HOSPITAL LEASE AGREEMENT BY AND BETWEEN GR IRF I, LP AS LANDLORD, AND GLOBALREHAB, LP, AS TENANT August 28, 2007
Exhibit
10.20
08/28/07
HOSPITAL
LEASE
AGREEMENT
BY
AND BETWEEN
GR
IRF I, LP
AS
LANDLORD,
AND
GLOBALREHAB,
LP,
AS
TENANT
August
28, 2007
TABLE OF
CONTENTS
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RECITALS
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1
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1.
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Definitions
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1
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2.
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Demise
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1
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3.
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Term
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1
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4.
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Permitted
Use
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2
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5.
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Rent
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2
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5.1
Base Rent
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2
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5.2
Additional Rent
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3
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5.3
Parking
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3
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5.4
Payment of Rent
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4
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5.5
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Delinquent
Payments and Handling Charge
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5
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5.6
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Guaranty
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5
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6.
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Construction
of Improvements
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5
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6.1
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General
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5
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6.2
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Access
by Tenant Prior to Commencement Term
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6
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6.3
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Commencement
Date; Adjustments to Commencement Date
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6
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7.
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Services
to the Leased Premises
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6
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7.1
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General
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6
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7.2
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Keys
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7
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7.3
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Signage
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7
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7.4
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Operating
Hours
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8
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7.5
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Landlord
Restrictions
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8
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8.
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Repair
and Maintenance
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8
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8.1
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By
Landlord
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8
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8.2
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By
Tenant
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9
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9.
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Impositions
on Tenant’s Property
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9
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10.
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Transfer
by Tenant
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10
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10.1
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General
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10
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10.2
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Conditions
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10
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10.3
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Certain
Transfers
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11
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10.4
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Liens
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11
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11.
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Alterations
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11
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12.
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Specifically
Prohibited Uses
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13
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13.
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Access
by Landlord
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13
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14.
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Condemnation
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14
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15.
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Casualty
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14
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15.1
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General
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14
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16.
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Subordination
and Attornment
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15
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16.1
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General
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15
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16.2
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Attornment
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15
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16.3
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NonDisturbance
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16
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17.
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Insurance
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16
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17.1
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General
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16
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17.2
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Landlord’s
Insurance
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17
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17.3
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Waiver
of Subrogation
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18
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i
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17.4
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Indemnity
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18
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18.
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Third
Parties
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19
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19.
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No
Landlord’s Xxxx
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00
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00.
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Americans
with Disabilities Act
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20
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21.
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Quiet
Enjoyment
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20
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22.
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Default
by Tenant
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20
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22.1
Events of Default
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20
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22.2
Remedies of Landlord
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21
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22.3
Reletting
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22
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22.4
Landlord’s Right to Pay or Perform
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22
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22.5
Injunctive Relief; Remedies Cumulative
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22
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22.6
No Waiver; No Implied Surrender
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22
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23.
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Defaults
by Landlord
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23
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24.
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Right
of Reentry
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23
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25.
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Miscellaneous
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24
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25.1
Time of Essence
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24
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25.2
Applicable Law
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24
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25.3
Assignment by Landlord
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24
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25.4
Commencement Date and Estoppel Certificates
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24
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25.5
Signs; Complex Name and Address
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25
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25.6
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Notices
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25
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25.7
Entire Agreement; Amendment; and Binding Effect
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26
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25.8
Severability
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26
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24.9
Number and Gender; Captions and References
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26
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25.10
Attorney’s Fees
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26
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25.11
Brokers
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27
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25.12
Interest on Obligations
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27
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25.13
Dollars
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27
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25.14
Authority
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27
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25.15
Incorporation by Reference
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27
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25.16
Hazardous Waste; Bio-Hazardous Waste
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27
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25.17
Multiple Counterparts
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30
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25.18
Force Majeure
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30
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25.19
Third Party Warranties
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30
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Exhibit
A –Glossary of Defined Terms
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Exhibit
B –Legal Description of Land
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Exhibit
B-1 – Program
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Exhibit
B-2 – Responsibility Matrix
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Exhibit
C - Outline Specifications Exhibit D - Work Letter
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Exhibit
E – Renewal Terms
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Exhibit
F – Guaranty of Lease
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Exhibit
G – List of Tenant Guarantors
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ii
THIS HOSPITAL LEASE AGREEMENT
is entered as of the 28 day of August, 2007 (the “Effective Date”), by
and between GR IRF I,
LP, as Landlord; and GLOBALREHAB, LP, a Texas
limited partnership, as Tenant.
RECITALS:
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A.
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As
of Commencement Date, Landlord will be the owner of the Land described on
Exhibit B
attached hereto and made a part hereof for all purposes and is developing
on the Land the Improvements (both, as defined
herein). Landlord desires to lease to Tenant the Land and
Improvements (collectively, the “Leased
Premises”).
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B.
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Tenant
desires to lease from Landlord the entire Leased Premises for the
Permitted Use during the Term.
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C.
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Landlord
and Tenant have agreed to enter into this Lease in order to set forth the
provisions of their agreements with respect to the matters covered by this
Lease.
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In consideration of the Recitals and of
the representations, warranties, covenants, agreements, waivers, and releases
set forth in this Lease, Landlord and Tenant contract and agree as provided in
this Lease.
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1.
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Definitions. The
definitions of certain of the terms used in this Lease with initial
capital letters are set forth in the Glossary of Defined Terms attached as
Exhibit
A, attached hereto and made a part hereof for all
purposes.
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2.
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Demise. Subject
to the provisions of this Lease, Landlord hereby leases, demises and lets
to Tenant, and Tenant hereby leases from Landlord, the Leased Premises for
the Term. Upon completion of the Landlord’s Work, Landlord shall cause
Landlord’s architect to prepare an architect’s certificate setting forth
the Net Rentable Area of the Building constituting a part of the Leased
Premises.
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3.
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Term. The Term
of this Lease commences on the Commencement Date and expires at 5:00 p.m.
on the fifteenth (15th)
anniversary of the Rent Commencement Date (hereafter defined); provided
that, if the Rent Commencement Date does not fall on the first day of a
calendar month, then the Term will extend until the fifteenth (15th)
anniversary of the first day of the calendar month next following the Rent
Commencement Date. Tenant shall have the option to extend the
lease term for two (2) five (5) year periods upon the terms and conditions
set forth in Exhibit E
attached hereto and made a part hereof for all
purposes.
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1
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4.
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Permitted Use;
Continuous Use and Occupancy. Tenant will continuously occupy and
use the Leased Premises solely as a rehabilitation hospital for human
beings and any and all services related or incidental thereto or other
healthcare services as determined by Tenant. Notwithstanding the
foregoing, in the event the law changes to prohibit the use of the Leased
Premises as a hospital under Tenant’s current organizational structure or
otherwise, the Leased Premises may thereafter be used as a surgery center,
imaging center, or other licensed healthcare facility. At Landlord’s sole
expense, Landlord shall obtain and deliver to Tenant copies of (a) a
written document (the “COO”) issued by
the City of Dallas, Texas, allowing occupancy of the Leased Premises and
the Parking Area (which COO may include, without limitation, a temporary
or a permanent certificate of occupancy); and (b) (i) a Statement of
Deficiencies and Plan of Corrections and (ii) only if required by any
governmental agency for the use and occupancy of the Leased Premises, a
Fire Safety Survey Report (collectively, the “TDH Document”)
issued by the Texas Department of Health, allowing occupancy of the Leased
Premises. If the TDH Document includes any deficiencies which are
architectural, construction, or structural in nature which are required to
be corrected for Tenant’s permanent occupancy of the Leased Premises,
Landlord shall correct such deficiencies in a timely manner after
Landlord’s receipt of the TDH Document, and Landlord shall use Landlord’s
best efforts to obtain a TDH Document which does not include
architectural, construction, or structural deficiencies which are required
to be corrected for Tenant’s permanent occupancy of the Leased Premises.
At Tenant’s sole cost and expense, Tenant shall obtain any and all
licenses, permits, consents, and approvals (collectively, the “Tenant
Approvals”) required for Tenant to conduct its business at the
Leased Premises in accordance with the Permitted Use, other than the COO
and the TDH Document. Landlord shall reasonably cooperate with Tenant’s
obtaining such Tenant Approvals. Notwithstanding any other provisions of
this Lease, if the COO contains any requirements for changes to the
Building Work, at Landlord’s sole expense, Landlord shall cause such
changes to be made in a timely manner and Landlord shall use Landlord’s
best efforts to obtain a COO which does not require further changes to the
Building Work as quickly as
possible.
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To the
extent federal statutes, regulations or other federal requirements limit the
physician ownership interest in Tenant’s rehabilitation hospital in the Leased
Premises, then Landlord and Tenant will work together to obtain a buyer or a
solution that, in either case, is mutually agreeable to Landlord and Tenant for
that portion of the ownership interests in Tenant which cannot be owned by
physicians, such acquisition being on terms and conditions reasonably
satisfactory to Tenant.
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5.
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Rent.
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5.1
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Base Rent. In
consideration of Landlord’s leasing the Leased Premises to Tenant and
performing Landlord’s obligations hereunder, and subject to adjustment in
accordance with Section 5.2, commencing sixty (60) days after
the Commencement Date (the “Rent Commencement Date”), and on
the first day of each succeeding calendar month thereafter during the
Term, Tenant shall pay to Landlord all Rent as provided herein, including,
without limitation, annual Base Rent as
follows:
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2
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Initial Annual Rate
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Estimated Initial
Annual Base Rent
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Estimated Initial
Monthly Base Rent
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$29.63
per square foot of Net Rentable Area of the Leased
Premises
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$ | 1,185,307.00 | $ | 98,775.58 | ||||
The
rentable area of the Leased Premises may very from estimate included in this
Lease. Once the Leased Premises have been completed, Landlord shall
calculate the rentable area of the Leased Premises and deliver to Tenant a
written notice (the “Adjustment Notice”) of the exact rentable area in square
footage of the Leased Premises. Upon execution of the Adjustment
Notice, rentable the area of the Leased Premises as set forth in the Adjustment
Notice will replace for all purposes the square footage of the Leased Premises
otherwise set forth in this Lease and the Base Rent shall be recalculated based
upon the rentable area of the Leased Premises as set forth in the Adjustment
Notice.
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5.2
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Base Rent
Adjustments: Beginning on the first anniversary of the
Rent Commencement Date, and on each anniversary of the Rent Commencement
Date thereafter during the Term, the Base Rent then in effect shall be
increased by two percent (2%) of the Base Rent in effect immediately
preceding such anniversary.
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5.3
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Additional
Rent. For purposes of this Lease, “Additional
Rent” for any Fiscal Year (or portion thereof) means the sum of (a)
the amount expended by Landlord for Operating Expenses plus (b) all other
sums payable by Tenant hereunder, plus (c) sums, if any, payable pursuant
to the Work Letter. At or prior to the Commencement Date (for the first
Fiscal Year, or portion thereof, during the Term), and thereafter, from
time to time during the Term, Landlord shall estimate in good faith the
amount of Operating Expenses payable by Tenant for the remainder of the
Fiscal Year in which the Commencement Date occurs (for the first Fiscal
Year, or portion thereof, during the Term) and for each Fiscal Year
thereafter, during the Term. On the Commencement Date, and on the first
day of each succeeding calendar month thereafter during the Term, Tenant
shall pay to the order of Landlord, an amount equal to: (a) the
currently-estimated Operating Expenses payable by Tenant for the remainder
of the Fiscal Year in question, (b) divided by the number of whole
calendar months remaining until December 1st
of such Fiscal Year, so that, by December 1st
of each Fiscal year during the Term (including the Fiscal Year in which
the Term expires or is otherwise terminated), Tenant shall have paid all
of the Operating Expenses for such Fiscal Year, as estimated by Landlord.
Within ninety (90) days after the conclusion of each Fiscal Year during
the Term (including the Fiscal Year in which the Term expires or is
terminated), Landlord shall deliver to Tenant a statement of actual
Operating Expenses payable by Tenant for the Fiscal Year (or, with respect
to termination or expiration, the portion of the Fiscal Year) just ended.
Within thirty (30) days thereafter, Tenant shall pay to Landlord any
underpayment in Operating Expenses or Landlord shall credit against the
next installment of Base Rent and Operating Expenses payable by Tenant (or
Landlord shall refund to Tenant, if the Term has expired and all payments
due by Tenant to Landlord have been paid in full) any overpayment in
Operating Expenses payable by Tenant for such Fiscal
Year. Within ninety (90) days after receipt of such statement,
Tenant at Tenant’s expense and after giving thirty (30) days prior written
notice to Landlord, shall have the right to review and/or audit Landlord’s
books and records relating to Operating Expenses for the immediately
preceding Fiscal Year in order to verify Landlord’s annual statement of
actual Operating Expenses payable pursuant to this Lease. If any review or
audit prepared by or for Tenant reveals an overcharge by Landlord, Tenant
shall notify Landlord thereof and shall furnish Landlord with
documentation supporting any overcharge and, if Landlord does not dispute
the conclusion in such review or audit, Landlord shall promptly reimburse
Tenant for such overcharge. Notwithstanding the preceding
sentence, however, if Landlord disagrees with Tenant’s position, then
either Party may submit the dispute to arbitration in accordance with the
rules of the American Arbitration Association relating to expedited
arbitration. The determination arising out of such arbitration shall be
final, binding, and conclusive on the Parties with respect to Operating
Expenses for the Fiscal Year in question. Landlord agrees to pay Tenant’s
reasonable review or audit costs if Tenant’s review or audit, whether
accepted by Landlord or verified by arbitration, reflects an overcharge by
Landlord of more than five percent (5%) with respect to any Fiscal Year.
If Tenant fails to request an audit of Operating Expenses for any Fiscal
Year within the ninety (90) day period provided, then Tenant shall be
deemed to have irrevocably waived the right to audit the Operating
Expenses for such Fiscal
Year.
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3
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5.4
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Parking. At all
times during the Term, Tenant shall be entitled to use all parking spaces
in the Parking Area in accordance with the following terms and
conditions:
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(a)
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The
Complex will include a total of eighty (80) parking spaces, plus two (2)
loading spaces (the “Spaces”), which
number of Spaces at least complies with the minimum parking requirements
of the City of Dallas, Texas. Tenant may restrict entry to a portion of
the Spaces, to be designated by Tenant (the “Exclusive Spaces”), through
the use of limited access gates, or by other means. Such
restriction on access may be included as a part of the initial
Improvements. If Tenant restricts entry to the Exclusive Spaces
after the construction of the Improvements, then Tenant shall pay the cost
of directing the means by which such access is
limited. Further, Tenant shall be responsible for the cost of
maintenance of the means by which such limited access is achieved. Except
for the Exclusive Spaces, Tenant’s physicians, employees, patients,
invitees, and guests may be required to park in designated parking areas
on a non-discriminatory, unreserved basis. The Parking Area will be
depicted and provided for in the Construction Documents. Landlord shall
not make any modification to the Parking Area without the express prior
written consent of Tenant, which consent may be withheld in Tenant’s sole
discretion.
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4
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(b)
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Throughout
the Term of this Lease, Tenant shall pay no parking charges for Tenant’s
use of the Spaces, including without limitation the Exclusive
Spaces. Tenant may establish fees for parking in various
portions of the Parking Area; provided that, Tenant shall be solely
responsible for implementing and managing any arrangement for limiting
access to any portion of the Parking Area and the collection of any
fees.
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5.5
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Payment of
Rent. Tenant promises and agrees to pay to the order of
Landlord all Rent, including, without limitation, Base Rent and Additional
Rent, as provided herein. Except as otherwise expressly provided in this
Lease, all Rent is due and payable in advance monthly installments on the
first day of each calendar month during the Term. Rent shall be paid to
Landlord at its address recited in Section 26.6 or to such other person or
at such other address as Landlord may from time to time designate in
writing. Rent shall be paid without notice, demand, abatement, deduction,
or offset in legal tender of the United States of America. If the Term
commences or ends on a day other than the first or the last day of a
calendar month, the Rent for the partial month shall be prorated on the
basis of the number of days during the month for which the Term was in
effect. If the Term commences or ends on a day other than the first or the
last day of a Fiscal Year, the Additional Rent for the partial Fiscal Year
shall be prorated on the basis of the number of days during the Fiscal
Year for which the Term was in
effect.
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5.6
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Delinquent Payments
and Handling Charge. In the event any installment of
Rent is not paid when due, a late charge in the amount of three percent
(3%) of the delinquent sum shall be due and payable. Further,
all Rent and other payments required of Tenant hereunder shall bear
interest from fifteen (15) days after the date due therefor until the date
paid at the rate of interest specified in Section
26.12.
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5.7
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Guaranty. Contemporaneously
herewith, the Tenant Principals are executing and delivering the lease
Guaranty in the form of Exhibit F
attached hereto and made a part hereof for all
purposes.
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6.
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Construction of
Improvements.
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6.1
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General.
Subject to events of Force Majeure, Landlord shall cause the Complex to be
constructed in accordance with the terms of the Work
Letter. Performance of the Building Work constitutes Landlord’s
sole construction obligation to Tenant under this Lease. All
Building Work shall be performed in a good and workmanlike manner and at
the time of completion thereof shall substantially comply with all then
currently applicable Legal Requirements (including the ADA) to the extent
required to avoid any fines or penalties with respect
thereto.
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5
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6.2
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Access by Tenant Prior
to Commencement of Term. Landlord shall permit Tenant and its
employees, agents, contractors, and suppliers to enter the Leased Premises
prior to the Commencement Date (and such entry, alone, shall not
constitute Tenant’s taking possession of the Leased Premises for the
purpose of Section 6.3) to prepare the Leased Premises for Tenant’s
occupancy, which preparation may include, inter alia, the
installation of medical equipment by contractors, provided that, the
Building Work has progressed to a point where any such entry and work by
Tenant will not interfere with the continued performance of the Building
Work by the Contractor. Tenant and each other Person which enters the
Leased Premises before the Commencement Date shall conduct itself so as to
not unreasonably interfere with Landlord, any contractor, or any other
occupant of the Building. Any such prior entry is subject to all of the
provisions of this Lease (other than the obligation to pay Rent) and at
Tenant’s sole risk, cost, and expense. Tenant acknowledges and agrees that
Tenant and Tenant’s employees, agents, contractors, and suppliers are
required to comply with Landlord's reasonable requirements with regard to
access to the Leased Premises prior to the Commencement Date. Landlord
shall not be liable in any way for personal injury, death, or property
damage (including damage to any personal property which Tenant may bring
into, or any work which Tenant may perform in, the Leased Premises) which
any Tenant Related Party may suffer or incur as a result of any such prior
entry, unless resulting from Landlord's gross negligence or willful
misconduct. Tenant agrees to defend, indemnify and hold
harmless Landlord and any Landlord Related Party from any damages, claims
or causes of action, together with any expenses incurred in connection
therewith, arising out of any such entry into the Leased Premises by
Tenant or any Tenant Related Party prior to the Commencement
Date.
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6.3
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Commencement Date;
Adjustments to Commencement
Date.
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For
purposes of this Lease, the “Commencement Date”
means the earliest of (i) the date on which the Improvements have been
substantially completed, Landlord has received the COO and the TDH Document and
Landlord tenders possession of the Leased Premises to Tenant or (ii) the date on
which Tenant takes possession of the Leased Premises. Landlord shall
use its best efforts to give Tenant approximately ninety (90) days’ prior
written notice of the date on which Landlord expects the Commencement Date will
occur under the foregoing clause (i), which notice shall include Landlord’s
expected schedule for the Contractor’s substantial completion of the Landlord’s
Work and Landlord’s receipt of the COO and the TDH Document.
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7.
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Services to the Leased
Premises.
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7.1
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General.
Landlord is not obligated to or responsible for providing any services to
the Leased Premises. Tenant shall be solely responsible for
providing or arranging for any and all services to the Leased
Premises. The services which Tenant is obligated to provide or
arrange for include but are not limited to the
following:
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(a)
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Electrical
power and natural gas;
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(b)
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Periodic
exterior window washing in and about the Building and the Leased Premises
with such frequency as Tenant may determine is
appropriate;
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6
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(c)
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Replacement
of fluorescent lamps and/or incandescent bulbs in all parts of the
Building and/or Complex;
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(d)
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Maintenance
and electrical lighting service outside of the
Building;
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(e)
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Landscaping
and Parking Area lighting, maintenance, repair, and/or
replacement.
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(f)
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janitorial
services for the Leased Premises and to provide separate, dedicated
receptacles for Bio-Hazardous Medical Waste, all at Tenant’s sole cost,
expense, and liability; and Tenant shall take such steps as are necessary
or required by all Legal Requirements to assure that Bio-Hazardous Medical
Waste is not mixed or commingled with non-Bio-Hazardous Medical
Waste;
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(g)
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to
obtain, maintain, test, service, and have permits for any generator or
other device or facility providing emergency electrical power to the
Leased Premises, all in accordance with all Legal Requirements;
and
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(h)
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to
provide security for the Leased Premises and for all Persons while they
are using or visiting the Leased Premises as may be necessary or
appropriate and as may be required by all Legal
Requirements.
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Tenant’s
arrangement for the foregoing services, any contractors to provide such
services, the location of any facilities within the Premises to provide such
services and other details with regard to such services must be approved by
Landlord, such approval not to be unreasonably withheld or delayed.
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7.2
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Keys. Landlord
shall furnish Tenant at Landlord’s expense with up to thirty (30) keys,
and at Tenant’s expense with such additional keys as Tenant may request,
to unlock each door entering the Leased Premises. Tenant shall not
install, or permit to be installed, any additional lock on any door into
or inside the Leased Premises or make, or permit to be made, any
duplicates of keys to the Leased Premises. Landlord shall be entitled at
all times to possession of a duplicate of all keys to all doors into or
inside of the Leased Premises. All keys referred to in this Section 7.3
remain the property of Landlord. Upon the expiration or termination of the
Term, Tenant shall surrender all such keys to Landlord and shall deliver
to Landlord the combination to all locks on all safes, cabinets, and
vaults which will remain in the Leased Premises. The term “keys” as used
herein includes other locking or access devices such as access
cards. Landlord hereby acknowledges and agrees that Tenant and
its operations are subject to the provisions of the Health Insurance
Portability and Accountability Act of 1996, and its corresponding
regulations, all as amended (collectively referred to herein as “HIPAA”), and
other federal and state confidentiality statutes, and their corresponding
regulations, all as amended, concerning the privacy of medical and
business records (collectively referred to herein as the “Other Privacy
Laws”). HIPAA and the Other Privacy Laws are hereinafter
collectively referred to as the “Privacy Laws”.
Notwithstanding any other provision of this Lease, Landlord specifically
agrees (a) to allow Tenant to install locks on the space(s) in the Leased
Premises designated on the Construction Documents as the “secure” area(s),
to the extent required in order to comply with the Privacy Laws and the
Legal Requirements applicable to controlled substances; and (b) to only
access the “secure” area(s) which are subject to Legal Requirements
applicable to controlled substances or which contain records that are
subject to the Privacy Laws if necessary for Landlord to fulfill its
obligations under this Lease, and then only when accompanied by a
representative of Tenant (except in an emergency). Tenant shall notify
Landlord of any such “secure” areas. If Landlord enters the Leased
Premises and accesses any “secure” area which contains records that are
subject to the Privacy Laws, or if Landlord otherwise becomes privy to any
records that are subject to the Privacy Laws, Landlord shall take steps
reasonably necessary to preserve the confidential nature of such
records.
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7
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7.4
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Signage.
Landlord agrees to consult with Tenant with respect to the design and
location of Tenant’s signage. Any Tenant signage included in the
Construction Documents is deemed approved by Landlord. As part of the
Building Work, Landlord shall erect a monument for exterior signage in the
location shown on the Construction Documents. Such monument shall be
designed to include the name of Tenant’s business at the Leased Premises.
All exterior signage (a) must comply with all Legal Requirements and (b)
shall be fabricated, erected, and maintained at the sole cost and expense
of Tenant (including, without limitation, all required permits therefor
and all electricity used to illuminate any such signage). All interior
signage of or relating to the Leased Premises shall be installed and
maintained by Tenant at Tenant’s sole
expense
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7.5
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Operating
Hours. Subject to all Legal Requirements, the Leased Premises
(together with access thereto) shall be open twenty-four hours a day,
seven days a week.
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7.6
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Landlord
Restrictions. Landlord agrees the Building shall be
non-smoking.
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8.
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Repair and
Maintenance.
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8.1
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By Landlord.
Landlord shall not be obligated to undertake any maintenance or repairs
whatsoever, except for (a) damage resulting from a Taking (as to which
Section 14 applies) or (b) damage resulting from a casualty (as to which
Section 15.1 applies).
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8
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8.2
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By Tenant. At
Tenant’s sole cost and expense, Tenant hereby expressly assumes
responsibility to maintain the Leased Premises (including without
limitation the roof, structural portion of the Premises, exterior walls,
Building systems, landscaped areas and the Parking Area) in a clean,
operable, attractive condition, and will not commit or allow to remain any
waste or damage to any portion of the Leased Premises. Additionally, at
Tenant’s sole cost and expense, subject to Landlord’s reasonable
direction, supervision, and requirements, Tenant shall cause the repair or
replacement of any damage to the Leased Premises caused by any Tenant
Related Party. All such repairs and/or replacements shall be effected (a)
in compliance with all Legal Requirements; (b) in a manner that will not
void or affect any contractor’s or manufacturer’s warranties; (c) in a
good and workmanlike manner and (d) by contractors approved by Landlord.
If Tenant becomes aware of any need for repair or replacement of damage
with respect to the Leased Premises caused by any Tenant Related Party,
Tenant shall immediately notify Landlord thereof. If Landlord becomes
aware (by notice from Tenant or otherwise) of any need for repair or
replacement of damage to the Complex caused by any Tenant Related Party,
Landlord shall so notify Tenant in writing. In either event, Tenant shall
cause all such repairs and/or replacements to be completed within thirty
(30) days thereafter; provided, however, if such repairs or replacements
cannot be completed within such thirty (30) day period, Tenant shall cause
such repairs or replacements to be commenced within thirty (30) days after
such notice and pursued diligently and promptly to satisfactory
completion. In the event Tenant does not cause such repairs or
replacements to be timely commenced and diligently pursued to completion,
such shall be an Event of Default as provided in Section
22.1(b) and, without waiving or curing such Event of Default, Landlord may
cause such repairs and/or replacement to be made at Tenant’s expense. Upon
written demand, Tenant shall pay to Landlord all reasonable costs and
expenses paid or incurred by Landlord in making such repairs and/or
replacements, together with interest on such
amounts.
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9.
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Impositions on
Tenant’s Property. Tenant is liable for and shall pay, prior to
their becoming delinquent, all Impositions levied against Tenant’s
personal property in the Leased Premises. Tenant shall also be
liable for and shall pay directly to the taxing authority all Impositions
on the Leased Premises (specifically including, without limitation, real
estate ad valorem taxes levied against the land and
Building). Tenant shall be responsible for rendering the
property for which they are responsible for Impositions under this Section
on or before any required rendition dates under applicable Legal
Requirements. Tenant shall provide to Landlord evidence of
payment of all such Impositions payable by Tenant hereunder before the
same become delinquent (subject to Tenant’s right to contest the same as
provided in this Section 9). If any Impositions for which
Tenant is liable pursuant to this Section are included in any xxxx,
rendering, or statement received by Landlord, Landlord shall promptly
furnish to Tenant the amount of such Impositions for which Tenant is
liable, together with such supporting documentation as Landlord may have
in Landlord’s possession. Tenant may withhold payments of any Impositions
asserted directly on Tenant by any taxing authority for which Tenant is
liable so long as (i) Tenant contests its obligation to pay in accordance
with all Legal Requirements; (ii) the non-payment thereof does not pose a
threat of loss or seizure of such improvements or personal property, the
Building, or any interest of Landlord therein and (iii) Tenant provides
such collateral deposit or other security to Landlord, under such terms
and conditions, as Landlord may reasonably determine as being required to
protect the interest of Landlord (or as determined by Landlord’s lender).
At the sole cost and expense of Tenant, Landlord shall cooperate in
Tenant’s institution and prosecution of any such proceedings and will
execute such documents as may reasonably be required therefor.
The expense of such proceedings shall be borne by Tenant and any refunds
or rebates secured by Tenant shall belong exclusively to
Tenant. Tenant shall defend, indemnify and hold harmless
Landlord and Landlord’s lender from any loss, cost or expense arising out
of any such contest or proceedings. At any time during such
proceedings, if Landlord or Landlord’s lender determine that the continued
withholding of the payment of any Impositions imperils the ownership of
the Building or interest therein of Landlord or Landlord’s lender, then,
upon demand of Landlord, such Impositions shall be paid by
Tenant. In the event Tenant fails to pay such Impositions for
any reason within thirty (30) days after delivery of written demand for
such payment from Landlord, then Landlord shall have the right to make
such payment. In the event Landlord makes payment of any such
Imposition, Tenant shall reimburse Landlord for the amount so paid by
Landlord together with Interest as herein provided in Section
25.12.
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9
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10.
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Transfer by
Tenant.
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10.1
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General. Subject
to Section 10.3, without the prior written consent of Landlord, which
consent shall not be unreasonably withheld, Tenant shall not make or
suffer any Transfer. Any attempted Transfer without Landlord’s prior,
written consent is void and of no effect and constitutes an Event of
Default hereunder. If Tenant desires to make a Transfer, Tenant shall
deliver to Landlord written notice thereof not fewer than fifteen (15)
days in advance of the date on which Tenant proposes to make the Transfer,
together with the terms of the proposed Transfer and the identity of the
proposed Transferee. Landlord shall have fifteen (15) days following
Landlord’s receipt of such notice and information within which to notify
Tenant in writing whether Landlord elects, in
Landlord’s reasonable discretion, (a) to refuse to consent to
the Transfer or (b) to permit Tenant to make the proposed Transfer. If
Landlord fails to notify Tenant of its election within said period,
Landlord shall be deemed to have elected option
(a).
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10.2
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Conditions.
Except for a Transfer pursuant to Section 10.3, the following conditions
automatically apply to each Transfer, whether or not consented to by
Landlord:
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10
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(a)
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Tenant
shall execute, have acknowledged, and deliver to Landlord, and cause the
Transferee to execute, have acknowledged, and deliver to Landlord, an
instrument in form and substance acceptable to Landlord in which (i) the
Transferee adopts this Lease and assumes and agrees to perform all of the
obligations of Tenant hereunder which accrue on and after the effective
date of the Transfer, as to the portion of the Leased Premises transferred
to it; (ii) if less than all of the Leased Premises is Transferred, any
such Transfer shall be effected by a sublease and Tenant and the
Transferee shall arrange between themselves, at their expense, for access
to the portion of the Leased Premises transferred and to the portion of
the Leased Premises not transferred, as may be required by applicable
Legal Requirements (provided that any alterations required to effect such
access must be approved in writing by Landlord); (iii) in the case of any
Transfer which is effected by a sublease, the Tenant under the Lease shall
remain obligated for the performance of all obligations of Tenant under
this Lease and such sublease shall not create any privity of contract or
estate between the subtenant and Landlord (and any provisions in this
Section 10.2(a) to the contrary shall not be applicable to any such
sublease); (iv) each Transferee shall use and occupy the transferred space
solely for the Permitted Use and otherwise in accordance with all
applicable Legal Requirements and the provisions of this Lease; (v) the
Transferee under an assignment of this Lease specifically acknowledges and
agrees that the provisions of Section 16 are applicable to the Transferee;
(vi) the documentation of any Transfer constituting and assignment of this
Lease must be reasonably satisfactory to Landlord and (v) Landlord
acknowledges and agrees that upon a transfer and subject to the
Transferee’s creditworthiness and operating history being equal to or
greater than Tenant’s, as reasonably determined by Landlord, which shall
be subject to Landlord’s reasonable discretion not to be unreasonably
withheld, Tenant shall be released from all obligations of Tenant
hereunder as of the effective date of such assignment;
and
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(b)
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Tenant
shall deliver to Landlord a counterpart of all instruments relative to any
Transfer executed by all parties to such transaction (Tenant will not be
required to deliver copies of underlying merger, acquisition, purchase, or
similar documents so long as Landlord receives documents making
the Transfer and the subsequent legal structure of the
Transferee).
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10.3
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Certain
Transfers. Landlord agrees not to unreasonably withhold
or delay its consent to any proposed Transfer of this Lease to any
Affiliate of Tenant or to any Person with which or into which Tenant is
merged or which acquires all or substantially all of Tenant’s assets or
business in Dallas, Texas.
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10.4
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Liens. Tenant
shall not grant, place or suffer, or permit to be granted, placed or
suffered, against the Complex or any portion thereof or interest therein
(including, without limitation, Tenant’s leasehold interest in the Complex
pursuant to this Lease), any lien, security interest, pledge, conditional
sale contract, claim, charge, or encumbrance (whether constitutional,
contractual, or otherwise); and if any of the aforesaid does arise or is
asserted, Tenant will promptly and at Tenant’s sole cost and expense,
cause same to be released and discharged of
record.
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11.
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Alterations.
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(a)
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With
the exception of fixtures and equipment necessary or appropriate for the
Permitted Use (“Trade
Fixtures”), which are installed with the approval of Landlord,
Tenant will not make, or permit to be made, any alteration, improvement,
or addition to, or install, or permit to be installed, any fixture or
equipment in, the Leased Premises, the exterior of the Building or the
Parking Area without the prior written consent of Landlord, which consent
shall not be unreasonably withheld, conditioned, or delayed. Tenant may
remove Tenant’s Trade Fixtures, hospital supplies, movable hospital
furniture, and equipment, provided such removal is made at or prior to the
expiration of the Term and Tenant promptly causes all damage to the Leased
Premises caused by such removal to be repaired (other than
damage to interior floor coverings, ceiling tiles, or drywall
installations within the Building). Without the prior written consent of
Landlord but upon not fewer than five (5) days’ prior written notice to
Landlord, Tenant may remove Trade Fixtures installed in accordance with
this Section prior to the expiration of the Term. Tenant shall use only
Approved Contractors for any installation or removal of Trade Fixtures and
other personal property.
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11
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(b)
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All
work undertaken in connection with any improvements or alterations with
respect to the Leased Premises shall be done in a good and workmanlike
manner and in compliance with all applicable Legal Requirements; and shall
be completed free of all mechanics or materialmen’s liens. No improvement
or alteration with respect to the Leased Premises shall be undertaken
until Tenant shall have procured and paid for all required municipal and
other governmental permits and authorizations of the various municipal
departments and governmental subdivisions having
jurisdiction.
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(c)
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Subject
to Landlord’s prior written approval, at Tenant’s expense, Tenant shall
cause such additions, alterations, and improvements to be made with
respect to the Leased Premises as may be required by applicable city
ordinances and state and Federal statutes containing requirements related
to disabled persons, including, without limitation, the American with
Disabilities Act of 1990(42 U.S.C. § 794) and the Texas Architectural
Barrier Statute (Tex. Rev. Civ. Stat. Xxx. Art. 601(b) § 7.01 et seq.)
(collectively, the “ADA”).
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(d)
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All
work described in this Section 11 shall be preformed only by Landlord or
by contractors or subcontractors approved in writing by
Landlord. Tenant shall cause all contractors and subcontractors
to procure and maintain insurance coverage against such risks, in such
amounts, and with such companies as Landlord may reasonably require, and
to procure payment and performance bonds reasonably satisfactory to
Landlord covering the cost of the work. All such work shall be
performed in accordance with all requirements and in a good and
workmanlike manner so as not to damage the Leased Premises, the primary
structure or structural qualities of the Building, or plumbing, electrical
lines, or other utility transmission facility. All such work
which may affect the HVAC, electrical system, or plumbing must be approved
by, and shall be subject to inspection by, the Building’s engineer of
record.
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(e)
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Tenant
shall not permit any mechanic’s liens to be filed against the Leasee
Premises or the Complex (or any part thereof) for any work performed,
materials furnished or obligation incurred by or at the request of
Tenant. If such a lien is filed, then Tenant shall, within ten
(10) days after Landlord has delivered notice of the filing to Tenant,
either pay the amount of the lien or diligently contest such lien and
deliver to Landlord a bond or other security reasonably satisfactory to
Landlord. If Tenant fails to timely take either such action,
then Landlord may pay the lien claim without inquiry as to the validity
thereof, and any amounts so paid, including expenses and interest shall be
paid by Tenant to Landlord within ten (10) days after Landlord has
delivered to Tenant an invoice
therefore.
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12
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(f)
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Upon
the expiration or earlier termination of this Lease, Tenant shall, at
Landlord’s option, remove all additions, improvements and/or alterations
constructed or installed by Tenant during the term of this
Lease. Such removal shall be at Tenant’s expense, with all
damage to the Complex caused by such removal repaired at Tenant’s
expense.
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12.
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Specifically
Prohibited Uses. Notwithstanding any other provisions of this
Lease, Tenant will not (a) use, occupy or permit the use or occupancy of
the Leased Premises for any purpose or in any manner which is or may be,
directly or indirectly, violate of any Legal Requirement, or a public
nuisance; (b) keep, or permit to be kept, any substance in or conduct, or
permit to be conducted, any activity which emits offensive odors or
conditions into other portions of the Complex, or makes undue noise or
creates undue vibrations; (c) commit or permit to remain any waste to the
Complex; or (d) except for the Permitted Use, commit any action or
circumstance in or about the Complex, or use the Leased Premises in a
manner which, directly or indirectly, causes any Insurer to cancel or to
increase the premium or any deductible or co-insurance amount on any
insurance policy maintained by Landlord covering any portion of the
Complex or its contents. Except for the Permitted Use, if any increase in
premiums on any insurance policy results from any act of Tenant, then
Tenant shall pay such increase promptly upon demand therefor by
Landlord.
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13.
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Access by
Landlord. Subject to the provisions of Section 7.3
relating to the Privacy Laws and such other reasonable limitations as
Tenant may impose, Landlord, any Landlord’s Mortgagee, and any of their
respective employees, contractors, agents, and representatives, shall have
the right (and Landlord, for itself and all such Persons, hereby reserves
the right) to enter the Leased Premises at all hours upon reasonable prior
notice (except no such notice shall be required in any emergency) (a) to
inspect, clean, maintain, repair, replace, or alter the Leased Premises or
the Building and (b) to show the Leased Premises to prospective purchasers
or lenders (and, during the last twelve [12] months of the Term, to
prospective tenants). In an emergency, Landlord (and such Persons) may use
any reasonable means under the circumstances to open any door into or in
the Leased Premises without any liability therefor. Entry into the Leased
Premises by Landlord or any other Person identified in the first sentence
of this Section 13 for any purpose permitted herein shall not (x) entitle
Tenant to any abatement or reduction in Rent, or (y) constitute a trespass
or an eviction (constructive or otherwise), or, constitute grounds for any
claim (and Tenant hereby waives any claim) for damages for any injury to
or interference with Tenant’s business, for loss of occupancy or quiet
enjoyment, or for consequential damages, unless directly caused by the
gross negligence or intentionally wrongful conduct of any Landlord Related
Party.
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13
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14.
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Condemnation. If
(a) all of the Complex is Taken, or (b) so much of the Complex is Taken
that, in Tenant’s reasonable opinion, the remainder cannot be restored to
an economically viable, first-class rehabilitation hospital or such Taking
would interfere with Tenant’s operations of its hospital, or (c) the
awards received by Landlord as a result of any Taking with respect to the
Complex are, in Landlord’s reasonable opinion, inadequate to restore the
remainder to an economically viable, first-class rehabilitation hospital,
Landlord or Tenant may, at its election, exercisable by the giving of
written notice within ninety (90) days after the date of the Taking,
terminate this Lease as of the date of the Taking or the date Tenant is
deprived of possession of the Leased Premises (whichever is
earlier). If this Lease is not terminated as a result of a
Taking, subject to Landlord’s timely receipt of all such permits,
authorizations, consents, and approvals (governmental, Landlord’s
Mortgagee[s], or otherwise) as are required for the restoration of the
Complex, Landlord shall restore the Complex remaining after the Taking to,
as nearly as practicable, its original condition in accordance with the
Construction Documents, within twelve (12) months after such Taking.
Beginning with the Taking and thereafter during the period of restoration,
Base Rent shall be proportionately abated to the extent any portion of the
Leased Premises are rendered untenantable and, after the period of
restoration, Base Rent shall be permanently modified in the proportion
that the area, if any, of the Leased Premises Taken or otherwise rendered
untenantable bears to the area of the Leased Premises just prior to the
Taking, provided that no such claim on the part of Tenant will have the
effect of reducing the amount of any claim which could otherwise be made
by Landlord (it being expressly agreed that any claim which Tenant might
otherwise make which would reduce the award to which Landlord would
otherwise be entitled is expressly hereby waived and relinquished by
Tenant in favor of Landlord. Except as provided in the next
sentence, all awards, proceeds, compensation, and other payments from or
with respect to any Taking of the Complex or any portion thereof shall
belong to Landlord. Tenant shall have the right to assert its
own claim for, and to recover from the condemning authority,
but not from Landlord, Tenant’s damages and costs on account of any
Taking.
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15.
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Casualty.
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15.1
|
General. Tenant
shall give prompt written notice to Landlord of any casualty to the Leased
Premises of which Tenant is aware and Landlord shall give Tenant prompt
written notice of any casualty to the Leased Premises of which Landlord is
aware. If (a) the Leased Premises are partially or totally destroyed but
in Landlord’s reasonable opinion, they cannot be restored to an
economically viable, first-class rehabilitation hospital, or (b) the
insurance proceeds received by Landlord as a result of any casualty
affecting the Leased Premises are, in Landlord’s reasonable opinion,
inadequate to restore the portion of the Leased Premises remaining to an
economically viable and first-class rehabilitation hospital, then, at
Tenant’s or Landlord’s election exercisable by the giving of written
notice within sixty (60) days after the casualty, Landlord or Tenant may
terminate this Lease as of the date of the casualty or the date Tenant is
deprived of possession of the Leased Premises (whichever is later). If
this Lease is not terminated as a result of a casualty, subject to
Landlord’s timely receipt of all such permits, authorizations, consents,
and approvals (governmental, Landlord’s Mortgagee[s], Tenant, or
otherwise) as are required for the restoration of the Leased Premises,
Landlord shall restore the Leased Premises to, as nearly as practicable,
the original condition thereof in accordance with the Construction
Documents. Beginning with such casualty and thereafter during the period
of restoration, Base Rent shall be proportionately abated to the extent
any portion of the Leased Premises are rendered untenantable and, after
the period of restoration, Base Rent shall be permanently modified in the
proportion that the area, if any, of the Leased Premises remaining
untenantable after the restoration bears to the area of the Leased
Premises just prior to the
casualty.
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14
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16.
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Subordination and
Attornment.
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16.1
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General.
Subject to the provisions of Section 16.3, this Lease, Tenant’s leasehold
estate created hereby, and all of Tenant’s rights, titles, and interests
hereunder and in and to the Complex are subject and subordinate to any
Mortgage of any Landlord’s Mortgagee presently existing or hereafter
placed upon all or any portion of the Complex. However, Landlord reserves
the right, and Tenant hereby agrees with Landlord that Landlord and any
Landlord’s Mortgagee shall each have the right, exercisable by any of them
at any time upon the giving of written notice to Tenant and without any
compensation or consideration being payable to Tenant, to make this Lease,
and Tenant’s leasehold estate and rights, titles, and interests, superior
to any such Mortgage. Subject to the provisions of Section 16.3, upon the
written request by Landlord or by any Landlord’s Mortgagee to Tenant, and
without any compensation or consideration being payable to Tenant, Tenant
shall execute, have acknowledged, and deliver a recordable document (in a
form customarily required by such Landlord’s Mortgagee) confirming that
this Lease, Tenant’s leasehold estate in the Leased Premises, and all of
Tenant’s rights, titles, and interests hereunder are subject and
subordinate (or, at the election of Landlord or any Landlord’s Mortgagee,
superior) to the Mortgage benefiting such Landlord’s Mortgagee, and
containing such other provisions as any Landlord’s Mortgagee may
reasonably request.
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16.2
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Attornment.
Upon the written request of any Person succeeding to the interest of
Landlord under this Lease, provided such successor recognizes in writing
the existence of this Lease and Tenant’s rights hereunder, Tenant shall
automatically become the tenant of and attorn to such successor in
interest without any change in any of the provisions of this Lease. No
successor in interest shall be (a) bound by any payment of Rent for more
than one (1) month in advance, except payments of security for the
performance by Tenant of Tenant’s obligations under this Lease; (b)
subject to any offset, defense, or damages arising out of any default by,
or any unfulfilled obligations of, any preceding Landlord; or
(c) bound by any amendment of this Lease entered into after Tenant has
been given written notice of the name and address of a Landlord’s
Mortgagee and without the written consent of such Landlord’s Mortgagee or
such successor in interest, subject to the nondisturbance provisions of
Section 16.3. The subordination, attornment, and Mortgage protection
provisions of this Section 16 are self operative and no further
instruments of subordination, attornment, or Mortgage protection need be
required by any Landlord’s Mortgagee or successor in interest thereto.
Nevertheless, upon any written request therefor, and without any
compensation or consideration being payable to Tenant, Tenant agrees to
execute, have acknowledged, and deliver such documents (in such form as is
customarily required by such Landlord’s Mortgagee or successor in interest
thereto) as may reasonably be requested from time to time to confirm the
same.
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15
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16.3
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Non
Disturbance. Any Landlord’s Mortgagee (and any other
Person succeeding to Landlord’s interest in the Leased Premises) whose
lien is to be superior to the rights of Tenant under this Lease shall
agree that if, by dispossession, foreclosure, or otherwise, a Landlord’s
Mortgagee, or such successor in interest, comes into possession of the
Complex or any portion thereof or interest therein or the Leased Premises,
or takes over the rights of Landlord in the Complex or any portion thereof
or interest therein or the Leased Premises, such Person will not disturb
the possession, use, or enjoyment of the Leased Premises by Tenant, nor
disaffirm this Lease or Tenant’s rights or estate hereunder, so long as no
uncured Event of Default exists and the obligations of Tenant are fully
performed in accordance with the terms of this Lease. As a condition to
Tenant’s execution and delivery of any document required to be executed by
Tenant pursuant to Sections 16.1 and 16.2, each Landlord’s Mortgagee or
other Person succeeding to Landlord’s interest in the Leased Premises
requesting any such document from Tenant shall simultaneously execute and
deliver a recordable document (in such form as is customarily executed and
delivered by such Landlord’s Mortgagee or other Person succeeding to
Landlord’s interest in the Leased Premises) confirming such
non-disturbance obligations any time Tenant is required to execute and
deliver the documents described in Sections 16.1 and/or
16.2.
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17.
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Insurance.
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17.1
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General. Tenant
shall obtain and maintain throughout the Term (and not fewer than ten [10]
Business Days prior to any entry upon the Leased Premises by any Tenant
Related Party which occurs prior to the Commencement Date) the following
policies of insurance:
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(a)
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Causes
of Loss – Special form insurance covering all property of every kind and
description owned by Tenant or for which Tenant is legally liable, or
installed by or on behalf of Tenant at the Leased Premises (other than the
Building Work up to the amount of Landlord’s Costs), in an amount not less
than the full replacement cost thereof, from time to time, with a
deductible not exceeding one percent (1%) of the full replacement cost
thereof;
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(b)
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commercial
general liability insurance, including fire legal liability and
contractual liability coverage, against claims for personal injury, death,
and property damages occurring in or about the Leased Premises, with a
combined single limit of not less than (i) $1,000,000 for
personal injury, bodily injury, and property damage with respect to any
one occurrence; (ii) $2,000,000 annual aggregate; and (iii) $1,000,000 in
respect of any instance of property damage (which insurance shall be
written on an occurrence basis);
and
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16
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(c)
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worker’s
compensation insurance as required by law, as well as employers liability
insurance in the amount of $1,000,000.00 per
accident.
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Not fewer
than ten (10) Business Days prior to any entry upon the Complex by any Tenant
Related Party (pursuant to Section 6.2 or otherwise), Tenant shall obtain and
deliver to Landlord the insurance policies described in (a), (b) and (c),
above. Additionally, prior to the Commencement Date, Tenant shall
deliver to Landlord certificates of all insurance required by this Section 17.1
and shall, at all times during the Term, deliver to Landlord upon written
request evidence of said insurance policies. The policy described in clause (b)
shall name Landlord and each Landlord’s Mortgagee of which Tenant has notice as
an additional insured. All insurance policies required pursuant to this Section
17.1 shall provide that they will not be cancelled or reduced in value (except a
reduction in policy aggregate due to incurred claims), without thirty (30) days’
prior written notice to Landlord, and are primary coverage, so that any
insurance coverage obtained by Landlord shall be in excess
thereto. Tenant shall deliver to Landlord certificates of renewal not
fewer than fifteen (15) days prior to the expiration date of each such policy
and evidence of renewal or replacement insurance prior to terminating any such
policies. Tenant shall cause its insurance company to name, as additional
insureds on the commercial general liability policy, Landlord, each Landlord’s
Mortgagee, Landlord's property management company, and such other Affiliates and
agents of Landlord as Landlord may from time to time designate.
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17.2
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Landlord’s
Insurance. Landlord shall obtain and maintain throughout the Term
the following policies of
insurance:
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(a)
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Causes
of Loss – Special form insurance covering the Complex (including but not
limited to the Building), but excluding any property insured by Tenant
under Section 17.1(a), in an amount not less than the full replacement
cost thereof and with a deductible not exceeding one percent (1%) of the
full replacement cost thereof; and
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(b)
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commercial
general liability insurance against claims for personal injury,
death, and property damage occurring in or about the Complex, such
insurance to afford protection to the limits of (i) not less than
$1,000,000 in respect to injury to or death of any number of persons
arising out of any one occurrence; (ii) $2,000,000 annual aggregate
coverage; and (iii) $1,000,000 in respect to any instance of property
damage.
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Prior to
the Commencement Date, Landlord shall deliver to Tenant certificates of such
insurance and during the Term, Landlord shall deliver to Tenant evidence of said
insurance policies. The policies described shall provide that they
will not be cancelled or reduced in value (except a reduction in policy
aggregate due to incurred claims), without thirty (30) days' prior written
notice to Tenant.
17
Additionally,
during performance of the Building Work and the Landlord’s Work, Landlord shall
require Landlord’s contractors performing such work to obtain (or Landlord shall
obtain) policies of builder’s risk insurance covering the insurable value of
such work, and Landlord shall furnish evidence of such insurance to Tenant upon
Tenant’s written request therefor.
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17.3
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Waiver of
Subrogation. On behalf of themselves and their respective Insurers,
Landlord and Tenant hereby waive all claims, rights of recovery, and
causes of action that either Party or any Person claiming by, through, or
under such Party may now or hereafter have by subrogation or otherwise
against the other Party or against any of the other Party’s officers,
directors, managers, members, partners, or employees for any loss or
damage that may occur to the Complex, the Leased Premises, Tenant’s
leasehold improvements, or any of the contents of any of the forgoing by
reason of fire or other casualty, or by reason of any other cause except
gross negligence or willful misconduct (thus including simple negligence
of the Parties hereto or their officers, directors, shareholders, or
partners), that could have been insured against under the terms of (a) in
the case of Landlord, the “special” form property insurance policy
required pursuant to Section 17.2(a) and (b) in the case of Tenant, the
“special” form property insurance policy required pursuant to Section
17.1(a); provided, however, that the waiver set forth in this Section 17.3
shall be ineffective against any Insurer of Landlord or Tenant to the
extent that the waiver is prohibited by the laws or insurance regulations
of the State of Texas or would invalidate any insurance coverage of
Landlord or Tenant. Landlord and Tenant hereby agree to cause (if
available) an endorsement to be issued to their respective insurance
policies recognizing this waiver of
subrogation.
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17.4
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Indemnity.
TENANT SHALL DEFEND,
INDEMNIFY, AND HOLD HARMLESS LANDLORD AND ITS AGENTS FROM AND AGAINST ALL
CLAIMS, DEMANDS, LIABILITIES, CAUSES OF ACTION, SUITS, JUDGMENTS, AND
EXPENSES (INCLUDING ATTORNEYS’ FEES) FOR ANY LOSS ARISING FROM ANY
OCCURRENCE ON THE LEASED PREMISES OR FROM TENANT’S FAILURE TO PERFORM ITS
OBLIGATIONS UNDER THIS LEASE (OTHER THAN A LOSS ARISING FROM THE SOLE OR
GROSS NEGLIGENCE OF LANDLORD OR ITS AGENTS), EVEN THOUGH CAUSED OR ALLEGED
TO BE CAUSED BY THE JOINT, COMPARATIVE, OR CONCURRENT NEGLIGENCE OR FAULT
OF LANDLORD OR ITS AGENTS, AND EVEN THOUGH ANY SUCH CLAIM, CAUSE OF
ACTION, OR SUIT IS BASED UPON OR ALLEGED TO BE BASED UPON THE STRICT
LIABILITY OF LANDLORD OR ITS AGENTS. THIS INDEMNITY PROVISION
IS INTENDED TO INDEMNIFY LANDLORD AND ITS AGENTS AGAINST THE CONSEQUENCES
OF THEIR OWN NEGLIGENCE OR FAULT AS PROVIDED ABOVE WHEN LANDLORD OR ITS
AGENTS ARE JOINT, COMPARATIVELY, OR CONCURRENTLY NEGLIGENT WITH
TENANT. THIS INDEMNITY PROVISION SHALL SURVIVE TERMINATION OR
EXPIRATION OF THIS LEASE.
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18
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18.
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Third Parties.
Notwithstanding any other provisions of this Lease, Landlord shall have no
responsibility or liability to Tenant, or to Tenant’s officers, managers,
members, or partners (all of the foregoing in their respective capacity as
such) for bodily injury, death, property damage, business interruption,
loss of profits, loss of trade secrets, or other direct or consequential
damages occasioned by (a) the acts or omissions of any other tenant of the
Complex, or such other tenant’s officers, directors, shareholders,
partners, employees, agents, contractors, invitees, or guests; (b) Force
Majeure; (c) vandalism, theft, burglary, or other criminal acts (other
than those committed by Landlord or its employees); and (d) after the
issuance of the COO and the TDH Document, and except for (i) any
deficiencies noted therein which Landlord is required to correct, (ii) the
“punch list” items pursuant to the Work Letter, and (iii) any latent
defects, the repair, replacement, maintenance, damage, or destruction of
the Leased Premises, unless the damages to the Leased Premises are caused
by the negligence of Landlord and then only to the extent of the actual
cost of repair or replacement.
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19.
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Landlord’s
Lien. In addition to the statutory landlord’s lien,
Tenant grants to Landlord, to secure performance of Tenant’s obligations
hereunder, a security interest in all of Tenant’s equipment, fixtures,
furniture, improvements, inventory, accounts, general intangibles,
instruments, chattel paper, electronic chattel paper, investment property,
health care insurance receivables, and Goods (as defined in Article 9 of
the Texas Uniform Commercial Code of the state in which the Building is
located) now or hereafter acquired by Tenant, and all proceeds therefrom
(the “Collateral”). The
Collateral shall not be removed from the Leased Premises without the
consent of Landlord until all obligations of Tenant have been fully
performed. Upon the occurrence of an Event of Default, Landlord
may, in addition to all other remedies, without notice or demand except as
provided below, exercise the rights afforded a secured party under the
Uniform Commercial Code of the State in which the Building is located (the
“UCC”). In
connection with any public or private sale under the UCC, Landlord shall
give Tenant ten (10) days prior written notice of the time and place of
any public sale of the Collateral or of the time after which any private
sale or other intended disposition thereof is to be made, which is agreed
to be a reasonable notice of such sale or other
disposition. Tenant upon request of Landlord will execute an
appropriate financing statement and in the event Tenant fails to promptly
execute such a financing statement, Tenant grants to Landlord a power of
attorney to execute and file any financing statement or other instrument
necessary to perfect Landlord’s security interest under this Section 19,
which power is coupled with an interest and shall be irrevocable during
the Term. Landlord may also file a copy of this Lease as a
financing statement to perfect its security interest in the
Collateral. However, so long as no default shall exist in the
performance of Tenant’s obligations under this Lease, Landlord agrees to
subordinate the security interest herein granted and the statutory
landlord’s lien to any security interests which Tenant may grant in
Tenant’s equipment, fixtures, furniture, improvements, inventory,
accounts, general intangibles, instruments, chattel paper, electronic
chattel paper, investment property, health insurance receivables and Goods
as security for the acquisition cost thereof or any operating line of
credit utilized to finance the cost of Tenant’s operations in the Leased
Premises.
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19
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20.
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Americans with
Disabilities Act. Landlord agrees that to the extent required by
the ADA, Landlord will construct the improvements to the Leased
Premises in substantial compliance with the ADA to the extent required to
avoid any fines or penalties with respect thereto. Subject to Landlord’s
compliance with the preceding sentence, all capital costs incurred by
Landlord after the Commencement Date for ADA compliance (as a result of
changes in the ADA or otherwise) shall be included in Operating Expenses
on a depreciated basis in accordance with generally accepted accounting
principles. Tenant alone is responsible for compliance with the ADA in the
Leased Premises after the Commencement Date; provided, however, Tenant is
not responsible for any such ADA compliance which is required because of
Landlord's failure to substantially comply with the ADA as of the
Commencement Date.
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21.
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Quiet
Enjoyment. Provided Tenant timely pays the Rent and all
other sums required herein and timely performs all of Tenant’s other
obligations pursuant to this Lease, Tenant shall and may peaceably and
quietly have, hold, occupy, use, and enjoy the Leased Premises for the
Permitted Use during the Term, subject to the provisions of this Lease.
Landlord agrees to warrant and forever defend Tenant’s right to occupy the
Leased Premises against the claims of all Persons whomsoever lawfully
claiming the same or any part thereof, by, through, or under Landlord, but
not otherwise, subject to the provisions of this
Lease.
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22.
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Default by
Tenant.
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22.1
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Events of
Default. Each of the following occurrences constitutes an “Event of
Default”:
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(a)
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The
failure of Tenant to pay Rent as and when due hereunder and the
continuance of such failure for a period of fifteen (15) days after
written notice from Landlord or any Landlord’s Mortgagee to Tenant
specifying the failure; provided, however, after Tenant has received
written notice pursuant to this Section 23.1(a) on two (2) separate
occasions in any calendar year, no further notice to Tenant shall be
required under this Section 23.1(a);
or
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(b)
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The
failure of Tenant to perform, comply with, or observe any other agreement,
obligation, or undertaking of Tenant, or any other term, condition, or
provision, in this Lease, including, without limitation, the provisions of
Section 8.2, and the continuance of such failure for a period of thirty
(30) days after written notice to Tenant specifying the failure, provided
that, in the event the performance, compliance with, or observation of the
agreement, obligation, or undertaking of Tenant requires more than thirty
(30) days, then such thirty (30) day period shall be extended to an
aggregate period of ninety (90) days if Tenant commences a cure of the
default within ten (10) calendar days after Tenant’s receipt of notice
thereof and diligently pursues such cure of the default to completion;
or
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20
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(c)
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The
abandonment of the Leased Premises by Tenant or the failure of Tenant to
occupy and utilize the Leased Premises for the use permitted hereunder for
thirty (30) consecutive days the Leased Premises or any significant
portion thereof; or
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(d)
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The
filing of a petition by Tenant (i) in any bankruptcy or other insolvency
proceeding, (ii) seeking any relief under the Bankruptcy Code or any
similar debtor relief law, or (iii) for the appointment of a liquidator or
receiver for all or substantially all of Tenant’s property or for Tenant’s
interested in this Lease; or
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(e)
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The
filing of a petition of the type described in Section 23.1(d) against
Tenant and the failure of such case to be dismissed within one hundred
fifty (150) days after the filing thereof;
or
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(f)
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The
admission by Tenant in writing that it cannot pay its debts as they become
due or the making by Tenant of an assignment for the benefit of its
creditors.
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22.2
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Remedies of
Landlord. Upon any Event of Default, and at any time thereafter
while any Event of Default remains uncured, Landlord may, at Landlord’s
option and in addition to all other rights, remedies, and recourses
available to Landlord at law, in equity, or pursuant to this Lease, do any
one (1) or more of the following:
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(a)
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Terminate
this Lease by written notice to Tenant, in which event Tenant shall
immediately vacate the Leased Premises and shall simultaneously pay to
Landlord the sum of (i) all Rent and other amounts accrued hereunder to
the date of termination and (ii) all reasonable costs;
and/or
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(b)
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Without
terminating this Lease, terminate Tenant’s right to possession of the
Leased Premises by written notice to Tenant, in which event Tenant shall
immediately vacate the Leased Premises and shall simultaneously pay to
Landlord (i) all Rent and other amounts accrued hereunder to the date of
termination of possession; (ii) all amounts due from time to time under
Section. 23.3; and (iii) all Rent and other sums required hereunder to be
paid by Tenant during the remainder of the Term as the same become due,
diminished by any net sums thereafter received by Landlord through
reletting the Leased Premises during said period. Reentry by Landlord in
the Leased Premises will not affect the obligations of Tenant hereunder
for the unexpired Term. Landlord may bring actions against Tenant to
collect amounts due by Tenant on one or more occasions, without the
necessity of Landlord’s waiting until expiration of the Term. If Landlord
elects to proceed under this Section 23.2(b), Landlord may at any time
elect to terminate this Lease pursuant to Section 23.2(a);
and/or
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(c)
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Subject
to the provisions of Section 23.6, exercise any other right or remedy
available to Landlord pursuant to this Lease, at law, or in
equity.
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21
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22.3
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Reletting. Upon
termination of this Lease or upon termination of Tenant’s right to
possession of the Leased Premises, Landlord shall make reasonable attempts
to relet the Leased Premises, for such period, to such tenant(s), and for
such uses and purposes as Landlord, in the exercise of its sole discretion
acting in good faith, may choose. Tenant shall not be entitled to any rent
obtained by reletting in excess of the Rent herein reserved except as a
credit against amounts due under Section 23.2
..
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22.4
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Landlord’s Right to
Pay or Perform. Upon an Event of Default, without obligation to do
so and without thereby waiving or curing such Event of Default, Landlord
may pay or perform (or attempt to pay or perform) the underlying
obligation for the account of Tenant, and enter the Leased Premises and
expend the Security Deposit and other sums for such purpose. All sums, if
any, expended by Landlord pursuant to this Section 23.4 are due and
payable by Tenant to Landlord immediately upon demand, shall be considered
Rent, and shall bear interest as provided in Section
26.12.
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22.5
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Injunctive Relief;
Remedies Cumulative. Notwithstanding any other provisions of this
Lease, upon the occurrence of any Event of Default hereunder, including,
without limitation, any Event of Default specified in Section 23.1,
Landlord shall be entitled to pursue any and all remedies available to
Landlord pursuant to the provisions of this Lease, including,
without limitation, the remedies set forth in Section 23, injunctive
relief, specific performance, and/or an action to recover only Landlord’s
actual monetary damages proximately caused by Tenant hereunder. Landlord
hereby expressly waives and abandons all other rights, if any, to any
action against Tenant or any Tenant Related Party to recover
consequential, special, exemplary, treble, punitive, or any other damages,
other than actual monetary damages. Without limiting the foregoing,
Landlord may restrain or enjoin any Event of Default or threatened Event
of Default without the necessity of proving the inadequacy of any legal
remedy or irreparable harm. The rights, remedies, and recourses
of Landlord for an Event of Default are cumulative and no right, remedy,
or recourse of Landlord, whether exercised by Landlord or not, shall be
deemed to be in exclusion of any
other.
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22.6
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No Waiver; No Implied
Surrender. The provisions of this Lease may not be waived orally or
impliedly, but only by the Party entitled to the benefit of the provision
and only by an express waiver in writing. Thus, neither the acceptance of
Rent by Landlord following an Event of Default (whether known to Landlord
or not), nor any other custom or practice followed in connection with this
Lease, constitutes a waiver by Landlord of such Event of Default or any
other Event of Default. Further, any failure by Landlord to complain of
any action or inaction by Tenant, or to assert that any action or inaction
by Tenant constitutes (or would constitute, with the giving of notice
and/or the passage of time) an Event of Default, regardless of how long
such failure continues, does not extinguish, waive, or in any way diminish
the rights, remedies, and recourses of Landlord with respect to such
action or inaction. No waiver by Landlord of any provision of this Lease
or of any breach by Tenant of any obligation of Tenant hereunder shall be
deemed to be a waiver of any other provision of this Lease, or of any
other breach by Tenant of the same or any other provision of this Lease.
Any consent by Landlord to any act by Tenant requiring Landlord’s consent
shall not be deemed to render unnecessary the obtaining of Landlord’s
consent to any other act of Tenant. No act or omission by Landlord (other
than Landlord’s execution of a document acknowledging such surrender) or
Landlord’s agents, including the delivery of the keys to the Leased
Premises, shall constitute an acceptance of a surrender of the Leased
Premises.
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22
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23.
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Defaults by
Landlord.
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Except
for any delay in Landlord’s performance of any of Landlord’s obligations
hereunder caused by Force Majeure, a Landlord Default (herein so called) shall
exist under this Lease if Landlord fails to perform any of Landlord’s
obligations hereunder and said failure continues for a period of thirty (30)
days after Tenant gives Landlord (and, provided that Tenant shall have been
given the name and mailing address of any Landlord’s Mortgagee, each such
Landlord’s Mortgagee) written notice thereof specifying, with reasonable
particularity, the nature of Landlord’s default; provided, however, that if the
default cannot reasonably be cured within such thirty (30) day time period, then
such thirty (30) day period shall be extended to an aggregate period of ninety
(90) days if Landlord or any Landlord’s Mortgagee commences to cure the default
after Tenant gives such notice and thereafter diligently pursues the curing of
same to completion. Tenant’s sole and exclusive remedy for any uncured default
by Landlord hereunder, in lieu of all other remedies, at law, in equity, or
pursuant to this Lease (all of which other remedies, if any, Tenant hereby
expressly waives and abandons) shall be the right to pursue an action to recover
only Tenant’s actual monetary damages proximately caused by such default by
Landlord under this Lease.
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24.
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Right of
Reentry. Upon the expiration or termination of the Term, for
whatever cause, or upon the exercise by Landlord of its right to re-enter
the Leased Premises without terminating this Lease after an Event of
Default, Tenant shall immediately, quietly, and peaceably surrender to
Landlord possession of the Leased Premises in “broom clean” and good
order, condition, and repair, except only for ordinary wear and tear, the
provisions of Section 8.2, damage by casualty not covered by Section 15.2,
repairs to be made by Landlord pursuant to Sections 14 and 15.1, and any
condition of the Leased Premises caused by Landlord. If Tenant fails to
surrender possession as herein required, Landlord may initiate any and all
legal action as Landlord may elect to dispossess Tenant and all of its
property, and all Persons claiming by, through, or under Tenant and all of
their property, from the Leased Premises, and may remove from the Leased
Premises and store (without any liability for loss, theft, damage, or
destruction thereto, unless caused by Landlord’s gross negligence) any
such property at Tenant’s sole liability, cost, and expense. For so long
as Tenant remains in possession of the Leased Premises after such
expiration, termination, or exercise by Landlord of its re-entry right,
Tenant shall be deemed to be occupying the Leased Premises as a
tenant-at-sufferance, subject to all of the obligations of Tenant pursuant
to this Lease, except that the daily Base Rent shall be one hundred fifty
percent (150%) of the per day Rent in effect immediately prior to such
expiration, termination, or exercise by Landlord. No such holding over
shall extend the Term. If Tenant fails to surrender possession of the
Leased Premises in the condition herein required, Landlord may, at
Tenant’s expense, restore the Leased Premises to such
condition.
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23
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25.
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Miscellaneous.
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25.1
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Time of
Essence. Time is of the essence with respect to each date or time
specified in this Lease by which any performance is to
occur.
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25.2
|
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25.3
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Assignment by
Landlord. Landlord shall have the right to assign, sell, or
otherwise transfer, in whole or in part, all or any of Landlord’s rights,
titles, or interests in and to the Complex and/or this Lease. Upon any
such assignment, sale, or transfer, Landlord shall be relieved of all
unaccrued liabilities and obligations hereunder to the extent of the
interest so assigned, sold, or transferred. In the event of any such
assignment, sale, or transfer by Landlord of its interest in the Complex
(or any portion thereof) or in this Lease (other than a collateral
assignment to secure a debt of Landlord) to a successor in interest who
expressly assumes the obligations of Landlord under this Lease, Landlord
shall be released and discharged from all of its covenants and obligations
under this Lease, except obligations which have accrued prior to any sale,
assignment, or transfer, and Tenant agrees to look solely to Landlord’s
successor in interest for performance of such
obligations.
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25.4
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Commencement Date and
Estoppel Certificates.
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(a)
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From
time to time at the request of Landlord or any Landlord’s Mortgagee,
Tenant will promptly and without compensation or consideration, execute,
have acknowledged, and deliver a certificate addressed to Landlord and/or
any other Person(s) reasonably designated by Landlord, stating (i) the
Commencement Date, Rent Commencement Date and the date of expiration of
the Term; (ii) the rights (if any) of Tenant to extend or shorten the Term
or to expand or reduce the size of the Leased Premises; (iii) the Rent (or
any components of the Rent) currently payable hereunder, and the date
through which Rent is paid; (iv) whether this Lease has been amended in
any respect and attaching thereto copies of this Lease and all amendments,
if any, to this Lease; (v) whether, within the knowledge of Tenant, there
are any existing breaches or defaults by Landlord or Tenant hereunder and,
if so, stating the defaults with reasonable particularity; (vi) that the
transaction, if any, described in the request does not constitute a
default by Landlord under this Lease; and (vii) such other information
pertaining to Tenant and this Lease as Landlord, any Landlord’s Mortgagee,
or any prospective purchaser or prospective Landlord’s Mortgagee may
reasonably request.
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24
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(b)
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From
time to time at the request of Tenant, Landlord will promptly and without
compensation or consideration execute, have acknowledged, and deliver a
certificate addressed to Tenant and/or any other Person(s) reasonably
designated by Tenant, stating (i) the Commencement Date, Rent Commencement
Date and the date of expiration of the Term; (ii) the rights, if any, of
Tenant to extend or shorten the Term or to expand or reduce the size of
the Leased Premises; (iii) the Rent (or any components of the Rent)
currently payable hereunder and the date through which Rent has been paid;
(iv) whether this Lease has been amended in any respect and attaching
thereto copies of this Lease and all amendments, if any, to this Lease;
(v) whether, within the knowledge of Landlord, there are any existing
breaches or defaults by Landlord or Tenant hereunder and, if so, stating
such defaults with reasonable particularity; (vi) that the transaction, if
any, described in the request does not constitute an Event of Default
under the Lease; and (vii) such other information pertaining to Tenant and
this Lease as Tenant, or any prospective assignee of Tenant’s interest in
this Lease may reasonably request.
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25.5
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Signs; Complex Name
and Address. Subject to the provisions of Section 7.4, Landlord
shall have the right, exercisable from time to time at Landlord’s
discretion, to maintain any and all signs anywhere in the Complex, and to
change the name and street address of the
Complex.
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25.6
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Notices. All
notices and other communications authorized, permitted, or required
pursuant to this Lease must be in writing, addressed as set forth in this
Section 26.6, and sent either by prepaid United States Postal Service
first class certified mail with return receipt requested; by delivery in
person to the address of the addressees; or by prepaid nationally
recognized delivery service such as Federal Express or UPS. Notices sent
by prepaid United States Postal Service first class certified mail with
return receipt requested shall be deemed received on the date of the first
attempted delivery thereof, as shown on the United States Postal Service’s
return receipt. Notice sent by delivery in person shall be deemed received
on the Business Day delivered, if delivered before 5:00 p.m., local time,
at the address of the addressee, and if delivered after 5:00 p.m. on any
day, on the next Business Day thereafter. Notice sent by a nationally
recognized delivery service shall be deemed received on the Business Day
delivered to the addressee. Notice given in any other manner, and any
notice given to Landlord, shall be effective only upon receipt by the
intended addressee. For the purposes of notice, the address of (a)
Landlord shall be addressed 0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx
000, Xxxxxx, Xxxxx 00000-0000, Attn: ______________________; and (b)
Tenant shall be, prior to the Commencement Date, the address recited on
the signature page hereof, to the attention of the Chief Executive Officer
of Tenant Attention: Chief Executive Officer, with a copy of such notice
to 0000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention
Xxxx Xxxx. Each Party shall have the continuing right to change its
address for notice hereunder and/or add additional addresses to which
copies of notices should be sent by the giving of fifteen (15) days’ prior
written notice to the other party in accordance with this Section
26.6.
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25
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25.7
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Entire Agreement;
Amendment; and Binding Effect. This Lease constitutes the entire
agreement between Landlord and Tenant relating to the subject matter
hereof. Any and all prior and contemporaneous agreements and
understandings relating to this Lease and the relationship of Landlord and
Tenant which are not contained herein are terminated. This Lease may be
amended only by a written document duly executed by Landlord and Tenant
(and, if a Mortgage is then in effect, by the Landlord’s Mortgagee, and
any alleged amendment which is not so documented shall not be effective as
to either Party. The provisions of this Lease are binding upon and inure
to the benefit of the Parties and their respective successors and assigns,
provided; however, that this Section 26.7 does not negate, diminish, or
alter the restrictions on Transfers applicable to the Parties set forth
elsewhere in this Lease. There are no third party beneficiaries of this
Lease.
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|
|
25.8
|
Severability.
This Lease is intended to be performed in accordance with all Legal
Requirements. If any provision of Lease or the application thereof to any
Person or circumstance shall, for any reason or to any extent, be invalid
or unenforceable, but the extent of the invalidity or unenforceability
does not destroy the basis of the bargain between the Parties as contained
herein, the remainder of this Lease and the application of such provision
to other Persons or circumstances shall not be affected thereby, but
rather shall be enforced to the greatest extent permitted by
law.
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|
|
25.9
|
Number and Gender;
Captions and References. As the context of this Lease may require,
pronouns include natural persons and legal entities of every kind and
character, the singular number includes the plural and the neuter includes
the masculine and the feminine gender. Section headings in this Lease are
for convenience of reference only and are not intended, to any extent or
for any purpose, to limit or define any section hereof. Whenever the terms
“hereof,” “hereby,” “herein”, “hereunder” or words of similar import are
used in this Lease, they shall be construed as referring to this Lease in
its entirety rather than to a particular section or provision, unless the
context specifically indicates to the contrary. Any reference to a
particular “Section” shall be construed as referring to the indicated
Section of this Lease.
|
|
25.10
|
Attorneys’
Fees. If litigation is initiated by either Party against
the other relating to this Lease, then the prevailing Party on issues
related to the Lease shall be entitled to recover, in addition to all
damages allowed by law and other relief, all court cost and reasonable
attorneys’ fees incurred in connection with such
litigation.
|
26
|
25.11
|
Brokers. Each
Party hereby warrants and represents to the other Party that the
representing Party has not incurred or authorized any brokerage
commission, finder’s fees, or similar payments for which the other Party
is responsible in connection with this Lease, and each Party agrees to
defend, indemnify, and hold the other Party harmless from and against any
claim for brokerage commission, finder’s fees, or similar payment arising
by virtue of authorization of such Party, or any Affiliate of such Party,
in connection with this Lease.
|
|
25.12
|
Interest on
Obligations. Any amount due from Tenant to Landlord or
from Landlord to Tenant which is not paid when due shall bear interest at
the lesser of (a) eighteen percent (18%) per annum, (b) the
“prime rate” of interest on the date such payment is due, as set by the
largest national bank doing business in Dallas, Texas, plus an additional
five (5%) percent per annum, or (c) the maximum rate chargeable under
applicable Legal Requirements from ten (10) calendar days after the date
such payment is due until paid, but the payment of such interest does not
excuse or cure the default in
payment.
|
|
25.13
|
Dollars. As
used in this Lease, the symbol “$”means United States dollars, the lawful
currency of the United States.
|
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25.14
|
Authority. Each
Party warrants and represents to the other that the Recitals are true and
correct; that each is a duly organized or qualified and existing legal
Person, qualified to transact business and in good standing in the State
of Texas; each has full right and authority to execute, deliver, and
perform this Lease; each Person executing this Lease on behalf of a Party
was authorized to do so, and upon request of a Party; each such Person
will deliver to the other Party satisfactory evidence of his or her
authority to execute this Lease on behalf of a
Party.
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|
25.15
|
Incorporation by
Reference. All Exhibits and written addenda attached hereto are
incorporated herein for any and all
purposes.
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25.16
|
Hazardous Waste;
Bio-Hazardous Waste. Tenant warrants and represents to, and
covenants with, Landlord that:
|
|
|
(a)
|
Substance. The
term “Hazardous
Substances” used in this Lease shall mean any product, substance,
chemical, material or waste whose presence, nature, quantity and/or
intensity of existence, use, manufacture, disposal, transportation, spill,
release or effect, either by itself or in combination with the other
materials expected to be on the Premises, is either: (i)
potentially injurious to the public health, safety or welfare, the
environment or the Premises or the Building, (ii) regulated or monitored
by any governmental authority agency or third party under any applicable
statute or common law theory. Hazardous Substances shall
include, but not be limited to, hydrocarbons, petroleum, gasoline, crude
oil or any products, by-products or fractions
thereof.
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27
|
|
(b)
|
Reportable
Use. Except as required in connection with the ordinary
course of operating Tenant’s business in a manner consistent with the
Permitted Use of the Premises, Tenant shall not engage in any activity in,
on or about the Premises which constitutes a Reportable Use (as
hereinafter defined) of Hazardous Substances without the express prior
written consent of Landlord and compliance in a timely manner (at Tenant’s
sole cost and expense) with all applicable laws. “Reportable Use”
shall mean (i) the installation or use of any above or below ground
storage tank, (ii) the generation, possession, storage of, transportation,
or disposal of a Hazardous Substance that requires a permit from, or with
respect to which a report, notice, registration or business plan is
required to be filed with any governmental
authority. Reportable Use shall also include Tenant’s being
responsible for the presence in, on or about he Premises of a Hazardous
Substance with respect to which any applicable law requires that a notice
be given to persons entering or occupying the Premises, the Building or
neighboring properties. Notwithstanding the foregoing, Tenant
shall be permitted, without Landlord’s prior consent, but in compliance
with all applicable laws, to use any ordinary and customary materials
reasonably required to be used by Tenant in the normal course of Tenant’s
business on the Premises, so long as such use is not a Reportable Use and
does not expose the Premises, the Building or neighboring properties to
any meaningful risk of contamination or damage or expose Landlord to any
liability thereof. In addition, Landlord may but without any
obligation to do so, condition its consent to the use or presence of any
Hazardous Substance, activity or storage tank by Tenant upon Tenant giving
Landlord such additional assurances as Landlord, in its reasonable
discretion, deems necessary to protect itself, the public, the Premises,
the Building, the Complex and the environment against damage,
contamination or injury and/or liability therefrom or therefor, including;
but not limited to, the installation (and removal on or before Lease’s
expiration or earlier termination) of reasonably necessary protective
modifications to the Premises (such as concrete encasements); the deposit
of security in an amount reasonably determined by Landlord to be held by
Landlord under this Lease for assurance thereof; the purchase, at Tenant’s
expense, of additional insurance covering such
risks.
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|
|
(c)
|
Bio-Hazardous
Waste. At Tenant’s sole
liability, risk, cost and expense, Tenant shall provide proper receptacles
and containers for all Bio-Hazardous Medical Waste and shall make
such arrangements for the disposal of Tenant’s Bio-Hazardous Medical Waste
as shall be necessary, proper and/or required for the health and safety of
other tenants and invitees of the Premises. All such disposal
shall be in strict compliance with applicable laws and
regulations. Landlord may, but shall not be obligated to,
review and approve such arrangements, but no such review or approval shall
impose any liability on Landlord with respect to such
disposal. Landlord assumes no duty, obligation or liability
with respect to Tenant’s Bio-Hazardous Medical
Waste.
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28
|
|
(d)
|
Duty to Inform
Landlord. If Tenant knows, or has reasonable cause to
believe, that a Hazardous Substance, or a condition arising or resulting
from same, has come to be located in, on, under or about the Premises,
other than as previously consented to by Landlord, Tenant shall
immediately give written notice of such fact to
Landlord. Tenant shall also immediately give Landlord a true
copy of any statement, report, notice, registration, application, permit,
business plan, license, claim, action or proceedings given to, or removed
from, any governmental authority or private party, or persons entering or
occupying the Premises, concerning the presence, spill, release, discharge
of, or exposure to, any Hazardous Substance or Bio-Hazardous Medical Waste
or contamination in, on, or about the Premises, including but not limited
to all such documents as may be involved in any Reportable Use involving
the Premises.
|
|
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(e)
|
Indemnification of
Landlord. Tenant shall indemnify, protect, defend and
hold Landlord, its agents, employees, mortgagees and ground lessors, if
any, and the Premises and Complex, harmless from and against any and all
loss of rents and/or damages, liabilities, judgments, costs, claims,
liens, expenses, penalties, permits and attorney’s and consultant’s fees
arising out of or involving any Hazardous Substance, or storage tank
brought onto or generated at the Premises during the Term by or for Tenant
or under Tenant’s control. Tenant’s obligations under this
subparagraph shall include, but not be limited to, the effects of any
contamination or injury to person, property or the environment created or
suffered by Tenant, and the cost of investigation (including consultant’s
and attorney’s fees and testing), removal, remediation, restoration and/or
abatement thereof, or of any contamination therein involved, and shall
survive the expiration or earlier termination of this Lease. No
termination, cancellation or release agreement entered into by Landlord
and Tenant shall release Tenant from its obligations under this Lease with
respect to Hazardous Substance unless specifically so agreed by Landlord
in writing at the time of such
agreement.
|
|
|
(f)
|
Indemnification of
Tenant. Landlord shall indemnify, protect, defend and
hold Tenant harmless from and against any and all loss, damages,
liabilities, judgments, costs, claims, liens, expenses, penalties, permits
and attorney’s and consultant’s fees arising out of or involving any
Hazardous Substance or storage tank brought onto the Premises by Landlord,
or existing on the Premises as of the Commencement Date and Landlord’s
obligations under this subparagraph shall include, but not be limited to,
the effects of any contamination or injury to person, property or the
environment created or suffered by Landlord, and the cost of investigation
(including consultant’s and attorney’s fees and testing) removal,
remediation, restoration and/or abatement thereof, or of any contamination
therein involved, and shall survive the expiration or earlier termination
of this Lease. No termination, cancellation or release
agreement entered into by Landlord and Tenant shall release Landlord from
it obligations under this Lease with respect to Hazardous Substances or
storage tanks, unless specifically so agreed by Tenant in writing at the
time of such agreement.
|
29
|
|
(g)
|
Landlord
represents and warrants to Tenant as of the date hereof that to Landlord’s
current actual knowledge there is no environmental contamination of the
Land other than as disclosed in the Phase I Environmental Site Assessment
dated December 5, 2006 prepared by Environmental Analytics, Inc. (“Environmental
Report”) a copy of which Environmental Report has been provided to
Tenant; provided, however, Landlord makes no representation or warranty
regarding the accuracy of the findings, conclusions or recommendations
contained in the Environmental Report or the qualifications of the
consultant who prepared the Environmental
Report.
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|
25.17
|
Multiple
Counterparts. This Lease may be executed in two (2) or more
counterparts, each of which is an original, but all of which constitute
one (1) instrument.
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|
25.18
|
Force Majeure.
If either Party is delayed or prevented from the performance or completion
of any act required by this Lease by reason of Force Majeure, then the
performance of such act (other than the payment of money) shall be excused
for the period of the delay caused by the Force Majeure, and the period
for the performance of any such act (other than the payment of money)
shall be extended for a period equivalent to the period of such delay. Any
Party claiming a delay caused by Force Majeure must notify the other Party
in writing of the existence of its claim of a Force Majeure delay at the
next regular meeting of the Parties (which meetings are anticipated to
occur approximately monthly) but in no event later than fourteen (14) days
after the last day of the calendar month in which any such delay claimed
to be caused by Force Majeure occurred, specifying with reasonable
particularity the basis for such
claim.
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25.19
|
Third Party
Warranties. Landlord agrees that, for so long after the
Commencement Date as any third party warranties or contract rights are
enforceable, at Landlord’s option, Landlord will either (a) exercise, on
behalf of Tenant, or, (b) authorize Tenant in writing to exercise
directly, all third party warranties and contract rights issued or
available to Landlord from any contractors or suppliers installing
Landlord’s Work in the Leased Premises. Notwithstanding any other
provision of this Lease, so long as Landlord or Tenant is diligently
pursuing remedies against a credit-worthy third party with respect to any
such warranties or contract rights, Tenant’s rights, if any, to any action
against Landlord, any Landlord’s Mortgagee, or any Landlord Related Party
with respect to any construction matters are abated until the final
resolution of the actions against any such third
party.
|
30
EXECUTED as of the date and
year above first written.
|
LANDLORD
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||
|
GR
IRF I, LP
|
||
|
a
Texas limited partnership
|
||
|
By:
|
GR
IRF Managers, LLC
|
|
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A
Texas limited liability company
|
||
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0000
X. Xxxxxxx Xxxxxxxxxx
|
By:
|
/s/ X.X. Xxxxxxxxx, Xx. |
|
Suite,
300
|
Name:
|
X.X. Xxxxxxxxx, Xx. |
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Xxxxxx,
Xxxxx 00000
|
Its:
|
Manager |
31
|
TENANT
|
||||
|
Address
for notice
|
GLOBALREHAB,
LP
|
|||
|
prior
to Commencement Date:
|
a
Texas limited partnership
|
|||
|
0000
Xxxxx Xxxxx Xxxx.
|
By:
|
GH
General, Inc.
|
||
|
Suite
100
|
Its:
|
Sole
General Partner
|
||
|
Xxxxxx,
Xxxxx 00000
|
||||
|
Attention:
Chief Executive Officer
|
By:
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/s/ Xxxxxx Xxxxxxx | ||
|
Name:
|
Xxxxxx Xxxxxxx | |||
|
Title:
|
Manager | |||
32
EXHIBIT
A
GLOSSARY OF DEFINED
TERMS
|
1.
|
“ADA” has the
meaning set forth in Section 11(c) of the
Lease.
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2.
|
“Additional
Rent” means the sums specified in Section 5.3, together with all
other sums described as “Additional Rent” in the
Lease.
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3.
|
“Affiliate”,
when used with respect to any Person, the term “Affiliate” means any
Person which, directly or indirectly, controls or is controlled by or is
under common control with such Person. For the purposes of this
definition, “control”
(including the correlative meanings of the terms “controlled by” and
“under common control with”), as used with respect to any Person, means
the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, through
direct or indirect membership interests, the ownership of voting
securities, partnership interests or other equity
interests.
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4.
|
“Approved
Contractors” means the contractor or contractors designated by
Landlord to construct the Building Improvements or otherwise approved in
writing by Landlord.
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5.
|
“Base Rent”
means the amount specified in Section 5.1, as adjusted in accordance with
Section 5.2.
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6.
|
“Base Rent
Adjustment” means the increase in the annual Base Rent, as set
forth in Section 5.2(a).
|
|
7.
|
“Building” means
the two (2) story building containing approximately 40,000 rentable square
feet existing on the Land. The term “Building” includes all fixtures and
appurtenances in and to the aforesaid structure, including specifically,
but without limitation, all above grade walkways and all electrical,
mechanical, plumbing, security, elevator, boiler, HVAC, telephone, water,
gas, storm sewer, sanitary sewer and all other utility systems and
connections, all life support systems, sprinklers, smoke detection and
other fire protection systems, and all equipment, machinery, shafts,
flues, piping, wiring, ducts, duct work, panels, instrumentation and other
relating thereto.
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|
8.
|
“Building
Standard”, when applied to any item, means the specifications
therefor as provided in the final plans and specifications for the
Building “shell” (i.e., excluding all demised space in the Building, and
all leasehold improvements therein); and when applied to any service,
means the level of service for such service in first-class acute care
hospital in the vicinity of the
Complex.
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|
9.
|
“Building Work”
shall mean the work required to be completed by Landlord under the
approved Construction Documents.
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10.
|
“Business Day”
means any Monday, Tuesday, Wednesday, Thursday, or Friday, unless any such
day is a Holiday.
|
Exhibit A
- Page 1
|
11.
|
“Commencement
Date” means the date of the commencement of the Term as determined
pursuant to Section 6.3.
|
|
12.
|
“Construction
Documents” has the meaning set forth in Section 1(c) of the Work
Letter.
|
|
13.
|
“Complex” means
the Land and all improvements thereon, including, without limitation, the
Building.
|
|
14.
|
“Exclusive
Space” shall have the meaning set forth in Section
5.4(a)
|
|
15.
|
“Fiscal Year”
means a period of twelve (12) months beginning on the first day of each
January and ending on the next following 31st
day of December.
|
|
16.
|
“Force Majeure”
means any strike, lockout, or other labor or industrial slowdown or
activity (whether or not on the part of employees of either Party, any
contractor, or otherwise), terrorist act or threat, civil disturbance, war
(declared or de
facto), act of any public enemy, riot, sabotage, blockade, embargo,
quarantine, future valid order of any government, court, or regulatory
body claiming jurisdiction, failure or inability to secure materials,
equipment, or labor by reason of priority or similar regulation, order,
decree, or proclamation of any executive, legislative, or judicial
governmental or regulatory body, lightning, earthquake, fire, storm,
hurricane, tornado, flood, washout, explosion, act of God, or any cause
whatsoever, whether or not similar or dissimilar to those enumerated
above, beyond the reasonable control of the Party alleging Force Majeure
as an exception to such Party's performance pursuant to this Lease,
expressly including, without limitation, any delay caused by the other
Party to the Lease, or any officer, director, shareholder, partner,
employee, agent, contractor, or Affiliate of such Party; provided,
however, lack of funds by a Party does not constitute a cause beyond the
control of such Party.
|
|
17.
|
“Holidays” shall
mean (a) New Year’s Day, Good Friday, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day and Christmas Day, and (b) other days which
are designated by Landlord. If the Holiday occurs on a Saturday or Sunday,
the Friday preceding or the Monday following may, at Landlord’s
discretion, be observed as a
Holiday.
|
|
18.
|
“HVAC” means the
heating, ventilation and air conditioning of the Building, including all
systems and components thereof.
|
|
19.
|
“Impositions”
means (a) all real estate, personal property, rental, water, sewer,
transit, use, occupancy and other taxes, assessments, charges, excises,
and levies (including any interest, costs or penalties with respect
thereto), general and special, ordinary and extraordinary, foreseen and
unforeseen, of any kind or nature whatsoever which are assessed, levied,
charged, or imposed by any governmental or quasi-governmental authority
upon or with respect to any Rent or the Complex, or any portion thereof,
or the sidewalks, streets, or alley ways adjacent thereto, or the
ownership, use, occupancy, or enjoyment thereof; and (b) all charges for
any easement, license, permit, or agreement maintained for the benefit of
the Complex. “Impositions” shall not include income taxes, estate and
inheritance taxes, excess profit taxes, franchise taxes, taxes imposed on
or measured by the income of Landlord, and taxes imposed on account of the
transfer of ownership of the Complex or any interest therein or part
thereof. If any or all of the Impositions are discontinued and, in
substitution therefor, taxes, assessments, charges, excises or impositions
are assessed, levied, charged or imposed wholly or partially on the Rent
received or payable hereunder (a “Substitute
Imposition”), then the Substitute Imposition shall be deemed to be
included in the term “Impositions”.
|
Exhibit A
- Page 2
|
20.
|
“Improvements”
has the meaning set forth in Section 1(d) of the Work
Letter.
|
|
21.
|
“Insurers” means
the agents and underwriters who issue any policies of insurance (including
payment, performance, fidelity, appeal, surety, and other bonds) with
respect to the Complex, the Leased Premises, Landlord, Tenant, or any
physician practicing in the Leased Premises, and all other groups,
organizations, and bodies establishing or suggesting insurance rates or
provisions with respect to the Complex, the Leased Premises, Landlord, or
Tenant.
|
|
22.
|
“Land” means the
real property on which the Building is located and which is further
described on Exhibit B
hereto.
|
|
23.
|
“Landlord’s
Mortgagee” means the mortgagee of any Mortgage encumbering
Landlord’s interest in the Complex, and the beneficiary of any deed of
trust encumbering Landlord’s interest in the Complex, as now or hereafter
in existence covering all or any portion of the Leased Premises, and their
respective successors, assigns, and
purchasers.
|
|
24.
|
“Landlord Related
Party” means Landlord, any Affiliate of Landlord, any employee,
shareholder, partner, member, officer, director, agent, attorney,
contractor, or licensee of Landlord, or of any Affiliate of Landlord, and
the legal representatives, successors, assigns, and permitted transferees
of any of the foregoing.
|
|
25.
|
“Lease” means
this Lease, as renewed, modified, extended, and/or amended in
accordance with Section 3.
|
|
26.
|
“Leased
Premises” means the Land and all improvements constructed by
Landlord pursuant to this Lease, including without limitation the
Building. The estimated Net Rentable Area of the Leased Premises is 40,000
square feet and is shown on Exhibit C
hereto. Once architect’s plans for the Building are available, and
Construction Documents for the Leased Premises have been approved in
accordance with the Work Letter, then floor plans and a site plan of the
Leased Premises shall be initialed by the Parties, shall specifically
state that it is the substitute Exhibit C
contemplated hereby, and shall be attached hereto as Exhibit C and
in substitution for the Exhibit C
attached hereto as of the Effective
Date.
|
Exhibit A
- Page 3
|
27.
|
“Legal
Requirements” means (a) all federal and state of Texas
constitutions, statutes, laws, rules, regulations, orders, ruling,
judicial decisions, court decrees, injunctions, writs, ordinances,
certificates of occupancy, licenses, permits, variances, waivers,
consents, directions, promulgations, directives, and requirements of all
federal, state, county, regional, city, and other governmental authorities
now or hereafter pertaining to Landlord (as relating to the Complex),
Tenant, the Lease, the Leased Premises, the Complex, Tenant’s Permitted
Use of the Leased Premises, and/or Tenant’s business conducted in or from
the Leased Premises; (b) all covenants, conditions, restrictions, and
other matters, recorded or otherwise, now or hereafter affecting or
relating to the Complex, the Permitted Use, or the Leased Premises,
regardless of when same become effective, so long as such matters which
hereafter become effective do not materially and adversely affect Tenant’s
Permitted Use of the Leased Premises; (c) all applicable federal, state,
county, and city laws, regulations, and ordinances now or hereafter
pertaining to air quality, water quality, Hazardous Substances,
Bio-Hazardous Medical Waste, air emissions, utility conservation, and
other environmental matters; (d) all zoning and other land use matters;
(e) utility and parking availability and usage requirements; (f) the
directions of any public officials which now or hereafter impose any duty
upon Landlord or Tenant with respect to the ownership, operation,
management, maintenance, use, or occupancy of the Leased Premises or the
Complex; and (g) the requirements of all
Insurers.
|
|
28.
|
“Mortgage” means
any mortgage, deed of trust, or instrument for the benefit of any
Landlord’s Mortgagee, including all renewals, extensions, and
rearrangements thereof and all obligations thereunder and/or secured
thereby.
|
|
29.
|
“Net Rentable
Area” means the area determined pursuant to the Work Letter. The
Net Rentable Area of the Leased Premises is estimated to be 40,000 square
feet. Such measurements are subject to revision following substantial
completion of construction and field verification based on the standards
set forth in said Work Letter.
|
|
30.
|
“Operating
Expenses” means all costs and expenses which Landlord pays or
accrues by virtue of the leasehold or fee title ownership (excluding costs
and expenses for internal organizational matters of Landlord), use,
management, maintenance, service, operation, insurance, or condition of
the Complex during a particular Fiscal Year or portion thereof, as
determined by Landlord or its certified public accountants in accordance
with consistently applied accounting principles. “Operating Expenses”
include, but are not limited to, the following to the extent they relate
to the Complex:
|
|
|
(a)
|
Cost
of any insurance or insurance related expense applicable to the Complex
and Landlord’s personal property used in connection therewith, together
with commercially reasonable deductibles amounts incurred in the Fiscal
Year;
|
|
|
(b)
|
All
taxes and assessments and governmental charges whether federal, state,
county or municipal, including any fees, assessments and charges levied
against the Complex and whether they be by taxing or management districts
or authorities presently taxing or by others, subsequently created or
otherwise, and any other taxes and assessments attributable to the Complex
(or its operation), and the grounds, parking areas, driveways, and alleys
around the Building, excluding, however, federal and state taxes on income
(collectively, “Taxes”); if the
present method of taxation changes so that, in lieu of or in addition to
the whole or any part of any Taxes levied on the Complex, or in part
hereof, there is levied on Landlord a capital tax directly on the rents
received therefrom or a franchise tax, assessment, or charge based, in
whole or in part, upon such rents for the Building, then all such taxes,
assessments, or charges, or the part thereof so based, shall be deemed to
be included within the term “Taxes” for the purposes
hereof.
|
Exhibit A
- Page 4
|
31.
|
“Parking Area”
means any parking area, open or covered, at the Complex servicing the
Building.
|
|
32.
|
“Party” means
Landlord or Tenant, and “Parties” means
Landlord and Tenant.
|
|
33.
|
“Permitted Use”
means only those uses permitted pursuant to Section
4.
|
|
34.
|
“Person” means
any individual, corporation, partnership, limited liability company,
trust, estate, unincorporated association, or other legal entity; any
governmental department, bureau, agency, instrumentality, or subdivision
of the City of Dallas, Dallas County, the State of Texas, or the United
States; any Insurer; and any Landlord’s
Mortgagee.
|
|
35.
|
“Rent” means
Base Rent, Additional Rent, and all other amounts provided for under this
Lease to be paid by Tenant, whether as Additional Rent or
otherwise.
|
|
36.
|
“Sublease” means
a Transfer of less than all of Tenant’s entire right, title, and interest
in and to Tenant’s leasehold estate created by this
Lease.
|
|
37.
|
“Rent Commencement
Date” has the meaning set forth in Section
5.1.
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38.
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“Taking” or
“Taken”
means, with respect to any portion of or interest in the Complex or this
Lease, the initiation or receipt of notice of actual or constructive
condemnation, or the initiation of actual or constructive acquisition by
or under threat of condemnation, eminent domain or similar proceeding by,
or at the direction of, any governmental authority or
agency.
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39.
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“Tenant Hours”
means twenty-four (24) hours per day, seven (7) days per
week.
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40.
|
“Tenant
Principals” means the Persons listed on Exhibit G
attached hereto and made a part hereof for all
purposes..
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41.
|
“Tenant Related
Party” means Tenant, any Affiliate of Tenant, any employee,
shareholder, partner, member, officer, director, agent, attorney,
contractor, or licensee of Tenant or of any Affiliate of Tenant, and the
legal representatives, successors, assigns, and permitted Transferees of
any of the foregoing.
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|
42.
|
“Term” means the
term of this Lease provided in Section 3, above, as the same may be
extended pursuant to Exhibit E or
sooner terminated as provided
herein.
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|
43.
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“Transfer” means
(a) an assignment (direct or indirect, absolute or conditional, by
operation of law or otherwise) by Tenant of all or any portion of Tenant’s
interest in this Lease or the leasehold estate created hereby, (b) a
Sublease, or (c) the grant or conveyance by Tenant of any concession or
license within the Leased Premises. If Tenant is a corporation, then any
transfer of this Lease by merger, consolidation or dissolution, or by any
change in ownership or power to vote a majority of the voting stock
(being the shares of stock regularly entitled to vote for the
election of directors) in Tenant outstanding at the time of execution of
this Lease constitutes a Transfer. If Tenant is a partnership having one
or more corporations as general partners, the preceding sentence shall
apply to each corporation as if the corporation alone had been the Tenant
hereunder. If Tenant is a general or limited partnership, limited
liability company, joint venture, or other form of association, the
transfer of a majority of the ownership interests therein constitutes a
Transfer.
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Exhibit A
- Page 5
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44.
|
“Trade Fixtures”
has the meaning set forth in Section 11 of this
Lease.
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45.
|
“Transferee”
means the assignee, sublessee, pledgee, concessionee, licensee or other
transferee of all or any portion of Tenant’s interest in this Lease, the
leasehold estate created hereby, or the Leased
Premises.
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46.
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“Work Letter”
means Exhibit
D attached hereto and made a part hereof for all
purposes.
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Exhibit A
- Page 6
EXHIBIT
B
LEGAL DESCRIPTION OF
LAND
FIELD
NOTES:
BEING a tract or parcel of
land situated in the Xxx Xxxxxxxx Survey, Abstract Number 356, and being part of
Block M/7940, Brookhollow Place, Section Four, an addition to the City of
Dallas, Texas, as recorded in Volume 71084, Page 0000, Xxxx Xxxxxxx, Xxxxxx
Xxxxxx, Xxxxx, and being more particularly described by metes and bounds as
follows:
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26.
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COMMENCING
at a 1/2-inch iron rod
found at the most Southerly Northwest corner of said Block M/7940, Section
Four, and being the intersection of the Northeast right-of-way line of
Interstate Highway 35-E (Stemmons Freeway, a variable width right-of-way)
with it’s intersection of the most Southerly end of a corner clip for the
South right-of-way line of Empire Central (an 80-foot wide
right-of-way);
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THENCE North
34°06'00" East, along said corner clip on the Northerly line of said Block
M/7940, Section Four, and the Southerly right-of-way line of said Empire
Central, a distance of 50.00 feet to a 1/2-inch iron rod found for
corner;
THENCE North 78°58'27" East,
along the Northerly line of said Block M/7940, Section Four, and the Southerly
right-of-way line of said Empire Central, a distance of 107.96 feet to a
1/2-inch iron rod found for corner at the beginning of a curve to the right
whose chord bears North 89°04'20" East, 285.80 feet;
THENCE in a Northeasterly
direction along said curve to the right having a central angle of 36°11'49", a
radius of 460.00 feet, and an arc length of 290.61 feet to a 1/2-inch iron rod
found for corner;
THENCE South 72°49'45" East,
continuing along the Northerly line of said Block M/7940, Section Four, and the
Southerly right-of-way line of said Empire Central, a distance of 16.28 feet to
the POINT OF
BEGINNING:
THENCE South 72°49'45" East,
continuing along the Northerly line of said Block M/7940, Section Four, and the
Southerly right-of-way line of said Empire Central, passing at 165.08 feet a
5/8-inch iron rod with yellow cap marked “Cotton Surveying”, for a total
distance of 427.72 feet to a 5/8-inch iron rod with yellow cap stamped “Cotton
Surveying” (hereinafter referred to as iron rod set), set for the Northwest
corner of a corner clip between the South right-of-way line of said Empire
Central and the Westerly right-of-way line of Brookriver Drive (a 65-foot wide
right-of-way);
Exhibit B
– Page 1
THENCE South 27°49'45" East,
along said corner clip, a distance of 14.14 feet to an iron rod set for
corner;
THENCE South 17°10'15" West,
along the Westerly line of said Brookriver Drive, a distance of 62.32 feet to an
iron rod set for corner at the beginning of a curve to the left whose chord
bears South 06°10'29" West, 204.17 feet;
THENCE in a Southerly
direction along said curve to the left having a central angle of 21°59'32", a
radius of 535.20 feet, and an arc length of 205.43 feet to an iron rod set for
corner;
THENCE North 72°49'45" West,
leaving the Westerly line of said Brookriver Drive, a distance of 441.58 feet to
an “X” cut in concrete found for corner in the East line of Block M/7940,
Section Four A, Brookhollow Place, as recorded in Volume 98065, Page 00, Xxxx
Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx;
THENCE North 06°30'23" East,
along the East line of said Block M/7940, Section Four A, a distance of 20.35
feet to an “X” cut in concrete found for corner;
THENCE South 72°49'45" East,
leaving the East line of said Block M/7940, Section Four A, a distance of 16.28
feet to an “X” cut in concrete found for corner;
THENCE North 06°30'23" East a
distance of 257.19 feet to the POINT OF BEGINNING and containing 2.645 acres of
land, more or less.
Exhibit B
– Page 2
EXHIBIT
D
WORK
LETTER
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1.
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Preparation
of Plans.
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(a) Design
Program. To the
extent Tenant has not previously approved Tenant’s program (the “Program”) for the Building and improvements to
be constructed on the Land prior to the execution of this Lease (and included in Exhibit
B-1 attached hereto and
made a part hereof for all purposes), Landlord will prepare and deliver to
Tenant for Tenant’s approval the remainder of the Program
within thirty (30) days
from the Effective Date of this Lease. The Program is subject to
Tenant’s approval, which approval shall not be
unreasonably withheld. In the event Tenant fails to
disapprove any part of the Program delivered by Landlord to Tenant after
execution of this Lease within five (5) days after the date of delivery thereof,
Tenant will be deemed to have approved the same. Upon approval by Landlord
and Tenant, the remainder
of the Program will be
added to Exhibit
B-1 of this
Lease.
(b) Plans. The Outline Specifications (herein so
called) are attached hereto as Exhibit
C and made a part hereof
for all purpose. Based upon the Program and the Outline
Specifications, Landlord
shall prepare the design plans for the Building and other improvements
(collectively, the “Schematic
Plans”) consistent with the
Program and the Outline
Specifications. Tenant shall have the right
to approve the Schematic Plans, which approval shall not be unreasonably
withheld; provided
that, Tenant will only have the right to
object to the Schematic Plans to the extent the same are inconsistent with the
Program, the Outline
Specifications or previous
agreements of Landlord and Tenant with respect to the design of the
Improvements. In the event Tenant fails to notify Landlord
of any objections to the Schematic Plans within five (5) days after the delivery hereof by Landlord, then the Schematic Plans shall
be deemed to be approved. After Tenant’s approval (or deemed approval) of the
Schematic Plans, Landlord
shall provide to Tenant for its approval working drawings (the “Plans”) depicting the Building and
improvements to be constructed on behalf of Tenant; provided that, Tenant shall only have the right to
object to the Plans to the extent the same are inconsistent with the
Schematic Plans, the
Outline Specifications or
previous agreements of Landlord and Tenant with respect to the design of the
Improvements. To the extent Tenant fails to notify Landlord that it
disapproves of the initial Plans within five (5) days after the delivery thereof by Landlord, then Tenant shall be deemed to have
approved the Plans in question. During the process of approval of the
Plans, Landlord shall cooperate with and make reasonable good faith efforts to
accommodate
Tenant’s stated needs and desires for the look,
layout, and function of the Premises, provided that Landlord need not approve or
accommodate Tenant’s requests which have a material adverse
impact on the Building Shell.
Landlord and Tenant both
agree to act reasonably in
reviewing and commenting on, and agreeing upon, the Program, Schematic Plans and
Plans. However,
in the event Landlord and Tenant fail to agree upon the Plans, Schematic Plans or Plans within thirty
(30) days after Landlord’s delivery of the same to Tenant, Landlord shall
have the right to terminate this Lease upon delivery of written notice to Tenant
at any time prior to approval of such items by both by Landlord and
Tenant.
Exhibit D
- Page 1
(c) Construction
Documents. As used herein, the term “Construction Documents” means the plans and specifications for
the Improvements to be constructed as finally approved (or deemed approved) by Landlord and
Tenant.
(d) Improvements. As used herein, the term
“Improvements” shall mean all improvements
provided for in the
Construction Documents.
(e) Responsibility
Matrix. The
responsibility of Landlord (as Owner), Tenant and contractor for the various
elements of the Improvements and for fixtures, equipment, signs and other items
to be installed is set forth in the Responsibility Matrix attached to
this Lease as Exhibit
B-2.
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2.
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Construction.
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(a) Contractor. On or before the completion
of the Construction Documents, Landlord shall select a qualified general contractor for the construction
of the Improvements. Such
contractor shall meet the following qualifications: (A) the
contractor shall be a contractor who has successfully completed work of a
similar nature and complexity on three (3) or more other comparable projects
within the last five (5) years; (B) the contractor shall be capable of
securing bonding and insurance for the potential contract (it being agreed,
however, that Landlord may but shall not be required to bond such contract); and
(C) the contractor shall have been in the business of performing general contractor services with prior
health care facility experience for a minimum of five (5) years within the
metropolitan area in which the Building is located. The final decision on the
terms and conditions of the contract with such contractor shall be made by Landlord after consultation
with Tenant. The contractor so selected shall construct the
Improvements. Any architect or engineers used by Landlord or the
contractor for the project shall have a certificate of professional liability
insurance for three (3) years past the completion
date of the project.
(b) Construction of
Improvements. Landlord shall use
commercially reasonable and diligent efforts to cause the Improvements to be
completed in a good and workmanlike manner and in accordance with the Construction Documents and all
applicable laws (including, without limitation, the American’s With Disabilities
Act).
(c) Construction
Representatives. Landlord’s and Tenant’s representatives for coordination of
construction and approval
of change orders will be as
follows, provided that either party may change its representative upon written
notice to the other:
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Landlord’s
Representative:
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Xxxxxxx
Xxxxxx
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Project
Manager
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The
Cirrus Group, LLC
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0000
X. Xxxxxxx Xxxxxxxxxx, Xxxxx 000
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Xxxxxx,
XX 00000
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Telephone: 000-000-0000
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Facsimile: 000-000-0000
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Exhibit D
- Page 2
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Tenant’s
Representative:
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Xxx Xxxx
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0000
Xxxxx Xxxxx Xxxxxxxxx Xxxxx 000
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Xxxxxx,
Xxxxx 00000
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Telephone: (000)
000-0000
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Facsimile: (000)
000-0000
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(d) Change Orders. Tenant or Landlord may initiate changes in the work
described in the Construction Documents. A change order shall not be
considered authorized by Tenant unless issued or approved in writing by
Tenant’s authorized
representative. Each change order requested by Tenant must receive the prior written approval
of Landlord, such approval not to be unreasonably withheld,
conditioned, or
delayed. If Tenant requests a change order, the cost of the work
provided under such change order will be paid by Tenant to Landlord in a
lump sum as a condition to
approval and prior to the
commencement of the work covered by such change order. Further, in the event the Outline
Specifications include any allowance with respect to any portion of the work or
materials or equipment to
be provided (collectively, “Allowance Work”), once the actual cost of the Allowance
Work is determined (including but not limited to, by issuance of a change order
therefor), Tenant shall pay to Landlord within ten (10) days after delivery to
Tenant of Landlord’s invoice therefor, the amount by which
the cost of the Allowance Work exceeds the allowance provided under the Outline
Specifications. Landlord may deliver the invoice for such additional
cost as soon as the actual cost of the Allowance Work has been determined.
(e) Tenant’s Inspection
Rights. Landlord
shall convene regular progress meetings and walk-throughs with the Tenant, the
architect, and the general contractor involved in the construction of the
Improvements to discuss the progress of such construction. Landlord shall give
Tenant at least three (3) business days notice of such
meetings. Tenant or its agents shall have the right at any and all
reasonable times to conduct inspections, tests, surveys and reports of work in
progress.
(f) Access
During
Construction. Tenant, its contractors and
subcontractors shall be permitted access to the Premises only with
the consent of Landlord (which consent shall not be unreasonably withheld)
during the sixty (60) days prior to the delivery of the Premises to Tenant, for the purpose of
installing Tenant’s furniture, fixtures and equipment
(including Tenant’s data and telephone equipment and
related cabling), to the extent not installed as a part of the work in the
Premises by Landlord and for other activities related to Tenant’s preparation for occupying the
Premises; provided,
however, that such access
shall be permitted only to the extent the same will not unreasonably interfere
with the completion of work by Landlord or Landlord’s contractors or subcontractors. Landlord shall have the right to impose
reasonable requirements on the timing, manner of access and extent of access
permitted during such period.
Exhibit D
- Page 3
(g) Walk-Through;
Punchlist. When the construction of the
Improvements is Substantially Complete (as defined in Section 3, below),
as reasonably determined by
Landlord and the architect, Landlord will notify Tenant and within
three (3) business days thereafter,
Landlord’s representative and Tenant’s representative shall conduct a
walk-through of the Premises and identify any necessary touch-up work, repairs and
minor completion items that are necessary for final completion of the
Improvements in accordance with the Construction Documents. Neither
Landlord’s representative nor Tenant’s representative shall unreasonably withhold his or her
agreement on punchlist items. Landlord shall use reasonable efforts
to cause the contractor constructing the Improvements to complete all punchlist
items within thirty (30) days after agreement thereon; provided,
however, Landlord shall not be obligated to
engage overtime labor in order to complete such items.
3. Substantial
Completion. As
used herein “Substantial
Completion,” “Substantially
Complete,” and any derivations thereof mean the
stage in the progress of the Work when the Work or designated portion
thereof is sufficiently complete in accordance with the Construction Documents
so that Tenant could occupy or utilize the Premises for its intended use, but
without regard to whether the governmental permits or other authorizations required for Tenant to
operate (as opposed to occupy) the Premises have been
obtained. Further, in the event of the occurrence of one or more
Tenant Delay Days (hereafter defined) the date of Substantial Completion shall
be the date on which the Work would have been sufficiently
complete in accordance with the Construction Documents so that Tenant could
occupy or utilize the Premises for its intended use, but for the Tenant
Delay.
4. Tenant
Delay. As used
herein, a “Tenant
Delay Day” shall mean each day of delay in the critical
path of the schedule for the completion of the construction of the Improvements
that occurs: (a) because of Tenant’s failure to timely deliver or approve
any required documentation, (b) because of any change by Tenant to the work described in the
Construction Documents or finally approved by Landlord and Tenant, or (c)
because Tenant or a contractor or agent of Tenant otherwise causes a delay in
the critical path of completion of the Improvements. As used herein
the term “Tenant
Delay” shall mean and refer to the existence
of one or more Tenant Delay Days.
5. Mutual
Cooperation. The
parties agree to work together in good faith and to cooperate reasonably with
one another so as to facilitate the completion of the Improvements in accordance with the terms of
this Work Letter.
6. Conflict. In the event of any conflict between the
provisions of this Exhibit
C and the provisions of the
Lease, the provisions of this Exhibit
C shall
govern.
Exhibit D
- Page 4
EXHIBIT
E
RENEWAL
TERMS
Provided
no uncured Event of Default exists at the time Tenant exercises its option to
extend the Term through any Renewal Term, Tenant shall have the right and option
to extend the Term of this Lease for two (2) Renewal Terms of five (5) years
each, conditioned upon Tenant exercising such option for Renewal Terms by
delivering written notice to Landlord not less than six (6) and not
more than twelve (12) months prior to the end of the preceding Term, time being
of the essence. If for any reason Landlord does not timely receive such written
notice of the exercise of such Renewal Terms, such Renewal Term shall automatically
terminate.
The
Tenant will exercise the Renewal Terms on the same terms and conditions as the
then previous term, except that Annual Basic Rental for the first Renewal Term
will be increased by two percent (2%) of the Annual Basic Rental in effect for
the previous year. Thereafter during each Renewal Term, the Annual
Basic Rental shall increase by two percent (2%) of the Annual Basic Rental in
effect as of the end of the previous year. Upon receipt of any
request by Tenant delivered within sixty (60) days prior to the last date for
exercise of Tenant’s option, Landlord shall provide to Tenant a written
statement setting forth Landlord’s determination of the Annual Basic
Rental.
Upon
commencement of the Renewal Term, except for the calculation of Annual Basic
Rental, which shall be calculated as set forth above, all references in the
Lease to “Term” shall be construed to mean Renewal Terms.
Exhibit E
- Page 1
EXHIBIT
F
GUARANTY
OF LEASE
THIS
GUARANTY OF LEASE (this "Guaranty") is made and entered into this ______ day of
July ,
2007 by__________________________
(“Guarantor”), to and for the benefit of [Cirrus/GH General Entity],
a_________________ ("Landlord"), delivered pursuant to that certain Hospital
Lease Agreement ("Lease") dated ___________ between GlobalRehab, LP,
a_________ ("Tenant"), and Landlord.
KNOW ALL
MEN BY THESE PRESENTS:
That for good and valuable
consideration, the receipt and sufficiency whereof are hereby acknowledged,
Guarantor, intending to be legally bound, does hereby guarantee to Landlord, its
successor and assigns, the full and prompt payment by Tenant, its successors and
assigns of all obligations of the Tenant under the Lease arising or otherwise
accruing on or before the last day of the seventh (7th) Year
(hereafter defined) of the Term (hereafter defined), subject to the following
limitations:
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(1)
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As
to any Base Rent or other sums due under the Lease, this Guaranty is a
several guaranty, not joint and several with other guaranties obtained by
Landlord with respect to the Lease. Guarantors share of Base
Rent and other monetary sums payable under the Lease shall be
percent (_____%), not to exceed the aggregate sum of _____________ and
No/100 Dollars ($_________).
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(2)
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At
such time, if ever, that Tenant’s Required EBITDA Coverage Ratio
(hereafter defined) is maintained for a period of three (3) consecutive
Years, then Guarantors liability under this Guaranty shall terminate as of
the last day of such third (3rd)
consecutive Year.
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(3)
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As
used herein, the terms (i) “EBITDA” shall mean earnings of Tenant before
interest, depreciation, taxes and amortization, (ii) “Year” means a period
of twelve (12) months, except for the first Year, which shall commence on
the Commencement Date and end on the last day of the twelfth (12th)
full calendar month following the Rent Commencement Date, with the second
Year commencing on the next day following the end of the first Year and
each subsequent Year commencing on each subsequent anniversary of the
second Year, (iii) “Required EBITDA Coverage Ratio” means, in respect of
any Year, the EBITDA of Tenant for such Year being equal to or greater
than three (3) times the aggregate Rent for such Year, and (iv) other
terms appearing herein with the first letter thereof capitalized which are
not otherwise defined shall have the respective meanings set forth in the
Lease.
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Exhibit F
- Page 1
Guarantor agrees that (a) the
obligations of Guarantor pursuant to this Guaranty shall be binding upon
Guarantor without any further notice or acceptance thereof; (b) this Guaranty
shall not be affected by reason of assertion by Landlord against Tenant of any
rights or remedies reserved to Landlord in the Lease or by reason of any summary
or other proceedings against Tenant; (c) Guarantor will pay Landlord all amounts
guaranteed hereby; (d) no extension, forbearance, or leniency extended by
Landlord to Tenant shall discharge Guarantor from Guarantor's obligations
hereunder, and Guarantor agrees at all times that Guarantor will be liable
notwithstanding that Guarantor has obligations hereunder, and Guarantor agrees
at all times that Guarantor will be liable notwithstanding that Guarantor has
had no notice of such default or of any such extension, forbearance, or
leniency; (e) Landlord and Tenant, without notice to or consent by Guarantor,
may, at any time or from time to time, enter into such changes, modifications,
extensions, renewals of the Term of the Lease, expansions of the Premises,
amendments, or other covenants with respect to the Lease, and that Guarantor
shall not be released thereby, it being intended that any joinder, waiver,
consent, or agreement, by Tenant, by its own operation, shall be deemed to be a
joinder, consent, waiver, or agreement by Guarantor with respect to the Lease as
so modified, extended, amended, or otherwise affected.
This Guaranty is a guaranty of payment,
not of collection. This Guaranty is of a continuing nature and shall
remain in full force and effect until all the terms, covenants, conditions and
agreements contained in the Lease are fully performed and observed; provided
that, if Tenant is released upon any assignment of the Lease, then Guarantor
shall be released from this Guaranty as of the effective date of the release of
Tenant from liability under the Lease. In the event any payment made
by Tenant in satisfaction of any obligation of Tenant is returned by Landlord as
a result of a court order or directive or requirement of law (in connection with
any bankruptcy proceeding or otherwise) that obligation shall, for purposes of
this Guaranty, be deemed to continue in existence and shall include any payment
returned.
Guarantor waives any and all notice of
nonperformance or demand upon Tenant, and any opportunity to cure any Default of
Tenant. Guarantor further agrees that all obligations of Guarantor under this
Lease are independent of the obligations of Tenant under the Lease and that a
separate action may be brought against Guarantor whether or not an action is
commenced against Tenant under the Lease.
Guarantor further agrees to be bound by
each and every covenant, agreement, duty, liability and obligation, as set forth
in the Lease, with the same force and effect as if Guarantor were designated in
and had executed the Lease as "Tenant" thereunder, it being specifically
understood and agreed by Guarantor that Guarantor's liability under the Lease
shall be primary, and that in any right of action which may accrue to Landlord
under the Lease, Landlord may, at Landlord's option, proceed directly against
Guarantor with or without having commenced any action against or having obtained
any judgment against Tenant or any successor or assignee of Tenant.
Exhibit F
- Page 2
Neither Guarantor's obligations to make
payment in accordance with this Guaranty nor any remedy for the enforcement
thereof shall be impaired, modified, changed, or released in any manner
whatsoever by any impairment, modification, change, release, or limitation on
the liability of Tenant or Tenant's estate in bankruptcy, or of any remedies for
the enforcement thereof resulting from the operation of any present or future
provision of any federal or state bankruptcy, insolvency, or other similar law,
or from the appointment of a receiver or from the decision of any court, or the
actual or purported rejection of the Lease by a trustee in bankruptcy on behalf
of Tenant.
The obligations of the undersigned
under this Guaranty shall not be terminated, affected, or impaired in any manner
by reason of:
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a.
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The
assertion by Landlord against Tenant of any of the rights or remedies
available to Landlord under the
Lease;
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b.
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The
failure of Landlord to exhaust or pursue any of Landlord's rights or
remedies available against Tenant or any other
guarantor;
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c.
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The
granting by Landlord of any indulgences or extensions of time to
Tenant;
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d.
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Any
subletting of all or part of the Premises or any assignment or other
transfer of the Lease which does not result in the release of Tenatn from
liability under the Lease;
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e.
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Any
defenses, setoffs, or counterclaims of
Tenant;
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f.
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Landlord's
release or discharge of any other guarantor;
or
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g.
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Landlord's
receipt, application, release, or impairment of any security or collateral
given to secure the performance and observance of the terms and covenants
of the Lease.
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The undersigned subordinates any
liability or indebtedness of Tenant now or hereafter held by the undersigned to
the obligations of Tenant to the Landlord under the Lease.
If Landlord takes any action or
participates in any proceeding to enforce the Lease, this Guaranty, or to
protect Landlord's rights hereunder or thereunder (including, but not limited
to, bankruptcy, appellate, and post judgment proceedings), the undersigned shall
pay to Landlord all costs and expenses, including reasonable attorneys' fees,
incurred or expended by Landlord in connection therewith.
This Guaranty shall be governed by and
construed under the laws of the State of Texas. Venue for any legal
proceedings under this Guaranty shall be Dallas County, Texas, the location of
the premises demised under the Lease. For purposes of this Guaranty,
Guarantor submits itself to the jurisdiction of the Courts of the State of
Texas.
Exhibit F
- Page 3
It is agreed that the provisions of
this Guaranty shall bind the successors and assigns of Guarantor and shall inure
to the benefit of the legal representatives, heirs, successors, and assigns of
Landlord.
IN
WITNESS WHEREOF, Guarantor has caused these presents to be executed under seal
this ______ day of _________ 2007.
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a
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By:
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Print Name:
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Address:
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Exhibit F
- Page 4
EXHIBIT
G
LIST
OF TENANT GUARANTORS;
LIMITS
OF LIABILITY
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GLOBALREHAB-DALLAS
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||||||||||||||||
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LIMITED
PARTNERS
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||||||||||||||||
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Jul-07
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||||||||||||||||
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Actual
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Liability
|
|||||||||||||||
|
Investor List
|
Specialty
|
Units
|
%
|
Max
|
||||||||||||
|
1
|
Xxxxxxx,
Xxxxxxx
|
Family
Practice
|
5 | 2.84 | % | $ | 311,583 | |||||||||
|
2
|
Ariyo,
Adeniran
|
Cardiologist
|
3 | 1.70 | % | $ | 186,950 | |||||||||
|
3
|
Xxxxxx,
Xxxxx
|
Internal
Medicine
|
10.167 | 5.78 | % | $ | 633,573 | |||||||||
|
4
|
Xxxxxx,
Xxxxx X.
|
Neurology
|
5 | 2.84 | % | $ | 311,583 | |||||||||
|
5
|
Xxxxxxx,
Xxxxxx
|
ID/Wound
|
5 | 2.84 | % | $ | 311,583 | |||||||||
|
6
|
Xxxx,
Xxxxxxx
|
Internal
Medicine
|
10.167 | 5.78 | % | $ | 633,573 | |||||||||
|
7
|
Xxxxxxxxx,
Xxxxxxxxx
|
Pulmonologist
|
5 | 2.84 | % | $ | 311,583 | |||||||||
|
8
|
Gamil,
Wafer
|
Internal
Medicine
|
10.167 | 5.78 | % | $ | 633,573 | |||||||||
|
Xxxxx,
Xxxxx
|
Ortho
Surg
|
5 | 2.84 | % | $ | 311,583 | ||||||||||
|
9
|
Xxxx,
Xxxx
|
Pulmonologist
|
10 | 5.68 | % | $ | 623,166 | |||||||||
|
10
|
Xxxxxx,
Xxxxxxx
|
Neurology
|
2 | 1.14 | % | $ | 124,633 | |||||||||
|
11
|
Xxxxxxxxxx,
Xxxxxx
|
Infectious
Disease
|
5 | 2.84 | % | $ | 311,583 | |||||||||
|
12
|
Xxxx,
Xxxxx X.
|
Internal
Medicine
|
5 | 2.84 | % | $ | 311,583 | |||||||||
|
13
|
Xxxxxxx
Xxxxxxxxx
|
Internal
Medicine
|
5 | 2.84 | % | $ | 311,583 | |||||||||
|
Narayanna,
Xxxxxxxxxxx
|
Internal
Medicine
|
4 | 2.27 | % | $ | 249,266 | ||||||||||
|
14
|
Osugwu,
Chukwma
|
Internal
Medicine
|
5 | 2.84 | % | $ | 311,583 | |||||||||
|
15
|
Perijoc,
Mihaela
|
Internal
Medicine
|
5 | 2.84 | % | $ | 311,583 | |||||||||
|
16
|
Xxxxxxx,
Xxxxxxx X.
|
Xxxx/Spine
|
10 | 5.68 | % | $ | 623,166 | |||||||||
|
17
|
Xxxxxxx,
Xxxxxxxxx
|
Internal
Medicine
|
5 | 2.84 | % | $ | 311,583 | |||||||||
|
18
|
Xxxxxxx,
Xxxxxx
|
PMR
|
11.167 | 6.34 | % | $ | 695,890 | |||||||||
|
19
|
Xxxxxx
Xxxx
|
Family
Practice
|
5 | 2.84 | % | $ | 311,583 | |||||||||
|
20
|
Xxxxxxx,
Xxxxxxx
|
General
Surgery
|
2 | 1.14 | % | $ | 124,633 | |||||||||
|
21
|
Xxxxx,
Xxxxxxx
|
Internal
Medicine
|
10.167 | 5.78 | % | $ | 633,573 | |||||||||
|
22
|
Xxxxxx,
Xxxxxxxx
|
Pulmonologist
|
5 | 2.84 | % | $ | 311,583 | |||||||||
|
23
|
Xxxxxxxx,
Xxxxxx
|
Pulmonologist
|
5 | 2.84 | % | $ | 311,583 | |||||||||
|
24
|
Won,
Xxxxxxx
|
Xxxx/Spine
|
10 | 5.68 | % | $ | 623,166 | |||||||||
|
25
|
Xxxx,
Xxxxx
|
Pulmonologist
|
11.167 | 6.34 | % | $ | 695,890 | |||||||||
|
26
|
Xxxxxx,
Xxxxx
|
0 | 1.14 | % | $ | 124,633 | ||||||||||
|
Total
Units Sold
|
176.002 | 100.00 | % | $ | 10,967,848 | |||||||||||
Exhibit G
- Page 1
Exhibit
10.20
FIRST
AMENDMENT TO HOSPITAL LEASE AGREEMENT
This First Amendment to Hospital Lease
Agreement (the “First Amendment”) is made and entered into as of September
______, 2007 (the “Effective Date”), by and between GR IRF I, LP, a Texas
limited partnership (“Landlord”), and GLOBALREHAB, LP, a Texas limited
partnership (“Tenant”).
WITNESSETH:
WHEREAS, Landlord and Tenant entered
into that certain Hospital Lease Agreement dated as of August 28, 2007, (the
“Lease”) of approximately 2.645 acres of land and improvements to be located
thereon containing approximately 40,000 square feet on tract of land located at
the southwest corner of Empire Central and Brookriver Drive in Dallas, Texas, as
more particularly described in the Lease (the (the “Leased Premises”);
and
WHEREAS, Landlord and Tenant desire to
amend certain provisions of the Lease as more particularly set forth
herein.
NOW, THEREFORE, in consideration of the
mutual promises and covenants contained herein, the parties hereto agree as
follows:
1.
Capitalized
Terms. All capitalized terms used herein and not otherwise
defined herein shall have the meanings set forth in the Lease.
2. Base
Rent. Section 5.1 of the Lease is hereby amended in its
entirety as follows:
Base Rent. In
consideration of Landlord’s leasing the Leased Premises to Tenant and performing
Landlord’s obligations hereunder, and subject to adjustment in accordance with
Section 5.2, commencing sixty (60) days after the Commencement Date (the “Rent
Commencement Date”), and on the first day of each succeeding calendar month
thereafter during the Term, Tenant shall pay to Landlord all Rent as provided
herein, including, without limitation, annual Base Rent as follows:
|
Initial Annual Rate
|
Estimated Initial
Annual Base Rent
|
Estimated Initial
Monthly Base Rent
|
||||||
|
$29.96
per square foot of Net Rentable Area of the Leased
Premises
|
$ | 1,198,508.00 | $ | 99,875.67 | ||||
The
rentable area of the Leased Premises may vary from estimate included in this
Lease. Once the Leased Premises have been completed, Landlord shall
calculate the rentable area of the Leased Premises and deliver to Tenant a
written notice (the “Adjustment Notice”) of the exact rentable area in square
footage of the Leased Premises. Upon execution of the Adjustment
Notice, the rentable area of the Leased Premises as set forth in the Adjustment
Notice will replace for all purposes the square footage of the Leased Premises
otherwise set forth in this Lease and the Base Rent shall be recalculated based
upon the rentable area of the Leased Premises as set forth in the Adjustment
Notice.
3. Exhibits to
Lease. Exhibits B-2, C and G as attached to the Lease are
hereby substituted in their entirety with Exhibits B-2, C and G as attached
hereto.
Exhibit
10.20
4. Survival of
Lease. Except as expressly set forth in this First Amendment,
the terms and provisions of the Lease shall continue in full force and effect
and shall survive in all respects the execution of this First
Amendment.
5. Complete
Agreement. This First Amendment shall constitute the entire
agreement among the parties with respect to the subject matter hereof and shall
supersede any previous negotiations, commitments and writings with respect to
such subject matter.
6. Governing
Law. This First Amendment shall be governed by and construed
in accordance with laws of the State of Texas.
7. Ratification of the
Lease. Except as expressly modified herein, all of the terms
and provisions of the Lease are expressly reaffirmed.
IN
WITNESS WHEREOF, the parties hereto have executed this
First Amendment as of the date first above written.
|
LANDLORD:
|
||
|
GR IRF I,
LP,
|
||
|
a
Texas limited partnership
|
||
|
By: GR
IRF Managers, LLC,
|
||
|
a
Texas limited liability company, as General Partner
|
||
|
By:
|
/s/
X.X.
Xxxxxxxxx, Xx.
|
|
|
Name:
|
X.X.
Xxxxxxxxx, Xx.
|
|
|
Title:
|
Manager
|
|
|
TENANT:
|
||
|
GLOBALREHAB,
LP,
|
||
|
a
Texas limited partnership
|
||
|
By:
|
GH
General, Inc.
|
|
|
Its:
|
Sole
General Partner
|
|
|
By:
|
/s/ Xxxxxx
Xxxxxxx
|
|
|
Name:
|
Xxxxxx
Xxxxxxx
|
|
|
Title:
|
Manager
|
|
Exhibit
10.20
SECOND AMENDMENT TO HOSPITAL
LEASE AGREEMENT
This Second Amendment to Hospital Lease
Agreement (the “Second Amendment”) is made and entered into as of November 9,
2007 (the “Effective Date”), by and between GR IRF I, LP, a Texas limited
partnership (“Landlord”), and GLOBALREHAB, LP, a Texas limited partnership
(“Tenant”).
WITNESSETH:
WHEREAS, Landlord and Tenant entered
into that certain Hospital Lease Agreement dated as of August 28, 2007, as
amended by that certain First Amendment to Hospital Lease Agreement dated as of
September 18, 2007 (the “Lease”) of approximately 2.645 acres of land and
improvements to be located thereon containing approximately 40,000 square feet
on tract of land located at the southwest corner of Empire Central and
Brookriver Drive in Dallas, Texas, as more particularly described in the Lease
(the (the “Leased Premises”); and
WHEREAS, Landlord and Tenant desire to
amend certain provisions of the Lease as more particularly set forth
herein.
NOW, THEREFORE, in consideration of the
mutual promises and covenants contained herein, the parties hereto agree as
follows:
1. Capitalized
Terms. All capitalized terms used herein and not otherwise
defined herein shall have the meanings set forth in the Lease.
2. Financial
Reporting. Section 25.20 of the Lease is hereby added in
its entirety as follows:
25.20 Financial and Other
Reports.
|
|
(a)
|
Within
forty-five (45) days after the end of each fiscal quarter of Tenant during
the first three (3) calendar years following the Commencement Date, a copy
of the balance sheet of Tenant as of the end of each such fiscal quarter,
and related statement of income, prepared in accordance with GAAP
(hereafter defined) applied on a basis consistently maintained throughout
the period of involved. After the third calendar year following
the Commencement Date, so long as Tenant’s EBITDA (hereafter defined) to
Rent calculation remains at or above 2.5 to 1, the foregoing required
balance sheet and related statement of income shall be delivered on an
annual basis within forty-five (45) days after the end of each calendar
year. The statement of income provided for above in this Section 25.20
shall include the calculation of Tenant’s EBITDA to Rent for the period
covered in such statement. In the event Tenant’s EBITDA to Rent
calculation after the third year falls below 2.5 to 1, the financial
reports required under this Section 25.20
shall therefore be provided quarterly on the same basis as during the
initial three (3) calendar years following the Commencement
Date. As used herein, the term (i) “GAAP” shall mean generally
accepted accounting principals and (ii) “EBITDA” shall mean, in respect of
any period of time, earnings before interest, taxes and debt
amortization.
|
- 1
-
Exhibit
10.20
|
|
(b)
|
Within
one hundred and eighty (180) days after the end of each fiscal year of
Tenant, a copy of the unaudited balance sheet of Tenant as of the end of
such fiscal year, and related unaudited statement of income, changes in
partners’ capital and changes in the financial position of Tenant for such
fiscal year, prepared in accordance with GAAP applied on a basis
consistently maintained throughout the period
involved.
|
|
|
(c)
|
Within
one hundred and eighty (180) days after the end of each fiscal year of
Tenant, and together with the reports furnished in accordance with clause
(a) above, on Officer’s Certificate stating that to the best of the
signer’s knowledge and belief after making due inquiry, Tenant is not in
default in the performance or observance of any of the terms of this
Lease, or if Tenant shall be in default, specifying all such defaults, the
nature thereof, and the steps being taken to remedy the
same.
|
|
|
(d)
|
With
reasonable promptness, such other information respecting (i) the financial
and operational condition and affairs of Tenant and the Leased Premises,
and (ii) the physical condition of the Leased Premises, in each case as
Landlord may reasonably request, in the form of a questionnaire or
otherwise, from time to time.
|
In
addition, upon ten (10) days request of Landlord, Tenant shall make available
for review and inspection by Landlord copies of any and all written notices from
any regulatory agency relating to the hospital’s loss or suspension of its
Medicare and Medicaid certification or the revocation of the hospital’s license
to operate.
3. Exhibit to
Lease. Exhibits B and G attached hereto are hereby substituted
in their entirety for Exhibits B and G, respectively, attached to the
Lease.
4. Survival of
Lease. Except as expressly set forth in this Second Amendment,
the terms and provisions of the Lease shall continue in full force and effect
and shall survive in all respects the execution of this Second
Amendment.
5. Complete
Agreement. This Second Amendment shall constitute the entire
agreement among the parties with respect to the subject matter hereof and shall
supersede any previous negotiations, commitments and writings with respect to
such subject matter.
6. Governing
Law. This Second Amendment shall be governed by and construed
in accordance with laws of the State of Texas.
7. Ratification of the
Lease. Except as expressly modified herein, all of the terms
and provisions of the Lease are expressly reaffirmed. Through a
clerical error, the name of the general partner of Tenant was misstated on the
Lease and First Amendment. By its execution below, by and through its
correct general partner, Tenant hereby affirms and ratifies the Lease (as
amended) in its entirety.
IN
WITNESS WHEREOF, the parties hereto have executed this Second Amendment as of
the date first above written.
- 2
-
Exhibit
10.20
|
LANDLORD:
|
||||
|
GR IRF I,
LP,
|
||||
|
a
Texas limited partnership
|
||||
|
By: GR
IRF Managers, LLC,
|
||||
|
a
Texas limited liability company, as General Partner
|
||||
|
By:
|
/s/ X.X. Xxxxxxxxx, Xx.
|
|||
|
Name:
|
X.X. Xxxxxxxxx, Xx.
|
|||
|
Title:
|
Manager
|
|||
|
TENANT:
|
||||
|
GLOBALREHAB,
LP,
|
||||
|
a
Texas limited partnership
|
||||
|
By:
|
GH
General, LLC,
|
|||
|
its
sole General Partner
|
||||
|
By:
|
/s/ Xxxxxx Xxxxxxx
|
|||
|
Name:
|
Xxxxxx Xxxxxxx
|
|||
|
Title:
|
Manager
|
|||
- 3
-
Exhibit
10.20
EXHIBIT
B
LEGAL DESCRIPTION OF
LAND
BEING a tract or parcel of
land situated in the Xxx Xxxxxxxx Survey, Abstract Number 356, and being part of
Block M/7940, Brookhollow Place, Section Four, an addition to the City of
Dallas, Texas, as recorded in Volume 71084, Page 0000, Xxxx Xxxxxxx, Xxxxxx
Xxxxxx, Xxxxx, and being more particularly described by metes and bounds as
follows:
COMMENCING at a 1/2-inch iron
rod found at the most Southerly Northwest corner of said Block M/7940, Section
Four, and being the intersection of the Northeast right-of-way line of
Interstate Highway 35-E (Stemmons Freeway, a variable width right-of-way) with
it’s intersection of the most Southerly end of a corner clip for the South
right-of-way line of Empire Central (an 80-foot wide right-of-way);
THENCE North 34°06'00" East,
along said corner clip on the Northerly line of said Block M/7940, Section Four,
and the Southerly right-of-way line of said Empire Central, a distance of 50.00
feet to a 1/2-inch iron rod found for corner;
THENCE North 70°58'27" East,
along the Northerly line of said Block M/7940, Section Four, and the Southerly
right-of-way line of said Empire Central, a distance of 107.96 feet to a
1/2-inch iron rod found for corner at the beginning of a curve to the right
whose chord bears North 89°04'20" East, 285.80 feet;
THENCE in a Northeasterly
direction along said curve to the right having a central angle of 36°11'49", a
radius of 460.00 feet, and an arc length of 290.61 feet to a 1/2-inch iron rod
found for corner;
THENCE South 72°49'45" East,
continuing along the Northerly line of said Block M/7940, Section Four, and the
Southerly right-of-way line of said Empire Central, a distance of 16.28 feet to
the POINT OF
BEGINNING:
THENCE South 72°49'45" East,
continuing along the Northerly line of said Block M/7940, Section Four, and the
Southerly right-of-way line of said Empire Central, passing at 165.08 feet a
5/8-inch iron rod with yellow cap marked “Cotton Surveying”, for a total
distance of 427.72 feet to a 5/8-inch iron rod with yellow cap stamped “Cotton
Surveying” (hereinafter referred to as iron rod set), set for the Northwest
corner of a corner clip between the South right-of-way line of said Empire
Central and the Westerly right-of-way line of Brookriver Drive (a 65-foot wide
right-of-way);
THENCE South 27°49'45" East,
along said corner clip, a distance of 14.14 feet to an iron rod set for
corner;
THENCE South 17°10'15" West,
along the Westerly line of said Brookriver Drive, a distance of 62.32 feet to an
iron rod set for corner at the beginning of a curve to the left whose chord
bears South 05° 00’37" West, 225.48 feet;
THENCE in a Southerly
direction along said curve to the left having a central angle of 24°19'15", a
radius of 535.20 feet, and an arc length of 227.18 feet to a 5/8-inch iron rod
with a brass cap marked “Budget Suites” found for the Northeast corner of Xxx 0,
Xxxxx X/0000, Xxxxxx Xxxxxx xx Xxxxxxx Addition, an addition to the City of
Dallas as recorded in Volume 99089, Page 000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx,
Xxxxx;
THENCE North 72°49'44" West,
leaving the Westerly line of said Brookriver Drive, and along the North line of
said Xxx 0, Xxxxx X/0000 of Budget Suites, a distance of 446.37 feet to a PK
Nail found for corner in the East line of Xxx 0, Xxxxx X/0000, Xxxxxxxxxxx
Xxxxx, Section Four A, as recorded in Volume 98065, Page 00, Xxxx Xxxxxxx,
Xxxxxx Xxxxxx, Xxxxx;
B -
1
Exhibit
10.20
THENCE North 06°51'55" East,
along the East line of said Xxx 0, Xxxxx X/0000, Xxxxxxx Xxxx X, Xxxxxxxxxxx
Place, a distance of 41.29 feet to an “X” cut in concrete found for the
Northeast corner of said Xxx 0, Xxxxx X/0000, Xxxxxxx Xxxx X, Xxxxxxxxxxx
Place;
THENCE South 70°36'53" East, a
distance of 16.14 feet to an “X” cut in concrete found for the Southeast corner
of Xxx 0, Xxxxx X/0000, Xxxxxxxxxxx Xxxxx, Section Four B, an addition to the
City of Dallas as recorded in Volume 2001143, Page 000, Xxxx Xxxxxxx, Xxxxxx
Xxxxxx, Xxxxx;
THENCE North 06°30'23" East,
along the East line of said Xxx 0, Xxxxx X/0000, Xxxxxxxxxxx Xxxxx, a distance
of 257.19 feet to the POINT OF BEGINNING and containing 2.849 acres of land,
more or less.
ALSO
DESCRIBED AS:
BEING all
that tract of land in the City of Dallas, Dallas County, Texas, a part of the
XXX XXXXXXXX SURVEY, ABSTRACT No. 356, a part of Dallas City Block 7940, and
being a part of Block M/7940, Brookhollow Place, Section Four, an addition to
the City of Dallas as recorded in Volume 71084, Page 1943, Dallas County Deed
Records, and being further described as follows:
BEGINNING
at an “X” found in concrete for corner in the north line of said Block M/7940,
said point being the northeast corner of Xxx 0, Xxxxx X/0000, Xxxxxxxxxxx Xxxxx
Section 4B, an addition to the City of Dallas as recorded in Volume2001143, Page
101, Dallas County Deed Records, said point being in the south line of Empire
Central Drive (80 foot right-of-way);
THENCE
South 72 degrees 49 minutes 45 seconds East, 427.72 feet with the north line of
said Block M/7940 and with the south line of Empire Central Drive to a
five-eighths inch capped iron rod found for corner at the north end of a corner
clip;
THENCE
South 27 degrees 49 minutes 45 seconds East, 14.14 feet to a five-eighths inch
capped iron rod found for corner at the south end of a corner clip, said point
being in the west line of Brookhollow Drive (65 foot right-of-way);
THENCE
with the west line of Brookhollow Drive as follows:
South
17 degrees 10 minutes 15 seconds West, 62.32 feet to a five-eighths inch capped
iron rod found for corner;
Southwesterly,
227.18 feet with a curve to the left having a central angle of 24 degrees 19
minutes 15 seconds, a radius of 535.20 feet, whose chord bears South 05 degrees
00 minutes 37 seconds West, 225.48 feet to a one-half inch iron rod set with
“LONE OAK” red cap set for corner, said point being the northeast corner of
Budget Suites of America Addition, an addition to the City of Dallas as recorded
in Volume 99089, Page 253, Dallas County Deed Records;
THENCE
North 72 degrees 49 minutes 44 seconds West, 446.37 feet with said Budget Suites
of America Addition to an “X” set in concrete for corner, said point being in
the east line of Xxx 0, Xxxxx X/0000, Xxxxxxxxxxx Xxxxx Section 4A, an addition
to the City of Dallas as recorded in Volume 98065, Page 35, Dallas County Deed
Records;
THENCE
North 06 degrees 51 minutes 55 seconds East, 41.29 feet to an “X” found in
concrete at the northeast corner of said Lot 3, said point being in the south
line of said Lot 5;
B -
2
Exhibit
10.20
THENCE
South 70 degrees 36 minutes 53 seconds East, 16.14 feet to an “X” found in
concrete at the southeast corner of said Lot 5;
THENCE
North 06 degrees 30 minutes 23 seconds East, 257.18 feet with the east line of
said Lot 5 to the POINT OF BEGINNING and containing 124,094 square feet or 2.849
acres of land.
B -
3
Exhibit
10.20
EXHIBIT
G
LIST
OF TENANT GUARANTORS;
LIMITS
OF LIABILITY
|
GLOBALREHAB
- DALLAS
|
||||||||||||||||
|
LIMITED
PARTNERS
|
||||||||||||||||
|
Oct-07
|
||||||||||||||||
|
Actual
|
||||||||||||||||
|
Investor List
|
Specialty
|
Units
|
%
|
Max Liability
|
||||||||||||
|
1
|
Xxxxxxx,
Xxxxxxx
|
Family
Practice
|
5 | 2.84 | % | $ | 311,583 | |||||||||
|
2
|
Ariyo,
Adeniran
|
Cardiologist
|
3 | 1.70 | % | $ | 186,950 | |||||||||
|
3
|
Xxxxxx,
Xxxxx
|
Internal
Medicine
|
11.66663 | 6.63 | % | $ | 727,033 | |||||||||
|
4
|
Xxxxxx,
Xxxxx X.
|
Neurology
|
5 | 2.84 | % | $ | 311,583 | |||||||||
|
5
|
Xxxxxxx,
Xxxxxx
|
ID/Wound
|
5 | 2.84 | % | $ | 311,587 | |||||||||
|
6
|
Xxxx,
Xxxxxxx
|
Internal
Medicine
|
11.66663 | 6.63 | % | $ | 727,033 | |||||||||
|
7
|
Xxxxxxxxx,
Xxxxxxxxx
|
Pulmonologist
|
5 | 2.84 | % | $ | 311,587 | |||||||||
|
8
|
Gamil,
Wafer
|
Internal
Medicine
|
11.66663 | 6.63 | % | $ | 727,033 | |||||||||
|
9
|
Xxxxx,
Xxxxx
|
Ortho
Surg
|
5 | 2.84 | % | $ | 311,583 | |||||||||
|
10
|
Xxxx,
Xxxx
|
Pulmonologist
|
10 | 5.68 | % | $ | 623,173 | |||||||||
|
11
|
Xxxxxx,
Xxxxxxx
|
Neurology
|
2 | 1.14 | % | $ | 124,635 | |||||||||
|
12
|
Xxxx,
Xxxxx X.
|
Internal
Medicine
|
5 | 2.84 | % | $ | 311,587 | |||||||||
|
13
|
Xxxxxxx
Xxxxxxxxx
|
Internal
Medicine
|
5 | 2.84 | % | $ | 311,583 | |||||||||
|
14
|
Osugwu,
Chukwma
|
Internal
Medicine
|
5 | 2.84 | % | $ | 311,583 | |||||||||
|
15
|
Perijoc,
Mihaela
|
Internal
Medicine
|
5 | 2.84 | % | $ | 311,583 | |||||||||
|
16
|
Xxxxxxx,
Xxxxxxx X.
|
Xxxx/Spine
|
10 | 5.68 | % | $ | 623,166 | |||||||||
|
17
|
Xxxxxxx,
Xxxxxxxxx
|
Internal
Medicine
|
5 | 2.84 | % | $ | 311,583 | |||||||||
|
18
|
Xxxxxxx,
Xxxxxx
|
PMR
|
12.66663 | 7.20 | % | $ | 789,351 | |||||||||
|
19
|
Xxxxxx
Xxxx
|
Family
Practice
|
5 | 2.84 | % | $ | 311,587 | |||||||||
|
20
|
Xxxxxxx,
Xxxxxxx
|
General
Surgery
|
2 | 1.14 | % | $ | 124,633 | |||||||||
|
21
|
Xxxxx,
Xxxxxxx
|
Internal
Medicine
|
11.66663 | 6.63 | % | $ | 727,033 | |||||||||
|
22
|
Xxxxxx,
Xxxxxxxx
|
Pulmonologist
|
5 | 2.84 | % | $ | 311,583 | |||||||||
|
23
|
Xxxxxxxx,
Xxxxxx
|
Pulmonologist
|
5 | 2.84 | % | $ | 311,583 | |||||||||
|
24
|
Won,
Xxxxxxx
|
Xxxx/Spine
|
10 | 5.68 | % | $ | 623,166 | |||||||||
|
25
|
Xxxx,
Xxxxx
|
Pulmonologist
|
12.66633 | 7.20 | % | $ | 789,332 | |||||||||
|
26
|
Xxxxxx,
Xxxxx
|
Internal
Medicine
|
2 | 1.14 | % | $ | 124,633 | |||||||||
|
Total
Units Sold
|
175.9995 | 100.00 | % | $ | 10,967,817 | |||||||||||
G - 1
Exhibit
10.20
THIRD AMENDMENT TO HOSPITAL
LEASE AGREEMENT
This
Third Amendment to Hospital Lease Agreement (the "Third Amendment") is made and
entered into as of February 19, 2009 (the "Effective Date"), by and between GR
IRF I, LP, a Texas limited partnership ("Landlord"), and GLOBALREHAB, LP, a
Texas limited partnership ("Tenant").
W I T N E S S E T H:
WHEREAS,
Landlord and Tenant entered into that certain Hospital Lease Agreement dated as
of August 28, 2007, as amended by that certain First Amendment to Hospital Lease
Agreement dated as of September 18, 2007, and by that certain Second Amendment
to Hospital Lease Agreement,
dated as of November 9, 2007 (as amended, the "Lease"), of approximately
2.645 acres of land and improvements to be constructed thereon containing
approximately 40,000 square feet and located at the southwest corner of Empire
Central and Brookriver Drive in Dallas, Texas, as more particularly
described in the Lease (the "Leased Premises");
WHEREAS,
Landlord is subject to certain insurance requirements (the "Landlord's Mortgagee
Insurance Requirements") pursuant to that certain Construction Loan Agreement,
dated November 9, 2007, between Landlord, as Borrower, and Stillwater National
Bank and Trust Company ("Landlord's Mortgagee");
WHEREAS,
Tenant desires to assume responsibility for complying with the Landlord's
Mortgagee Insurance Requirements on the terms set forth herein; and
WHEREAS,
Landlord and Tenant desire to further amend certain provisions of the Lease as
more particularly set forth herein.
NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereto agree as follows:
1. Capitalized
Terms. All capitalized terms used herein and not otherwise defined
herein shall have the meanings set forth in the Lease.
2. Tenant Allowance.
Landlord hereby grants Tenant an allowance equal to Two Hundred Thousand Dollars
($200,000.00) (the "Tenant Allowance") to be used by Tenant in its discretion
for improvements, alterations and/or repairs within the Leased Premises. The
Tenant Allowance shall be provided to Tenant in the form of an abatement of Base
Rent as set forth in Section 3 herein. Any and all such improvements,
alterations or repairs made or constructed within the Leased Premises shall
comply in all respects with Exhibit
D, Section 11, and Section 8.2 of the Lease, as
applicable.
3. Base
Rent.
(a) The
definition of "Rent Commencement Date" set forth in Section 5.1 is hereby
amended to reflect such date as February 24, 2009. The Rent Commencement Date
has been amended to reflect a postponement of the Rent Commencement Date from
December 27th to
February 24th resulting in
an abatement of Basic
Rent in the total amount of approximately Two Hundred Thousand Dollars
$200,000.00.
Exhibit
10.20
(b) The
Base Rent amounts set forth in Section 5.1 of the Lease are hereby amended to
reflect the following:
|
Initial
Annual Rate
|
$30.98
per square foot of Net Rentable Area of the Leased
Premises
|
|
Estimated
Initial Annual Base Rent
|
$1,239,092.00
|
|
Estimated
Initial Monthly Base Rent
|
$103,259.66.
|
4. Section
17.2 of the Lease is hereby deleted in its entirety and replaced with the
following:
17.2 Insurance Requirements of
Landlord's Mortgagee. To the extent not already maintained by Tenant
pursuant to Section 17.1 above, Tenant shall obtain and maintain throughout the
Term the following policies of insurance required by Landlord's
Mortgagee:
(a) all-risk
insurance with respect to the Leased Premises, against loss or damage by fire,
lightening, windstorm, explosion, hail, tornado and such hazards as are
presently included in so-called "all-risk" coverage and against such other
insurable hazards as Landlord or Landlord's Mortgagee may require, in an amount
not less than 100% of the full replacement cost, including the
cost of debris removal, without deduction for depreciation and sufficient to
prevent Tenant, Landlord or Landlord's Mortgagee from becoming a coinsurer,
such insurance to be in "Builder's Risk" (non-reporting) form during and with
respect to any construction on the Leased Premises;
(b) if
and to the extent any portion of the Leased Premises is in a special flood
hazard area, a flood insurance policy in an amount equal to the lesser of the
principal balance of any outstanding indebtedness owed by Landlord to Landlord's
Mortgagee (the "Indebtedness") or the maximum amount available;
(c) comprehensive
general public liability insurance, on an "occurrence" basis, for the benefit of
Tenant, Landlord and Landlord's Mortgagee as named insureds;
(d) statutory
worker's compensation insurance with respect to any work on or about the Leased
Premises; and
(e) such
other insurance on the Leased Premises as may from time to time be required by
Landlord or Landlord's Mortgagee (including but not limited to business
interruption insurance, loss of rents insurance, boiler and machinery insurance,
earthquake insurance, and war risk insurance) and against other insurable
hazards or casualties which at the time are commonly insured against in the case
of premises similarly situated, due regard being given to the height, type,
construction, location, use and occupancy of buildings and
improvements.
2
Exhibit
10.20
All
insurance policies shall be issued and maintained by insurers, in amounts, with
deductibles, and in form satisfactory to Landlord and Landlord's Mortgagee, and
shall require not less than thirty (30) days' prior written notice to Landlord
and Landlord's Mortgagee of any cancellation or change of coverage.
All
insurance policies maintained, or caused to be maintained, by Tenant with
respect to the Leased Premises, except for public liability insurance, shall
provide that each such policy shall be primary without right of contribution
from any other insurance that may be carried by Tenant, Landlord or Landlord's
Mortgagee and that all of the provisions thereof, except the limits of
liability, shall operate in the same manner as if there were a separate policy
covering each insured. If any insurer which has issued a policy of title,
hazard, liability or other insurance required pursuant to this Lease becomes
insolvent or the subject of debtor relief laws, receivership or similar proceedings or if
Landlord or Landlord's Mortgagee, in good faith, believes that the financial
responsibility of such insurer is or becomes inadequate, Tenant shall, in each
instance, promptly, upon the request of Landlord and at Tenant's expense, obtain
and deliver to Landlord and Landlord's Mortgagee a like policy (or, if and to
the extent permitted by Landlord and Landlord's Mortgagee, a certificate of
insurance) issued by another insurer, which insurer and policy meet the
insurance requirements of Landlord's Mortgagee.
Without
limiting the discretion of Landlord and Landlord's Mortgagee with respect to
required endorsements to insurance policies, all such policies for loss of or
damage to the Leased Premises shall contain a standard mortgage clause (without
contribution) naming Landlord's Mortgagee as mortgagee with loss proceeds
payable to Landlord's Mortgagee notwithstanding (i) any act, failure to act or
negligence of or violation of any warranty, declaration or condition contained
in any such policy by any named insured; (ii) the occupation or use of the
Leased Premises for purposes more hazardous than permitted by the terms of any
such policy; (iii) any foreclosure or other action by Landlord's Mortgagee; or
(iv) any change in title to or ownership of the Leased Premises or any portion
thereof, such proceeds to be held for application as provided in the loan
documents between Landlord and Landlord's Mortgagee.
The
originals of each initial insurance policy (or to the extent permitted by
Landlord's Mortgagee, a copy of the original policy and a satisfactory
certificate of insurance) shall be delivered to Landlord and Landlord's
Mortgagee promptly after execution of this Third Amendment, with premiums fully
paid or a premium
finance agreement in place, and each renewal or substitute policy (or
certificate) shall be delivered to Landlord and Landlord's Mortgagee, with
premiums fully paid or a premium finance agreement in place, at least fifteen
(15) days before the termination of the policy it renews or replaces. All
insurance policies required pursuant to this Section 17.2 shall provide that
they will not be cancelled or reduced in value (except a reduction in policy
aggregate due to incurred claims), without thirty (30) days' prior written
notice to Landlord. Tenant shall pay all premiums on policies required hereunder
as they become due and payable and promptly deliver to Landlord and Landlord's
Mortgagee evidence satisfactory to Landlord and Landlord's Mortgagee of the
timely payment thereof. If any loss occurs at any time when Tenant has
failed to perform Tenant's covenants and agreements in this Third Amendment,
Landlord and Landlord's Mortgagee shall nevertheless be entitled to the benefit
of all insurance covering the loss and held by or for Tenant, to the same extent
as if it had been made payable to Landlord and Landlord's
Mortgagee.
3
Exhibit
10.20
Upon any
foreclosure hereof or transfer of title to the Leased Premises in extinguishment
of the whole or any part of the Indebtedness, all of Landlord's right, title and
interest in and to the insurance policies referred to in
this Section 17.2 (including unearned premiums) and all proceeds payable
thereunder shall thereupon vest in the purchaser at foreclosure or other such
transferee, to the extent permissible under such policies. Landlord's Mortgagee
shall have the right (but not the obligation) to make proof of loss for, settle
and adjust any claim under, and receive the proceeds of, all insurance for loss
of or damage to the Leased Premises, and the expenses incurred by Landlord's
Mortgagee in the adjustment and collection of insurance proceeds shall be a part
of the Indebtedness, shall be due and payable to Landlord's Mortgagee on demand
and shall bear interest from the date paid by Landlord's Mortgagee until
reimbursed at the highest rate of interest applicable to any of the Indebtedness
(but not in excess of the highest rate permitted by applicable law). Landlord's
Mortgagee and its employees are each irrevocably appointed attorney-in-fact for
Tenant and Landlord and are authorized to adjust and compromise each loss
without the consent of Tenant or Landlord, to collect, receive and receipt for
all insurance proceeds in the name of Landlord's Mortgagee, Landlord and/or
Tenant, and to endorse Landlord's or Tenant's name upon any check in payment of
the loss. Landlord's Mortgagee shall not be, under
any circumstances, liable or responsible for failure to collect or
exercise diligence in the collection of any of such proceeds or for the
obtaining, maintaining or adequacy of any insurance or for failure to see to the
proper application of any amount paid over to Landlord or Tenant.
5. Survival of Lease.
Except as expressly set forth in this Third Amendment, the terms and provisions
of the Lease shall continue in full force and effect and shall survive in all
respects the execution of this Third Amendment.
6. Complete Agreement.
This Third Amendment shall constitute the entire agreement among the parties
with respect to the subject matter hereof and shall supersede any previous
negotiations, commitments and writings with respect to such subject
matter.
7. Governing Law. This
Third Amendment shall be governed by and construed in accordance with laws of
the
State of Texas.
8. Ratification of the
Lease. Except as expressly modified herein, all of the terms and
provisions of the Lease are expressly reaffirmed.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
4
IN
WITNESS WHEREOF, the parties hereto have executed this Third Amendment as of the
date first above written.
|
LANDLORD:
GR IRF I,
LP,
a
Texas limited partnership
|
|||
|
|
By:
|
GR IRF Managers, LLC, | |
| a Texas limited liability company, as General Partner | |||
| By: | /s/ X. X. Xxxxxxxxx, Xx. | ||
| Name: | X.X. Xxxxxxxxx, Xx. | ||
| Title: | Manager | ||
Signature
Page of Third Amendment
To
Hospital Lease Agreement
IN
WITNESS WHEREOF, the parties hereto have executed this Third Amendment as of the
date first above written.
|
TENANT:
GLOBALREHAB,
LP,
a
Texas limited partnership
|
|||
|
|
By:
|
GH General, Inc. | |
| Its: | Sole General Partner | ||
| By: | /s/ Xxxxxx Xxxxxxx | ||
| Name: | Xxxxxx Xxxxxxx | ||
| Title: | Manager | ||
Signature
Page of Third Amendment
To
Hospital Lease
Agreement
Exhibit
10.20
FOURTH AMENDMENT TO HOSPITAL
LEASE AGREEMENT
This FOURTH AMENDMENT TO HOSPITAL LEASE
AGREEMENT ("Fourth
Amendment") dated as of the 2nd day of August, 2010, by and between GR
IRF I, LP, a Texas limited partnership, its successors and assigns ("Landlord")
and GLOBALREHAB, LP, a Texas limited partnership, its successors and permitted
assigns ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered
into that certain Hospital Lease Agreement dated as of August 28, 2007, as
amended by that certain First Amendment to Hospital Lease Agreement dated as of
September 18, 2007, the Second Amendment to Hospital Lease dated November 9,
2007 and the Third Amendment to Hospital Lease dated February 19, 2009
(collectively, the “Lease”)
of approximately 2.645 acres of land and improvements to be located thereon
containing approximately 40,000 square feet on tract of land located at the
southwest corner of Empire Central and Brookriver Drive in Dallas, Texas, as
more particularly described in the Lease (the (the “Leased
Premises”); and
WHEREAS,
Landlord and Tenant now desire to amend said Lease as hereinafter set
forth.
NOW, THEREFORE, for good, lawful and
valuable consideration, including the undertakings of the parties hereto, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Capitalized
Terms. All capitalized terms used herein and not otherwise
defined herein shall have the meanings set forth in the Lease.
|
|
2.
|
Amendments to
Lease.
|
|
|
(a)
|
Paragraph
29 of Exhibit
A to the Lease is hereby amended in its entirety to read as
follows:
|
“Net Rentable Area”
means the area determined pursuant to the Work Letter. The Net
Rentable Area of the Lease Premises is 40,828 square feet.
All other
provisions of Exhibit
A shall remain as set forth in the Lease.
3. Base
Rent. Nothing in this amendment shall result in any changes to
the Estimated Initial Annual Base Rent or the Estimated Initial Monthly Base
Rent set forth in
4. Survival of
Lease. Except as expressly set forth in this Fourth Amendment,
the terms and provisions of the Lease shall continue in full force and effect
and shall survive in all respects the execution of this Fourth
Amendment.
4. Acceptance of
Premises. Tenant’s acceptance of Premises is confirmed by
Tenant’s occupancy of the Premises for purposes of commencing operation of the
Permitted Use as outlined in the Lease.
5. Complete
Agreement. This Fourth Amendment shall constitute the entire
agreement among the parties with respect to the subject matter hereof and shall
supersede any previous negotiations, commitments and writings with respect to
such subject matter.
Global
Rehab Dallas
Fourth
Amendment
Page
1
Exhibit
10.20
6. Governing
Law. This Fourth Amendment shall be governed by and construed
in accordance with laws of the State of Texas.
7. Ratification of
Lease. Except as expressly modified herein, all of the terms
and provisions of the Lease are expressly reaffirmed.
EXECUTED
in multiple counterparts, each of which shall have the force and effect of an
original.
(REMAINDER
OF PAGE INTENTIONALLY BLANK – SIGNATURES FOLLOW)
Global
Rehab Dallas
Fourth
Amendment
Page
2
Exhibit
10.20
IN
WITNESS WHEREOF, the parties hereto have executed this Fourth Amendment as of
the date first above written.
|
LANDLORD:
|
||
|
GR IRF I,
LP,
|
||
|
a
Texas limited partnership
|
||
|
By: GR
IRF Managers, LLC,
|
||
|
a
Texas limited liability company, as General Partner
|
||
|
By:
|
/s/
X.X. Xxxxxxxxx, Xx.
|
|
|
Name:
|
X.X.
Xxxxxxxxx, Xx.
|
|
|
Title:
|
Manager
|
|
|
TENANT:
|
||
|
GLOBALREHAB,
LP,
|
||
|
a
Texas limited partnership
|
||
|
By:
|
GH
General, LLC,
|
|
|
its
sole General Partner
|
||
|
By:
|
/s/
Xxxxxx Xxxxxxx
|
|
|
Name:
|
Xxxxxx
Xxxxxxx
|
|
|
Title:
|
Manager
|
|
Global
Rehab Dallas
Fourth
Amendment
Page
3
