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EXHIBIT 10.6
L E A S E
THE STATE OF MISSOURI
COUNTY OF PULASKI
THIS LEASE, made and entered into as of the 25th day of January, 1990,
by and between Xxxxx CareCentre, Inc., A Missouri Corporation, represented
herein by Xxxxxxx X. Xxxxxxx, President, hereinafter called "Landlord" and
Xxxxx Oaks Health Centre, Inc., A Missouri Corporation, represented herein by
Xxxxx X. Xxxxxxx, President, hereinafter called "Tenant";
W I T N E S S E T H:
Landlord, in consideration of the rent to be paid and the covenants
and agreements to be performed by Tenant, as hereinafter set forth, does hereby
LEASE, DEMISE and LET unto Tenant and Tenant hereby takes and accepts the
premises described in Exhibit Number One attached hereto and made a part hereof
together with all rights, privileges, easements, and appurtenances belonging to
or in any way pertaining to the said premises and together with the building
and other improvements now situated or to be erected on the said premises and
together with the furnishings, fixtures, and equipment (hereinafter called the
"Personal Property") described in Exhibit Number Two attached hereto and made a
part hereof (all of the foregoing hereinafter collectively called the "leased
premises") for the term hereinafter stated.
The leased premises are leased by Landlord to Tenant and are accepted
and are to be used and possessed by Tenant subject to the following terms,
provisions, covenants, agreements, and conditions.
1. Term. The term of this lease shall be TEN (10) years beginning on
the 1st day of February, 1990 (herein called the "Commencement Date"), and
ending on the 31st day of January, 2000, unless sooner terminated as herein
provided.
2. Rent. Tenant covenants and agrees to pay to Landlord in currency
of the United States of America that at the time of payment is legal tender for
public and private dates, without any setoff or deduction whatsoever, rental in
advance on or before the first day of each month during the term of this lease
as follows:
a. During the first twelve (12) moths of the term of this lease the
annual rental shall be $213,462.00 payable at the rate of
$16,852.00 per month for the first six months and $18,725.00 per
month for the second six months and due on or before the first
day of each and every month. It Tenant is denied SNF licensure
for the additional 20 beds (presently granted as RCF beds) within
the first twelve (12) months of the term of this lease, the
Landlord will refund to the Tenant the amount of 11,238.00
($18,725.00 - $16,852.00 = $1,873.00 X 6 months = $11,238.00).
Landlord and Tenant agree that Tenant will make every effort to
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secure SNF licensure for said 20 beds and will apply for said
licensure at the time deemed most appropriate by the staff of
Xxxxx Xxxxx, & Xxxxxx of Springfield, Missouri.
b. Commencing with the thirteenth (13th) month the base annual
rental shall be $224,700.00 payable at the rate of $18,725.00 per
month on or before the first day of each and every month of the
term of the lease. The "Base Rent" shall be adjusted annually ten
(10) days prior to the anniversary date of the lease.
c. During the twenty-fifth (25th) and subsequent months of the term
of the lease the rental shall be the greater of the following:
(i) The base rent of $224,700.00 per annum at the rate
of $18,725.00 per month.
OR
(ii) Twenty percent (20%) of the previous years gross
revenue. (See examples of rent calculations attached and labeled
Exhibit Number Three)
OR
(iii) The Base Rent increases or decreases due to
fluctuations in gross Revenue as described in (ii) above but said
rent shall not decrease below the original Base Rent ($224,700.00
per annum/$18,725.00 per month).
d. The formula to be used for calculating gross revenue ten days
prior to anniversary date of the lease is as follows: Divide the
gross revenue for eleven (11) months by eleven (11) to determine
the average monthly income and multiply the result by twelve
(12). The calculation shall be submitted to the Landlord as
outlined in Exhibit Four. This formula will provide an
approximate gross revenue. Final gross revenue figures as
determined from the annual audited financial statements will be
taken into consideration as soon as they are available.
Adjustments will be made up or down based upon the final figures
and shall be retroactive to the beginning of the current period.
Tenant shall furnish Landlord a copy of the annual financial
statements, certified by an officer of Tenant, and cost report as
soon as available.
Should this lease commence on a day other than the first day of a
calendar month or terminate on a day other than the last day of a
calendar month, the rent for such partial month shall be
prorated. The first installment of rent, whether for a full
calendar month or a portion thereof, shall be paid on the
Commencement Date of this lease. Such installments of rent shall
be paid to Landlord at the address specified in this lease or
elsewhere as designated from time to time by written notice from
Landlord to Tenant.
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The Landlord acknowledges that the Tenant voiced concern regarding the
possibility that the State of Missouri could change the formula for Medicaid
reimbursement in such a manner as to substantially decrease, state wide, the
nursing home revenues derived from Medicaid payments. Such a reduction in
payments would obviously necessitate dialogue and attempted resolutions between
Landlords and Tenants concerning the effect such revenue decreases would have
on Tenant's ability to meet rent payment while still maintaining adequate
profits.
3. Real Estate Taxes and Assessments.
a. Subject to subparagraph d. below, Tenant shall pay
before they become delinquent all real estate taxes and
assessments (herein called "Impositions") lawfully levied or
assessed against the leased premises during the term of this
lease. Tenant may pay any Imposition in installments, if payment
may be so made without penalty, except that any Imposition which
Tenant has elected to pay in installments shall be paid in full
by Tenant prior to sixty (60) days before the expiration of the
lease term. All Impositions for the tax year in which the lease
shall terminate shall be apportioned between Landlord and Tenant
as of the expiration date hereof, provided that Tenant shall not
be entitled to receive any such apportionment if Tenant shall be
in default in the performance of any of Tenant's covenants,
agreements, and undertakings to be performed by it hereunder.
b. Nothing contained in this lease shall require Tenant to
pay any franchise, corporate, estate, inheritance, income,
profits, or revenue tax or any other tax, assessment, charge or
levy upon the rent payable by Tenant under this lease; provided,
however that if at any time during the term of this lease, under
the laws of the State of Missouri or any political subdivision
thereof, the methods of taxation prevailing at the commencement
of the term hereof shall be altered so as to cause the whole or
any part of the real estate taxes or general assessments levied
or assessed against the leased premises to be levied, assessed,
and imposed on the rents received therefrom, then all such taxes
and assessments shall be deemed to be included within the term
"Impositions" for the purposes hereof to the extent that such
Impositions would be payable if the leased premises were the only
property of Landlord subject to such Impositions and Tenant shall
pay and discharge the same as herein provided in respect of the
payment of Impositions.
c. Tenant shall furnish to Landlord, within thirty (30)
days after the date when any Imposition would become delinquent,
official receipts of the appropriate taxing authority or other
evidence satisfactory to Landlord evidencing the payment thereof.
The failure of Tenant to furnish Landlord with such receipts or
other evidence shall not be deemed a default unless Tenant fails
to comply within fifteen (15) days after any written request
therefor by Landlord.
d. Tenant shall not be required to pay, discharge, or
remove any Imposition so long as Tenant shall contest the amount
or validity of such
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Imposition by appropriate proceeding which shall operate to
prevent or stay the collection of the Imposition so contested and
if Tenant shall have provided Landlord with a bond satisfactory
in form to Landlord and from a bonding company satisfactory to
Landlord in an amount equal to the amount so contested and
unpaid, together with all interest and penalties in connection
therewith and all charges that may or might be assessed against
or become a charge on the leased premises or any part thereof in
such proceedings. During such contest Landlord shall have no
right to pay the Imposition contested except as provided herein.
Upon the termination of such proceeding, Tenant shall deliver to
Landlord proof of the amount of the Imposition as finally
determined and shall pay such Imposition, in which event the said
bond will be returned by Landlord to Tenant. If such Imposition
is not paid by Tenant upon termination of such proceeding, said
bond may be cashed and applied by Landlord to the payment,
removal, and discharge of such Imposition, and the interest and
penalties in connection therewith any costs, fees, or other
liability accruing in any such proceedings and the balance, if
any, shall be returned to Tenant and any deficiency shall be paid
by Tenant. If during such proceeding, Landlord shall deem the
bond deposited with it insufficient, Tenant shall upon demand
deposit with Landlord such additional bond or bonds as Landlord
may reasonably request, and upon failure of Tenant to do so, the
bond or bonds theretofore deposited may be cashed and applied by
Landlord to the payment, removal, and discharge of such
Imposition, and the interest and penalties in connection
therewith any costs, fees, or other liability accruing in any
such proceeding, and the balance, if any shall be returned to
Tenant. Tenant shall give Landlord written notice of any such
contest and Landlord, at Tenant's sole expense, shall join in any
such proceeding if any law, rule, or regulation at the time in
effect shall so require. Any proceeding for contesting the
validity or amount of any Imposition or to recover any Imposition
paid by Tenant may be brought by Tenant in the name of Landlord
or in the name of Tenant or both as Tenant may deem advisable.
Landlord shall not be subjected to any liability for the payment
of any costs or expenses in connection with any proceedings and
Tenant will indemnify and save Landlord harmless from any such
costs and expenses.
e. If Tenant shall default in the payment of any Imposition
required to be paid hereunder by Tenant, Landlord shall have the
right (but not the obligation) to pay the same together with any
penalties and interest, in which event the amount so paid by
Landlord shall be paid by Tenant to Landlord upon demand plus ten
percent (10%) per annum from ten (10) days after such demand
until payment.
4. Insurance.
a. Tenant, at its sole cost and expense, shall keep the
leased premises insured during the term of this lease against
loss or damage by fire and such other risks as may be included in
the broadest form of extended coverage
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insurance from time to time available in amounts sufficient to
prevent Landlord or Tenant from becoming a co-insurer under the
terms of the applicable policies, but in any event in an amount
not less than ninety percent (90%) of the then "full replacement
cost", the term "full replacement cost" to mean the actual
replacement cost less physical depreciation of the building,
including foundation and excavation costs. Landlord and Tenant
shall agree on the initial value of the leased premises at the
commencement of this lease which shall be increased annually by
building cost index factors as may be determined by the Xxxxxxxx
Xxxxxxx Valuation Guide or other appraisal source mutually agreed
upon by Landlord and Tenant.
b. Tenant, at its sole cost and expense, shall also
maintain worker's compensation insurance and malpractice
insurance in amounts reasonably required by Landlord and such
other insurance against other insurable hazards which from time
to time are insured against by Tenant in the case of property
leased or owned by Tenant which is similar to the leased
premises, due regard being or to be given to the height and type
of the building forming a part of the leased premises, its
construction, use, and occupancy.
c. All insurance provided for in the paragraph shall be
effected under valid and enforceable policies issued by insurers
of recognized responsibility which have been approved in writing
by Landlord, such approval not to be unreasonably withheld. Upon
the execution of this lease and thereafter not less than thirty
(30) days prior to the expiration dates of the expiring policies
theretofore furnished pursuant to this paragraph or any other
paragraph of this lease, originals of the policies or
certificates relating thereto bearing notations evidencing the
payment of premiums or accompanied by other evidence satisfactory
to Landlord of such payment shall be delivered by Tenant to the
Landlord.
d. All policies of insurance provided for in this paragraph
shall name Landlord and Tenant and the holder of any first
mortgage on the leased premises as the insureds, as the
respective interests may appear, and shall otherwise comply with
the requirements of said first mortgage.
e. Each such policy provided for in this paragraph shall
contain an agreement by the insurer that such policy shall not be
cancelled without at least thirty (30) days prior written notice
to Landlord and to the holder of any first mortgage of the leased
premises and an agreement that any loss otherwise payable
thereunder shall be payable notwithstanding any act of negligence
of Landlord or Tenant which might, absent such agreement, result
in a forfeiture of all or a part of such insurance payment and
notwithstanding the following:
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(i) The occupation or use of the leased premises for
purposes more hazardous than permitted by the terms of such
policy.
(ii) Any foreclosure or other action or proceeding taken
pursuant to any provision of any mortgage upon the
happening of an event of default thereunder; or
(iii) Any change in title or ownership of the leased
premises.
f. All insurance policies in force at the termination of this
lease shall be cancelled and Tenant shall receive all premium refunds.
g. Tenant may provide any insurance required by this lease in the
form of a blanket policy, provided that Tenant shall furnish satisfactory proof
that such blanket policy complies in all respects with the provisions of this
lease, and that the coverage thereunder is at least equal to the coverage which
would have been provided under a separate policy covering only the leased
premises.
h. Landlord shall not be required to prosecute any claim against
or contest any settlement proposed by any insurer provided that Tenant may at
its expense prosecute any such claim or contest any such settlement. In such
event, Tenant may bring such prosecution or contest in the name of Landlord,
Tenant or both and Landlord will join therein at Tenant's written request upon
the receipt by Landlord of an indemnity from Tenant against all costs,
liabilities, and expenses in connection with such prosecution or contest.
i. Insurance claims by reason of damage to or destruction of any
portion of the leased premises shall be adjusted by Landlord. Any such proceeds
shall be paid to Landlord, to be held subject to the provision of Paragraph 18.
j. If Tenant shall default in the obtaining or maintaining of any
insurance required hereunder, Landlord shall have the right (but not the
obligation) to take whatever action is necessary and to pay all appropriate
premiums to obtain or maintain such insurance, in which event any amount paid
for premiums by Landlord shall be paid by Tenant to Landlord upon demand plus
ten percent (10%) per annum interest from ten days after such demand until
payment.
5. Security Deposit. Landlord acknowledges receiving EIGHTEEN THOUSAND
SEVEN HUNDRED TWENTY FIVE AND NO/100 DOLLARS ($18,725.00) as security for the
full and faithful performance by Tenant of Tenant's covenants and obligations
hereunder. Such Security Deposit shall not bear interest and shall not be
considered an advance payment of rental or a measure of Landlord's damages in
case of default in the performance of any of the covenants and obligations to
be performed by it hereunder, including but not limited to the payment of all
rent to be paid hereunder, Landlord may, from time to time, without prejudice
to any other remedy, use such Security Deposit to the extent necessary to make
good any arrearages in rent or any sum as to which Tenant is in default and any
other damages or deficiency in the reletting of the leased premises, whether
such damages or deficiency may accrue before or after termination
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of this lease. If landlord assigns its interests in the leased premises during
the lease term, Landlord may assign the Security Deposit; provided, however,
that such Assignee shall agree to undertake in writing to return such Security
Deposit upon expiration of this lease. The provisions of the preceding sentence
shall apply to every transfer or assignment made of the Security Deposit to a
new Landlord. Tenant agrees that it will not assign or encumber or attempt to
assign or encumber the moneys deposited herein as security and that Landlord
and its successors and assigns shall not be bound by any such actual or
attempted assignment of this lease by Tenant, Landlord may return the security
deposit to the original Tenant, in the absence of evidence satisfactory to
Landlord of an assignment of the right to receive such Security Deposit or any
part of the balance thereof.
6. Commencement of Rent. The rental under this lease shall commence on
the Commencement Date.
7. Acceptance of Leased Premises by Tenant. Tenant has examined the
leased premises and accepts such premises in their present condition and
without any representation on the part of the Landlord as to the present or
future condition of such property, except that Tenant does not waive any rights
against the general contractor or any subcontractor under guarantees with
respect to defects that may now exist or may hereafter occur as a result of
construction of the leased premises. Landlord warrants that the leased premises
will be licensable as a nursing home under the law of the State of Missouri.
Landlord hereby assigns to Tenant any and all warranties issued to Landlord in
connection with the construction of the leased premises. Landlord further
agrees to promptly correct all deficiencies regarding the physical plant of the
leased premises noted in the first survey of the facility by the Missouri
Department of Health after the Commencement Date of this lease. Landlord shall
not be liable, except in the event of gross negligence or willful misconduct,
to Tenant or any of its agents, employees, licensees, servants, or invitees for
any design or any defect in the leased premises or its mechanical systems and
equipment which may exist or occur, and Tenant, with respect to itself and its
agents, employees, licensees, servants, and invitees, hereby expressly assumes
all risks of injury or damage to person or property, either proximate or
remote, by reason of the condition of the leased premises.
8. Repair and Maintenance by Tenant. Landlord shall not be required to
make any repairs or improvements of any kind upon the leased premises. Tenant
shall keep the leased premises including all fixtures and improvements
installed by Tenant in good and tenantable repair and condition and shall
promptly make all necessary repairs and replacements thereto except those
caused by fire or other casualty covered by insurance on the premises under
policies naming Landlord as the insured, all at Tenant's sole expense, under
the supervision and with the approval of Landlord. Said repairs and
replacements shall be in quality and class equal to the original work and shall
include without limitation repairs and all necessary replacements to the roof,
foundation, underground or otherwise concealed plumbing, interior plumbing,
exterior walls, windows, window glass, plate glass, doors, interior walls,
columns and partitions, lighting, plumbing and sewage facilities, heating and
air conditioning equipment (including the cooling tower), fire protection
sprinkler system, and elevators, and shall also include the reasonable care of
landscaping and regular mowing of grass and maintenance of any outside paving
and any
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railroad siding. Tenant shall keep the leased premises free of insects,
rodents, and pests. Without diminishing such obligation of Tenant, if Tenant
fails to make such repairs and replacements after the necessity therefor arises
within thirty (30) days after written demand therefor stating the respects in
which this covenant is not being performed, or if such repairs or replacements
cannot be made within thirty (30) days and diligently continue same, Landlord
may at its option make such repair and Tenant shall pay Landlord for the cost
thereof upon demand, plus ten percent (10%) per annum interest from ten (10)
days after such demand until payment.
9. Mechanic's Liens. Tenant will not permit any mechanic's lien or
liens to be placed upon the leased premises during the term hereof caused by or
resulting from any work performed, materials furnished, or obligation incurred
by or at the request of Tenant and nothing in this lease contained 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 materialman for the performance of any labor or the
furnishing of any materials for any specific improvement, alteration, or repaid
of or to the leased premises or any part thereof, nor 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 mechanic's or other liens against the interest of Landlord in the leased
premises. In the case of filing of any lien on the interest of Landlord or
Tenant in the leased premises, Tenant shall cause the same to be discharged of
record within sixty (60) days after filing of same. If Tenant shall fail to
discharge such mechanic's lien or remedy of Landlord, Landlord may, but shall
not be obligated to discharge the same either by paying the amount claimed to
be due or by procuring the discharge of such lien by deposit in court or
bonding. Any amount paid by Landlord for any of the aforesaid purposes, or for
the satisfaction of any other lien, cost caused or claimed to be caused by
Landlord and all reasonable legal and other expenses of Landlord, including
reasonable counsel fees, in defending any such action or in or about procuring
the discharge therewith, shall be paid by Tenant to Landlord on demand, plus
ten percent (10%) per annum interest from ten (10) days after such demand until
payment.
10. Alterations and Additions by Tenant. Tenant shall not make or
allow to be made any openings in the roof or exterior walls or any building
forming a part of the leased premises or any alterations, improvements, or
additions in or to the leased premises without first obtaining the written
consent of Landlord, and all alterations, additions, and improvements made to
or fixtures or other improvements placed in or upon the leased premises,
whether temporary or permanent in character, by either party shall be deemed a
part of the leased premises and the property of the Landlord at the time same
are placed in or upon the leased premises, without compensation to Tenant.
11. Use and Occupancy. Tenant agrees that the leased premises shall be
used and occupied only as and for a nursing home and for no other purpose.
Landlord and Tenant shall cooperate with each other in obtaining the necessary
governmental licenses and permits required to operate a nursing home on the
leased premises and each shall bear its own expense in connection therewith.
Tenant agrees to use and maintain the leased premises in a clean, careful, safe
and proper manner and to comply with all applicable laws, ordinances, orders,
rules, and regulations of all governmental bodies (state, federal, and
municipal) and in a manner that the
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leased premises shall at all times qualify as a licensed nursing home under the
laws and regulations of the State of Missouri. Tenant will not in any manner
deface or injure the leased premises or any part thereof or overload the floors
on the leased premises. Tenant agrees to pay Landlord on demand for any damage
to the leased premises caused by any negligence or willful act or any misuse or
abuse (whether or not any such misuse or abuse results from negligence or
willful act) by the Tenant or any of its agents, employees, licensees, or
invitees, or any other person not prohibited, expressly or impliedly, by Tenant
from entering upon the leased premises. Tenant agrees not to use or allow or
permit the leased premises to be used for any purpose prohibited by any law of
the United States or of the State of Missouri or by any ordinance of the City
of Xxxxx, and Tenant agrees not to commit waste or suffer or permit waste to be
committed or to allow or permit any nuisance on or in the leased premises.
Tenant will not use the leased premises for any immoral or illegal purposes.
Tenant shall not use the leased premises or allow or permit sale to be used in
any way or for any purpose that Landlord may deem to be extra hazardous on
account of the possibility of fire or other casualty or which will increase the
rate of fire or other insurance for the leased premises or its contents or in
respect of the operation of the leased premises or which may render the leased
premises uninsurable at normal rates by responsible insurance carriers
authorized to do business in the State of Missouri or which may render void or
voidable any insurance on the leased premises. Tenant shall have the right to
erect a sign on the exterior walls of the building forming a part of the leased
premises, securely attached to and parallel to said walls, subject to
applicable laws and deed restrictions. Tenant shall not erect any signs other
than customary trade signs identifying its business, and shall not erect any
signs on the roof or paint or otherwise deface the exterior walls of said
building. Tenant shall remove all signs at the termination of this lease, and
shall repair any damage and close any holes caused by such removal.
12. Liability of Landlord. Landlord shall not be liable to Tenant or
to Tenant's employees, agents, licensees, or visitors, or any other person
whomsoever, for (i) any injury or damage to person or property due to the
leased premises or any part thereof becoming out of repair or by defect in or
failure of pipes or wiring, or by the backing up of drains or by the bursting
or leaking of pipes, faucets, and plumbing fixtures or by gas, water, steam,
electricity, or oil leaking, escaping or flowing into the leased premises,
whether or not caused by negligence of Landlord, or (ii) any loss or damage
that may be occasioned by or through the acts or omissions of any other person
whatsoever, excepting only the willful misconduct or gross negligence of duly
authorized employees and agents of Landlord, or (iii) for any loss or damage to
any property or person occasioned by theft, fire, act of God, public enemy,
injunction, riot, insurrections, war, court order, requisition or order of
governmental authority, or any other matter beyond the control of Landlord.
Tenant agrees that all personal property upon the leased premises shall be at
the risk of Tenant only, and that Landlord shall not be liable for any damage
thereto or theft thereof.
13. Tenant's Indemnification of Landlord. Tenant agrees that it will
indemnify and hold and save Landlord whole and harmless of, from, and against
(i) all fines, suits, loss, cost, liability, claims, demands, actions, and
judgments of every kind and character by reason of any breach, violation or
nonperformance of any term, provision, covenant, agreement, or demands,
actions, damages, cost, loss, liabilities, expenses, and judgments suffered by,
recovered from or
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asserted against Landlord on account of injury or damage to person or property
to the extent that any such damage or injury may be incident to, arise out of,
or be caused, either proximately or remotely, wholly or in part, by an act,
omission, negligence, or misconduct on the part of Tenant or any of its agents,
servants, employees, contractors, patrons, guests, licensees, or invitees or of
any other person entering upon the leased premises under or with the express or
implied invitation or permission of Tenant or when any such injury or damage is
the result, proximate or remote, of the violation by Tenant or any of its
guests, servants, employees, contractors, patrons, licensees, or invitees of
any law, ordinance, or governmental order of any kind, or when any such injury
or damage may in any way arise from or out of the occupancy or use by Tenant,
its agents, servants, employees, contractors, patrons, guests, licensees, or
invitees of the leased premises. Tenant covenants and agrees that in case
Landlord shall be made a party to any litigation commenced by or against Tenant
or relating to this lease or to the leased premises, then Tenant will pay all
costs and expenses, including reasonable attorneys' fees and court costs,
incurred by or imposed upon Landlord by virtue of any such litigation unless a
judgment is rendered in said litigation against Landlord or its agents or
employees based upon their negligence or willful misconduct and the amount of
all such costs and expenses, including attorneys' fees and court costs, shall
be a demand obligation owing by Tenant to Landlord bearing interest at the rate
of ten percent (10%) per annum from ten (10) days after the date of demand.
14. Liability Insurance. Tenant shall, at its sole cost and expense,
procure and maintain through the term of this lease Comprehensive General
Liability insurance and Professional Liability insurance against claims for
bodily injury or death and property damage occurring in or upon or resulting
from the leased premises, in standard form and with such insurance company or
companies as may be acceptable to Landlord, such insurance to afford immediate
protection, to the limit of not less than $1,000,000.00 in respect of any one
accident or occurrence in respect of bodily injury, death and for property
damage with a $2,000,000.00 aggregate limit, with not more than $10,000.00
deductible. Such Comprehensive General Liability insurance shall include
Blanket Contractual Liability coverage which insures contractual liability
under the indemnification of Landlord by Tenant set forth in this lease (but
such coverage or the amount thereof shall in no way limit such
indemnification). Tenant shall maintain with respect to each policy or
agreement evidencing such Comprehensive General Liability insurance and
Professional Liability insurance such endorsements as may be required by
Landlord and shall at all times deliver such maintain with Landlord a
certificate with respect to such insurance in form satisfactory to Landlord.
Tenant shall obtain a written obligation on the part of each insurance company
to notify Landlord and the holder of any first mortgage on the leased premises
at least thirty (30) days prior to cancellation of such insurance. Such
policies or duly executed certificates of insurance relating thereto shall be
promptly delivered to Landlord and renewals thereof as required shall be
delivered to Landlord at least thirty (30) days prior to the expiration of the
respective policy terms. If Tenant fails to comply with the foregoing
requirements relating to insurance, Landlord may obtain such insurance and
Tenant shall pay to Landlord on demand the premium cost thereof plus interest
at the rate of ten percent (10%) per annum from ten (10) days after the date of
demand by Landlord until repaid by Tenant.
15. Right of Entry by Landlord. Landlord shall have the right,
exercisable without notice and without liability to Tenant for damage or injury
to property, persons, or business and
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without affecting an eviction, constructive or actual, or disturbance of
Tenant's use or possession or giving rise to any claim for setoff or abatement
of rent to enter upon the leased premises at reasonable hours to inspect same
or make repairs or alterations (but without any obligation to do so, except as
expressly provided for herein) or to show the leased premises to prospective
tenants at reasonable hours and if they are vacated, to prepare them for
re-occupancy, Landlord and its authorized agents shall have the right, within
the final sixty (60) day period of the term of this lease, to erect on or about
the leased premises a customary sign advertising the leased property for lease
and shall have the right, at any time during the term of this lease, to erect
on or about the premises a customary sign advertising the leased property for
sale.
16. Utility Services. Landlord shall provide at Landlord's expense on
the Commencement Date of this lease the normal and customary utility service
connections into the leased premises. Tenant shall pay the cost of all utility
services, including but not limited to all charges for gas, water, and
electricity used on the leased premises, and for all electric light lamps or
tubes and pay for all meter deposits. Landlord shall not be liable for any
interruption in the supply of any utilities.
17. Assignment and Subletting.
a. Tenant shall not, without the prior written consent of
Landlord, which consent will not be unreasonably withheld, (i) assign or in any
manner transfer this lease or any estate or interest therein, or (ii) permit
any assignment of this lease or any estate or interest therein by operation of
law, or (iii) sublet the leased premises or any part thereof. Consent by
Landlord to one or more assignments or subletting shall not operate as a waiver
of Landlord's rights as to any subsequent assignments and sublettings.
Notwithstanding any assignments or subletting, Tenant and any guarantor of
Tenant's obligations under this lease shall at all times remain fully
responsible and liable for the payment of the rent herein specified and for
compliance with all of Tenant's other obligations under this lease. If an event
of default, as hereinafter defined, should occur while the leased premises or
any part thereof are then assigned or sublet, Landlord, in addition to any
other remedies herein provided by law, may at its option collect directly from
such assignee or sublessee all rents becoming due to Tenant under such
assignment or sublease and apply such rent against any sums due to Landlord by
Tenant hereunder and Tenant hereby authorizes and directs any such assignee or
sublessee to make such payments of rent directly to Landlord upon receipt of
notice from Landlord. No direct collection by Landlord from any such assignee
or sublessee shall be construed to constitute a novation or a release of tenant
or any guarantor of Tenant from the further performance of its obligations
hereunder. Receipt by Landlord of rent from any assignee, sublessee, or
occupant of the leased premises shall not be deemed a waiver of the covenant in
this lease contained against assignment and subletting or a release of Tenant
under this lease. The receipt by Landlord to any such assignee or sublessee
obligated to make payments of rent shall be a full and complete release,
discharge, and acquittance to such assignee or sublessee to the extent of any
such amount of rent so paid to Landlord. Landlord is authorized and empowered,
on behalf of Tenant, to endorse the name of Tenant upon any check, draft, or
other instrument payable to Tenant evidencing payment of rent, or proceeds
therefrom, in accordance with the terms hereof. Tenant shall not mortgage,
pledge, or otherwise encumber its interest in this lease or the leased
premises.
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b. Landlord shall have the right to transfer, assign, and convey,
in whole or in part, the leased premises and any and all of its rights under
this lease, and in the event Landlord assigns its rights under this lease,
Landlord shall thereby be released from any further obligations hereunder, and
Tenant agrees to look solely to such successor in interest of the Landlord for
performance of such obligations.
18. Fire or other Casualty. If the leased premises or any part thereof
shall be damaged by fire or other casualty, Tenant shall give prompt written
notice thereof to the Landlord. In case the leased premises shall be so damaged
by fire or other casualty that destruction is fifty percent (50%) or more in
value of the leased premises or in the event of any mortgagee under a mortgage
or deed of trust covering the leased premises should require that the insurance
proceeds payable as a result of said fire or other casualty be used to retire
the mortgage debt, Landlord may, at its option, terminate this lease and the
term and estate hereby granted by notifying Tenant in writing of such
termination within sixty (60) days after the date of such damage, in which
event the rent hereunder shall be abated as of the date of such damage. If
Landlord does not thus elect to terminate this lease, Landlord shall within
seventy-five (75) days after the date of such damage commence to repair and
restore the leased premises and shall proceed with reasonable diligence to
restore the leased premises (except that Landlord shall not be responsible for
delays outside its control) to substantially the same condition in which it was
immediately prior to the happening of the casualty, except that Landlord's
obligation to restore the leased premises shall be limited to the amount of
available insurance proceeds payable to Landlord (and Tenant agrees to pay all
costs of such restoration not covered by insurance proceeds) and except that
Landlord shall not be required to rebuild, repair, any part of Tenant's
Property (as hereinafter defined). Landlord shall not be liable for any
inconvenience or annoyance to Tenant or injury to the business of Tenant
resulting in any way from such damage or the repair thereof, except that,
subject to the provisions of the next sentence, Landlord shall allow Tenant a
fair diminution of rent during the time and to the extent the leased premises
are unfit for occupancy. If the leased premises are damaged by fire or other
casualty resulting from the fault or negligence of Tenant or any of Tenant's
agents, employees, or invitees, the rent hereunder shall not be diminished
during the repair of such damage, and Tenant shall be liable to Landlord for
the cost and expense of the repair and restoration of the leased premises
caused thereby to the extent such cost and expense is not covered by insurance
proceeds.
19. Condemnation. If the whole or substantially the whole of the
leased premises should be taken for any public or quasi-public use under any
governmental law, ordinance, or regulation or by right of eminent domain or
should be sold to the condemning authority under threat of condemnation so as
to render the leased premises no longer suitable as a nursing home, then this
lease shall terminate as of the date when physical possession of the leased
premises is taken by the condemning authority. In the event the portion of the
leased premises affected is used only for parking, Landlord shall have the
option of providing an equivalent number of parking spaces on other property
appurtenant to the leased premises, in which event this lease shall not
terminate. If less than the whole or substantially the whole of the leased
premises is thus taken or sold or the option in the preceding sentence is
employed by Landlord, this lease shall not be thus terminated and the rent
payable hereunder shall be diminished by an amount representing that part of
said rent as shall properly be allocable to the portion of the leased
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premises which was so taken or sold and Landlord shall, at Landlord's sole
expense, restore and reconstruct the leased premises to substantially their
former condition to the extent that the same, in Landlord's judgement, may be
feasible, but Landlord shall not in any event be required to spend for such
work an amount in excess of the amount received by Landlord as compensation or
damages (over and above amounts going to the mortgage of the property taken)
for the part of the leased premises so taken. Landlord shall be entitled to
receive all of the compensation awarded upon a taking of any part or all of the
leased premises including any award for the value of any unexpired term of this
lease and Tenant shall not be entitled to and expressly waives all claim to any
such compensation; except however, that nothing contained herein shall be
construed to preclude Tenant from prosecuting any claim directly against the
condemning authority in such condemnation proceedings for loss of business or
depreciation to, damage to, or cost of removal of, or for the value of,
personal property belonging to Tenant.
20. Waiver of Subrogation. Each party hereto waives any and every
claim which arises or may arise in its favor and against the other party hereto
during the term of this lease or any extension or renewal thereof for any and
all loss of, or damage to, any of its property which loss or damage is covered
by valid and collectable fire and extended coverage insurance policies, to the
extend that such loss or damage is recovered under said insurance policies.
Said waivers shall be in addition to, and not in limitation or derogation of,
any other waiver or release contained in this lease with respect to any loss or
damage to property of the parties hereto. Inasmuch as the above mutual waivers
will preclude the assignment of any aforesaid claim by way of subrogation (or
otherwise) to any insurance company (or any other person), each party hereto
hereby agrees immediately to give to each insurance company which has issued to
it policies of fire and extended coverage insurance written notice of the terms
of said mutual waivers, and to have said insurance policies properly endorsed,
if necessary, to prevent the invalidation of said insurance coverage by reason
of said waivers.
21. Personal Property. Tenant will promptly replace all worn out or
obsolete Personal Property and will not, without the prior written consent of
Landlord, remove from the leased premises any Personal Property except for
temporary removal for repair or except such as is replaced by Tenant by an
article of equal suitability and value free and clear of any lien or security
interest. Any such replacements shall be a part of the Personal Property
hereunder and shall be the property of Landlord subject to the terms of this
lease. Tenant may place other personal property on the leased premises and,
except for property replacing Personal Property, any such personal property
shall be the property of Tenant (said property herein sometimes called
"Tenant's Property"). Any personal property which is affixed by Tenant to the
building or other improvements constituting the leased premises shall become
the property of Landlord.
22. Surrender upon Termination. At the termination of this lease,
whether caused by lapse of time or otherwise, Tenant shall at once surrender
possession of the leased premises and deliver said premises to Landlord in as
good repair and condition as at the commencement of Tenant's occupancy,
reasonable wear and tear and damage or destruction by fire or other casualty
expected, and shall deliver to Landlord all keys to the leased premises, and,
if such possession is not immediately surrendered, Landlord may forthwith enter
upon and take possession of the leased premises and expel or remove Tenant and,
subject to any applicable law, rule, or
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regulations of any governmental entity, any other person who may be occupying
said premises or any part thereof, by force, if necessary, without having any
civil or criminal liability therefor. All alterations, additions, or
improvements, whether temporary or permanent in character, made in or upon the
leased premises, either by Landlord or Tenant, and all Personal Property shall
remain on the leased premises on termination of this lease without compensation
to Tenant. All Tenant's Property may be removed by Tenant at the termination of
this lease provided that Tenant is not at that time in default under this
lease. All such removals shall be accomplished in a good workmanlike manner so
as not to damage the leased premises or the primary structure or structural
qualities of the leased premises or the plumbing, electrical lines, or other
utilities. All Tenant's Property not promptly removed after such termination
shall thereupon be conclusively presumed to have been abandoned by Tenant and
Landlord may, at its option, take over the possession of such property and
either (i) declare same to be the property of Landlord by written notice
thereof to Tenant or (ii) at the sole cost and expense of Tenant remove the
same or any part thereof in any manner that Landlord shall choose and store the
same without incurring liability to Tenant or any other person.
23. Events of Default.
a. The following events shall be deemed to be events of default by
Tenant under this lease:
(i) Tenant shall fail to pay when due any installment of the
rent hereby reserved.
(ii) Tenant shall fail to comply with any term, provision, or
covenant of this lease, other than the payment of rent and shall
not cure such failure within thirty (30) days after written notice
thereof to Tenant, provided, however, that if the default is such
that it cannot be cured within such thirty (30) day period, then
such default shall not be deemed to continue so long as Tenant,
after receiving such notice, proceeds to cure the default as soon
as reasonably possible and continues to take all steps necessary
to complete same within a period of time which, under all
prevailing circumstances, shall be reasonable. No default under
this subsection shall be deemed to continue if as so long as
Tenant shall be so proceeding to cure same in good faith or be
delayed in or prevented from curing the same by any supervening
cause or circumstance beyond the control of Tenant.
(iii) Tenant or any guarantor of Tenant's obligations hereunder
(hereinafter called "Guarantor") shall become insolvent, or shall
make a transfer in fraud of creditors, or shall commit any act of
bankruptcy or shall make an assignment for the benefit of
creditors, or Tenant or any Guarantor shall admit in writing its
inability to pay its debts as they become due.
(iv) Tenant or any Guarantor shall file a petition under any
section or chapter of the National Bankruptcy Act, as amended or
under any similar law or statute of the United States or any state
thereof, or Tenant or any Guarantor shall be adjudged bankrupt or
insolvent in proceedings filed against Tenant or any
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Guarantor thereunder; or a petition or answer proposing the
adjudication of Tenant or any Guarantor as a bankrupt or its
reorganization under any present or future federal or state
bankruptcy or similar law shall be filed in any court and such
petition or answer shall not be discharged or denied within one
hundred twenty (120) days after the filing thereof.
(v) A receiver or trustee shall be appointed for all or
substantially all of the assets of Tenant or any Guarantor or of
the leased premises or any of Tenant's Property located thereon in
any proceeding brought by Tenant or any Guarantor and shall not be
discharged within one hundred twenty (120) days after such
appointment or Tenant or such Guarantor shall consent to or
acquiesce in such appointment.
(vi) The leasehold hereunder shall be taken on execution or other
process of law in any action against Tenant.
(vii) Tenant shall abandon any substantial portion of the leased
premises.
b. If any event of default shall have occurred, Landlord shall have
the right at its election, then or at any time thereafter while such event of
default shall continue, to pursue any one or more of the following remedies:
(i) Terminate this lease by giving notice thereof to Tenant, in
which event Tenant shall immediately surrender the leased premises
to Landlord and if Tenant fails to do so, Landlord may, without
prejudice to any other remedy which it may have for possession or
arrearages in rent, enter upon and take possession of the leased
premises and expel or remove Tenant and, subject to any applicable
law, rule, or regulation of any other person who may be occupying
said premises, or any part thereof, by force, if necessary,
without having any civil or criminal liability therefore, and
Tenant hereby agrees to pay to Landlord on demand the amount of
all loss and damage which Landlord may suffer by reason of such
termination, whether through inability to relet the leased
premises on satisfactory terms or otherwise, specifically
including, but not limited to (ii) all reasonable expenses
necessary to relet the leased premises which shall include the
cost of renovating, repairing, and altering the leased premises
for a new Tenant or Tenants, advertisement, and brokerage fees and
(iii) any increase in insurance premiums caused by the vacancy of
the leased premises. Nothing contained in this lease shall limit
or prejudice the right of Landlord to prove for and obtain in
proceedings for bankruptcy or insolvency by reason of the
termination of this lease, 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, equal to, or less than the
amount of the loss or damages referred to above.
(ii) Enter upon and take possession of the leased premises and
expel or remove Tenant or, subject to any applicable law, rule or
regulation of any
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governmental entity, any other person who may be occupying said
premises, or any part thereof, by force, if necessary, without
having any civil or criminal liability therefor and, without
terminating this lease, Landlord may (but shall be under no
obligation to) relet the leased premises or any part thereof for
the account of Tenant, in the name of Tenant or Landlord or
otherwise, without notice to Tenant for such term or terms (which
may be greater or less than the period which would otherwise have
constituted the balance of the term of this lease) and on such
conditions (which may include concessions or free rent) and for
such uses as Landlord in its absolute discretion may determine and
Landlord may collect and receive any rents payable by reason of
such reletting; and Tenant agrees to pay Landlord on demand all
reasonable expenses necessary to relet the leased premises which
shall include the cost of renovating, repair, and altering the
leased premises for a new Tenant or Tenants, advertisements, and
brokerage fees, and Tenant further agrees to pay Landlord on
demand any deficiency that may arise by reason of such reletting.
Landlord shall not be responsible or liable for any failure to
relet the leased premises or any part thereof or for any failure
to collect any rent due upon any such reletting. No such re-entry
or taking of possession of the leased premises by Landlord shall
be construed as an election on Landlord's part to terminate this
lease, unless a written notice of such termination is given to
Tenant pursuant to subparagraph b.(i) above.
(iii) Enter upon the leased premises, by force if necessary,
without having any civil or criminal liability therefor, and do
whatever Tenant is obligated to do under the terms of this lease
and Tenant agrees to reimburse Landlord on demand for any expenses
which Landlord may incur in thus effecting compliance with
Tenant's obligations under this lease and Tenant further agrees
that Landlord shall not be liable for any damages resulting to
Tenant from such action, whether caused by the negligence of
Landlord or otherwise.
c. No repossession of or re-entering on the leased premises or any
part thereof pursuant to subparagraphs b.(ii) and (iii) above or otherwise and
no reletting of the leased premises or any part thereof pursuant to
subparagraph b.(ii) shall relieve Tenant or any Guarantor of its liabilities
and obligations hereunder all of which shall survive such repossession or
reentering. In the event of any such repossession or re-entering on the leased
premises or any part thereof by reason of the occurrence of an event of
default, Tenant will pay to Landlord the rent required to be paid by Tenant.
d. No right or remedy herein conferred upon or reserved to Landlord is
intended to be exclusive of any other right or remedy and each and every right
or remedy given hereunder or now or hereafter existing at law or equity or by
statute. In addition to other remedies provided in this lease, Landlord shall
be entitled to the extent permitted by applicable law, to injunctive relief in
case of the violation, or attempted or threatened violation, of any of the
covenants, agreements, conditions, or provisions of this lease, or to a decree
compelling performance of any of the covenants, agreements, conditions, or
provisions of this lease, or to any other remedy allowed to Landlord at law or
in equity.
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24. No Implied Waiver. The failure of Landlord to insist at any time
upon the strict performance of any covenant or agreement or to exercise any
option, right, power, or remedy contained in this lease shall not be construed
as a waiver or a relinquishment thereof for the future. The waiver of or
redress for any violation of any term, covenant, agreement, or condition
contained in this lease shall not prevent a subsequent act, which would have
originally constituted a violation, from having all the force and effect of an
original violation. No express waiver shall affect any condition other than the
one specified in such waiver and that one only for the time and in the manner
specifically stated. A receipt by Landlord of any rent with knowledge of the
breach of and covenant or agreement contained in this lease shall not be deemed
a waiver of such breach, and no waiver by Landlord of any provision of this
lease shall be deemed to have been made unless expressed in writing and signed
by Landlord.
25. Waiver by Tenant. Tenant hereby waives and surrenders for itself
and all claiming by, through, and under it, including creditors of all kinds,
(i) any right and privilege which it or any of them may have under any present
or future constitution statute, or rule of law to redeem the leased premises or
to have a continuance of this lease for the term hereby demised after
termination of Tenant's right of occupancy by order or judgment of any court or
by any legal process or writ, or under the terms of this lease, or after the
termination of the term of this lease as herein provided, and (ii) the benefits
of any present or future constitution, statute, or rule of law which exempts
property from liability for debt or for distress for rent, and (iii) the
provisions of any law relating to notice and/or delay in levy of execution in
case of eviction of a tenant for nonpayment of rent.
26. Attorneys' Fees and Legal Expenses. Should either party hereto
institute any action or proceeding in court to enforce any provision hereof or
for damages by reason of any alleged breach of any provision of this lease or
for any other judicial remedy, the prevailing party shall be entitled to
receive from the losing party all reasonable attorneys' fees and court costs in
connection with said proceeding.
27. Landlord's Lien. In addition to the statutory landlord's lien and
in order to secure payment of all rentals and other sums of money becoming due
hereunder from Tenant, and to secure payment of damages or loss which Landlord
may suffer by reason of the breach of Tenant of any covenant, agreement, or
condition contained herein, Tenant hereby grants unto Landlord a security
interest in and an express contractual lien upon all goods, wares, equipment,
fixtures, furniture, improvements, and other personal property of Tenant
presently or which may hereafter be situated upon the leased premises (except
such part of such property as may be exchanged, replaced, or sold from time to
time in the ordinary course of Tenant's operations) and all proceeds therefrom,
and such property shall not be removed therefrom without the consent of
Landlord until all arrearages in rent as well as any and all other sums of
money then due the Landlord hereunder shall first have been paid and discharged
and all the covenants, agreements, and conditions hereof have been fully
complied with and performed by Tenant. Upon the occurrence of an event of
default by Tenant, Landlord may, in addition to any other remedies provided
herein, enter upon the leased premises and take possession of any and all
goods, wares, equipment, fixtures, furniture, improvements, and other personal
property of Tenant situated on the leased premises, without liability for
trespass or conversion (and Tenant hereby waives any
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right to notice or hearing prior to such of possession by Landlord) and sell
the same at public or private sale, with or without having such property at the
sale, after giving Tenant reasonable notice of the time and place of any public
sale or of the time after which any private sale is being made, at which sale
Landlord or its assigns may purchase 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 five (5) days before the date of the sale. Any sale
made pursuant to the provisions of this paragraph shall be deemed to have been
a public sale conducted in a commercially reasonable manner if held in the
leased premises after the time, place, and method of sale and general
description of the type of property to be sold have been advertised in a daily
newspaper published in Dixon, Missouri, for five (5) consecutive days prior to
the date of sale. The proceeds from any such disposition, less any and all
expenses connected with the taking of possession, holding, and selling of the
property (including reasonable attorneys' fees and other expenses), shall be
applied as a credit against the indebtedness secured by the security interest
granted in the paragraph. Any surplus shall be paid to Tenant or as otherwise
required by law; and the Tenant shall pay any deficiency forthwith. Upon
request by Landlord, Tenant agrees to execute and deliver to Landlord a
financing statement in form sufficient to perfect the security interest of
Landlord in the aforementioned property and proceeds thereof under the
provisions of the Business and Commerce Code in force in the State of Missouri.
The interest herein granted being in addition and supplementary thereto.
28. Subordination. This lease and all rights of Tenant hereunder are
subject and subordinate (i) to any first lien mortgage or deed of trust,
blanket or otherwise, which does now or may hereafter affect the leased
premises (and which also affect other property) and (ii) to any and all
increases, renewals, modifications, consolidations, replacements, and
extensions of any such mortgage or deed of trust. This provision is hereby
declared by Landlord and Tenant to be self operative and no further instrument
shall be required to effect such subordination of this lease. Tenant shall,
however, upon demand at any time or times by Landlord or the holder of any lien
on the leased premises execute, acknowledge, and deliver to Landlord any and
all instruments and certificates that may be necessary or proper to more
effectively subordinate this lease and all rights of Tenant hereunder to any
such mortgage or deed of trust or to confirm or evidence such subordination. In
the event the Tenant shall fail or neglect to execute, acknowledge, and deliver
any such subordination agreement or certificate, Landlord, in addition to any
other remedies it may have, may as the agent and attorney in fact of Tenant,
execute, acknowledge, and deliver the same and Tenant hereby irrevocably
nominates, constitutes and appoints Landlord Tenants proper and legal agent and
attorney in fact for such purposes. Such power of attorney shall not terminate
on disability of the principal. Tenant covenants and agrees, in the event any
proceedings are brought for the foreclosure of any such mortgage or if the
leased premises be sold pursuant to any such deed of trust, to attorn to the
purchaser upon any such foreclosure sale or trustee's sale if so requested by
such purchaser and to recognize such purchaser as the Landlord under this
lease. Tenant agrees to execute and deliver at any time and from time to time,
upon the request of Landlord or of any holder(s) of any of the indebtedness or
other obligations secured by any of the mortgages or deeds of trust referred to
in this paragraph or any such purchaser any instrument or certificate which, in
the sole judgment of Landlord or of such holder(s) of such purchaser, may be
necessary or appropriate in any such foreclosure
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proceedings or otherwise to evidence such attornment. Tenant hereby irrevocably
appoints Landlord and the holders of the indebtedness or other obligations
secured by the aforesaid mortgages and/or deeds of trust and any such purchaser
jointly and severally the agent and attorney in fact of Tenant to execute and
deliver for and on behalf of Tenant any such instrument or certificate. Such
power of attorney shall not terminate on disability of the principal.
29. Quiet Enjoyment. Provided Tenant pays the rent payable hereunder
as and when due and payable and keeps and fulfills all of the terms, covenants,
agreements, and conditions to be performed by Tenant hereunder, Tenant shall at
all times during the lease term peaceably and quietly enjoy the leased premises
without any disturbance from Landlord, subject to the terms, provisions,
covenants, agreements, and conditions of this lease and to the subordinate, as
hereinabove set forth.
30. Notice to Landlord and Mortgagee. In the event of any act of
omission by Landlord which would give Tenant the right to damages from Landlord
or the right to terminate this lease by reason of a constructive or actual
eviction from all or part of the leased premises or otherwise, Tenant shall not
xxx for such damages or exercise any such right to terminate until (i) it shall
have given written notice of such act or omission to Landlord and to the
holder(s) of the indebtedness or other obligations secured by any first
mortgage or first deed of trust affecting the leased premises, if the name and
address of such holder (s) shall previously have been furnished to Tenant, and
(ii) a reasonable period of time for remedying such act or omission shall have
elapsed following the giving of such notice, during which time Landlord and
such holder (s), either of them, their agents or employees, shall be entitled
to enter upon the leased premise and do therein whatever may be necessary to
remedy such act or omission. During the period after the giving of such notice
and during the remedying of such act or omission, the rent payable by Tenant
for such period as provided in this lease shall be abated and apportioned only
to the extent that any part of the leased premises shall be untenantable.
31. Holding Over by Tenant. Should Tenant or any of its successors in
interest continue to hold the leased premises after the termination of this
lease, whether such termination occurs by lapse of time or otherwise, such
holding over shall constitute and be construed as a tenancy from month to month
only, at a monthly rental equal to the monthly rent provided herein at the time
of such termination hereof, Tenant shall be regarded as a tenant from month to
month; subject, however, to all of the terms, provisions, covenants, and
agreements on the part of the Tenant hereunder. No payments of money by Tenant
to Landlord after the termination of this lease shall reinstate, continue, or
extend the term of this lease and no extension of this lease after the
termination thereof shall be valid unless and until the same shall be reduced
to writing and signed by both Landlord and Tenant.
32. Estoppel Certificate and Other Information. Tenant will, at any
time and from time to time, upon not less than twenty (20) days prior request
by Landlord or holder of any first mortgage on the leased premises, execute,
acknowledge, and deliver to Landlord or such holder a statement in writing
executed by Tenant certifying that this lease is unmodified and in full effect
(or, if there have been modifications, that this lease is in full effect as
modified, and setting forth such modification) and the dates to which the rent
has been paid, and either stating that to the
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knowledge of the signer of such certificate no default exists hereunder or
specifying each such default of which the signer may have knowledge; it being
intended that any such statement by Tenant may be relied upon by any
prospective purchaser or mortgagee of the leased premises. Tenant further
agrees upon request to provide Landlord financial statements disclosing gross
revenue and rent roll to enable Landlord to receive the second portion of
funding from the holder of the first mortgage on the leased property and also
to comply with periodic financial reporting requirements made by said holder.
33. Notices. Each provision of this lease, or of any applicable
governmental laws, ordinances, regulations, and other requirements with
reference to the sending, mailing or delivery of any notice or with reference
to the making of any payment by Tenant to Landlord, shall be deemed to be
complied with then and if the following steps are taken:
a. All rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord in Sebastian County, Arkansas,
at the address hereinbelow set forth, or at such other address as Landlord may
specify from time to time by written notice delivered in accordance herewith.
b. Any notice or document required to be delivered hereunder shall
be deemed to be delivered, whether actually received or not, when deposited in
the United States mail, postage prepaid, registered mail, return receipt
requested, addressed to the parties hereto at the respective addresses set out
opposite their names below, or at such other address as they have heretofore
specified by written notice:
LANDLORD Xxxxxxx X. Xxxxxxx or
Xxxxxxx X. Xxxxxxx XX
Xxxxx CareCentre, Inc.
000 Xxxxxx Xxxxxx
X X Xxx 0000
Xxxx Xxxxx, XX 00000
TENANT Xxxxx X. Xxxxxxx
Xxxxx Oaks Health Centre, Inc.
XXX 00 Xxx 00
X.X. Xxx 00
Xxxxxx, XX 00000
34. Real Estate Commissions. Each party hereto represents to the other
that he has not authorized any broker or finder to act on his behalf in
connection with the lease hereunder and that he has not dealt with any broker
or finder purporting to act on behalf of any other party. Each party hereto
agrees to indemnify and hold harmless the other from and against any and all
claims, losses, damages, costs, or expenses of any kind or character arising
out of or resulting from any agreement, arrangement, or understanding alleged
to have been made by such party or on his behalf with any broker or finder in
connection with this lease or the transaction contemplated hereby.
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35. Severability. Each and every covenant and agreement contained in
this lease is, and shall be construed to be, a separate and independent
covenant and agreement. If any term or provision of this lease or the
application thereof to any person or circumstances shall be to any extent
invalid and unenforceable, the remainder of this lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is invalid or unenforceable, shall not be affected hereby.
36. No Merger. There shall be no merger of this lease or of the
leasehold estate hereby created with the fee estate in the leased premises or
any part thereof by reason of the fact that the same person may acquire or
hold, directly or indirectly, this lease or the leasehold estate hereby created
or any interest in this lease or in such leasehold estate as well as the fee
estate in the leased premises or any interest in such fee estate.
37. Force Majeure. Whenever a period of time is herein prescribed for
action to the taking by Landlord or Tenant, such party shall not be liable or
responsible for, and there shall be excluded from the computation for any such
period of time, any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, governmental laws, regulations, or restrictions or any
other causes of any kind whatsoever which are beyond the control of each party.
38. Gender. Words of any gender used in this lease shall he held and
construed to include any other gender, and words in the singular number shall
be held to include the plural, unless the context otherwise requires.
39. No Representations. Landlord or Landlord's agents have made no
representations or promises with respect to the leased premises except as
herein expressly set forth and no rights, easements, or licenses are acquired
by Tenant by implication or otherwise except as expressly set forth in the
provisions of this lease.
40. Entire Agreement. This lease sets forth the entire agreement
between the parties and no amendment or modification of this lease shall be
binding or valid unless expressed in writing executed by both parties hereto.
41. Paragraph Headings. The paragraph headings contained in this lease
are for convenience only and shall in no way enlarge or limit the scope or
meaning of the various and several paragraphs hereof.
42. Binding Effect. All of the covenants, agreements, terms, and
conditions to be observed and performed by the parties hereto shall be
applicable to and binding upon their respective heirs, personal
representatives, successors, and, to the extent assignment is permitted
hereunder, their respective assigns.
43. Commencement Date. The Tenant hereby agrees that the Commencement
Date shall be no later than the date of Substantial Completion as described in
paragraph 45 herein.
44. Certificate of Need. This Lease agreement is subject to the
approval or waiver of a Certificate of Need review of the Missouri Health
Facilities Review Committee.
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45. Substantial Completion. The Tenant may desire to occupy or use a
portion of the project prior to substantial completion. Substantial Completion
is hereby defined as that date, determined by the Architect (Health Care
Designers, Inc.), that the Landlord has completed the construction of the
facility. Said Substantial Completion shall include the consummation of the
Life Safety inspection by the Missouri Department of Social Services, Division
of Aging, with Life Safety deficiency items covered by a waiver by the
appropriate authority. Items or repair, touch-up and adjustments, or items that
are incomplete due to weather related causes (such items having minimal adverse
effect on occupancy) may be performed by the Landlord after the date of
Substantial Completion. The Architect shall confirm to the Landlord and Tenant,
in writing, the Notice of Substantial Completion. Tenant occupancy shall not
commence prior to a time mutually agreed to by the Landlord and Tenant.
The Landlord shall provide the temporary power, lighting and heat
necessary to accommodate the construction activities until such time as the
facility is ready to receive permanent water, gas and electric service. The
Tenant shall execute the necessary agreements and pay all deposits required by
the utility companies so as to facilitate the installation of said utilities by
the respective utility companies. The Tenant will not delay the installation of
said permanent services. The Tenant shall be responsible for the payment of all
utility bills after the installation of the permanent services.
The Landlord will reimburse the Tenant the cost of the permanent
service energy that the Landlord uses prior to Substantial Completion except
that these energy costs shall be pro-rated should the Tenant elect to occupy
any portion of the facility for endeavors such as cleaning, placement of Tenant
owned furnishings and equipment and other personal effects and other
pre-operational activities. The Tenant shall be responsible for any minimum
usage or demand charges assessed by the electric utility company.
46. Cleaning the Building. The Landlord agrees that the building will
be "Broom Cleaned" on or before the Commencement Date. Tenant may clean and wax
any time prior to the Commencement Date.
47. Lease Renewal Option. The Landlord agrees to offer the Tenant the
"First Right of Refusal" for the opportunity to renegotiate the Lease of this
facility for an additional five year period.
48. Purchase Option. The Landlord agrees to offer the Tenant the
"First Right of Refusal" for the purchase of the premises as described in
Exhibit Number One in the event the Landlord desires to sell said premises.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the date first above written.
XXXXX CARECENTRE, INC.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx, President
Corporate Seal
Signed, sealed and delivered
in the presence of:
/s/ Xxxxxx Xxxx
----------------------------
Witness
/s/ Xxxx X. Xxxxxx
----------------------------
Notary Public
My Commission Expires: ______________________
Seal
XXXXX OAKS HEALTH CENTRE, INC.
/s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx, President
Corporate Seal
Signed, sealed and delivered
in the presence of:
/s/ [Illegible]
----------------------------
Witness
/s/
----------------------------
Notary Public
My Commission Expires: ______________________
Seal
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