee under this Lease or otherwise.
27. Injunction. Each party, at its option, in addition to any other rights
reserved to it, and notwithstanding the concurrent pendency of other proceeds
between Lessor and Lessee, shall have the right at all times during the Term
hereof to restrain by injunction any violation or attempted violation by the
other party of any of the terms, covenants, conditions or agreements hereof, and
to enforce by injunction any of the terms, covenants, conditions and agreements
thereof.
28. No Merger. In no event shall the leasehold in the Demised Premises
created hereby, or the rights of Lessee hereunder, merge with any interest,
estate or rights of Lessor in or to the Demised Premises, except by Lessor's
written declaration of such merger, it being understood that such leasehold and
the rights of Lessee hereunder shall be deemed to be separate and distinct from
Lessor's interest, estate and rights in and to the Demised Premises,
notwithstanding that any such interests, estates or rights shall at any time or
times be held by or vested in the same person.
29. Definition of "Lessor" and "Lessee". The terms "Lessor" and "Lessee"
as used herein shall at any given time mean the persons who are the owners of
the reversionary interest estate of Lessor in and to the Demised Premises, and
the leasehold of Lessee in and to the Demised Premises created herein,
respectively. Subject to and conditioned upon Lessee's obtaining Lessor's prior
written consent to any transfer or assignment of Lessee's leasehold interest
under this Lease, in the event of any conveyance or other divestiture of either
Lessor or Lessee's interest in and to the Demised Premises, the grantor or the
person who is divested of such interest (the "Grantor") shall be entirely freed
and relieved of
25
all covenants and obligations thereafter accruing hereunder, and the grantee or
the person who otherwise succeeds to such interest shall be deemed automatically
and by operation of this Lease to have assumed the covenants and obligations of
the Grantor thereafter accruing hereunder, and until the next conveyance or
divestiture of such interest the other party shall look solely to said grantee
or successor for the observance and performance of the covenants and obligations
of the Grantor hereunder so assumed by said grantee or successor. Lessee shall
attorn to any such grantee or successor of Lessor. Any provision hereof to the
contrary notwithstanding, no assignment by Lessee of this Lease or any interest
herein shall relieve or release Lessee of or from any of its liabilities or
obligations hereunder.
30. Quiet Enjoyment. Lessor covenants that at all times during the term
hereof, so long as Lessee is not in default hereunder, Lessee's quiet enjoyment
of the Demised Premises or any part thereof shall not be disturbed by the act of
any person whomsoever.
31. Lessor's Right of Entry. Lessor and its authorized agents and
employees shall have the right from time to time, at Lessor's option, and upon
reasonable prior notice to Lessee (except in an emergency), to enter and pass
through the Demised Premises to examine the same and to show them to prospective
purchasers, fee mortgagees and others.
32. Estoppel Certificates. Each party shall at any time and from time to
time during the term hereof, within ten (10) days after request by the other
party, execute, acknowledge and deliver to the other party or to any prospective
purchaser, assignee or mortgagee designated by the other party, a certificate
stating (i) that this Lease is unmodified and in force and effect (or, if there
have been any modifications that this Lease is in force and effect as modified
and identifying the modification agreements); (ii) the date to which Rent has
been paid; (iii) whether or not there is any existing default by Lessee in the
payment of Rent or any other sum of money hereunder, and whether or not there is
any other existing default by either party with respect to which a notice of
default has been served, and, if there is any such default, specifying the
nature and extent thereof; and (iv) whether or not there are any set offs,
defenses or counterclaims against enforcement of the obligations to be performed
hereunder existing in favor of the party executing such certificate.
33. Rights Cumulative. All the rights and remedies of each party hereunder
or pursuant to present or future law shall be deemed to be separate, distinct
and cumulative, and no one or more of them, whether exercised or not, nor any
mention of or reference to any one or more of them herein, shall be deemed to be
an exclusion or a waiver of any of the others, or of any of the rights or
remedies which such party may have, whether by present or future law or pursuant
hereto, and each party shall have, to the fullest extent permitted by law, the
right to enforce any rights or
26
remedies separately and to take any lawful action or proceedings to exercise or
enforce any right or remedy without thereby waiving or being barred or estopped
from exercising and enforcing any other rights and remedies by appropriate
action or proceedings.
34. Payments of Money, Interest. All amounts whatsoever which Lessee shall
be obligated to pay pursuant hereto shall be deemed rent, and in the event of
the nonpayment by Lessee of any such of money whatsoever which Lessee from time
to time shall be obligated to pay to Lessor under any provision hereof, Lessor
shall have the same rights and remedies by reason of such nonpayment as if
Lessee had failed to pay an installment of Rent under Paragraph 3 hereof. Except
as herein specifically stated otherwise, in each instance when Lessee shall be
obligated to make any payment of any sum of money whatsoever hereunder, interest
shall accrue thereon and be payable hereunder at the rate of twelve percent
(12%) per annum computed from the date such payment first became due hereunder.
35. Surrender, Obligations Upon Expiration or Termination.
(a) Lessee shall, on the last day of the term hereof or upon any termination
hereof well and truly surrender and deliver up the Demised Premises into
the possession and use of Lessor, with the Licensed Bed Capacity, without
fraud or delay and in good order, condition and repair, ordinary wear and
tear excepted, free and clear of all lettings and occupancies and free and
clear of all encumbrances other than those existing on the date hereof and
those, if any, created by Lessor.
(b) Lessee represents and warrants to Lessor that (except for changes in the
ordinary course of business, and for all other changes unforeseen and/or
uncontrollable by Lessee, occurring after the date hereof), to the extent
feasible and consistent with ordinary business practices, Lessee will
expend reasonable efforts to assure or cause upon the expiration or
termination of the Term hereof, the following statements to be true
statements of law and fact:
(1) All of the Inventories shall be at levels which are consistent with
operations in the ordinary course of business and, to the best of
Lessee's knowledge after diligent investigation, at levels
consistent with all applicable regulatory requirements and usable in
the ordinary course of business.
(2) There is no outstanding written notice of default, cancellation or
termination in connection with any instrument or document material
to the operation of the Demised Premises which could be construed,
directly or indirectly, to bind or in any way affect Lessor or
Lessor's assigns after the termination hereof.
27
(3) Lessee is not a party to any written employment or consulting
agreement, or written pension, profit-sharing, bonus, deferred
compensation, retirement, stock option, medical health, disability,
insurance, welfare or other employee benefit plan, arrangement,
contract agreement, program or policy relating to the Facilities
(collectively, the "Benefit Plans") which would be binding upon or
affect Lessor or any successor lessee after the date of expiration
or termination hereof.
(4) Lessee has paid all accounts payable and other liabilities on a
current basis.
(5) There is no disciplinary proceeding pending or, to the best of
Lessee's knowledge after diligent investigation, threatened against
any then current member of the medical staff.
(6) AU costs, reimbursement and similar reports relating to the Facility
have been filed when due as required for Medicaid and any
third-party payor reimbursement.
(c) Lessee shall use reasonable efforts to persuade such personnel of the
Facilities as Lessor may designate to become employees of Lessor or
Lessor's assigns after the expiration or termination of the term hereof.
(d) Following the expiration or termination of the term hereof, Lessee shall
pay all personnel of the Facility all benefits [specifically including,
but not limited to, compensation for accrued and vested (in accordance
with Lessee's personnel policies), but unpaid, vacation pay] normally
payable upon termination of employment. If Lessee fails to make any such
payment, Lessor shall have the right to cure such default and demand
immediate reimbursement from Lessee.
36. No Waiver. No failure on the part of either party at any time to
require the performance by the other party of any term hereof shall be taken or
held to be a waiver of such term or in any way affect such party's right to
enforce such term, and no waiver on the part of either party of any term hereof
shall be taken or held to be a waiver of any other term hereof or the breach
thereof
37. Severability. The invalidity or unenforceability of any particular
provision hereof shall not affect the other provisions, and this Lease shall be
construed in all respects as if such invalid or unenforceable provision had not
been contained herein.
38. Benefit. This Lease shall inure to the benefit of and be binding upon
the parties and their respective legal representatives, successors and assigns.
The provisions hereof are solely for the benefit of the parties and their
respective legal representatives, successors and assigns, and shall not be
deemed or construed to create any rights for the benefit of any other person.
28
39. Construction. Whenever a singular word is used herein, it shall also
include the plural wherever required by the context, and vice versa. The terms
and conditions hereof represent the results of bargaining and negotiations
between the parties, each of which has been represented by counsel of its
selection, and neither of which has acted under duress or compulsion, whether
legal, economic or otherwise, and represent the results of a combined
draftsmanship effort. Consequently, the terms and conditions hereof shall be
interpreted and construed in accordance with their usual and customary meanings,
and the parties hereby expressly waive and disclaim, in connection with the
interpretation and construction hereof, any rule of law or procedure requiring
otherwise, specifically including but not limited to, any rule of law to the
effect that ambiguous or conflicting terms or conditions contained herein shall
be interpreted or construed against the party whose counsel prepared this Lease
or any earlier draft hereof.
40. Entire Agreement; Written Modifications. This Lease contains the
entire understanding between the parties with respect to the subject matter
hereof; all representations, promises, and prior or contemporaneous
understanding, between the parties with respect to the subject matter hereof are
merged into and expressed in this Lease; and any other understandings between
the parties with respect to the subject matter hereof are hereby canceled. This
Lease shall not be amended, modified or supplemented without the written
agreement of the parties at the time of such amendment, modification or
supplement.
41. Governing Law. This Lease shall be governed by and subject to the laws
of the State of Florida.
42. Captions. The captions herein are for convenience and identification
purposes only, are not an integral part hereof, and are not to be considered in
the interpretation of any part hereof.
43. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if sent by certified or
registered mail, return receipt request, postage prepaid, addressed as follows:
To Lessor: Xxxxxxx - Liberty Hospital Association, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xx. Xxxxxxxx X. Xxxxx, CEO
With a copy to: Xxxx X. Xxxxxx, Esq.
000 Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
29
To Lessee: Welcare Properties Corporation
000 Xxxxxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
With a copy to: Xxxx X. Xxxxxx, Esq.
XXXXXX XXXXXXX XXXXX & XXXXXXXXXXX, L.L.P.
000 Xxxxxx Xxxxxx, Xxxxx 0000
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000
or to such other address as shall be furnished in writing by either party to the
other party.
44. Counterparts. This Lease may be executed in separate counterparts,
each of which when so executed shall be an original, but all of such
counterparts shall together constitute but one and the same instrument.
45. Costs of Enforcement. If any action is instituted in connection with
any controversy arising out of this Lease, the prevailing party shall be
entitled to recover, in addition to costs, such sum as the court may adjudge
reasonable as attorneys fees in such action and on any appeal from any judgment
or decree entered therein.
46. Radon Gas. Florida law, F.S. 404.056(b) requires that the following
language be included in all contracts for sale and purchase of any building and
all rental agreements for any building:
RADON GAS: Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may
present health risks to persons who are exposed to it over time.
Levels of radon that exceed federal and state guidelines have been
found in buildings in Florida. Additional information regarding
radon and radon testing may be obtained from your county public
health unit.
47. Agreement Regarding Lease. This Lease Agreement is executed and
delivered pursuant to that certain Agreement Regarding Lease (the "General
Agreement") containing terms, covenants, conditions, warranties and
representations on which Lessee has and is hereby relying in entering into this
Lease and the related transactions described in the General Agreement. The
General Agreement is hereby incorporated into and made a part of this Lease as
if fully set forth herein.
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IN WITNESS WHEREOF, the parties have executed this Lease as of the day and
year first above written.
LESSOR:
XXXXXXX-LIBERTY HOSPITAL ASSOCIATION,
INC.
BY: /s/ Xxxxxxxx X. Xxxxx
----------------------------------------
Xxxxxxxx X. Xxxxx
Its: Chief Operating Officer
ATTEST:
By: /s/ signature illegible
-----------------------------
Secretary
(Corporate Seal)
31
LESSEE:
WELCARE PROPERTIES CORPORATION
By /s/ Xxxx X. Xxxx
----------------------------------------
Its:Vice President
ATTEST:
By /s/ Xxxx X. Xxxxxx
-----------------------------
Secretary
(Corporate Seal)
32
EXHIBIT A-1
1. Identification of Facility
(a) Name:
(b) Address:
2. Legal Description of Parcel:
See Exhibit A-2
3. Other Existing Encumbrances:
33
EXHIBIT A-2
Legal Description
34
