EXHIBIT 10.60
LEASE AGREEMENT
MPT OF BLOOMINGTON, LLC,
a Delaware limited liability company
Lessor
AND
MONROE HOSPITAL, LLC,
an Indiana limited liability company
Lessee
Property: Thirty-two (32)-Bed General Acute Care Hospital Facility
Bloomington, Monroe County, Indiana
October 7, 2005
Table of Contents
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LEASE AGREEMENT................................................................. i
LEASE AGREEMENT................................................................. 1
ARTICLE I LEASED PROPERTY; TERM........................................... 1
ARTICLE II DEFINITIONS..................................................... 2
ARTICLE III RENT............................................................ 11
3.1 Base Rent; Rent During the Construction Period.................. 11
3.2 Additional Charges.............................................. 12
3.3 Absolute Net Lease.............................................. 12
ARTICLE IV IMPOSITIONS..................................................... 13
4.1 Payment of Impositions.......................................... 13
4.2 Adjustment of Impositions....................................... 13
4.3 Utility Charges................................................. 13
4.4 Insurance Premiums.............................................. 14
ARTICLE V NO TERMINATION.................................................. 14
5.1 Acknowledgement................................................. 14
ARTICLE VI OWNERSHIP OF LAND AND PERSONAL PROPERTY......................... 14
6.1 Ownership of the Leased Property................................ 14
6.2 Lessee's Personal Property...................................... 14
ARTICLE VII CONDITION AND USE OF LEASED PROPERTY............................ 15
7.1 Condition of the Leased Property................................ 15
7.2 Use of the Leased Property...................................... 15
7.3 Lessor to Grant Easements....................................... 16
ARTICLE VIII LEGAL AND INSURANCE REQUIREMENTS................................ 16
8.1 Compliance with Legal and Insurance Requirements................ 16
8.2 Legal Requirement Covenants..................................... 17
8.3 Hazardous Materials............................................. 17
8.4 Healthcare Laws................................................. 18
8.5 Representations and Warranties.................................. 18
8.6 Single Purpose Entity........................................... 18
8.7 Organizational Documents........................................ 19
ARTICLE IX REPAIRS; RESERVE; RESTRICTIONS.................................. 19
9.1 Maintenance and Repair.......................................... 19
9.2 Reserves for Extraordinary Repairs.............................. 20
9.3 Encroachments; Restrictions..................................... 20
ARTICLE X CAPITAL ADDITIONS............................................... 21
10.1 Construction of Capital Additions to the Leased Property........ 21
10.2 Capital Additions Financed by Lessee............................ 21
10.3 Capital Additions Financed by Lessor............................ 22
10.4 Salvage......................................................... 24
ARTICLE XI LIENS........................................................... 24
ARTICLE XII PERMITTED CONTESTS.............................................. 25
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ARTICLE XIII INSURANCE....................................................... 25
13.1 General Insurance Requirements.................................. 25
13.2 Additional Insurance............................................ 27
13.3 Waiver of Subrogation........................................... 27
13.4 Form of Insurance............................................... 28
13.5 Increase in Limits.............................................. 28
13.6 Blanket Policy.................................................. 28
13.7 No Separate Insurance........................................... 29
ARTICLE XIV FIRE AND CASUALTY............................................... 29
14.1 Insurance Proceeds.............................................. 29
14.2 Reconstruction in the Event of Damage or Destruction
Covered by Insurance............................. 29
14.3 Reconstruction in the Event of Damage
or Destruction Not Covered by Insurance......................... 30
14.4 Lessee's Personal Property...................................... 30
14.5 Restoration of Lessee's Property................................ 30
14.6 No Abatement of Rent............................................ 30
14.7 Damage Near End of Term......................................... 30
14.8 Termination of Right to Purchase and Substitution............... 31
14.9 Waiver.......................................................... 31
14.10 Purchase Option Subordinate to Facility Instrument.............. 31
ARTICLE XV CONDEMNATION.................................................... 31
15.1 Definitions..................................................... 31
15.2 Parties' Rights and Obligations................................. 31
15.3 Total Taking.................................................... 31
15.4 Partial Taking.................................................. 31
15.5 Restoration..................................................... 32
15.6 Award Distribution.............................................. 32
15.7 Temporary Taking................................................ 32
15.8 Purchase Option Subordinate to Facility Instrument.............. 32
ARTICLE XVI DEFAULT......................................................... 32
16.1 Events of Default............................................... 32
16.2 Events of Default in Financial Covenants........................ 36
16.3 Additional Expenses............................................. 37
16.4 Waiver.......................................................... 37
16.5 Application of Funds............................................ 37
16.6 Notices by Lessor............................................... 37
16.7 Lessor's Contractual Security Interest.......................... 37
ARTICLE XVII LESSOR'S RIGHT TO CURE.......................................... 39
ARTICLE XVIII PURCHASE OF THE LEASED PROPERTY................................. 39
ARTICLE XIX HOLDING OVER.................................................... 39
ARTICLE XX INTENTIONALLY OMITTED........................................... 40
ARTICLE XXI RISK OF LOSS.................................................... 40
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ARTICLE XXII INDEMNIFICATION................................................. 40
ARTICLE XXIII ASSIGNMENT, SUBLETTING; AND SUBLEASE SUBORDINATION.............. 41
23.1 Assignment and Subletting....................................... 41
23.2 Sublease Limitations............................................ 41
23.3 Sublease Subordination and Non-Disturbance...................... 42
ARTICLE XXIV OFFICER'S CERTIFICATES; FINANCIAL STATEMENTS;
NOTICES AND OTHER CERTIFICATES.................................. 42
ARTICLE XXV INSPECTION AND FEES............................................. 44
ARTICLE XXVI NO WAIVER....................................................... 44
ARTICLE XXVII REMEDIES CUMULATIVE............................................. 44
ARTICLE XXVIII SURRENDER....................................................... 44
ARTICLE XXIX NO MERGER OF TITLE.............................................. 45
ARTICLE XXX TRANSFERS BY LESSOR............................................. 45
ARTICLE XXXI QUIET ENJOYMENT................................................. 45
ARTICLE XXXII NOTICES......................................................... 45
ARTICLE XXXIII APPRAISAL....................................................... 46
ARTICLE XXXIV PURCHASE RIGHTS................................................. 47
34.1 Lessee's Option to Purchase..................................... 47
34.2 Lessor's Option to Purchase Lessee's Personal Property.......... 48
34.3 Survival........................................................ 48
ARTICLE XXXV [INTENTIONALLY OMITTED]......................................... 48
ARTICLE XXXVI [INTENTIONALLY OMITTED]......................................... 48
ARTICLE XXXVII FINANCING OF THE LEASED PROPERTY................................ 48
ARTICLE XXXVIII SUBORDINATION AND NON-DISTURBANCE............................... 48
ARTICLE XXXIX LICENSES........................................................ 49
ARTICLE XL COMPLIANCE WITH HEALTHCARE LAWS................................. 50
ARTICLE XLI MISCELLANEOUS................................................... 51
41.1 General......................................................... 51
41.2 Lessor's Expenses............................................... 51
41.3 Entire Agreement; Modifications................................. 51
41.4 Lease Guaranty.................................................. 51
41.5 Lessor's Right to Sell.......................................... 51
41.6 Future Financing................................................ 52
41.7 Letter of Credit................................................ 52
41.8 Cash Injection;Tangible Net Worth............................... 52
41.9 Additional Letter of Credit..................................... 53
41.10 Change in Ownership/Control..................................... 53
41.11 Lessor Securities Offering and Filings.......................... 53
41.12 Non-Recourse as to Lessor....................................... 53
41.13 Covenants, Restrictions and Reciprocal Easements................ 53
41.14 Force Majeure................................................... 53
41.15 Management Agreements........................................... 54
41.16 Governing Law................................................... 54
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41.17 Jurisdiction and Venue.......................................... 54
41.18 Counterparts.................................................... 54
ARTICLE XLII MEMORANDUM OF LEASE............................................. 55
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LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is dated as of the 7th day of October,
2005, and is between MPT OF BLOOMINGTON, LLC, a Delaware limited liability
company ("Lessor"), having its principal office at 0000 Xxxxx Xxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, and MONROE HOSPITAL, LLC, an Indiana
limited liability company ("Lessee"), having its principal office at 0000 Xxxx
Xxxxx, Xxxxxxxxxxx, Xxxxxxx 00000.
WITNESSETH:
WHEREAS, Lessor is the current owner of that certain real property located
in Bloomington, Monroe County, Indiana, which real property is more particularly
described on EXHIBIT A attached hereto and incorporated herein by reference (the
"Land");
WHEREAS, Lessor has purchased the Land from Southern Indiana Medical Park
II, LLC, pursuant to the Purchase Agreement as part of the development of a
general acute care hospital facility on the Land by Lessee;
WHEREAS, Lessor wishes to lease the Land and Leased Improvements (as
hereinafter defined) to the Lessee and the Lessee desires to lease the Land and
Leased Improvements from the Lessor; and
WHEREAS, the parties desire to enter into this Lease on the terms and
conditions hereinafter provided.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
LEASED PROPERTY; TERM
Upon and subject to the terms and conditions set forth above and as
hereinafter set forth, Lessor leases to Lessee and Lessee rents from Lessor all
of Lessor's rights and interest in and to the following property (collectively,
the "Leased Property"):
(a) the Land;
(b) the Facility to be constructed on the Land as provided in the
Development Agreement (as herein defined), all Fixtures (as hereinafter
defined) and other improvements of every kind including, but not limited
to, alleyways and connecting tunnels, sidewalks, utility pipes, conduits
and lines (on-site and off-site), parking areas and roadways appurtenant
to such buildings and structures presently or hereafter situated upon the
Land and related to the Facility, and Capital Additions (hereinafter
defined) financed by Lessor (collectively, the "Leased Improvements");
(c) all easements, rights and appurtenances relating to the Land and
the Leased Improvements; and;
(d) all permanently affixed non-medical equipment, machinery,
fixtures, and other items of real and/or personal property, including all
components thereof, now and hereafter located in, on or used in connection
with, and permanently affixed to or incorporated into the Leased
Improvements, including, without limitation, all furnaces, boilers,
heaters, electrical equipment, heating, plumbing, lighting, ventilating,
refrigerating, incineration, air and water pollution control, waste
disposal, air-cooling and air-conditioning systems and apparatus,
sprinkler systems and fire and theft protection equipment, and built-in
oxygen and vacuum systems, all of which, to the greatest extent permitted
by law, are hereby deemed by the parties hereto to constitute real estate,
together with all replacements, modifications, alterations and
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additions thereto, but specifically excluding all items included within
the category of Lessee's Personal Property as defined in Article II below
(collectively the "Fixtures").
SUBJECT, HOWEVER, to the matters set forth on EXHIBIT B attached hereto (the
"Permitted Exceptions"); Lessee shall have and hold the Leased Property for a
fixed term (the "Fixed Term") commencing on the date hereof (the "Commencement
Date") and ending at midnight on the last day of the one hundred and eightieth
(180th) month period following the Completion Date (as hereinafter defined).
Notwithstanding anything contained herein to the contrary, in the event the
certificate of occupancy is not issued within ninety (90) days from the date of
the Completion of the construction of the Facility or if Lessee fails to obtain
its Medicare billing number within one hundred eighty (180) days from the date
of Completion of the construction of the Facility, Lessor shall have the option
to terminate this Lease upon fifteen (15) days prior written notice to Lessee.
So long as Lessee is not in default, and no event has occurred which with
the giving of notice or the passage of time or both would constitute such a
default, under any of the terms and conditions of this Lease, or under any of
the terms and conditions of the Other Leases (as hereinafter defined), Lessee
shall have the option to extend the Fixed Term of this Lease on the same terms
and conditions set forth herein for three (3) additional periods of five (5)
years each (each an "Extension Term"). Lessee may exercise each such option by
giving written notice to the Lessor at least six (6) months prior to the
expiration of the Fixed Term or Extension Term, as applicable (the "Extension
Notice"). If during the period following the delivery of the Extension Notice to
Lessor, Lessee shall fail to comply with all of the terms and provisions of this
Lease, or a default or breach shall occur under this Lease or under any of the
Other Leases, or Lessee shall default under the Tenant Leases, or there shall be
a default under the Loan or the Loan Documents, Lessee shall be deemed to have
forfeited all Extension Options. If Lessee elects not to exercise its option to
extend, all subsequent options to extend and all rights of the Lessee to
purchase as provided herein shall be deemed to have lapsed and be of no further
force or effect.
ARTICLE II
DEFINITIONS
For all purposes of this Lease, except as otherwise expressly provided or
unless the context otherwise requires, (a) the terms defined in this Article
have the meanings assigned to them in this Article and include the plural as
well as the singular, (b) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with GAAP as at the time applicable,
(c) all references in this Lease to designated "Articles", "Sections" and other
subdivisions are to the designated Articles, Sections and other subdivisions of
this Lease, and (d) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Lease as a whole and not to any particular
Article, Section or other subdivision:
Added Value Additional: As defined in Section 10.2.
Additional Charges: As defined in Section 3.2.
Adjustment Date: January 1 of each year commencing on January 1, 2006.
Affiliate: When used with respect to any corporation, limited liability
company, or partnership, the term "Affiliate" shall mean any person,
corporation, limited liability company, partnership or other legal entity,
which, directly or indirectly, controls or is controlled by or is under common
control with such corporation, limited liability company, or partnership. 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, corporation, limited liability company, partnership or
other legal entity, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
person, corporation, limited liability company, partnership or other legal
entity, through the ownership of voting securities, partnership interests or
other equity interests.
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Ambulatory Surgery Center: The ambulatory surgery center currently owned
and operated by PMC (as defined herein) in Bloomington, Monroe County, Indiana.
ASC: Monroe Hospital Outpatient ASC, LLC, an Indiana limited liability
company and wholly-owned subsidiary of Lessee.
Award: As defined in Section 15.1.
Base Rent: As defined in Section 3.1.
Business: The operation of the Facility and the engagement in and pursuit
and conduct of any business venture or activity related thereto, including,
without limitation, ASC's operation of the Ambulatory Surgery Center; provided,
however, that the operation of such Ambulatory Surgery Center shall be deemed to
be within the term "Business" only until such time as Lessee achieves the
necessary licensure and certification to provide inpatient and outpatient
surgery services, whereupon, Lessee shall cease to operate such Ambulatory
Surgery Center business through the ASC and the assets of the ASC (other than
any Medicare or other provider numbers), but not its liabilities, shall be
conveyed to Lessee upon achievement of such necessary licensure or
certification.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and Friday which
is not a day on which money centers in the City of New York, New York are
authorized, or obligated, by law or executive order, to close.
Capital Additions: One or more new buildings or one or more additional
structures annexed to any portion of any of the Leased Improvements, which are
constructed on any parcel or portion of the Land during the Term, including the
construction of a new wing or new story.
Capital Addition Cost: The cost of any Capital Additions proposed to be
made by Lessee whether or not paid for by Lessee or Lessor. Such cost shall
include (a) the cost of construction of the Capital Additions, including site
preparation and improvement, materials, labor, supervision and certain related
design, engineering and architectural services, the cost of any fixtures, the
cost of construction financing and miscellaneous costs approved by Lessor, (b)
if agreed to by Lessor in writing in advance, the cost of any land contiguous to
the Leased Property purchased for the purpose of placing thereon the Capital
Additions or any portion thereof or for providing means of access thereto, or
parking facilities therefor, including the cost of surveying the same, (c) the
cost of insurance, real estate taxes, water and sewage charges and other
carrying charges for such Capital Additions during construction, (d) the cost of
title insurance, (e) reasonable fees and expenses of legal counsel, (f) filing,
registration and recording taxes and fees, (g) documentary stamp taxes, if any,
and (h) all reasonable costs and expenses of Lessor and any Lending Institution
which has committed to finance the Capital Additions, including, but not limited
to, (i) the reasonable fees and expenses of their respective legal counsel, (ii)
all printing expenses, (iii) the amount of any filing, registration and
recording taxes and fees, (iv) documentary stamp taxes, if any, (v) title
insurance charges, appraisal fees, if any, (vi) rating agency fees, if any, and
(vii) commitment fees, if any, charged by any Lending Institution advancing or
offering to advance any portion of the financing for such Capital Additions.
Capital Improvement Reserve: As defined in Section 9.1(e).
Code: The Internal Revenue Code of 1986, as amended.
Commencement Date: The date hereof.
Commitment Letter: The commitment letter between Lessor and Lessee (or
their Affiliates) dated February 28, 2005, as amended by letter dated May 24,
2005, and as further amended by letter dated June 21, 2005.
Completion: The terms "completion," "complete construction," "completion
of construction" and similar phrases mean such time as Lessor receives written
certification from the architect that the construction of the Leased
Improvements has been substantially completed in accordance with the plans and
specifications therefor, which
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certificate shall be in form and substance satisfactory to Lessor and shall
include the written approval of Lessor's, construction inspector noted thereon.
Completion Date: As defined in Section 3.3(e) of the Development
Agreement.
Condemnation, Condemnor: As defined in Section 15.1.
Consolidated Net Worth: At any time, the sum of the following for Lessee
and its respective consolidated subsidiaries on a consolidated basis determined
in accordance with GAAP:
(a) the amount of capital or stated capital (after deducting the
cost of any treasury shares), plus
(b) the amount of capital surplus and retained earnings (or, in the
case of a capital surplus or retained earnings deficit, minus the amount
of such deficit), minus
(c) the sum of the following (without duplication of deductions in
respect of items already deducted in arriving at surplus and retained
earnings): (i) unamortized debt discount and expense and (ii) any write-up
in book value of assets resulting from a revaluation thereof pursuant to
GAAP subsequent to the most recent Statements of Cash Flow prior to the
date thereof, except any net write-up in value of foreign currency in
accordance with generally accepted accounting principles; any write-up
resulting from reversal of a reserve for bad debts or depreciation; and
any write-up resulting from a change in methods of accounting for
inventory.
Construction Period: That period of time from the date hereof and ending
on the Completion Date.
Construction Period Rent: As defined in Section 3.1(a).
Consumer Price Index: The Consumer Price Index, all urban consumers, all
items, U.S. City Average, published by the United States Department of Labor,
Bureau of Labor Statistics, in which 1982-1984 equals one hundred (100). If the
Consumer Price Index is discontinued or revised during the term of this Lease,
such other governmental index or computation with which it is replaced shall be
used in order to obtain substantially the same result as would be obtained if
the Index had not been discontinued or revised.
CPI: The Consumer Price Index.
Credit Enhancements: All security deposits, security interests, letters of
credit, pledges, guaranties, prepaid rent or other sums, deposits or interests
held by Lessee, if any, with respect to the Leased Property, the Tenant Leases
or the Tenants.
Date of Taking: As defined in Section 15.1.
Declaration: The Declaration of Protective Covenants, Conditions,
Restrictions, Reservations and Easements for the Monroe Medical Park as more
particularly described in the Repurchase Agreement.
Developer: Monroe Hospital Development, LLC, an Indiana limited liability
company.
Development Agreement: That certain Development Agreement dated of even
date herewith among Developer, Lessor and Lessee, as the same may be amended,
modified, supplemented and/or restated from time to time.
EBITDAR: Earnings before the deduction of interest, taxes, depreciation,
amortization and rent, as determined in accordance with GAAP.
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EBITDAR Lease Coverage: For any calculation period, EBITDAR for such
period divided by payments of Base Rent for such period.
EBITDAR Total Fixed Charge Coverage: For any calculation period, EBITDAR
for such period divided by the sum for such period of all scheduled Lease
payments, debt service payments (including payments of principal and interest),
and payments to fund required reserves.
Encumbrances: As defined in Article XXXVII.
Events of Default: As defined in Section 16.1 and Section 16.2.
Extension Notice: As defined in Article I.
Extension Term(s): As defined in Article I.
Extraordinary Repairs: All repairs to the Facility of every kind and
nature, whether interior or exterior, structural or non-structural (including,
without limitation, all parking decks and parking lots) which are considered to
be extraordinary in nature (as opposed to being ordinary or normal in nature),
as Lessee and/or Lessor may determine to be necessary or appropriate from time
to time during the Term.
Facility: The licensed thirty-two (32)-bed general acute care hospital
facility and all improvements constructed in connection therewith to be
constructed and operated on the Land.
Facility Instrument: A note (whether secured or unsecured), loan
agreement, credit agreement, guaranty, security agreement, mortgage, deed of
trust or other security agreement pursuant to which a Facility Lender has
provided financing to Lessor in connection with the Leased Property or any part
thereof, or financing provided to Lessee, if such financing is provided by
Lessor or any Affiliate of Lessor, to Lessee, and any and all renewals,
replacements, modifications, supplements, consolidations, spreaders and
extensions thereof.
Facility Lender: A holder (which may include any Affiliate of Lessor) of
any Facility Instrument.
Fair Market Value: The Fair Market Value of the Leased Property, including
all Capital Additions, (a) and shall be determined in accordance with the
appraisal procedures set forth in Article XXXIII or in such other manner as
shall be mutually acceptable to Lessor and Lessee, (b) and shall not take into
account any reduction in value resulting from any indebtedness to which the
Leased Property is subject and which encumbrance Lessee or Lessor is otherwise
required to remove pursuant to any provision of this Lease or agrees to remove
at or prior to the closing of the transaction as to which such Fair Market Value
determination is being made. The positive or negative effect on the value of the
Leased Property attributable to the interest rate, amortization schedule,
maturity date, prepayment penalty and other terms and conditions of any
Encumbrance on the Leased Property, which is not so required or agreed to be
removed shall be taken into account in determining such Fair Market Value.
Notwithstanding anything contained herein to the contrary, any appraisal of the
Leased Property shall assume the Lease is in place for a term of fifteen (15)
years, and shall not take into account any purchase options contained herein.
Fair Market Added Value: The Fair Market Value of the Leased Property
(including all Capital Additions) less the Fair Market Value of the Leased
Property determined as if no Capital Additions paid for by Lessee had been
constructed.
Fair Market Value Purchase Price: The Fair Market Value of the Leased
Property less the Fair Market Added Value.
Fiscal Year: The fiscal year for this Lease shall be the twelve (12) month
period from January 1 to December 31.
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Fixed Charges: The sum of the Lease Payments and required principal and
interest payments with respect to the Total Debt.
Fixed Term: As defined in Article I.
Fixtures: As defined in Article I.
Funding Agreement: That certain Funding Agreement of even date herewith
between Lessor and Lessee, as the same may be amended, modified, supplemented
and/or restated from time to time.
GAAP: Generally accepted accounting principles in the United States,
consistently applied.
Governmental Entity: Any national, federal, regional, state, local,
provincial, municipal, foreign or multinational court or other governmental or
regulatory authority, administrative body or government, department, board,
body, tribunal, instrumentality or commission of competent jurisdiction.
Hazardous Materials: Any substance, including without limitation, asbestos
or any substance containing asbestos and deemed hazardous under any Hazardous
Materials Law, the group of organic compounds known as polychlorinated
biphenyls, flammable explosives, radioactive materials, infectious wastes,
biomedical and medical wastes, chemicals known to cause cancer or reproductive
toxicity, pollutants, effluents, contaminants, emissions or related materials
and any items included in the definition of hazardous or toxic wastes, materials
or substances under any Hazardous Materials Laws.
Hazardous Materials Laws: All local, state and federal laws relating to
environmental conditions and industrial hygiene, including, without limitation,
the Resource Conservation and Recovery Act of 1976 ("RCRA"), the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), as
amended by the Superfund Amendments and Reauthorization Act of 1986 ("XXXX"),
the Hazardous Materials Transportation Act, the Federal Water Pollution Control
Act, the Clean Air Act, the Clean Water Act, the Toxic Substances Control Act,
the Safe Drinking Water Act, and all similar federal, state and local
environmental statutes, ordinances and the regulations, orders, or decrees now
or hereafter promulgated thereunder.
Healthcare Laws: All rules and regulations under the False Claims Act (31
U.S.C. Section 3729 et seq.), the Anti-Kickback Act of 1986 (41 U.S.C. Section
51 et seq.), the Federal Health Care Programs Anti-Kickback statute (42 U.S.C.
Section 1320a-7a(b)), the Ethics in Patient Referrals Act of 1989, as amended
(Xxxxx Law) (42 U.S.C. 1395nn), the Civil Monetary Penalties Law (42 U.S.C.
Section 1320a-7a), or the Truth in Negotiations (10 U.S.C. Section 2304 et
seq.), Health Care Fraud (18 U.S.C. 1347), Wire Fraud (18 U.S.C. 1343), Theft or
Embezzlement (18 U.S.C. 669), False Statements (18 U.S.C. 1001), False
Statements (19 U.S.C. 1035), and Patient Inducement Statute, and equivalent
state statutes and any and all rules or regulations promulgated by governmental
entities with respect to any of the foregoing.
Impositions: Collectively, all civil monetary penalties, fines and
overpayments imposed by state and federal regulatory authorities, all Real
Estate Taxes, all capital stock and franchise taxes of Lessor, all sales and use
taxes, all single business, gross receipts, transaction privilege, rent or
similar taxes and assessments (including, without limitation, all assessments,
charges and costs imposed under the Permitted Exceptions, all assessments for
public or private improvements or benefits, whether or not commenced or
completed prior to the date hereof and whether or not to be completed within the
Term), ground rents, water, sewer or other rents and charges, excises, tax
levies, fees (including, without limitation, license, permit, inspection,
authorization and similar fees), and all other governmental charges, in each
case whether general or special, ordinary or extraordinary, or foreseen or
unforeseen, of every character in respect of the Leased Property and/or the Rent
(including all interest and penalties thereon due to any failure in payment by
Lessee), and all other fees, costs and expenses which at any time prior to,
during or in respect of the Term hereof may be charged, assessed or imposed on
or in respect of or be a lien upon (a) Lessor or Lessor's interest in the Leased
Property, (b) the Leased Property or any part thereof or any rent therefrom or
any estate, right, title or interest therein, or (c) any occupancy, operation,
use or possession of, sales from, or activity
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conducted on, or in connection with, the Leased Property or the leasing or use
of the Leased Property or any part thereof; provided, however, nothing contained
in this Lease shall be construed to require Lessee to pay (1) any tax based on
net income (whether denominated as a franchise or capital stock, financial
institutions or other tax) imposed on Lessor, or (2) any transfer or net revenue
tax of Lessor, or (3) any tax imposed with respect to the sale, exchange or
other disposition by Lessor of any portion of the Leased Property or the
proceeds thereof, or (4) except as expressly provided elsewhere in this Lease,
any principal or interest on any Encumbrance on the Leased Property, except to
the extent that any tax, assessment, tax levy or charge which Lessee is
obligated to pay pursuant to the first sentence of this definition and which is
in effect at any time during the Term hereof is totally or partially repealed,
and a tax, assessment, tax levy or charge set forth in clause (1) or (2) is
levied, assessed or imposed expressly in lieu thereof, in which case Lessee
shall pay.
Initial Purchase Price: A price equal to the purchase price paid by Lessor
(and its Affiliates, including, without limitation, MPT Operating Partnership,
L.P.) contemporaneously herewith for the Land pursuant to the Purchase Agreement
which the parties acknowledge and agree is Two Million Four Hundred Twenty
Thousand and No/100 Dollars ($2,420,000.00).
Inspection Fee: As defined in Article XXV.
Insurance Premiums: As defined in Section 4.4.
Insurance Requirements: All terms of any insurance policy required by this
Lease and all requirements of the issuer of any such policy, and such additional
insurance which the Lessor may reasonably require.
Land: As defined in Article I.
Lease: As defined in the Preamble.
Lease Assignment: That certain Assignment of Rents and Leases to be
effective on the Commencement Date executed and delivered by Lessee to Lessor,
pursuant to the terms of which Lessee has assigned to Lessor each of the Tenant
Leases and Credit Enhancements, if any, as security for the obligations of
Lessee under this Lease (as the Lease may be amended, modified and/or restated
from time to time) and all other obligations of Lessee to Lessor, or Affiliate
of Lessee to Lessor or to any Affiliate of Lessor.
Lease Payments: The Base Rent and Construction Period Rent as required
under this Lease.
Lease Year: A twelve (12) month period commencing on the Commencement Date
or on each anniversary date thereof, as the case may be.
Leased Improvements; Leased Property: Each as defined in Article I.
Legal Requirements: All federal, state, county, municipal and other
governmental statutes, laws, rules, orders, regulations, ordinances, judgments,
decrees and injunctions affecting the Lessee's operation of its business on the
Leased Property, along with the Leased Property or the construction, use or
alteration thereof (including, without limitation, the Americans With
Disabilities Act and Section 504 of the Rehabilitation Act of 1973) whether now
or hereafter enacted and in force, including any which may (a) require repairs,
modifications, or alterations in or to the Leased Property, or (b) in any way
adversely affect the use and enjoyment thereof, and all permits, licenses,
authorizations and regulations relating thereto, and all covenants, agreements,
restrictions and encumbrances contained in any instruments, either of record or
known to Lessee (other than encumbrances created by Lessor without the consent
of Lessee), at any time in force affecting the Leased Property.
Lender: As defined in Section 35.1.
Lending Institution: Any insurance company, federally insured commercial
or savings bank, national banking association, savings and loan association,
employees' welfare, pension or retirement fund or system,
7
corporate profit-sharing or pension trust, college or university, or real estate
investment trust, including any corporation qualified to be treated for federal
tax purposes as a real estate investment trust, having a net worth of at least
Fifty Million Dollars ($50,000,000).
Lessee: Monroe Hospital, LLC, an Indiana limited liability company, and
its successors and permitted assigns, which, if required by Lessor, shall at all
times during the term of this Lease be a Single Purpose Entity created and to
remain in good standing as required hereunder for the sole purpose of leasing
and operating the Facility.
Lessee's Personal Property: All of Lessee's machinery, medical equipment,
furniture, furnishings, movable walls or partitions, computers, trade fixtures
or other personal property (including all such items affixed to the Leased
Property), and consumable inventory and supplies, currently owned and acquired
after the execution of this Lease, used or useful in the operation of the
Facility, including, without limitation, all operating licenses, but excluding
Lessee's accounts receivable and any items included within the definition of
Fixtures.
Lessor: MPT of Bloomington, LLC, a Delaware limited liability company, and
its successors and assigns.
Licenses: As defined in Article XXXIX.
Loan: The loan made by MPT Operating Partnership, L.P. and/or MPT
Development Services to Southern Indiana Medical Park II, LLC, an Indiana
limited liability company, evidenced by promissory notes, mortgages, deeds of
trust and other security documents executed in connection therewith, including
any loan made after the date hereof.
Loan Documents: All promissory notes, mortgages, deeds of trust and other
security documents executed in connection with the Loan.
Management Agreement: Any contracts and agreements for the management of
any part of the Leased Property, including, without limitation, the real estate
and the Leased Improvements and the operations of the Facility.
Management Company: Any person, firm, corporation or other entity or
individual who or which will manage any part of the Leased Property.
Medicaid: The medical assistance program established by Title XIX of the
Social Security Act (42 U.S.C. Sections 1396 et seq.) and any statute succeeding
thereto.
Medicare: The health insurance program for the aged and disabled
established by Title XVIII of the Social Security Act (42 U.S.C. Sections 1395
et seq.) and any statute succeeding thereto.
Mortgage: As defined in Section 35.1.
MPT: Medical Properties Trust, Inc., an Affiliate of Lessor.
MPT Development Services: MPT Development Services, Inc., an Affiliate of
Lessor.
Officer's Certificate: A certificate of Lessee signed by the officer(s) or
representative(s) authorized to so sign by the governing body of Lessee, or any
other person whose power and authority to act has been authorized by delegation
in writing by any of the persons holding the foregoing offices.
Other Leases: All other leases entered into between Lessor or any
Affiliate of Lessor, on the one hand, and Lessee or any of its Affiliates, on
the other hand.
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Overdue Rate: On any date, a rate which is the greater of (i) eighteen
percent (18%) or (ii) the highest rate allowed by the laws of the State of
Indiana.
Payment Date: Any due date for the payment of the installments of
Construction Period Rent, Base Rent, Additional Rent or any other sums payable
under this Lease.
Permitted Exceptions: As defined in Article I.
Person: An individual, a corporation, a limited liability company, a
general or limited partnership, an unincorporated association, a joint venture,
a Governmental Entity or another entity or group.
Phase I Plat: As defined in Section 41.19.
PMC: Pain Management & Surgery Center of Southern Indiana, P.C., an
Indiana professional corporation.
Primary Intended Use: As defined in Article VII.
Prime Rate: The annual rate announced by Citibank in New York, New York,
to be the prime rate for 90-day unsecured loans to its United States corporate
borrowers of the highest credit standing, as in effect from time to time.
Purchase Agreement: The Purchase and Sale Agreement dated October ___,
2005, by and among MPT Operating Partnership, L.P., Lessor and Lessee.
Real Estate Taxes: All real estate taxes, assessments and special
assessments and dues which shall be levied, or imposed upon the Leased Property
during the Term.
Removal Notice: As defined in Section 16.2.
Rent: Collectively, the Base Rent (as increased in accordance with the
provisions of Section 3.1 hereof), the Construction Period Rent and the
Additional Charges.
Repurchase Agreement: The Repurchase Agreement of even date herewith by
and among MPT Operating Partnership, L.P., Lessor and SIMP II.
Repurchase Land: As defined in Section 41.19.
Required Tangible Net Worth: As defined in Section 41.8.
Security Agreements: Those certain Security Agreements to be effective on
the Commencement Date executed and delivered (i) by Lessee to Lessor, pursuant
to the terms of which Lessee has granted to Lessor a first lien and security
interest in all of Lessee's rights under this Lease (as the Lease may be
amended, modified and/or restated from time to time), to all of Lessee's
Personal Property (excluding Lessee's accounts receivable) and to all of the
Licenses, and (ii) by ASC to Lessor, pursuant to the terms of which ASC has
granted to Lessor a first lien and security interest in all of assets of ASC
(excluding ASC's accounts receivable).
SIMP II: Southern Indiana Medical Park II, LLC, an Indiana limited
liability company.
Single Purpose Entity: An entity which (i) exists solely for the purpose
of owning and/or leasing all or any portion of the Facility and conducting the
operation of the Business, (ii) conducts business only in its own name, (iii)
does not engage in any business other than the ownership and/or leasing of all
or any portion of the Facility and the operation of the Business, (iv) does not
hold, directly or indirectly, any ownership interest (legal or equitable) in any
entity or any real or personal property other than the interest in the Facility
which it owns in the Facility and the other assets incident to the operation of
the Business, (v) does not have any debt other than as permitted by this
9
Lease or arising in the ordinary course of the Business and does not guarantee
or otherwise obligate itself with respect to the debts of any other person or
entity, other than as approved by Lessor, (vi) has its own separate books,
records, accounts, financial statements and tax returns (with no commingling of
funds or assets), (vii) holds itself out as being a company separate and apart
from any other entity, and (viii) maintains all corporate formalities
independent of any other entity.
Statements of Cash Flow: For any fiscal year or other accounting period
for Lessee and its consolidated subsidiaries, statements of earnings and
retained earnings and of changes in financial position for such period and for
the period from the beginning of the respective Fiscal Year to the end of such
period and the related balance sheet as at the end of such period, together with
the notes thereto, all in reasonable detail and setting forth in comparative
form the corresponding figures for the corresponding period in the preceding
fiscal year, and prepared in accordance with GAAP.
Subdivision Approval: As defined in Section 41.19.
Taking: A taking or voluntary conveyance during the Term hereof of all or
part of the Leased Property, or any interest therein or right accruing thereto
or use thereof, as the result of, or in settlement of, any Condemnation or other
eminent domain proceeding affecting the Leased Property whether or not the same
shall have actually been commenced.
Tangible Net Worth: The sum of the net worth of all of the assets of
Lessee (excluding intangible assets), plus all depreciation and amortization
related to any real estate, less liabilities, all as determined in accordance
with GAAP.
Tenant: The lessees or tenants under the Tenant Leases, if any.
Tenant Improvements: The interior partitions, finishes and other tenant
improvement work in and for each suite of space in the Building leased to a
Tenant as required under the Tenant Leases.
Tenant Leases: All leases, subleases and other rental agreements (written
or verbal, now or hereafter in effect), if any, that grant a possessory interest
in and to any space in or any part of the Leased Property, or that otherwise
have rights with regard to the Leased Property, and all Credit Enhancements, if
any, held in connection therewith.
Term: The actual duration of this Lease, including the Fixed Term and the
Extension Terms (if exercised by the Lessee) and taking into account any
termination.
Total Debt: All indebtedness which, in accordance with GAAP, will be
included in determining total liabilities of Lessee, as shown on the liability
side of a balance sheet, including any such indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, excluding any nonrecourse
indebtedness and excluding any current liabilities.
Total Development Costs: The total development costs for the development
of the Leased Improvements to be constructed on the Land as set forth in the
Development Agreement (including, without limitation, the (i) Initial Purchase
Price, plus all costs and expenses not included in the Initial Purchase Price
incurred or paid in connection with the purchase and lease of the Leased
Property, including, but not limited to, legal, appraisal, title, survey,
environmental, seismic, engineering and other fees and expenses paid in
connection with the inspection of the Leased Property and site visits,
commitment fees and fees paid to advisors and brokers, and shall include the
costs of Capital Additions financed by Lessor (and Lessor's Affiliates) as
provided in Section 10.3 of this Lease, (ii) all amounts advanced or paid
pursuant to the Funding Agreement (other than the Initial Purchase Price), (iii)
all fees and expenses paid by Lessor in connection with the construction and
development of the Leased Property, including any interest expense on money
borrowed, but excluding any item already included in clauses (i) through (iii)
above, (iv) any amounts deferred but not yet paid as provided in Section 3.1(a)
hereof, (v) amounts paid by
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Lessor to SIMP II pursuant to the Repurchase Agreement, and (vi) all other costs
agreed by the parties to be included in Total Development Costs (collectively
the "Total Development Cost Adjustment"). Notwithstanding any provision hereof,
no item shall be included in Total Development Costs for purposes of this Lease
to the extent that such item is paid separately by Lessee or is subject to a
separate loan repayment obligation of Lessee.
Total Development Cost Adjustment: As defined in the definition of Total
Development Costs.
Unavoidable Delays: Delays due to strikes, lockouts, inability to procure
materials, power failure, acts of God, governmental restrictions, enemy action,
civil commotion, fire, unavoidable casualty or other causes beyond the control
of the party responsible for performing an obligation hereunder, provided that
lack of funds shall not be deemed a cause beyond the control of either party
hereto unless such lack of funds is caused by the failure of the other party
hereto.
Unsuitable for Its Use or Unsuitable for Its Primary Intended Use: As used
anywhere in this Lease, the terms "Unsuitable for Its Use" or "Unsuitable for
Its Primary Intended Use" shall mean that, by reason of damage or destruction,
or a partial Taking by Condemnation, the Facility cannot be operated on a
commercially practicable basis for its Primary Intended Use, taking into
account, all relevant factors, and the effect of such damage or destruction or
partial Taking.
ARTICLE III
RENT
3.1 CONSTRUCTION PERIOD RENT; BASE RENT. During the Term, Lessee shall pay
to Lessor, without notice, demand, set off or counterclaim, in lawful money of
the United States of America, at Lessor's address set forth herein or at such
other place or to such other person, firm or entity as Lessor from time to time
may designate in writing, Construction Period Rent and Base Rent as follows:
(a) CONSTRUCTION PERIOD RENT: During the Construction Period, the
rent payable by Lessee to Lessor shall accrue but be deferred as provided
herein. The amount of such accrual shall be calculated each month during
the Construction Period as follows: beginning October 1, 2005, and on the
first (1st) day of each month during the Construction Period thereafter,
Lessee shall be obligated to pay, on a deferred basis as provided herein,
an amount equal to the product of (i) ten and one-half percent (10.50%),
multiplied by (ii) the amount of Total Development Costs which have been
incurred as of the last day of the immediately preceding month, divided by
(iii) twelve (12), it being understood and agreed that, beginning November
1, 2005, and on the first (1st) day of each month thereafter during the
Construction Period, any amounts of previously deferred Construction
Period rent are to be included within Total Development Costs for purposes
of the calculation of Construction Period rent under this Section 3.1(a)
(such construction period rent calculated as herein provided being
referred to herein as the "Construction Period Rent"). The Construction
Period Rent will be deferred and added to Total Development Costs but will
not be paid until the Completion Date at which time the Construction
Period Rent amount will be amortized and paid over the Fixed Term
beginning with the Completion Date, in equal monthly installments as part
of the payments of Base Rent. As the amortized Construction Period Rent is
paid, the Total Development Costs and Base Rent will be adjusted and
reduced accordingly.
(b) BASE RENT: Subject to adjustment as expressly set forth herein
(including as provided in Section 3.1(c) below), Lessee shall pay Lessor
base rent following the Construction Period (the "Base Rent") in an amount
equal to ten and one-half percent (10.50%) per annum (subject to
adjustment as provided in Section 3.1(c) below) of the Total Development
Costs (including the deferred Construction Period Rent as provided in
Section 3.1(a) above), which Base Rent shall be payable in advance in
equal, consecutive monthly installments. Base Rent shall be payable on the
first (1st) day of each calendar month
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of the Term, commencing on the first (1st) day of the month immediately
following the Completion Date (prorated as to any partial month).
(c) ADJUSTMENT OF BASE RENT: Commencing on January 1, 2007, and on
each January 1 thereafter (each an "Adjustment Date") during the term of
this Lease, the Base Rent shall be increased, if any, by an amount equal
to the greater of (A) two and one-half percent (2.5%) per annum of the
prior year's Base Rent, or (B) the percentage by which the CPI in effect
on the Adjustment Date shall have increased over the CPI figure in effect
on the then just previous Adjustment Date. If the previous year's Base
Rent is for a partial year, it shall be annualized; provided, however,
that the rate of escalation applicable to the adjustment for January 2006
shall be prorated for the period between the date hereof and January 1,
2006. In the event the Total Development Costs are adjusted and increased
by the Total Development Cost Adjustment, then all calculations of Base
Rent shall be adjusted accordingly.
(d) SCHEDULE OF TOTAL DEVELOPMENT COSTS AND RENT ADJUSTMENTS: At the
end of the Construction Period, the Lessor shall, in its reasonable
discretion, calculate the Total Development Costs, Construction Period
Rent and Base Rent to be paid hereunder (the "Schedule"), and provide a
copy of such Schedule to the Lessee, which Schedule will become a part of
this Lease and incorporated herein by reference, and shall be substituted,
amended and adjusted by Lessor from time to time in its reasonable
discretion as the Total Development Costs, rent payments and rent
adjustments are calculated during the Term as provided herein, and when
delivered to the Lessee such substituted, amended and adjusted Schedule
shall become a part of this Lease and incorporated herein by reference.
3.2 ADDITIONAL CHARGES. In addition to the Base Rent and the Construction
Period Rent (a) Lessee will also pay and discharge as and when due and payable
all other amounts, liabilities, obligations and Impositions which Lessee assumes
or agrees to pay under this Lease, and all other amounts, liabilities,
obligations and Impositions related to the ownership, use, possession and
operation of the Leased Property, including, without limitation, all costs of
owning and operating the Facility, all Real Estate Taxes, Insurance Premiums,
maintenance and capital improvements, all violations and defaults under any of
the Permitted Exceptions, all licensure violations, all violations of and
defaults under any of the Permitted Exceptions, civil monetary penalties and
fines, and (b) in the event of any failure on the part of Lessee to pay any of
those items referred to in clause (a) above, Lessee will also promptly pay and
reimburse Lessor and/or its Affiliates for all such amounts paid by Lessor and
promptly pay and discharge every fine, penalty, interest and cost which may be
added for non-payment or late payment of such items (the items referred to in
clauses (a) and (b) above being referred to herein collectively as the
"Additional Charges"), and Lessor shall have all legal, equitable and
contractual rights, powers and remedies provided in this Lease, by statute or
otherwise, in the case of non-payment of the Additional Charges, as in the case
of the Base Rent. If any installment of Base Rent, Construction Period Rent or
Additional Charges (but only as to those Additional Charges which are payable
directly to Lessor) shall not be paid within five (5) Business Days after its
due date, Lessee will pay Lessor on demand, as Additional Charges, a late charge
(to the extent permitted by law) computed at the Overdue Rate (or at the maximum
rate permitted by law, whichever is less) on the amount of such installment,
from the due date of such installment to the date of payment thereof. To the
extent that Lessee pays any Additional Charges to Lessor pursuant to any
requirement of this Lease, Lessee shall be relieved of its obligation to pay
such Additional Charges to the entity to which they would otherwise be due. At
any time during the Term, Lessor may require Lessee to pay into escrow or make
deposits to Lessor (or to a Facility Lender if requested by Lessor) relating to
Real Estate Taxes and/or Insurance Premiums, and Lessee shall pay to Lessor (or
directly to a Facility Lender if requested by Lessor), upon written request from
Lessor, such amounts as and when required by Lessor (or the Facility Lender).
All sums paid into escrow or deposits shall not bear interest, may be commingled
with Lessor's (or Facility Lender's) books and accounts, and may be applied by
the Lessor (or the Facility Lender) to all sums owed by Lessee to Lessor (or to
sums owed to Facility Lender).
3.3 ABSOLUTE NET LEASE. The Rent shall be paid absolutely net to Lessor,
so that this Lease shall yield to Lessor the full amount of the installments of
Base Rent, Construction Period Rent and the payments of Additional Charges
throughout the Term, but subject to any other provisions of this Lease which
expressly provide for
12
adjustment of Rent or other charges. Lessee further acknowledges and agrees that
all charges, assessments or payments of any kind due and payable without notice,
demand, set off or counterclaim under the Permitted Exceptions shall be paid by
Lessee as they become due and payable.
ARTICLE IV
IMPOSITIONS
4.1 PAYMENT OF IMPOSITIONS. Subject to Article XII relating to permitted
contests, Lessee will pay, or cause to be paid, all Impositions before any fine,
penalty, interest or cost may be added for non-payment, such payments to be made
directly to the taxing or assessing authorities, unless, in the case of the
escrows and deposits required to be paid to Lessor or Facility Lender as
provided in Section 3.2 herein, and Lessee will promptly, upon request, furnish
to Lessor copies of official receipts or other satisfactory proof evidencing
such payments. Lessee's obligation to pay such Impositions shall be deemed
absolutely fixed upon the date such Impositions become a lien upon the Leased
Property or any part thereof. If any such Imposition may, at the option of the
Lessor, lawfully be paid in installments (whether or not interest shall accrue
on the unpaid balance of such Imposition), Lessee may exercise the option to pay
the same (and any accrued interest on the unpaid balance of such Imposition) in
installments and, in such event, shall pay such installments during the Term
hereof (subject to Lessee's right of contest pursuant to the provisions of
Article XII; and, subject to the requirement to pay escrows and deposits as
required in Section 3.2 herein) as the same respectively become due and before
any fine, penalty, premium, further interest or cost may be added thereto.
Lessor, at its expense, shall, to the extent permitted by applicable law,
prepare and file all tax returns and reports as may be required by governmental
authorities in respect of Lessor's net income, gross receipts, franchise taxes
and taxes on its capital stock, and Lessee, at its expense, shall, to the extent
permitted by applicable laws and regulations, prepare and file all other tax
returns and reports in respect of any Imposition as may be required by
governmental authorities. If any refund shall be due from any taxing authority
in respect of any Imposition paid by Lessee, the same shall be paid over to or
retained by Lessee if no default shall have occurred hereunder and be
continuing. Any such funds retained by Lessor due to a default shall be applied
as provided in Article XVI. Lessor and Lessee shall, upon request of the other,
provide such data as is maintained by the party to whom the request is made with
respect to the Leased Property as may be necessary to prepare any required
returns and reports. In the event governmental authorities classify any property
covered by this Lease as personal property, Lessee shall file all personal
property tax returns in such jurisdictions where it may legally so file. Lessor,
to the extent it possesses the same, and Lessee, to the extent it possesses the
same, will provide the other party, upon request, with cost and depreciation
records necessary for filing returns for any property so classified as personal
property. Where Lessor is legally required to file personal property tax
returns, Lessee will be provided with copies of assessment notices indicating a
value in excess of the reported value in sufficient time for Lessee to file a
protest. After obtaining written approval from Lessor, Lessee may, at Lessee's
sole cost and expense, protest, appeal, or institute such other proceedings as
Lessee may deem appropriate to effect a reduction of real estate or personal
property assessments and Lessor, at Lessee's expense as aforesaid, shall fully
cooperate with Lessee in such protest, appeal, or other action. Xxxxxxxx for
reimbursement by Lessee to Lessor of personal property taxes shall be
accompanied by copies of a xxxx therefor and payments thereof which identify the
personal property with respect to which such payments are made.
4.2 ADJUSTMENT OF IMPOSITIONS. Impositions imposed in respect of the
tax-fiscal period during which the Term terminates, unless Lessee purchases the
Leased Property pursuant to the purchase options expressly provided herein,
shall be adjusted and prorated between Lessor and Lessee, whether or not such
Imposition is imposed before or after such termination, and Lessee's obligation
to pay its prorated share thereof shall survive such termination.
4.3 UTILITY CHARGES. Lessee will contract for, in its own name, and will
pay or cause to be paid all charges for electricity, power, gas, oil, sewer,
water and other utilities used in connection with the Leased Property during the
Term, including, without limitation, unless paid as part of the Total
Development Costs, all connection, impact and tap fees necessary for the
development and operation of the Facility.
13
4.4 INSURANCE PREMIUMS. Lessee will contract for in its own name and will
pay or cause to be paid all premiums for the insurance coverage required to be
maintained pursuant to Article XIII during the Term (the "Insurance Premiums");
provided, however, if required by Lessor pursuant to Section 3.2 of this Lease,
such premiums shall be paid as required under Section 3.2 herein. At Lessor's
option and provided that the costs of such coverages collectively do not exceed
the costs of such insurance obtained by Lessee, Lessor may obtain the insurance
coverages as required herein and, in such event, Lessee shall reimburse Lessor
for the costs of such coverages immediately upon request by Lessor.
ARTICLE V
NO TERMINATION
5.1 ACKNOWLEDGEMENT. The parties hereto understand, acknowledge and agree
that this is an absolute net lease. Lessee shall remain bound by this Lease in
accordance with its terms and shall neither take any action without the consent
of Lessor to modify, surrender or terminate the same, nor seek nor be entitled
to any abatement, deduction, deferment or reduction of Rent, or set-off against
the Rent, nor shall the respective obligations of Lessor and Lessee be otherwise
affected by reason of (a) any damage to, or destruction of, any Leased Property
or any portion thereof from whatever cause or any Taking of the Leased Property
or any portion thereof, (b) the lawful or unlawful prohibition of, or
restriction upon, Lessee's use of the Leased Property, or any portion thereof,
or the interference with such use by any person, corporation, partnership or
other entity, or by reason of eviction by paramount title; (c) any claim which
Lessee has or might have against Lessor or by reason of any default or breach of
any warranty by Lessor under this Lease or any other agreement between Lessor
and Lessee, or to which Lessor and Lessee are parties, (d) any bankruptcy,
insolvency, reorganization, composition, readjustment, liquidation, dissolution,
winding up or other proceedings affecting Lessor or any assignee or transferee
of Lessor, or (e) for any other cause whether similar or dissimilar to any of
the foregoing other than a discharge of Lessee from any such obligations as a
matter of law. Lessee hereby specifically waives all rights, arising from any
occurrence whatsoever, which may now or hereafter be conferred upon it by law to
(i) modify, surrender or terminate this Lease or quit or surrender the Leased
Property or any portion thereof, or (ii) entitle Lessee to any abatement,
reduction, suspension or deferment of the Rent or other sums payable by Lessee
hereunder, except as otherwise specifically provided in this Lease. The
obligations of Lessor and Lessee hereunder shall be separate and independent
covenants and agreements and the Rent and all other sums payable by Lessee
hereunder shall continue to be payable in all events unless the obligations to
pay the same shall be terminated pursuant to the express provisions of this
Lease or by termination of this Lease other than by reason of an Event of
Default.
ARTICLE VI
OWNERSHIP OF LEASED PROPERTY AND PERSONAL PROPERTY
6.1 OWNERSHIP OF THE LEASED PROPERTY. Lessee acknowledges that the Lessor
owns the Land, that upon the construction of the Leased Improvements, the Lessor
will own all of the Leased Property, and that Lessee has only the right to the
possession and use of the Leased Property upon the terms and conditions of this
Lease.
6.2 LESSEE'S PERSONAL PROPERTY. Lessee, at its expense, shall install,
affix, assemble and place on the Land or in any of the Leased Improvements, the
Lessee's Personal Property, which Lessee's Personal Property shall be subject to
the security interests and liens as provided in this Lease. Lessee shall not,
without the prior written consent of Lessor (which consent may be withheld in
the event Lessee is in default hereunder), remove any of the Lessee's Personal
Property from the Leased Property. Lessee shall provide and maintain during the
entire Term all such Lessee's Personal Property as shall be necessary in order
to operate the Facility in compliance with all licensure and certification
requirements, in compliance with all applicable Legal Requirements and Insurance
Requirements and otherwise in accordance with customary practice in the industry
for the Primary Intended Use. If removal is authorized by Lessor as provided
herein, all of Lessee's Personal Property not removed by Lessee within thirty
(30) days following the expiration or earlier termination of this Lease shall be
considered abandoned by Lessee and may
14
be appropriated, sold, destroyed or otherwise disposed of by Lessor without
first giving notice thereof to Lessee, without any payment to Lessee and without
any obligation to Lessee to account therefor. Lessee will, at its expense,
restore the Leased Property and repair all damage to the Leased Property caused
by the removal of Lessee's Personal Property, whether effected by Lessee,
Lessor, any Lessee lender, or any Lessor lender.
ARTICLE VII
CONDITION AND USE OF LEASED PROPERTY
7.1 CONDITION OF THE LEASED PROPERTY. Lessee acknowledges receipt and
delivery of possession of the Leased Property and that Lessee has examined and
otherwise has acquired knowledge of the condition of the Leased Property prior
to the execution and delivery of this Lease and has found the same to be in good
order and satisfactory for its purpose hereunder and under the Development
Agreement. Lessee is leasing the Leased Property "as is" in its present
condition and as shall be improved pursuant to the Development Agreement. Lessee
warrants and represents that it has obtained all approvals, variances, permits,
licenses and certificates required by all Governmental Entities for the
construction and development of the Facility and for the use and operation of
the Leased Property. Lessee waives any claim or action against Lessor in respect
of the condition of the Leased Property. LESSOR MAKES NO WARRANTY OR
REPRESENTATION, EXPRESS OR IMPLIED, IN RESPECT OF THE LEASED PROPERTY OR ANY
PART THEREOF, EITHER AS TO ITS FITNESS FOR USE, SUITABILITY, DESIGN OR CONDITION
FOR ANY PARTICULAR USE OR PURPOSE OR OTHERWISE, AS TO QUALITY OF THE MATERIAL OR
WORKMANSHIP THEREIN, LATENT OR PATENT, IT BEING AGREED THAT ALL SUCH RISKS ARE
TO BE BORNE BY LESSEE.
7.2 USE OF THE LEASED PROPERTY.
(a) Lessee covenants that it will obtain and maintain throughout the
entire Term all approvals needed to use and operate the Leased Property
and the Facility for the Primary Intended Use, as defined below, under
applicable local, state and federal law, including but not limited to
licensure approvals and Medicare and/or a Medicaid certifications,
provider numbers, certificates of need, governmental approvals, and full
accreditation from all applicable governmental authorities, if any, that
are necessary for the operation of the Facility as a thirty-two (32)-bed
general acute care hospital facility.
(b) Beginning on the Commencement Date and during the entire Term,
after the completion of the construction of the Leased Improvements,
Lessee shall use or cause to be used the Leased Property and the
improvements thereon as a thirty-two (32)-bed general acute care hospital
facility and for such other legal ancillary uses as may be necessary in
connection with or incidental to such use, subject to all covenants,
restrictions and easements (including those set forth in the Permitted
Exceptions) relating to the Facility (the "Primary Intended Use"). Lessee
shall not use the Leased Property or any portion thereof for any other
use, nor change the number or type of beds within the Facility, nor
reconfigure or rearrange any portion of the Leased Property or the
Facility without the prior written consent of Lessor, which consent Lessee
agrees may be withheld in Lessor's sole discretion. No use shall be made
or permitted to be made of the Leased Property and no acts shall be done
which will cause the cancellation of any insurance policy covering the
Leased Property or any part thereof, nor shall Lessee sell or otherwise
provide to residents or patients therein, or permit to be kept, used or
sold in or about the Leased Property any article which may be prohibited
by law or by the standard form of fire insurance policies, any other
insurance policies required to be carried hereunder, or fire underwriters
regulations. Lessee shall, at its sole cost, comply with all of the
requirements, covenants and restrictions pertaining to the Leased
Property, including, without limitation, all of the Permitted Exceptions,
and other requirements of any insurance board, association, organization
or company necessary for the maintenance of the insurance, as herein
provided, covering the Leased Property and Lessee's Personal Property.
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(c) Lessee covenants and agrees that during the Term it will
continuously operate the Leased Property only as a provider of healthcare
services in accordance with the Primary Intended Use and Lessee shall
maintain its certifications for reimbursement and licensure and all
accreditations.
(d) Lessee shall not commit or suffer to be committed any waste on
the Leased Property, or in the Facility, nor shall Lessee cause or permit
any nuisance thereon.
(e) Lessee shall neither suffer nor permit the Leased Property or
any portion thereof, including any Capital Addition whether or not
financed by Lessor, or Lessee's Personal Property, to be used in such a
manner as (i) might reasonably tend to impair Lessor's (or Lessee's, as
the case may be) title thereto or to any portion thereof, or (ii) may
reasonably make possible a claim or claims of adverse usage or adverse
possession by the public, as such, or of implied dedication of the Leased
Property or any portion thereof.
(f) Lessee agrees that during the Term, Lessor shall have the right
and option to erect a sign or signs as approved by Lessee, which approval
shall not be unreasonably withheld, on the Leased Property stating that
the Leased Property is owned by the Lessor (and, if applicable, that
Lessor or its Affiliates is the lender for the construction and
development of the Facility).
7.3 LESSOR TO GRANT EASEMENTS. Subject to Lessor's obligation to reconvey
as set forth in Section 41.19 hereof, and the terms, conditions and provisions
of the Declaration, Lessor will, from time to time so long as no Event of
Default, and no event has occurred which with the giving of notice or the
passage of time or both would constitute such a default, has occurred and is
continuing under this Lease, the Tenant Leases, the Other Leases, the Loan and
the Loan Documents, at the request of Lessee and at Lessee's cost and expense,
but subject to the approval of Lessor (a) grant easements and other rights in
the nature of easements, (b) release existing easements or other rights in the
nature of easements which are for the benefit of the Leased Property, (c)
dedicate or transfer unimproved portions of the Leased Property for road,
highway or other public purposes, (d) execute petitions to have the Leased
Property annexed to any municipal corporation or utility district, (e) execute
amendments to any covenants and restrictions affecting the Leased Property and
(f) execute and deliver to any person any instrument appropriate to confirm or
effect such grants, releases, dedications and transfers (to the extent of its
interest in the Leased Property), but only upon delivery to Lessor of an
Officer's Certificate stating (and such other information as Lessor may
reasonably require confirming) that such grant, release, dedication, transfer,
petition or amendment is required for and not detrimental to the proper conduct
of the Primary Intended Use on the Leased Property and does not reduce the value
of the Leased Property. Any such grants, releases, dedications, transfers,
petitions or amendments executed by Lessor as provided in this Section 7.3 shall
be recorded or filed by Lessor or Lessee, at Lessee's sole cost and expense, in
the proper recording/filing office where the Land is located.
ARTICLE VIII
LEGAL AND INSURANCE REQUIREMENTS
8.1 COMPLIANCE WITH LEGAL AND INSURANCE REQUIREMENTS. Subject to Article
XII relating to permitted contests, Lessee, at its expense, will promptly and
will cause ASC to promptly (a) comply with all Legal Requirements and Insurance
Requirements applicable to Lessee and its use, operation, maintenance, repair
and restoration of the Leased Property (which, for purposes of this Section 8.1,
shall include the property of ASC for all periods until cessation of the
Ambulatory Surgery Center business by ASC as provided in this Lease), whether or
not compliance therewith shall require structural change in any of the Leased
Improvements or interfere with the use and enjoyment of the Leased Property, and
(b) procure, maintain and comply with all licenses, certificates of need,
provider agreements, accreditations and other authorizations required for any
use of the Leased Property and Lessee's Personal Property then being made, and
for the proper erection, installation, operation and maintenance of the Leased
Property or any part thereof, including without limitation, any Capital
Additions. Upon Lessor's request, Lessee shall deliver copies of all such
licenses, certificates of need agreements and other authorizations. Lessee
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hereby agrees to indemnify and defend, at Lessee's sole cost and expense, and
hold Lessor, its successors and assigns harmless from and against and to
reimburse Lessor and its successors and assigns with respect to any and all
claims, demands, actions, causes of action, losses, damages, liabilities, costs
and expenses (including, without limitation, reasonable attorneys' fees and
court costs) of any and every kind and character, known or unknown, fixed or
contingent, asserted against or incurred by Lessor, its successors and assigns,
at any time and from time to time by reason or arising out of any breach of any
of the representations and warranties set forth in this Section 8.1.
8.2 LEGAL REQUIREMENT COVENANTS. Lessee covenants and agrees that the
Leased Property and Lessee's Personal Property shall not be used for any
unlawful purpose. Lessee shall use its best efforts to have tenants acquire and
maintain all licenses, certificates, permits, provider agreements and other
authorizations and approvals needed to operate the Leased Property and all
equipment and machinery used in or in connection with the Leased Property in its
customary manner for the Primary Intended Use and any other use conducted on the
Leased Property as may be permitted from time to time hereunder. Lessee further
covenants and agrees that Lessee's use of the Leased Property, the use of all
equipment and machinery used in connection with the Leased Property and the
maintenance, alteration, and operation of the same, and all parts thereof, shall
at all times conform to all applicable local, state and federal laws,
ordinances, rules and regulations.
8.3 HAZARDOUS MATERIALS. Except for Hazardous Materials generated in the
normal course of business regarding the Primary Intended Use (which Hazardous
Materials shall be handled and disposed of in compliance with all Hazardous
Materials Laws), no Hazardous Materials shall be installed, used, generated,
manufactured, treated, handled, refined, produced, processed, stored or disposed
of, or otherwise present in, on or under the Leased Property (it being agreed
that, for purposes of this Section 8.3, the term "Leased Property" shall include
the property of the ASC for all periods until cessation of the Ambulatory
Surgery Center business by ASC as provided in this Lease). No activity shall be
undertaken on the Leased Property which would cause (i) the Leased Property to
become a treatment, storage or disposal facility of hazardous waste, infectious
waste, biomedical or medical waste, within the meaning of, or otherwise bring
the Leased Property within the ambit of RCRA or any Hazardous Materials Laws,
(ii) a release or threatened release of Hazardous Materials from the Leased
Property within the meaning of, or otherwise bring the Leased Property within
the ambit of, CERCLA or XXXX or any Hazardous Materials Laws or (iii) the
discharge of Hazardous Materials into any watercourse, surface or subsurface of
body of water or wetland, or the discharge into the atmosphere of any Hazardous
Materials which would require a permit under any Hazardous Materials Laws. No
activity shall be undertaken with respect to the Leased Property which would
cause a violation or support a claim under RCRA, CERCLA, XXXX or any Hazardous
Materials Laws. No investigation, administrative order, litigation or settlement
with respect to any Hazardous Materials is, to the best of the Lessee's
knowledge, threatened or in existence with respect to the Leased Property. No
notice has been served on Lessee from any entity, governmental body or
individual claiming any violation of any Hazardous Materials Laws, or requiring
compliance with any Hazardous Materials Laws, or demanding payment or
contribution for environmental damage or injury to natural resources. Lessee has
not obtained and Lessee has no knowledge of any reason Lessee will be required
to obtain any permits, licenses, or similar authorizations to occupy, operate or
use the Improvements or any part of the Leased Property by reason of any
Hazardous Materials Laws. Lessee hereby agrees to indemnify and defend, at its
sole cost and expense, and hold Lessor, its successors and assigns, harmless
from and against and to reimburse Lessor with respect to any and all claims,
demands, actions, causes of action, losses, damages, liabilities, costs and
expenses (including without limitation, reasonable attorney's fees and court
costs) of any and every kind or character, known or unknown, fixed or
contingent, asserted against or incurred by Lessor at any time and from time to
time by reason or arising out of any breach or violation of any Hazardous
Materials Laws. Lessee shall, at its sole cost, expense, risk and liability,
remove or cause to be removed from the Leased Property all Hazardous Materials
generated in connection with the Primary Intended Use and as found in hospital
and healthcare facilities, including, without limitation, all infectious waste
materials, syringes, needles and any materials contaminated with bodily fluids
of any type, character or description of whatsoever nature in accordance with
all Hazardous Materials Laws. Lessee shall not dispose of any such infectious
waste and Hazardous Materials in any receptacles used for the disposal of normal
refuse.
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8.4 HEALTHCARE LAWS. Lessee warrants and represents that Lessee (which,
for purposes of this Section 8.4 shall include ASC for all periods until
cessation of the Ambulatory Surgery Center business by ASC as provided in this
Lease), this Lease and all subleases are, and at all times during the term of
this Lease will be, in compliance with all Healthcare Laws. Lessee agrees to add
to all of its third party agreements relating to the Leased Property, including,
without limitation, all subleases, that in the event it is determined that such
agreement and/or sublease is in violation of the Healthcare Laws, such agreement
and/or sublease shall be renegotiated so that same are in compliance with all
Healthcare Laws. Lessee agrees promptly to notify Lessor in writing of receipt
of any notice of investigation of any alleged Healthcare Law violations. Lessee
hereby agrees to indemnify and defend, at Lessee's sole cost and expense, and
hold Lessor and its successors and assigns, harmless from and against and to
reimburse Lessor and its successors and assigns with respect to any and all
claims, demands, actions, causes of action, losses, damages, liabilities, costs
and expenses (including, without limitation, reasonable attorneys' fees and
court costs) of any and every kind or character, known or unknown, fixed or
contingent, asserted against or incurred by Lessor and its successors and
assigns at any time and from time to time by reason or arising out of any breach
by Lessee of the provisions set forth in this Section 8.4 or any violation of
any Healthcare Laws.
8.5 REPRESENTATIONS AND WARRANTIES. Lessee represents, warrants and
covenants to Lessor that as of the date hereof:
(i) Lessee is a limited liability company duly organized and validly
existing under the laws of the State of Indiana, and is duly authorized to
enter into, deliver and perform this Lease and the other documents
referred to herein and such agreements constitute the valid and binding
obligations of Lessee, enforceable in accordance with their terms;
(ii) neither the entering into of this Lease or the other documents
referred to herein nor the performance by Lessee of its obligations
hereunder or under the other documents referred to herein will violate any
provision of law or any agreement, indenture, note or other instrument
binding upon Lessee;
(iii) no authority from or approval by any governmental body,
commission or agency or consent of any third party is required in
connection with the making or validity of and the execution, delivery and
performance of this Lease or the other documents referred to herein;
(iv) there are no actions, suits or proceedings pending against or,
to the knowledge of Lessee, threatened against or affecting Lessee or any
of its Affiliates, in any court or before or by any governmental
department, agency or instrumentality, an adverse decision in which could
materially and adversely affect the financial condition, business or
operations of Lessee or the ability of Lessee to perform its obligations
under this Lease or the other documents referred to herein;
(v) Lessee and each of its Affiliates is in compliance with all
applicable laws, ordinances, rules, regulations and requirements of
governmental authorities; and
(vi) Lessee has obtained and delivered copies thereof to Lessor on
the Commencement Date all certificates of need, Medicare billing numbers,
other licenses and agreements required for the operation of the Facility
and all medical equipment used in connection with the Facility, or will
use its best efforts to obtain the same as soon as practicable and shall
deliver evidence of such documentation to Lessor within ten (10) Business
Days after obtaining the same.
8.6 SINGLE PURPOSE ENTITY. Lessee represents, warrants, covenants and
agrees that Lessee is, at the time of the execution of this Lease, and shall
remain at all times during the term of this Lease, a Single Purpose Entity
created and to remain in good standing for the sole purpose of leasing and
operating the Business in accordance with the terms of this Lease. Lessee
further covenants and agrees that during the Term, ASC shall not be dissolved,
liquidated, merged or reorganized in any manner without the prior written
consent of Lessor. Simultaneously with the execution of this Lease, and as
requested by Lessor at other times during the term of this
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Lease, Lessee shall provide Lessor evidence that Lessee is a Single Purpose
Entity and is in good standing in the state of its organization and in the state
in which the Leased Property is located.
8.7 ORGANIZATIONAL DOCUMENTS; TRANSFER OF ASC BUSINESS. Lessee shall not
permit or suffer, without the prior written consent of Lessor (i) any material
amendment or modification of its Organizational Documents (as defined below) or
the organizational documents of any constituent entity within the Lessee,
including, without limitation, ASC (including any amendment or modification
which changes Lessee's status as a Single Purpose Entity), (ii) any dissolution
or termination of Lessee's or ASC's existence (or any transaction whereby Lessee
would assume ASC's liabilities), (iii) any sale of assets outside the ordinary
course of business by Lessee or ASC, or (iv) change in its state of formation or
organization or its name. Lessee has, simultaneously with the execution of this
Lease, delivered to Lessor a true and complete copy of the articles of
organization and certificate of formation and limited liability company
operating agreement creating Lessee, and all other documents creating and
governing the Lessee (collectively, the "Organizational Documents"). Lessee
warrants and represents that the Organizational Documents (i) were duly executed
and delivered, (ii) are in full force and effect, and binding upon and
enforceable in accordance with their terms, (iii) constitute the entire
understanding among members or equity owners of Lessee, and (iv) no breach
exists under the Organizational Documents and no act has occurred and no
condition exists which, with the giving of notice or the passage of time would
constitute such a breach under the Organizational Documents. Upon Lessee's
obtaining the necessary licensure and certification to provide inpatient and
outpatient surgery services, Lessee shall cause ASC to transfer all of its
transferable assets (other than its Medicare or other provider numbers), but not
ASC's liabilities, to Lessee.
ARTICLE IX
REPAIRS; RESERVE; RESTRICTIONS
9.1 MAINTENANCE AND REPAIR.
(a) Lessee, at its expense, will keep the Leased Property and all
private roadways, sidewalks and curbs appurtenant thereto (and Lessee's
Personal Property) in good first class order and repair (whether or not
the need for such repairs occurs as a result of Lessee's use, any prior
use, the elements, the age of the Leased Property or any portion thereof)
and, except as otherwise provided in Article XIV and Article XV, with
reasonable promptness, will make all necessary and appropriate repairs
thereto of every kind and nature, whether interior or exterior, structural
or non-structural, ordinary or extraordinary, foreseen or unforeseen or
arising by reason of a condition existing prior to the commencement of the
Term of this Lease (concealed or otherwise). All repairs shall, to the
extent reasonably achievable, be at least equivalent in quality to the
original work. Lessee will not take or omit to take any action the taking
or omission of which might materially impair the value or the usefulness
of the Leased Property or any part thereof for the Primary Intended Use.
Notwithstanding anything contained herein to the contrary, Lessee shall
make additions, modifications and remodeling to the Leased Property which
are not Capital Additions from time to time which are necessary for the
Primary Intended Use and which permit the Lessee to comply fully with its
obligations set forth in this Lease, provided that any such action will be
undertaken expeditiously, in a workmanlike manner and will not
significantly alter the character or purpose or detract from the value or
operating efficiency of the Leased Property and will not significantly
impair the revenue producing capability of the Leased Property or
adversely affect the ability of the Lessee to comply with the provisions
of this Lease. Such additions, modifications and remodeling shall, without
payment by Lessor at any time, be included under the terms of this Lease
and shall be the property of Lessor. Lessee shall notify the Lessor of any
and all repairs, improvements, additions, modifications and remodeling
made to the Leased Property in excess of Fifty Thousand and 00/100 Dollars
($50,000.00) and obtain consent from Lessor prior to making such repairs,
improvements, additions, modifications and remodeling.
(b) Lessor shall not under any circumstances be required to build or
rebuild any improvements on the Leased Property, or to make any repairs,
replacements, alterations, restorations, or
19
renewals of any nature or description to the Leased Property, whether
ordinary or extraordinary or capital in nature, structural or
non-structural, foreseen or unforeseen, or to make any expenditure
whatsoever with respect thereto in connection with this Lease, or to
maintain the Leased Property in any way.
(c) Nothing contained in this Lease and no action or inaction by
Lessor shall be construed as (i) constituting the consent or request of
Lessor, expressed or implied, to any contractor, subcontractor, laborer,
materialmen or vendor to or for the performance of any labor or services
or the furnishing of any materials or other property for the construction,
alteration, addition, repair or demolition of or to the Leased Property or
any part thereof, or (ii) giving Lessee any right, power or permission to
contract for or permit the performance of any labor or services or the
furnishing of any materials or other property in such fashion as would
permit the making of any claim against Lessor in respect thereof or to
make any agreement that may create, or in any way be the basis for, any
right, title, interest, lien, claim or other encumbrance upon the estate
of Lessor in the Leased Property or any portion thereof.
(d) Unless Lessor shall convey any of the Leased Property to Lessee
pursuant to the provisions of this Lease, Lessee will, upon the expiration
or prior termination of the Term, vacate and surrender the Leased Property
to Lessor in the condition in which the Leased Property was originally
received from Lessor, except as improved, constructed, repaired, rebuilt,
restored, altered or added to as permitted or required by the provisions
of this Lease and except for ordinary wear and tear (subject to the
obligation of Lessee to maintain the Leased Property in good order and
repair during the entire Term of the Lease), damage caused by the gross
negligence or willful acts of Lessor and damage or destruction described
in Article XIV or resulting from a Taking described in Article XV which
Lessee is not required by the terms of this Lease to repair or restore.
9.2 RESERVES FOR EXTRAORDINARY REPAIRS. Commencing on the date of
Completion of the construction of the Facility, and on each January 1
thereafter, Lessee shall make annual deposits to a reserve account for
Extraordinary Repairs (the "Reserve") to be held by Lessor in an interest
bearing account. The first annual deposit shall be equal to the sum of Two
Thousand Five Hundred and 00/100 Dollars ($2,500.00) per bed per annum (the
number of beds to be determined by the actual number of beds certified to be
available for use in the Facility). Beginning on the first January 1 after the
Completion Date, and on each January 1 thereafter, the number of beds shall be
determined by the actual number of beds placed in service or certified to be
available for use in the Facility, which number of beds shall not be reduced
without the prior written consent of Lessor. The Reserve account shall require
the signature of an officer of Lessee and an officer of Lessor to make
withdrawals. On each January 1 thereafter during the entire Term, such payment
into the Reserve shall be increased by two and one-half percent (2.5%) per
annum. The amounts in the Reserve shall be used to pay for Extraordinary Repairs
on the Facility or, in the event Lessee fails to make any required
non-Extraordinary Repairs hereunder, Lessor may use funds in the Reserve for
that purpose as well, without the necessity of obtaining the signature of an
officer of Lessee. Replenishment of amounts drawn from the Reserve will be paid
at the rate of one-twelfth (1/12th) of the total amount withdrawn per month,
until completely replenished. Lessee hereby grants to Lessor a security interest
in all monies deposited into the Reserve and Lessee shall, within fifteen (15)
days from the Commencement Date, execute all documents necessary for Lessor to
perfect its security interest in the Reserve. So long as no Event of Default has
then occurred under any of the terms hereof, and no event has then occurred
which with the giving of notice or the passage of time or both would constitute
such a default hereunder, any amounts remaining in the Reserve, after the
payment of and the reimbursement for the Extraordinary Repairs on the Facility
shall be returned to Lessee at the expiration of this Lease. Lessee consents to
Lessor's pledge of the Reserve to any Facility Lender.
9.3 ENCROACHMENTS; RESTRICTIONS. If any of the Leased Improvements shall,
at any time, encroach upon any property, street or right-of-way adjacent to the
Leased Property, or shall violate the agreements or conditions contained in any
federal, state or local law, restrictive covenant or other agreement affecting
the Leased Property, or any part thereof, or shall impair the rights of others
under any easement or right-of-way to which the Leased Property is subject, then
promptly upon the request of Lessor, Lessee shall, at its expense, subject to
its right to contest the existence of any encroachment, violation or impairment,
(a) obtain valid and effective waivers or
20
settlements of all claims, liabilities and damages resulting from each such
encroachment, violation or impairment, whether the same shall affect Lessor or
Lessee or (b) make such changes in the Leased Improvements, and take such other
actions, as Lessor in the good faith exercise of its judgment deems reasonably
practicable, to remove such encroachment, or to end such violation or
impairment, including, if necessary, the alteration of any of the Leased
Improvements, and in any event take all such actions as may be necessary in
order to be able to continue the operation of the Facility without such
violation, encroachment or impairment. Any such alteration shall be made in
conformity with the applicable requirements of Article X. Lessee's obligations
under this Section 9.3 shall be in addition to and shall in no way discharge or
diminish any obligation of any insurer under any policy of title or other
insurance and Lessee shall be entitled to a credit for any sums paid by Lessee
and recovered by Lessor under any such policy of title or other insurance.
ARTICLE X
CAPITAL ADDITIONS
10.1 CONSTRUCTION OF CAPITAL ADDITIONS TO THE LEASED PROPERTY.
(a) After the completion of the construction of the Leased
Improvements under the Development Agreement, and provided no Event of
Default or other default shall have occurred or be continuing, and no
event has occurred which with the giving of notice or the passage of time
or both would constitute such a default under this Lease, the Other
Leases, the Tenant Leases, the Loan or the Loan Documents, Lessee shall
have the right, upon and subject to the terms and conditions set forth
below, to construct or install Capital Additions on the Leased Property
without the prior written consent of Lessor, provided, however, except as
expressly provided in Section 10.2(d) hereof, Lessee shall not be
permitted to create any Encumbrance on the Leased Property in connection
with such Capital Addition. Prior to commencing construction of any
Capital Addition, Lessee shall, at Lessee's sole cost and expense (i)
submit to Lessor for Lessor's prior approval in writing a proposal setting
forth in reasonable detail any proposed Capital Addition, (ii) submit to
Lessor for Lessor's prior approval such plans and specifications,
certificates of need and other approvals, permits, licenses, contracts and
other information concerning the proposed Capital Addition as Lessor may
reasonably request, and (iii) obtain all necessary certificates of need,
state licensure surveys and all regulatory approvals of architectural
plans. Without limiting the generality of the foregoing, such proposal
shall indicate the approximate projected cost of constructing such Capital
Addition, and the use or uses to which it will be put.
(b) Prior to commencing construction of any Capital Addition, Lessee
shall first request Lessor to provide funds to pay for such Capital
Addition in accordance with the provisions of Section 10.3. If Lessor
declines or is unable to provide such financing on terms acceptable to
Lessee, the provisions of Section 10.2 shall apply. Notwithstanding any
other provision of this Article X to the contrary, no Capital Additions
shall be made without the consent of Lessor, which consent shall not be
unreasonably withheld or delayed, if the Capital Addition Cost of such
proposed Capital Addition, when aggregated with the costs of all Capital
Additions made by Lessee, would exceed twenty-five percent (25%) of the
then Fair Market Value of the Leased Property or would diminish the value
of the Leased Property. Furthermore, no Capital Addition shall be made
which would tie in or connect the Leased Property and/or any Leased
Improvements on the Leased Property with any other improvements on
property adjacent to the Leased Property (and not part of the Land covered
by this Lease) including, without limitation, tie-ins of buildings or
other structures or utilities, unless Lessee shall have obtained the prior
written approval of Lessor, which approval shall not be unreasonably
withheld. All proposed Capital Additions shall be architecturally
integrated and consistent with the Leased Property.
10.2 CAPITAL ADDITIONS FINANCED BY LESSEE. If Lessee provides or arranges
to finance any Capital Addition, this Lease shall be and hereby is amended to
provide as follows:
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(a) The above referenced proportion of the Fair Market Added Value
of Capital Additions paid for by Lessee to the Fair Market Value of the
entire Leased Property expressed as a percentage is referred to herein as
the "Added Value Additional". The Added Value Additional determined as
provided above for each Capital Addition financed or paid for by Lessee
shall remain in effect until any subsequent Capital Addition.
(b) There shall be no adjustment in the Base Rent by reason of any
such Capital Addition.
(c) Upon the expiration or earlier termination of this Lease, except
by reason of the default by Lessee hereunder, Lessor shall, if Lessee does
not purchase the Leased Property as provided herein, compensate Lessee for
all Capital Additions paid for or financed by Lessee in any of the
following ways, determined in the sole discretion of Lessor:
(i) By purchasing all Capital Additions paid for by Lessee
from Lessee for cash in the amount of the Fair Market Added Value of
all such Capital Additions paid for or financed by Lessee; or
(ii) By purchasing such Capital Additions from Lessee by
delivering to Lessee Lessor's purchase money promissory note in the
amount of said Fair Market Added Value, due and payable not later
than eighteen (18) months after the date of expiration or other
termination of this Lease, bearing interest at the test rate
applicable under Section 1272 of the Code or any successor section
thereto ("Test Rate") or, if no such Test Rate exists, at the Prime
Rate, which interest shall be payable monthly, and which note shall
be secured by a mortgage on the Leased Property, subject to all
mortgages and encumbrances on the Leased Property at the time of
such purchase; or
(iii) Such other arrangement regarding such compensation as
shall be mutually acceptable to Lessor and Lessee.
(d) Lessor and Lessee agree that Lessee's construction lender for
Capital Additions shall have the right to secure its loan by a mortgage
upon the Leased Property provided such mortgage (i) shall not exceed the
cost of the Capital Additions, (ii) shall be subordinate to Lessor's
acquisition cost and any Capital Additions paid for by the Lessor of the
Leased Property, (iii) shall be subordinate to any mortgage or encumbrance
now existing or hereinafter created including, without limitation,
Facility Instruments, (iv) the term of the loan shall not extend beyond
the term of this Lease, (v) such lender executes all subordination and
other documents and certificates required by the Facility Lenders, and
(vi) shall be limited solely to Lessee's interest in the Leased Property.
(e) With respect to Capital Additions financed by Lessee, Lessor and
Lessee agree that Lessee shall have the right to designate the general
contractor, developer, architect, construction company, engineer and other
parties which will participate in the development of the Capital Addition,
subject to Lessor's approval not to be unreasonably withheld, conditioned
or delayed. In such event, Lessee shall control the preparation and
negotiation of the definitive agreements with such parties and Lessee will
give Lessor an opportunity to review and approve such definitive
agreements prior to their execution, such approval not to be unreasonably
withheld, conditioned or delayed.
10.3 CAPITAL ADDITIONS FINANCED BY LESSOR.
(a) Lessee shall request that Lessor provide or arrange financing
for a Capital Addition by providing to Lessor such information about the
Capital Addition as Lessor may request (a "Request"), including without
limitation, all information referred to in Section 10.1 above. Lessor may,
but shall be
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under no obligation to, obtain the funds necessary to meet the Request.
Within thirty (30) days of receipt of a Request, Lessor shall notify
Lessee as to whether it will finance the proposed Capital Addition and, if
so, the terms and conditions upon which it would do so, including the
terms of any amendment to this Lease. In no event shall the portion of the
projected Capital Addition Cost comprised of land, if any, materials,
labor charges and fixtures be less than ninety percent (90%) of the total
amount of such cost. Lessee may withdraw its Request by notice to Lessor
at any time before or after receipt of Lessor's terms and conditions.
(b) If Lessor agrees to finance the proposed Capital Addition,
Lessee shall provide Lessor with the following prior to any advance of
funds:
(i) all customary or other required loan documentation (if the
Capital Addition is to be financed through the incurrence of debt);
(ii) any information, certificates of need, regulatory
approvals of architectural plans and other certificates, licenses,
permits or documents requested by either Lessor or any lender with
whom Lessor has agreed or may agree to provide financing which are
necessary to confirm that Lessee will be able to use the Capital
Addition upon completion thereof in accordance with the Primary
Intended Use, including all required federal, state or local
government licenses and approvals;
(iii) an Officer's Certificate and, if requested, a
certificate from Lessee's architect, setting forth in reasonable
detail the projected (or actual, if available) cost of the proposed
Capital Addition;
(iv) an amendment to this Lease, duly executed and
acknowledged, in form and substance satisfactory to Lessor (the
"Lease Amendment"), and containing such provisions as may be
necessary or appropriate, including without limitation, any
appropriate changes in the legal description of the Land, the Fair
Market Value and the Rent, which shall be increased to take into
account an adjustment to the Total Development Costs in an amount
equal to the equity contributed by Lessor to finance the Capital
Addition, or, in the case of debt financing, the principal and
interest on the debt incurred by Lessor to finance the Capital
Addition;
(v) a warranty deed conveying title to Lessor to any land
acquired for the purpose of constructing the Capital Addition, free
and clear of any liens or encumbrances except those approved by
Lessor and, both prior to and following completion of the Capital
Addition, an as-built survey thereof satisfactory to Lessor;
(vi) endorsements to any outstanding policy of title insurance
covering the Leased Property and any additional land referred to in
Section 10.3(b)(v) above, or a supplemental policy of title
insurance covering the Leased Property and any additional land
referred to in Section 10.3(b)(v) above, satisfactory in form and
substance to Lessor (A) updating the same without any additional
exceptions, except as may be permitted by Lessor; and (B) increasing
the coverage thereof by an amount equal to the Fair Market Value of
the Capital Addition (except to the extent covered by the owner's
policy of title insurance referred to in subparagraph (vii) below);
(vii) if required by Lessor, (A) an owner's policy of title
insurance insuring fee simple title to any land conveyed to Lessor
pursuant to subparagraph (v), free and clear of all liens and
encumbrances except those approved by Lessor and (B) a lender's
policy of title insurance satisfactory in form and substance to
Lessor and the Lending Institution advancing any portion of the
Capital Addition Cost;
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(viii) if required by Lessor, prior to commencing the Capital
Addition, an M.A.I. appraisal of the Leased Property indicating that
the value of the Leased Property upon completion of the Capital
Addition will exceed the Fair Market Value of the Leased Property
prior thereto by an amount not less than one hundred percent (100%)
of the Capital Addition Costs; and
(ix) such other certificates (including, but not limited to,
endorsements increasing the insurance coverage, if any, at the time
required by Section 13.1), documents, contracts, opinions of
counsel, appraisals, surveys, certified copies of duly adopted
resolutions of the governing body of Lessee authorizing the
execution and delivery of the Lease Amendment and any other
instruments as may be reasonably required by Lessor and any Lending
Institution advancing or reimbursing Lessee for any portion of the
Capital Addition Cost.
(c) With respect to Capital Additions financed by Lessor, Lessor and
Lessee shall jointly designate the general contractor, developer,
architect, construction company, engineer and other parties which will
participate in the development of the Capital Addition and, in such event,
the parties shall jointly control the preparation and negotiation of the
definitive agreements with such parties.
(d) Upon making a Request to finance a Capital Addition, whether or
not such financing is actually consummated, Lessee shall pay or agree to
pay, upon demand, all reasonable costs and expenses of Lessor and any
Lending Institution which has committed to finance such Capital Addition
which have been paid or incurred by them in connection with the financing
of the Capital Addition, including, but not limited to, (i) the fees and
expenses of their respective counsel, (ii) all printing expenses, (iii)
the amount of any filing, registration and recording taxes and fees, (iv)
documentary stamp taxes, if any, (v) title insurance charges, appraisal
fees, if any, rating agency fees, if any, and (vi) commitment fees, if
any, and (vii) costs of obtaining regulatory and governmental approvals,
including but not limited to any required certificates of need, for the
construction, operation, use or occupancy of the Capital Addition.
10.4 SALVAGE. All materials which are scrapped or removed in connection
with the making of either Capital Additions or repairs hereunder shall be or
become the property of Lessee, and Lessee shall remove the same at its sole cost
and expense.
ARTICLE XI
LIENS
Subject to the provisions of Article XII relating to permitted contests,
Lessee will not directly or indirectly create or allow to remain and will
promptly discharge at its expense any lien, encumbrance, attachment, title
retention agreement or claim upon the Leased Property or any attachment, levy,
claim or encumbrance in respect of the Rent, not including, however, (a) this
Lease, (b) the matters, if any, set forth in EXHIBIT B, (c) restrictions, liens
and other encumbrances which are consented to in writing by Lessor, or any
easements granted pursuant to the provisions of Section 7.3 of this Lease, (d)
liens for those taxes of Lessor which Lessee is not required to pay hereunder,
(e) liens for Impositions or for sums resulting from noncompliance with Legal
Requirements so long as (1) the same are not yet payable or are payable without
the addition of any fine or penalty or (2) such liens are in the process of
being contested as permitted by Article XII, (f) liens of mechanics, laborers,
materialmen, suppliers or vendors for sums either disputed or not yet due,
provided that (1) the payment of such sums shall not be postponed for more than
sixty (60) days after the completion of the action giving rise to such lien and
such reserve or other appropriate provisions as shall be required by law or
generally accepted accounting principles shall have been made therefor or (2)
any such liens are in the process of being contested as permitted by Article
XII, and (g) any liens which are the responsibility of Lessor pursuant to the
provisions of Article XXXVII of this Lease. Unless otherwise expressly provided
herein, Lessee shall not mortgage or grant any interest or security interest in,
or otherwise assign, any part of Lessee's rights and interests in this Lease,
the Leased Property, Lessee's Personal Property, or any permits, licenses,
certificates of need (if any) or any other approvals required to operate the
Leased Property during
24
the Term without the prior written consent of the Lessor, which may be withheld
at Lessor's sole discretion. If Lessee exercises its right to purchase the
Leased Property under Section 34.1, Lessor shall deliver title free and clear of
all liens, encumbrances or interests permitted by Lessor under this Section.
ARTICLE XII
PERMITTED CONTESTS
After obtaining prior written approval from Lessor, Lessee, at Lessee's
expense, may contest, by appropriate legal proceedings conducted in good faith
and with due diligence, the amount, validity or application, in whole or in
part, of any Imposition, Legal Requirement, Insurance Requirement, lien,
attachment, levy, encumbrance, charge or claim not otherwise permitted by
Article XI, provided that (a) in the case of an unpaid Imposition, lien,
attachment, levy, encumbrance, charge or claim, the commencement and
continuation of such proceedings shall suspend the collection thereof from
Lessor and from the Leased Property, (b) neither the Leased Property nor any
Rent therefrom nor any part thereof or interest therein would be in any
immediate danger of being sold, forfeited, attached or lost, (c) in the case of
a Legal Requirement, Lessor would not be in any immediate danger of civil or
criminal liability for failure to comply therewith pending the outcome of such
proceedings, (d) in the event that any such contest shall involve a sum of money
or potential loss in excess of Fifty Thousand Dollars ($50,000), then, in any
such event, (i) provided the Consolidated Net Worth of Lessee is then in excess
of Fifty Million Dollars ($50,000,000), Lessee shall deliver to Lessor an
Officer's Certificate to the effect set forth in clauses (a), (b) and (c), to
the extent applicable, or (ii) in the event the Consolidated Net Worth of Lessee
is not then in excess of Fifty Million Dollars ($50,000,000), then Lessee shall
deliver to Lessor and its counsel an opinion of Lessee's counsel to the effect
set forth in clauses (a), (b) and (c), to the extent applicable, (e) in the case
of a Legal Requirement and/or an Imposition, lien, encumbrance or charge, Lessee
shall give such reasonable security as may be demanded by Lessor to insure
ultimate payment of the same and to prevent any sale or forfeiture of the
affected portion of the Leased Property or the Rent by reason of such
non-payment or non-compliance; provided, however, the provisions of this Article
XII shall not be construed to permit Lessee to contest the payment of Rent
(except as to contests concerning the method of computation or the basis of levy
of any Imposition or the basis for the assertion of any other claim) or any
other sums payable by Lessee to Lessor hereunder, (f) in the case of an
Insurance Requirement, the coverage required by Article XIII shall be
maintained, and (g) if such contest be finally resolved against Lessor or
Lessee, Lessee shall, as Additional Charges due hereunder, promptly pay the
amount required to be paid, together with all interest and penalties accrued
thereon, or comply with the applicable Legal Requirement or Insurance
Requirement. Lessor, at Lessee's expense, shall execute and deliver to Lessee
such authorizations and other documents as may reasonably be required in any
such contest and, if reasonably requested by Lessee or if Lessor so desires,
Lessor shall join as a party therein. Lessee shall indemnify and save Lessor
harmless against any liability, cost or expense of any kind that may be imposed
upon Lessor in connection with any such contest and any loss resulting
therefrom.
ARTICLE XIII
INSURANCE
13.1 GENERAL INSURANCE REQUIREMENTS. During the Term of this Lease (except
that the coverages in Sections 13.1(a) and 13.1(c) and those relating to
professional liability referenced in Sections 13.1(g) and 13.1(h) below shall be
required from and after the Completion Date), Lessee shall at all times keep the
Leased Property and all property located in or on the Leased Property, including
Lessee's Personal Property (it being agreed that, for purposes of this Article
XIII, the ASC and its assets shall be similarly insured for all periods prior to
the cessation of the Ambulatory Surgery Center business by ASC as provided in
this Lease), insured against loss or damage from such causes as are customarily
insured against, by prudent owners of similar facilities. Without limiting the
generality of the foregoing, Lessee shall obtain and maintain in effect
throughout the Lease Term, the kinds and amounts of insurance deemed necessary
by the Lessor and as described below. At Lessor's option and provided that the
costs of such coverages collectively do not exceed the costs of such insurance
obtained by Lessee, Lessor may
25
obtain the insurance coverages as required herein and, in such event, Lessee
shall reimburse Lessor for the costs of such coverages immediately upon request
by Lessor.. This insurance shall be written by insurance companies (i)
acceptable to the Lessor, (ii) that are rated at least an "A-VIII" or better by
Best's Insurance Guide and Key Ratings and a claim payment rating by Standard &
Poor's Corporation of A or better, and (iii) authorized, licensed and qualified
to do insurance business in the state in which the Leased Property is located.
The aggregate amount of coverage by a single company must not exceed five
percent (5%) of the insurance company's policyholders' surplus. The policies
must name Lessor (and any other entities as Lessor may deem necessary) as an
additional insured and losses shall be payable to Lessor and/or Lessee as
provided in Article XIV. Each insurance policy required hereunder must (i)
provide primary insurance without right of contribution from any other insurance
carried by Lessor, (ii) contain an express waiver by the insurer of any right of
subrogation, setoff or counterclaim against any insured party thereunder
including Lessor, (iii) permit Lessor to pay premiums at Lessor's discretion,
and (iv) as respects any third party liability claim brought against Lessor,
obligate the insurer to defend Lessor as an additional insured thereunder. In
addition, the policies shall name as an additional insured all Facility Lenders,
if any, by way of a standard form of mortgagee's loss payable endorsement. Any
loss adjustment shall require the written consent of Lessor and each affected
Facility Lender. Evidence of insurance and/or Impositions shall be deposited
with Lessor and, if requested, with any Facility Lender. If any provision of any
Facility Instrument requires deposits of insurance to be made with such Facility
Lender, Lessee shall either pay to Lessor monthly the amounts required and
Lessor shall transfer such amounts to such Facility Lender or, pursuant to
written direction by Lessor, Lessee shall make such deposits directly with such
Facility Lender. The policies on the Leased Property, including the Leased
Improvements, the Fixtures and Lessee's Personal Property, shall insure against
the following risks:
(a) All Risks or Special Form Property insurance against loss or
damage to the building and improvements, including but not limited to,
perils of fire, lightning, water, wind, theft, vandalism and malicious
mischief, plate glass breakage, and perils typically provided under an
Extended Coverage Endorsement and other forms of broadened risk perils,
and insured on a "replacement cost" value basis to the extent of the full
replacement value of the Leased Property. The policy shall include
coverage for subsidence. The deductible amount thereunder shall be borne
by the Lessee in the event of a loss and the deductible must not exceed
Ten Thousand and 00/100 Dollars ($10,000.00) per occurrence. Further, in
the event of a loss, Lessee shall abide by all provisions of the insurance
contract, including proper and timely notice of the loss to the insurer,
and Lessee further agrees that it will notify the Lessor of any loss in
the amount of Twenty-Five Thousand and 00/100 Dollars ($25,000.00) or
greater and that no claim at or in excess of Twenty-Five Thousand and
00/100 Dollars ($25,000.00) shall be settled without the prior written
consent of Lessor, which consent shall not be unreasonably withheld or
delayed.
(b) Flood and earthquake insurance shall be required only in the
event that the Leased Property is located in a flood plain or earthquake
zone. Such insurance to be in an amount equal to the Full Replacement Cost
value of the Facility, subject to no more than a Twenty-Five Thousand
Dollar ($25,000.00) per occurrence deductible and such policy shall
include coverage for subsidence.
(c) Insurance against loss of earnings in an amount sufficient to
cover not less than twelve (12) months' lost earnings and written in an
"all risks" form, either as an endorsement to the insurance required under
subparagraph 13.1(a) above, or under a separate policy.
(d) Worker's compensation insurance covering all employees in
amounts that are customary for the Lessee's industry.
(e) Commercial General Liability in a primary amount of at least One
Million and 00/100 Dollars ($1,000,000.00) per occurrence, bodily injury
for injury or death of any one person and One Hundred Thousand and 00/100
Dollars ($100,000.00) for Property Damage for damage to or loss of
property of others, subject to a Two Million and 00/100 Dollars
($2,000,000.00) annual aggregate policy limit for all bodily injury and
property damage claims, occurring on or about the Leased Property or in
any way related to the Leased Property, including but not limited to, any
swimming pools or other rehabilitation
26
and recreational facilities or areas that are located on the Leased
Property otherwise related to the Leased Property. Such policy shall
include coverages of a Broad Form nature, including, but not limited to,
Explosion, Collapse and Underground (XCU), Products Liability, Completed
Operations, Broad Form Contractual Liability, Broad Form Property Damage,
Personal Injury, Incidental Malpractice Liability, and Host Liquor
Liability.
(f) Automobile and vehicle liability insurance coverage for all
owned, non-owned, leased or hired automobiles and vehicles in a primary
limit amount of One Million and 00/100 Dollars ($1,000,000.00) per
occurrence for bodily injury; One Hundred Thousand and 00/100 Dollars
($100,000.00) per occurrence for property damage; subject to an annual
aggregate policy limit of One Million and 00/100 Dollars ($1,000,000.00).
(g) Umbrella liability insurance in the minimum amount of Twenty
Million and 00/100 Dollars ($20,000,000.00) for each occurrence and
aggregate combined single limit for all liability, with a Ten Thousand and
00/100 Dollars ($10,000.00) self-insured retention for exposure not
covered in underlying primary policies. The umbrella liability policy
shall name in its underlying schedule the policies of professional
liability, commercial general liability, garage keepers liability,
automobile/vehicle liability and employer's liability under the Worker's
Compensation Policy.
(h) Professional liability insurance for Lessee and any physician
employed by Lessee or other employee or agent of the Lessee providing
services at the Leased Property in an amount not less than Five Million
and 00/100 Dollars ($5,000,000.00) per individual claim and Ten Million
and 00/100 Dollars ($10,000,000.00) annual aggregate.
(i) A commercial blanket bond covering all employees of the Lessee,
including its officers and the individual owners of the insured business
entity, whether a joint-venture, partnership, proprietorship or
incorporated entity, against loss as a result of their dishonesty. Policy
limit shall be in an amount of at least One Million and 00/100 Dollars
($1,000,000.00) subject to a deductible of no more than Ten Thousand and
00/100 Dollars ($10,000.00) per occurrence.
The term "Full Replacement Cost" as used herein, shall mean the actual
replacement cost thereof from time to time, including increased cost of
construction endorsement, less exclusions provided in the normal fire
insurance policy. In the event either Lessor or Lessee believes that the
Full Replacement Cost has increased or decreased at any time during the
Term, it shall have the right to have such Full Replacement Cost
re-determined by an impartial third party, hereinafter referred to as the
"impartial appraiser". The party desiring to have the Full Replacement
Cost so re-determined shall forthwith, on receipt of such determination by
such impartial appraiser, give written notice thereof to the other party
hereto. The determination of such impartial appraiser shall be final and
binding on the parties hereto, and Lessee shall forthwith increase, or may
decrease, the amount of the insurance carried pursuant to this Section
13.1, as the case may be, to the amount so determined by the impartial
appraiser. Lessee shall pay the fee, if any, of the impartial appraiser.
13.2 ADDITIONAL INSURANCE. In addition to the insurance described above,
Lessee shall maintain such additional insurance as may be required from time to
time by any Facility Lender and shall further at all times maintain adequate
worker's compensation insurance coverage for all persons employed by Lessee on
the Leased Property, in accordance with the requirements of applicable local,
state and federal law.
13.3 WAIVER OF SUBROGATION. All insurance policies to be obtained by
Lessee as required hereunder, including, without limitation, insurance policies
covering the Leased Property, the Fixtures, the Facility and/or Lessee's
Personal Property, including without limitation, contents, fire and casualty
insurance, shall expressly waive any right of subrogation on the part of the
insurer against Lessor. Lessee shall obtain insurance policies which
27
include such a waiver clause or endorsement regardless of whether same is
obtainable without extra cost, and in the event of such an extra charge Lessee
shall pay the same.
13.4 FORM OF INSURANCE. All of the policies of insurance referred to in
this Section 13.4 shall be written in form satisfactory to Lessor and by
insurance companies satisfactory to Lessor. Lessee shall pay all of the premiums
therefor, and shall deliver such original policies, or in the case of a blanket
policy, a copy of the original policy certified in writing by a duly authorized
agent for the insurance company as a "true and certified" copy of the policy to
the Lessor effective with the Commencement Date and furnished annually
thereafter (and, with respect to any renewal policy, at least fifteen (15) days
prior to the expiration of the existing policy) and in the event of the failure
of Lessee either to obtain such insurance in the names herein called for or to
pay the premiums therefor, or to deliver such policies or certified copies of
such policies (if allowed hereunder) to Lessor at the times required, Lessor
shall be entitled, but shall have no obligation, to obtain such insurance and
pay the premiums therefor, which premiums shall be repayable to Lessor upon
written demand therefor, and failure to repay the same shall constitute an Event
of Default within the meaning of Section 16.1(c). Each insurer mentioned in this
Section 13.4 shall agree, by endorsement on the policy or policies issued by it,
or by independent instrument furnished to Lessor, that it will give to Lessor
sixty (60) days' prior written notice (at Lessor's notice address as specified
in this Lease (the "Lessor's Notice Address")) before the policy or policies in
question shall be altered, allowed to expire or canceled. The parties hereto
agree that all insurance policies, endorsements and certificates which provide
that the insurer will "endeavor to" give notice before same may be altered,
allowed to expire or canceled will not be acceptable to Lessor. Notwithstanding
anything contained herein to the contrary, all policies of insurance required to
be obtained by the Lessee hereunder shall provide (i) that such policies will
not lapse, terminate, be canceled, or be amended or modified to reduce limits or
coverage terms unless and until Lessor has received not less than sixty (60)
days' prior written notice at the Lessor's Notice Address, with a simultaneous
copy to MPT Operating Partnership, L.P., Attention: Its President, 0000 Xxxxx
Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, and (ii) that in the event
of cancellation due to non-payment of premium, the insurer will provide not less
than ten (10) days' prior written notice to the Lessor at the Lessor's Notice
Address, with a simultaneous copy to MPT Operating Partnership, L.P., Attention:
Its President, 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000.
13.5 INCREASE IN LIMITS. In the event that Lessor shall at any time deem
the limits of the personal injury, property damage or general public liability
insurance then carried to be insufficient, the parties shall endeavor to agree
on the proper and reasonable limits for such insurance to be carried and such
insurance shall thereafter be carried with the limits thus agreed on until
further change pursuant to the provisions of this Section 13.5. If the parties
shall be unable to agree thereon, the proper and reasonable limits for such
insurance to be carried shall be determined by an impartial third party selected
by the parties. Nothing herein shall permit the amount of insurance to be
reduced below the amount or amounts required by any of the Facility Instruments.
13.6 BLANKET POLICY. Notwithstanding anything to the contrary contained in
this Section 13.6, Lessee's obligations to carry the insurance provided for
herein may be brought within the coverage of a so-called blanket policy or
policies of insurance carried and maintained by Lessee provided that
(a) Any such blanket policy or policies are acceptable to and have
been approved by the Lessor;
(b) Any such blanket policy or policies shall not be changed,
altered or modified without the prior written consent of the Lessor; and
(c) Any such blanket policy or policies shall otherwise satisfy the
insurance requirements of this Article XIII (including the requirement of
thirty (30) days' written notice before the expiration or cancellation of
such policies as required by Section 13.4 hereof) and shall provide for
deductibles in amounts acceptable to Lessor.
28
13.7 NO SEPARATE INSURANCE. Lessee shall not, on Lessee's own initiative
or pursuant to the request or requirement of any third party, take out separate
insurance concurrent in form or contributing in the event of loss with that
required in this Section 13.7 to be furnished by, or which may reasonably be
required to be furnished by, Lessee, or increase the amounts of any then
existing insurance by securing an additional policy or additional policies,
unless all parties having an insurable interest in the subject matter of the
insurance, including in all cases Lessor and all Facility Lenders, are included
therein as additional insureds and the loss is payable under said insurance in
the same manner as losses are required to be payable under this Lease. Lessee
shall immediately notify Lessor of the taking out of any such separate insurance
or of the increasing of any of the amounts of the then existing insurance by
securing an additional policy or additional policies.
ARTICLE XIV
FIRE AND CASUALTY
14.1 INSURANCE PROCEEDS. All proceeds payable by reason of any loss or
damage to the Leased Property, or any portion thereof, and insured under any
policy of insurance required by Article XIII of this Lease shall be paid to
Lessor and held by Lessor in trust (subject to the provisions of Section 14.7)
and shall be made available for reconstruction or repair, as the case may be, of
any damage to or destruction of the Leased Property, or any portion thereof, and
shall be paid out by Lessor from time to time for the reasonable cost of such
reconstruction or repair. Any excess proceeds of insurance remaining after the
completion of the restoration or reconstruction of the Leased Property (or in
the event neither Lessor nor Lessee is required or elects to repair and restore,
all such insurance proceeds) shall be retained by Lessor free and clear upon
completion of any such repair and restoration except as otherwise specifically
provided below in this Article XIV. All salvage resulting from any risk covered
by insurance shall belong to Lessor except that any salvage relating to Capital
Additions paid for by Lessee or to Lessee's Personal Property shall belong to
Lessee.
14.2 RECONSTRUCTION IN THE EVENT OF DAMAGE OR DESTRUCTION COVERED BY
INSURANCE.
(a) Except as provided in Section 14.7, if during the Term the
Leased Property is totally or partially destroyed from a risk covered by
the insurance described in Article XIII and the Facility is thereby
rendered Unsuitable for its Primary Intended Use, Lessee shall have the
option, by giving written notice to Lessor within sixty (60) days
following the date of such destruction, to (i) restore the Facility to
substantially the same condition as existed immediately before the damage
or destruction, or (ii) so long as Lessee is not in default, and no event
has occurred which with the giving of notice or the passage of time or
both would constitute such a default, under this Lease, the Other Leases,
the Tenant Leases, the Loan and the Loan Documents, purchase the Leased
Property from Lessor for a purchase price equal to the Fair Market Value
Purchase Price of the Leased Property immediately prior to such damage or
destruction, or (iii) so long as the damage or destruction was not caused
by the negligence of Lessee, its agents, servants, employees or
contractors, terminate this Lease and, in this event, Lessor shall be
entitled to retain the insurance proceeds, and Lessee shall pay to Lessor
on demand, the amount of any deductible or uninsured loss arising in
connection therewith. In the event Lessee purchases the Leased Property
pursuant to this Section 14.2(a), the terms set forth in Article XVIII
shall apply and the sale/purchase must be closed within ninety (90) days
after the date of the written notice from Lessee to Lessor of Lessee's
intent to purchase, unless a different closing date is agreed upon in
writing by Lessor and Lessee.
(b) Except as provided in Section 14.7, if during the Term the
Leased Improvements and/or the Fixtures are totally or partially destroyed
from a risk covered by the insurance described in Article XIII, but the
Facility is not thereby rendered Unsuitable for its Primary Intended Use,
Lessee shall restore the Facility to substantially the same condition as
existed immediately before the damage or destruction. Such damage or
destruction shall not terminate this Lease; provided, however, if Lessor
determines in its sole discretion that Lessee cannot within a reasonable
time obtain all necessary governmental approvals, including building
permits, licenses, conditional use permits and any certificates of need,
after good faith
29
diligent efforts to do so, in order to be able to perform all required
repair and restoration work and to operate the Facility for its Primary
Intended Use in substantially the same manner as immediately prior to such
damage or destruction, so long as Lessee is not in default, and no event
has occurred which with the giving of notice or the passage of time or
both would constitute such a default, under the terms of this Lease, the
Other Leases, the Tenant Leases, the Loan and the Loan Documents, Lessee
shall have the option, by giving written notice to Lessor within sixty
(60) days following the date of such damage or destruction, to purchase
the Leased Property for a purchase price equal to the Fair Market Value
Purchase Price of the Leased Property immediately prior to such damage or
destruction. In the event Lessee purchases the Leased Property pursuant to
this Section 14.2(b), the terms set forth in Article XVIII shall apply and
the sale/purchase must be closed within ninety (90) days after the date of
the written notice from Lessee to Lessor of Lessee's intent to purchase,
unless a different closing date is agreed upon in writing by Lessor and
Lessee.
(c) If the cost of the repair or restoration exceeds the amount of
proceeds received by Lessor from the insurance required under Article
XIII, Lessee shall be obligated to contribute any excess amount needed to
restore the Facility prior to use of the insurance proceeds. Such amount
shall be paid by Lessee to Lessor (or a Facility Lender if required) to be
held in trust together with any other insurance proceeds for application
to the cost of repair and restoration.
(d) In the event Lessee elects to purchase the Leased Property as
provided in this Section 14.2, and no default or Event of Default exists
at the time of the closing of such purchase, this Lease shall terminate
upon payment of the purchase price and transfer of title to the Leased
Property to Lessee, and Lessor shall transfer to Lessee its rights in or
remit to Lessee all insurance proceeds being held in trust by Lessor or
the Facility Lender on or prior to the closing of Lessee's purchase of the
Leased Property.
14.3 RECONSTRUCTION IN THE EVENT OF DAMAGE OR DESTRUCTION NOT COVERED BY
INSURANCE. Except as provided in Section 14.7 below, if during the Term, the
Facility is totally or materially destroyed from a risk not covered by the
insurance described in Article XIII but that would have been covered if Lessee
carried the insurance customarily maintained by, and generally available to, the
operators of reputable health care facilities in the region in which the
Facility is located, then whether or not such damage or destruction renders the
Facility Unsuitable for its Primary Intended Use, Lessee shall, at Lessee's sole
cost and expense, restore the Facility to substantially the same condition it
was in immediately before such damage or destruction and such damage or
destruction shall not terminate this Lease. If such damage or destruction is not
material, Lessee shall restore the Leased Property at Lessee's expense.
14.4 LESSEE'S PERSONAL PROPERTY. All insurance proceeds payable by reason
of any loss of or damage to any of Lessee's Personal Property or Capital
Additions financed by Lessee shall be paid to Lessor and Lessor shall hold such
insurance proceeds in trust to pay the cost of repairing or replacing the damage
to Lessee's Personal Property or the Capital Additions financed by Lessee.
14.5 RESTORATION OF LESSEE'S PROPERTY. If Lessee is required or elects to
restore the Facility as provided in Section 14.2 or Section 14.3, Lessee shall
also restore all alterations and improvements made by Lessee, Lessee's Personal
Property and all Capital Additions paid for by Lessee.
14.6 NO ABATEMENT OF RENT. This Lease shall remain in full force and
effect and Lessee's obligation to make rental payments and to pay all other
charges required by this Lease shall remain unabated during any period required
for repair and restoration.
14.7 DAMAGE NEAR END OF TERM. Notwithstanding any provisions of Section
14.2 or Section 14.3 to the contrary, if damage to or destruction of the
Facility occurs during the last twenty-four (24) months of the Term, and if such
damage or destruction cannot be fully repaired and restored within six (6)
months immediately following the date of loss, either party shall have the right
to terminate this Lease by giving notice to the other within thirty
30
(30) days after the date of damage or destruction, in which event Lessor shall
be entitled to retain the insurance proceeds and Lessee shall pay to Lessor on
demand the amount of any deductible or uninsured loss arising in connection
therewith; provided, however, that any such notice given by Lessor shall be void
and of no force and effect if Lessee exercises an available option to extend the
Term for one Extended Term within thirty (30) days following receipt of such
termination notice.
14.8 TERMINATION OF RIGHT TO PURCHASE AND SUBSTITUTION. Any termination of
this Lease pursuant to this Article XIV shall cause any right to purchase
granted to Lessee under any other provisions of this Lease to be terminated and
to be without further force and effect.
14.9 WAIVER. Lessee hereby waives any statutory or common law rights of
termination which may arise by reason of any damage or destruction of the
Facility.
14.10 PURCHASE OPTION SUBORDINATE TO FACILITY INSTRUMENT. Intentionally
Omitted.
ARTICLE XV
CONDEMNATION
15.1 DEFINITIONS.
(a) "Condemnation" means (i) the exercise of any governmental power,
whether by legal proceedings or otherwise, by a Condemnor or (ii) a
voluntary sale or transfer by Lessor to any Condemnor, either under threat
of Condemnation or while legal proceedings for Condemnation are pending.
(b) "Date of Taking" means the date the Condemnor has the right to
possession of the property being condemned.
(c) "Award" means all compensation, sums or anything of value
awarded, paid or received on a total or partial Condemnation.
(d) "Condemnor" means any public or quasi-public authority, or
private corporation or individual, having the power of Condemnation.
15.2 PARTIES' RIGHTS AND OBLIGATIONS. If during the Term there is any
Taking of all or any part of the Leased Property or any interest in this Lease
by Condemnation, the rights and obligations of the parties shall be determined
by this Article XV.
15.3 TOTAL TAKING. If there is a Taking of all of the Leased Property by
Condemnation, this Lease shall terminate on the Date of Taking.
15.4 PARTIAL TAKING. If there is a Taking of a portion of the Leased
Property by Condemnation, this Lease shall remain in effect if the Facility is
not thereby rendered Unsuitable for its Primary Intended Use. If, however, the
Facility is thereby rendered Unsuitable for its Primary Intended Use, Lessee
shall have the option (a) to restore the Facility, at its own expense, to the
extent possible, to substantially the same condition as existed immediately
before the partial Taking, or (b) so long as Lessee is not in default, and no
event has occurred which with the giving of notice or the passage of time or
both would constitute such a default, under the terms of this Lease, the Other
Leases, the Tenant Leases, the Loan and the Loan Documents, to acquire the
Leased Property from Lessor for a purchase price equal to the Fair Market Value
Purchase Price of the Leased Property immediately prior to such partial Taking,
in which event this Lease shall terminate upon payment of the purchase price.
Lessee shall exercise its option by giving Lessor notice thereof within sixty
(60) days after Lessee receives notice of the Taking.
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In the event Lessee exercises the option to purchase the Leased Property
pursuant to this Section 15.4, the terms set forth in Article XVIII shall apply
and the sale/purchase must be closed within thirty (30) days after the date of
the written notice from Lessee to Lessor of Lessee's intent to purchase, unless
a different closing date is agreed upon in writing by Lessor and Lessee.
15.5 RESTORATION. If there is a partial Taking of the Leased Property and
this Lease remains in full force and effect pursuant to Section 15.4, Lessee
shall accomplish all necessary restoration.
15.6 AWARD DISTRIBUTION. In the event Lessee exercises the purchase option
as described in clause (b) of Section 15.4, the entire Award shall belong to
Lessee provided no Event of Default is continuing and Lessor agrees to assign to
Lessee all of its rights thereto. In any other event, the entire Award shall
belong to and be paid to Lessor, except that, if this Lease is terminated, and
subject to the rights of the Facility Lender, Lessee shall be entitled to
receive from the Award, if and to the extent such Award specifically includes
such items, the following:
(a) A sum attributable to the Capital Additions for which Lessee
would be entitled to reimbursement at the end of the Term pursuant to the
provisions of Section 10.2(c) and the value, if any, of the leasehold
interest of Lessee under this Lease; and
(b) A sum attributable to Lessee's Personal Property and any
reasonable removal and relocation costs included in the Award.
If Lessee is required or elects to restore the Facility, Lessor agrees that,
subject to the rights of the Facility Lenders, its portion of the Award shall be
used for such restoration and it shall hold such portion of the Award in trust,
for application to the cost of the restoration.
15.7 TEMPORARY TAKING. The Taking of the Leased Property, or any part
thereof, by military or other public authority shall constitute a Taking by
Condemnation only when the use and occupancy by the Taking authority has
continued for longer than six (6) months. During any such six (6) month period
all the provisions of this Lease shall remain in full force and effect and the
Base Rent shall not be abated or reduced during such period of Taking.
15.8 PURCHASE OPTION SUBORDINATE TO FACILITY INSTRUMENT. Notwithstanding
any provision set forth in this Article XV to the contrary, Lessee's purchase
rights as set forth in this Article XV, are and shall be subject, subordinate
and inferior to any Facility Instrument. This provision shall be self-operative.
However, any Facility Lender may from time to time request that such
subordination be evidenced by a separate written agreement. Within ten (10) days
following written request by Lessor or any Facility Lender, the Lessee shall
execute and deliver to Lessor or such Facility Lender a written agreement, in
form and substance satisfactory to such Facility Lender and any applicable
rating agency. In the event Lessee fails or refuses to execute and deliver such
written agreement within such ten (10) day period, then, in addition to all
other remedies available at law or in equity, the Lessor shall be entitled to
terminate Lessee's purchase rights under this Article XV upon delivery of five
(5) days' written notice to Lessee. In the event Lessee has not executed and
delivered to Lessor or such Facility Lender and any applicable rating agency, if
any, the written agreement requested within such five (5) day period, then in
such event, Lessee's purchase rights under this Article XV shall be deemed
forfeited and of no further force or effect.
ARTICLE XVI
DEFAULT
16.1 EVENTS OF DEFAULT. The occurrence of any one or more of the following
events (individually, an "Event of Default") shall constitute Events of Default
or defaults hereunder:
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(a) a default or event of default shall occur under any of the Other
Leases that is not cured within the applicable cure period as provided
therein, or
(b) if Lessee shall fail to make a payment of the Rent or any other
monetary payment due and payable by Lessee under this Lease when the same
becomes due and payable, or
(c) if Lessee shall fail to observe or perform any other term,
covenant or condition of this Lease and such failure is not cured by
Lessee within a period of thirty (30) days after receipt by Lessee of
written notice thereof from Lessor (provided, however, in no event shall
Lessor be required to give more than one (1) written notice per calendar
year for a non-monetary default), unless such failure cannot with due
diligence be cured within a period of thirty (30) days, in which case such
failure shall not be deemed to continue if Lessee proceeds promptly and
with due diligence to cure the failure and diligently completes the curing
thereof within sixty (60) days after receipt by Lessee of Lessor's notice
of default, or
(d) if Lessee shall:
(i) admit in writing its inability to pay its debts generally
as they become due,
(ii) file a petition in bankruptcy or a petition to take
advantage of any insolvency act,
(iii) make an assignment for the benefit of its creditors,
(iv) consent to the appointment of a receiver of itself or of
the whole or any substantial part of its property, or
(v) file a petition or answer seeking reorganization or
arrangement under the Federal bankruptcy laws or any other
applicable law or statute of the United States of America or any
state thereof.
(e) if Lessee's license as defined in Article XXXIX or participation
or certification in Medicare, Medicaid or other governmental payor
programs is terminated, or
(f) if Lessee admits in writing that it cannot meet its obligations
as they become due; or is declared insolvent according to any law; or
assignment of Lessee's property is made for the benefit of creditors; or a
receiver or trustee is appointed for Lessee or its property; or the
interest of Lessee under this Lease is levied on under execution or other
legal process; or any petition is filed by or against Lessee to declare
Lessee bankrupt or to delay, reduce or modify Lessee's capital structure
if Lessee be a corporation or other entity (provided that no such levy,
execution, legal process or petition filed against Lessee shall constitute
a breach of this Lease if Lessee shall vigorously contest the same by
appropriate proceedings and shall remove or vacate the same within thirty
(30) days from the date of its creation, service or filing); or the real
or personal property of Lessee shall be sold or levied upon by any
sheriff, xxxxxxxx or constable, or
(g) if Lessee abandons or vacates the Leased Property (Lessee's
absence from the Leased Property for thirty (30) consecutive days shall
constitute abandonment), or Lessee fails to continuously operate the
Facility in accordance with the terms of this Lease, or
(h) if the Lessee shall, after a petition in bankruptcy is filed
against it, be adjudicated a bankrupt or if a court of competent
jurisdiction shall enter an order or decree appointing, without the
consent of Lessee, a receiver of Lessee or of the whole or substantially
all of its property, or approving a petition filed against it seeking
reorganization or arrangement of Lessee under the federal bankruptcy laws
33
or any other applicable law or statute of the United States of America or
any state thereof, and such judgment, order or decree shall not be vacated
or set aside or stayed within ninety (90) days from the date of the entry
thereof, or
(i) if Lessee shall be liquidated or dissolved, or shall begin
proceedings toward such liquidation or dissolution, or shall, in any
manner, permit the sale or divestiture of substantially all of its assets
other than in connection with a merger or consolidation of Lessee into, or
a sale of substantially all of Lessee's assets to, another corporation,
provided that if the survivor of such merger or the purchaser of such
assets shall assume all of Lessee's obligations under this Lease by a
written instrument, in form and substance reasonably satisfactory to
Lessor, accompanied by an opinion of counsel, reasonably satisfactory to
Lessor and addressed to Lessor stating that such instrument of assumption
is valid, binding and enforceable against the parties thereto in
accordance with its terms (subject to usual bankruptcy and other
creditors' rights exceptions), and provided, further, that if, immediately
after giving effect to any such merger, consolidation or sale, Lessee or
such other corporation (if not the Lessee) surviving the same, shall have
a Consolidated Net Worth not less than the Consolidated Net Worth of
Lessee immediately prior to such merger, consolidation or sale, all as to
be set forth in an Officer's Certificate delivered to Lessor within thirty
(30) days of such merger, consolidation or sale, an Event of Default shall
not be deemed to have occurred, or
(j) if the estate or interest of Lessee in the Leased Property or
any part thereof shall be levied upon or attached in any proceeding and
the same shall not be vacated or discharged within the later of ninety
(90) days after commencement thereof or thirty (30) days after receipt by
Lessee of written notice thereof from Lessor (unless Lessee shall be
contesting such lien or attachment in good faith in accordance with
Article XII hereof), or
(k) if, except as a result of damage, destruction or a partial or
complete Condemnation, Lessee voluntarily ceases operations on the Leased
Property for a period in excess of ninety (90) days, or
(l) if any of the representations or warranties made by Lessee or
any of the Sellers named in the Purchase Agreement or in the certificates
delivered in connection therewith are or become untrue in any material
respect, and which is not cured within ten (10) days after notice from
Lessor, or
(m) a default or event of default shall occur under the Funding
Agreement, Development Agreement, Lease Assignment, Purchase Agreement,
Assignment of Rents and Leases, Security Agreement or any other agreement
between Lessor or any Affiliate of Lessor, on the one hand, and Lessee or
any Affiliate of Lessee, on the other hand, which is not cured within the
cure period as provided therein, or
(n) if Lessee defaults under the Tenant Leases or fails or refuses
to enforce the terms and conditions of the Tenant Leases, or
(o) if a default shall occur under the Loan, or under any of the
Loan Documents which is not cured within the applicable cure period
provided therein.
If an Event of Default shall have occurred, Lessor shall have the right at its
election, then or at any time thereafter, to pursue any one or more of the
following remedies, in addition to any remedies which may be permitted by law or
by other provisions of this Lease, without notice or demand, except as
hereinafter provided:
A. Without any notice or demand whatsoever, Lessor may take any one or
more of the actions permissible at law to insure performance by Lessee of
Lessee's covenants and obligations under this Lease. In this regard, it is
agreed that if Lessee deserts or vacates the Leased Property, Lessor may enter
upon and take possession of such Leased Property in order to protect it from
deterioration and continue to demand from Lessee the monthly rentals and other
charges provided in this Lease, and Lessor shall make a good faith effort to
relet the Leased
34
Property; but no such action by Lessor shall be deemed as an acceptance of
Lessee's surrender of the Leased Property unless Lessor expressly notifies
Lessee of such acceptance in writing pursuant to subsection B of this Section
16.1, Lessee hereby acknowledging that Lessor shall otherwise be reletting as
Lessee's agent and Lessee furthermore hereby agreeing to pay to Lessor on demand
any deficiency that may arise between the monthly rentals and other charges
provided in this Lease and that are actually collected by Lessor. It is further
agreed in this regard that in an Event of Default described in this Section
16.1, Lessor shall have the right to enter upon the Leased Property by force, if
necessary, without being liable for prosecution or any claim for damages
therefor, and do whatever Lessee is obligated to do under the terms of this
Lease; and Lessee agrees to reimburse Lessor on demand for any expenses which
Lessor may incur in thus effecting compliance with Lessee's obligations under
this Lease, and Lessee further agrees that Lessor shall not be liable for any
damages resulting to the Lessee from such action.
X. Xxxxxx may terminate this Lease by written notice to Lessee, in which
event Lessee shall immediately surrender the Leased Property to Lessor, and if
Lessee fails to do so, Lessor may, without prejudice to any other remedy which
Lessor may have for possession or arrearages in rent (including any interest
which may have accrued pursuant to Section 3.4 of this Lease), enter upon and
take possession of the Leased Property and expel or remove Lessee and any other
person who may be occupying said premises or any part thereof, by force, if
necessary, without being liable of prosecution or any claim for damages
therefor. Lessee hereby waives any statutory requirement of prior written notice
for filing eviction or damage suits for nonpayment of rent. In addition, Lessee
agrees to pay to Lessor on demand the amount of all loss and damage which Lessor
may suffer by reason of any termination effected pursuant to this subsection B,
said loss and damage to be determined, at Lessor's option, by either of the
following alternative measures of damages:
(i) Until Lessor is able, although Lessor shall be under no
obligation to attempt, to relet the Leased Property, Lessee shall
pay to Lessor on or before the first day of each calendar month, the
monthly rentals and other charges provided in this Lease. After the
Leased Property has been relet by Lessor, Lessee shall pay to Lessor
on the 10th day of each calendar month the difference between the
monthly rentals and other charges provided in this Lease for the
preceding calendar month and that actually collected by Lessor for
such month. If it is necessary for Lessor to bring suit in order to
collect any deficiency, Lessor shall have a right to allow such
deficiencies to accumulate and to bring an action on several or all
of the accrued deficiencies at one time. Any such suit shall not
prejudice in any way the right of Lessor to bring a similar action
for any subsequent deficiency or deficiencies. Any amount collected
by Lessor from subsequent tenants for any calendar month, in excess
of the monthly rentals and other charges provided in this Lease,
shall be credited to Lessee in reduction of Lessee's liability for
any calendar month for which the amount collected by Lessor will be
less than the monthly rentals and other charges provided in this
Lease; but Lessee shall have no right to such excess other than the
above-described credit.
(ii) When Lessor desires, Lessor may demand a final
settlement. Upon demand for a final settlement, Lessor shall have a
right to, and Lessee hereby agrees to pay, the difference between
the total of all monthly rentals and other charges provided in this
Lease for the remainder of the Lease Term and the reasonable rental
value of the Leased Property for such period, such difference to be
discounted to present value at a rate equal to the lowest rate of
capitalization (highest present worth) reasonably applicable at the
time of such determination and allowed by applicable law. If Lessor
elects to exercise the remedy prescribed in subsection A above, this
election shall in no way prejudice Lessor's right at any time
thereafter to cancel said election in favor of the remedy prescribed
in subsection B above. Similarly, if Lessor elects to compute
damages in the manner prescribed by subsection B(i) above, this
election shall in no way prejudice Lessor's right at any time
thereafter to demand a final settlement in accordance with this
subsection B(ii) above. Pursuit of any of the above remedies shall
not preclude pursuit of any other remedies prescribed in other
sections of this Lease and any other remedies provided by law or
equity. Forbearance by Lessor to enforce one or more of the remedies
herein provided upon an Event of Default shall not be deemed or
construed to constitute a waiver of such default.
35
C. In addition to other rights and remedies Lessor may have hereunder and
at law and in equity, if an Event of Default occurs under this Lease, (i) Lessee
is deemed to have assigned to Lessor, at Lessor's sole option, all service
agreements (including, without limitation, all medical director agreements), and
(ii) to the extent permitted by law, Lessee is deemed, at Lessor's sole
discretion, to have transferred and assigned to Lessor all Licenses and
agreements, including, without limitation, all Medicare and Medicaid provider
numbers. In the event there are legal limitations on any of the foregoing
remedies, Lessee further hereby covenants and agrees that it will take all
actions necessary to orderly transfer the operations and occupancy of the Leased
Property to the Lessor, including cooperating with respect to the transfer to
Lessor or its nominee or designee of all Licenses, provider numbers and other
agreements.
16.2 EVENTS OF DEFAULT IN FINANCIAL COVENANTS.
The occurrence of any one or more of the following shall constitute a
default and breach of this Section 16.2 and the Lessor shall have the rights and
remedies provided for herein:
(a) Based on the trailing twelve (12) month results tested at the end of
each calendar quarter during the periods set forth below, if EBITDAR Total Fixed
Charge Coverage shall be less than the amount calculated per applicable period
as provided below:
EBITDAR Testing Periods: Calculation:
------------------------------------------------------- ------------------
Year One: - For Year One as Tested at the End of the 4th Quarter Deferred
Year Two: - For Quarters 1, 2, and 3 (Tested Quarterly) 0.5 times EBITDAR
- For Year Two as Tested at the End of the 4th Quarter 0.75 times EBITDAR
Year Three: - For Quarters 1 and 2 (Tested Quarterly) 1.0 times EBITDAR
- For Quarters 3 and 4 (Tested Quarterly) 1.25 times EBITDAR
Year Four: (and thereafter) - Tested Quarterly 1.25 times EBITDAR
(b) Based on the trailing twelve (12) month results tested at the
end of each calendar quarter during the periods set forth below, if EBITDAR
Lease Coverage shall be less than the amount calculated per applicable period as
provided below:
EBITDAR Testing Periods: Calculation:
------------------------------------------------------- ------------------
Year One: - For Year One as Tested at the End of the 4th Quarter Deferred
Year Two: - For Quarters 1, 2, and 3 (Tested Quarterly) 1.2 times EBITDAR
- For Year Two as Tested at the End of the 4th Quarter 1.5 times EBITDAR
Year Three: - For Quarters 1 and 2 (Tested Quarterly) 1.75 times EBITDAR
- For Quarters 3 and 4 (Tested Quarterly) 2.0 times EBITDAR
Year Four: (and thereafter) - Tested Quarterly 2.0 times EBITDAR
(c) Lessee shall experience six (6) consecutive quarters of falling
net revenue, and EBITDAR (based on trailing twelve (12) months) shall be less
than 1.5 times Tenant's Rent payments; or
36
(d) Lessee shall be in payment default on any of its corporate debt
or other leases or be declared to be in material default by any of its corporate
lenders, unless such default is cured within any applicable cure periods.
Upon the occurrence of any of the items set forth in Section 16.1 or in
this Section 16.2, Lessor may, at its option, upon five (5) days' written notice
to Lessee (any such notice requiring such termination being herein referred to
as the "Removal Notice"), require Lessee to terminate the engagement of any
Management Company managing the Facility and replace such Management Company
with a manager chosen by Lessor (or, if there is no Management Company managing
the Facility at that time, Lessor may require the Lessee to engage a Management
Company acceptable to Lessor and enter into a contract with such Management
Company upon terms and conditions acceptable to Lessor), and Lessor may, at its
option, proceed with all other remedies Lessor deems necessary, including,
without limitation, terminating this Lease and pursuing all other remedies
provided for herein.
16.3 ADDITIONAL EXPENSES. It is further agreed that, in addition to
payments required pursuant to subsections A and B of Section 16.1 above, Lessee
shall compensate Lessor for (i) all administrative expenses, (ii) all expenses
incurred by Lessor in repossessing the Leased Property (including among other
expenses, any increase in insurance premiums caused by the vacancy of the Leased
Property), (iii) all expenses incurred by Lessor in reletting (including among
other expenses, repairs, remodeling, replacements, advertisements and brokerage
fees), (iv) all concessions granted to a new tenant or tenants upon reletting
(including among other concessions, renewal options), (v) Lessor's reasonable
attorneys' fees and expenses, (vi) all losses incurred by Lessor as a direct or
indirect result of Lessee's default (including among other losses any adverse
action by mortgagees), and (vii) a reasonable allowance for Lessor's
administrative efforts, salaries and overhead attributable directly or
indirectly to Lessee's default and Lessor's pursuing the rights and remedies
provided herein and under applicable law.
16.4 WAIVER. If this Lease is terminated pursuant to Section 16.1 or
Section 16.2, Lessee waives, to the extent permitted by applicable law, (a) any
right of redemption, re-entry or repossession, (b) any right to a trial by jury
in the event of summary proceedings to enforce the remedies set forth in this
Article XVI, and (c) the benefit of any laws now or hereafter in force exempting
property from liability for rent or for debt.
16.5 APPLICATION OF FUNDS. Any payments otherwise payable to Lessee which
are received by Lessor under any of the provisions of this Lease during the
existence or continuance of any Event of Default shall be applied to Lessee's
obligations in the order which Lessor may reasonably determine or as may be
prescribed by the laws of the state in which the Facility is located.
16.6 NOTICES BY LESSOR. The provisions of this Article XVI concerning
notices shall be liberally construed insofar as the contents of such notices are
concerned, and any such notice shall be sufficient if reasonably designed to
apprise Lessee of the nature and approximate extent of any default, it being
agreed that Lessee is in good or better position than Lessor to ascertain the
exact extent of any Event of Default by Lessee hereunder.
16.7 LESSOR'S CONTRACTUAL SECURITY INTEREST. Subject to the Prior Lien of
Lessee's Primary Lender (as such terms are defined herein), to secure the
payment of all Rent due and to become due hereunder and the faithful performance
of this Lease and to secure all other obligations, indebtedness and liabilities
of Lessee to Lessor, now existing or hereafter incurred, and all Obligations (as
defined in the Security Agreement), Lessee hereby gives to Lessor an express
first and prior contract lien and security interest in all property which may be
placed on the Leased Property (including fixtures, equipment (including medical
equipment whether or not affixed to the Leased Property), chattels and
merchandise), and also upon all proceeds of any insurance which may accrue to
Lessee by reason of destruction of or damage to any such property and also upon
all of Lessee's interest as lessee and rights and options to purchase fixtures,
equipment (including medical equipment whether or not affixed to the Leased
Property), and chattels placed on the Leased Property (in case of fixtures,
equipment and chattels leased to Lessee which are placed on the Leased
Property). All exemption laws are hereby waived in favor of such lien and
security interest and in favor of Lessor's statutory landlord lien. This lien
and security interest are given in addition to any statutory landlord lien and
shall be cumulative thereto. Except as limited in favor of the Primary Lender as
37
set forth in this Section 16.7 Lessor shall have at all times a valid security
interest to secure payment of all rentals and other sums of money becoming due
hereunder from Lessee, and to secure payment of any damages or loss which Lessor
may suffer by reason of the breach by Lessee of any covenant, agreement or
condition contained herein, upon all inventory, merchandise, goods, wares,
equipment (including medical equipment whether or not affixed to the Leased
Property), fixtures, furniture, improvements and other tangible personal
property of Lessee presently, or which may hereafter be, situated in or about
the Leased Property, and all proceeds therefrom and accessions thereto and,
except as a result of sales made in the ordinary course of Lessee's business,
such property shall not be removed without the consent of Lessor until all
arrearages in rent as well as any and all other sums of money then due to Lessor
or to become due to Lessor hereunder shall first have been paid and discharged
and all the covenants, agreements and conditions hereof have been fully complied
with and performed by Lessee. Upon the occurrence of an Event of Default by
Lessee, Lessor may, in addition to any other remedies provided herein, enter
upon the Leased Property and take possession of any and all inventory,
merchandise, goods, wares, equipment, fixtures, furniture, improvements and
other personal property of Lessee situated in or about the Leased Property,
without liability for trespass or conversion, and sell the same at public or
private sale, with or without having such property at the sale, after giving
Lessee reasonable notice of the time and place of any public sale of the time
after which any private sale is to be made, at which sale the Lessor or its
assigns may purchase unless otherwise prohibited by law. Unless otherwise
provided by law, and without intending to exclude any other manner of giving
Lessee reasonable notice, the requirement of reasonable notice shall be met, if
such notice is given in the manner prescribed in this Lease at least seven (7)
days before the time of sale. Any sale made pursuant to the provision of this
paragraph shall be deemed to have been a public sale conducted in a commercially
reasonable manner if held in the above-described premises or where the property
is located after the time, place and method of sale and a general description of
the types of property to be sold have been advertised in a daily newspaper
published in the county in which the property is located, for five (5)
consecutive days before the date of the sale. The proceeds from any such
disposition, less any and all expenses connected with the taking of possession,
holding and selling of the property (including reasonable attorney's fees and
legal expenses), shall be applied as a credit against the indebtedness secured
by the security interest granted in this paragraph. Any surplus shall be paid to
Lessee or as otherwise required by law; the Lessee shall pay any deficiencies
forthwith. Upon request by Lessor, Lessee agrees to execute (if required by law;
provided, however, Lessor shall have the right to file a UCC-1 financing
statement (and all amendments, modifications and extensions thereto) at any time
as provided in the Security Agreement) and deliver to Lessor a financing
statement in form sufficient to perfect the security interest of Lessor in the
aforementioned property and proceeds thereof under the provision of the Uniform
Commercial Code (or corresponding state statute or statutes) in force in the
state in which the Leased Property is located, as well as any other state the
laws of which Lessor may at any time consider to be applicable.
As used herein, the term "Primary Lien of Lessee's Primary Lender" means
any first priority lien granted by Lessee in any of Lessee's machinery,
equipment (including medical equipment whether or not affixed to the Leased
Property), furniture, furnishings, tools, movable walls or partitions,
computers, signage, trade fixtures, supplies, inventory, or any other tangible
personal property placed on the Leased Property and used or useful in Lessee's
business conducted at or on the Leased Property (the "Collateral"), which may be
given in connection with Lessee's lender ("Primary Lender") providing financing
for Lessee to purchase such items of Collateral or in connection with the
refinancing of any such items of Collateral. In the event Lessee obtains
financing from a Primary Lender or refinances such items of Collateral, Lessee
shall use commercially reasonable efforts to obtain from its Primary Lender a
consent to a secondary lien on such Collateral in favor of Lessor, in form and
content reasonably acceptable to the Primary lender and the Lessor. Lessee
covenants and agrees not to place or allow any other liens to be placed on the
Collateral. Lessee covenants and agrees that all indebtedness (except for the
indebtedness owed to the Primary Lender) owed by Lessee under all agreements
executed in connection with the Lessee's financing of Lessee's Personal Property
to be used in connection with the operation of the Facility shall be subordinate
to all monetary obligations under this Lease and Lessee shall not place or allow
any other liens to be placed on the Lessee's Personal Property. At the request
of Lessor from time to time, Lessee shall execute and shall obtain from all
parties to such financing arrangements executed written confirmation of such
subordination (in form and content as is acceptable to Lessor), which shall be
delivered to Lessor within ten (10) days from Lessor's request.
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ARTICLE XVII
LESSOR'S RIGHT TO CURE
If Lessee shall fail to make any payment, or to perform any act required
to be made or performed under this Lease and to cure the same within the
relevant time periods provided in Section 16.1, Lessor, without waiving or
releasing any obligation or Event of Default, may (but shall be under no
obligation to) at any time thereafter make such payment or perform such act for
the account and at the expense of Lessee, and may, to the extent permitted by
law, enter upon the Leased Property for such purpose and take all such action
thereon as, in Lessor's opinion, may be necessary or appropriate therefor. No
such entry shall be deemed an eviction of Lessee. All sums so paid by Lessor and
all costs and expenses (including, without limitation, reasonable attorneys'
fees and expenses, in each case, to the extent permitted by law) so incurred,
together with a late charge thereon (to the extent permitted by law) at the
Overdue Rate from the date on which such sums or expenses are paid or incurred
by Lessor, shall be paid by Lessee to Lessor on demand. The obligations of
Lessee and rights of Lessor contained in this Article shall survive the
expiration or earlier termination of this Lease.
ARTICLE XVIII
PURCHASE OF THE LEASED PROPERTY
In the event Lessee purchases the Leased Property from Lessor pursuant to
any of the terms of this Lease, including, without limitation Article XXXIV,
Lessor shall, upon receipt from Lessee of the applicable purchase price,
together with full payment of any unpaid Rent due and payable with respect to
any period ending on or before the date of the purchase, deliver to Lessee an
appropriate special warranty deed or other instrument of conveyance conveying
the entire interest of Lessor in and to the Leased Property to Lessee in the
condition as received from Lessee, free and clear of all encumbrances other than
(a) those that Lessee has agreed hereunder to pay or discharge, (b) those
mortgage liens, if any, which Lessee has agreed in writing to accept and to take
title subject to, (c) any other Encumbrances permitted to be imposed on the
Leased Property under the provisions of Article XXXVII which are assumable at no
cost to Lessee or to which Lessee may take subject without cost to Lessee, and
(d) any matters affecting the Leased Property on or as of the Commencement Date.
The difference between the applicable purchase price and the total of the
encumbrances assigned or taken subject to shall be paid in cash to Lessor, or as
Lessor may direct, in federal or other immediately available funds except as
otherwise mutually agreed by Lessor and Lessee. The closing of any such sale
shall be contingent upon and subject to Lessee obtaining all required
governmental consents and approvals for such transfer (so long as Lessee
immediately applies for, seeks in good faith, and diligently pursues, to obtain
such consents and approvals) and if such sale shall fail to be consummated by
reason of the inability of Lessee to obtain all such approvals and consents
prior to the closing date, any options to extend the Term of this Lease which
otherwise would have expired during the period from the date when Lessee elected
or became obligated to purchase the Leased Property until Lessee's inability to
obtain the approvals and consents is confirmed shall be deemed to remain in
effect for thirty (30) days after the end of such period. All expenses of such
conveyance, including, without limitation, the cost of title examination or
standard coverage title insurance, survey, attorneys' fees incurred by Lessor in
connection with such conveyance, transfer taxes, prepayment penalties and any
other fees with respect to any Facility Instrument, recording fees and similar
charges shall be paid for by Lessee.
ARTICLE XIX
HOLDING OVER
If Lessee shall for any reason remain in possession of the Leased Property
after the expiration of the Term or any earlier termination of the Term hereof,
such possession shall be as a tenancy at will during which time Lessee shall pay
as rental each month, one and one-quarter times the aggregate of (a) one-twelfth
of the aggregate Base
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Rent payable with respect to the last complete Lease Year prior to the
expiration of the Term; (b) all Additional Charges accruing during the month and
(c) all other sums, if any, payable by Lessee pursuant to the provisions of this
Lease with respect to the Leased Property. During such period of tenancy, Lessee
shall be obligated to perform and observe all of the terms, covenants and
conditions of this Lease, but shall have no rights hereunder other than the
right, to the extent given by law to tenancies at will, to continue its
occupancy and use of the Leased Property. Nothing contained herein shall
constitute the consent, express or implied, of Lessor to the holding over of
Lessee after the expiration or earlier termination of this Lease.
ARTICLE XX
INTENTIONALLY OMITTED
ARTICLE XXI
RISK OF LOSS
During the Term of this Lease, the risk of loss or of decrease in the
enjoyment and beneficial use of the Leased Property in consequence of the damage
or destruction thereof by fire, the elements, casualties, thefts, riots, wars or
otherwise, or in consequence of foreclosures, attachments, levies or executions
(other than by Lessor and those claiming from, through or under Lessor) is
assumed by Lessee and, Lessor shall in no event be answerable or accountable
therefor nor shall any of the events mentioned in this Article entitle Lessee to
any abatement of Rent except as specifically provided in this Lease.
ARTICLE XXII
INDEMNIFICATION
NOTWITHSTANDING THE EXISTENCE OF ANY INSURANCE OR SELF INSURANCE PROVIDED
FOR IN ARTICLE XIII, AND WITHOUT REGARD TO THE POLICY LIMITS OF ANY SUCH
INSURANCE OR SELF INSURANCE, LESSEE WILL PROTECT, INDEMNIFY, SAVE HARMLESS AND
DEFEND LESSOR FROM AND AGAINST ALL LIABILITIES, OBLIGATIONS, CLAIMS, DAMAGES,
PENALTIES, CAUSES OF ACTION, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION,
REASONABLE ATTORNEYS' FEES AND EXPENSES AND EXPERT WITNESS FEES), TO THE EXTENT
PERMITTED BY LAW, IMPOSED UPON OR INCURRED BY OR ASSERTED AGAINST LESSOR BY
REASON OF: (A) ANY ACCIDENT, INJURY TO OR DEATH OF PERSONS OR LOSS OF PERSONAL
PROPERTY OCCURRING ON OR ABOUT THE LEASED PROPERTY OR ADJOINING SIDEWALKS,
INCLUDING WITHOUT LIMITATION ANY CLAIMS OF MALPRACTICE, (B) ANY USE, MISUSE, NO
USE, CONDITION, MAINTENANCE OR REPAIR BY LESSEE OF THE LEASED PROPERTY, (C) ANY
IMPOSITIONS (WHICH ARE THE OBLIGATIONS OF LESSEE TO PAY PURSUANT TO APPLICABLE
PROVISIONS OF THIS LEASE), (D) ANY FAILURE ON THE PART OF LESSEE TO PERFORM OR
COMPLY WITH ANY OF THE TERMS OF THIS LEASE, AND (E) THE NON-PERFORMANCE OF ANY
OF THE TERMS AND PROVISIONS OF ANY AND ALL EXISTING AND FUTURE SUBLEASES OF THE
LEASED PROPERTY TO BE PERFORMED BY THE LANDLORD (LESSEE) THEREUNDER. ANY AMOUNTS
WHICH BECOME PAYABLE BY LESSEE UNDER THIS ARTICLE XXII SHALL BE PAID WITHIN TEN
(10) DAYS AFTER LIABILITY THEREFOR ON THE PART OF LESSOR IS DETERMINED BY
LITIGATION OR OTHERWISE AND, IF NOT TIMELY PAID, SHALL BEAR A LATE CHARGE (TO
THE EXTENT PERMITTED BY LAW) AT THE OVERDUE RATE FROM THE DATE OF SUCH
DETERMINATION TO THE DATE OF PAYMENT. LESSEE, AT ITS EXPENSE, SHALL CONTEST,
RESIST AND DEFEND ANY SUCH CLAIM, ACTION OR PROCEEDING ASSERTED OR INSTITUTED
AGAINST LESSOR OR
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MAY COMPROMISE OR OTHERWISE DISPOSE OF THE SAME AS LESSEE AND LESSOR SEE FIT.
NOTHING HEREIN SHALL BE CONSTRUED AS INDEMNIFYING LESSOR AGAINST ITS OWN
NEGLIGENCE OR OMISSIONS OR WILLFUL MISCONDUCT. LESSEE'S LIABILITY FOR A BREACH
OF THE PROVISIONS OF THIS ARTICLE XXII SHALL SURVIVE ANY TERMINATION AND THE
EXPIRATION OF THIS LEASE.
ARTICLE XXIII
ASSIGNMENT, SUBLETTING; AND SUBLEASE SUBORDINATION
23.1 ASSIGNMENT AND SUBLETTING. Lessee shall not assign this Lease or
sublease any portion of the Leased Property without Lessor's prior written
consent. Lessor shall not unreasonably withhold its consent to any subletting or
assignment, provided that (a) in the case of a subletting, the sublease and the
sublessee shall comply with the provisions of this Article XXIII, (b) in the
case of an assignment, the assignee shall assume in writing and agree to keep
and perform all of the terms of this Lease on the part of Lessee to be kept and
performed and shall be and become jointly and severally liable with Lessee for
the performance thereof, (c) an original counterpart of each such sublease and
assignment and assumption, duly executed by Lessee and such sublessee or
assignee, as the case may be, in form and substance satisfactory to Lessor,
shall be delivered promptly to Lessor, and (d) in case of either an assignment
or subletting, Lessee shall remain primarily liable, as principal rather than as
surety, for the prompt payment of the Rent and for the performance and
observance of all of the obligations, covenants and conditions to be performed
by Lessee hereunder and under all of the other documents executed in connection
herewith. Notwithstanding anything contained herein to the contrary, Lessor and
Lessee acknowledge that there currently exists certain leases or subleases on
the Leased Property as described on EXHIBIT C attached hereto (collectively the
"Existing Subleases"). Any modifications, amendments and restatements of the
Existing Subleases must be approved by Lessor in accordance with this Article
XXIII. Notwithstanding anything contained herein to the contrary, any proposed
assignee of Lessee and any proposed sublessee or subtenant must each have an
equal or stronger credit rating than the Lessee on the Commencement Date.
Lessor's failure or refusal to approve an assignment to an assignee or a
subletting to a sublessee or subtenant without the required credit rating shall
be reasonable.
23.2 SUBLEASE LIMITATIONS. In addition to the sublease limitations as set
forth in Section 23.1 above, anything contained in this Lease to the contrary
notwithstanding, Lessee shall not sublet the Leased Property on any basis such
that the rental to be paid by the sublessee or subtenant thereunder would be
based, in whole or in part, on either (a) the income or profits derived by the
business activities of the sublessee or subtenant, or (b) any other formula such
that any portion of the sublease rental received by Lessor would fail to qualify
as "rents from real property" within the meaning of Section 856(d) of the Code,
or any similar or successor provision thereto. Provided also, Lessee shall not
sublet any portion of the Leased Property for a term extending beyond the Fixed
Term hereof without the express consent of Lessor. In addition, all subleases
shall comply with the Healthcare Laws. Lessor and Lessee acknowledge and agree
that all subleases entered into relating to the Leased Property, whether or not
approved by Lessor, shall not, without the prior written consent of Lessor, be
deemed to be a direct lease between Lessor and any sublessee or subtenant.
Lessee agrees that all subleases submitted for Lessor approval as provided
herein must include provisions to the effect that (a) such sublease is subject
and subordinate to all of the terms and provisions of this Lease, to the rights
of Lessor hereunder, and to all financing documents relating to any Lessor
financing in connection with the Facility, (b) in the event this Lease shall
terminate or be terminated before the expiration of the sublease, the sublessee
or subtenant will, at Lessor's option, attorn to Lessor and waive any right the
sublessee or subtenant may have to terminate the sublease or to surrender
possession thereunder, as a result of the termination of this Lease, (c) at
Lessor's option, the sublease may be terminated or left in place by Lessor in
the event of a termination of this Lease, (d) sublessee or subtenant shall from
time to time upon request of Lessee or Lessor furnish within ten (10) days from
request an estoppel certificate in form and content acceptable to Lessor or its
lender relating to the sublease, (e) in the event the sublessee or subtenant
receives a written notice from Lessor or Lessor's assignees, if any, stating
that Lessee is in default under this Lease, the sublessee or subtenant shall
thereafter be obligated to pay all rentals accruing under said sublease directly
to the party giving such notice, or as
41
such party may direct (all rentals received from the sublessee by Lessor or
Lessor's assignees, if any, as the case may be, shall be credited against the
amounts owing by Lessee under this Lease), (f) and that such sublease shall at
all times be subject to the obligations and requirements as set forth in this
Article XXIII, and (g) sublessee or subtenant shall provide to Lessor upon
written request such officer's certificates and financial statements as Lessor
may request from time to time.
23.3 SUBLEASE SUBORDINATION AND NON-DISTURBANCE. Within ten (10) days
after request by Lessor, Lessee shall cause the subtenants or sublessees to
execute and deliver to Lessor a subordination agreement relating to the
sublease, which subordination agreement shall be in such form and content as is
acceptable to Lessor. At the request from time to time by one or more Facility
Lender, within ten (10) days from the date of request, Lessee shall cause the
subtenants or sublessees of the Leased Property to execute and deliver within
such ten (10) day period, to such Facility Lender a written agreement in a form
reasonably acceptable to such Facility Lender whereby such subtenants and
sublessees subordinate the sublease and all of their rights and estate
thereunder to each such mortgage or deed of trust that encumbers the Leased
Property or any part thereof and agree with each such Facility Lender that such
subtenants and sublessees will attorn to and recognize such Facility Lender or
the purchaser at any foreclosure sale or any sale under a power of sale
contained in any such mortgage or deed of trust, as the case may be, as Lessor
under this Lease for the balance of the Term then remaining, subject to all of
the terms and provisions of the sublease.
ARTICLE XXIV
OFFICER'S CERTIFICATES; FINANCIAL STATEMENTS; NOTICES AND OTHER CERTIFICATES
(a) At any time and from time to time within twenty (20) days
following written request by Lessor, Lessee will furnish to Lessor an
Officer's Certificate certifying that this Lease is unmodified and in full
force and effect (or that this Lease is in full force and effect as
modified and setting forth the modifications) and the dates to which the
Rent has been paid. Any such Officer's Certificate furnished pursuant to
this Article may be relied upon by Lessor and any prospective purchaser of
the Leased Property.
(b) Lessee will furnish, or cause to be furnished, the following
statements to Lessor (and Lessee shall also furnish all of the following
items for ASC for all periods until cessation of the Ambulatory Surgery
Center business by ASC as provided in this Lease; it being understood
however that statements for ASC will be prepared on a cash basis), which
must be in such form and detail as Lessor may from time to time, but not
unreasonably, request:
(i) within ninety (90) days after the end of each fiscal year
of Lessee, a copy of the Statements of Cash Flow for the Lessee for
the preceding fiscal year and an Officer's Certificate stating that
to the best of the signer's knowledge and belief after making due
inquiry, Lessee is not in default in the performance or observance
of any of the terms of this Lease and no condition currently exists
that would, but for the giving of any required notice or expiration
of any applicable cure period, constitute an Event of Default, or,
if Lessee shall be in default to its knowledge, specifying all such
defaults, the nature thereof and the steps being taken to remedy the
same, and
(ii) within ninety (90) days after the end of each year,
audited financial statements of Lessee and the operations performed
in the Facility, prepared by a nationally recognized accounting firm
or an independent certified public accounting firm acceptable to
Lessor, which statements shall include a balance sheet and statement
of income and expenses and changes in cash flow all in accordance
with GAAP for the year then ended, and
42
(iii) within forty-five (45) days after the end of each
quarter, current financial statements of Lessee and the operations
performed in the Facility, (on a quarterly, year-to-date and prior
year comparable basis) certified to be true and correct by an
officer of Lessee, and
(iv) within thirty (30) days after the end of each month,
current operating statements of the Facility, including, but not
limited to operating statistics, certified to be true and correct by
an officer of the Lessee, and
(v) within ten (10) days of receipt, any and all notices
(regardless of form) from any and all licensing and/or certifying
agencies that any license or certification, including without
limitation, the Medicare and/or Medicaid certification and/or
managed care contract of the Facility is being downgraded to a
substandard category, revoked, or suspended, or that action is
pending or being considered to downgrade to a substandard category,
revoke, or suspend such Facility's license or certification, and
(vi) with reasonable promptness, such other information
respecting the financial condition and affairs of Lessee as Lessor
may reasonably request from time to time.
Lessor reserves the right to require such other financial
information from Lessee at such other times as Lessor shall deem
reasonably necessary.
(c) Upon Lessor's request, Lessee will furnish to Lessor a
certificate in form acceptable to Lessor certifying that no event of
default as defined herein or in any of the Tenant Leases and the Other
Leases, then exists and no event has occurred (that has not been cured)
and no condition currently exists that would, but for the giving of any
required notice or expiration of any applicable cure period, constitute an
Event of Default hereunder.
(d) Within ten (10) days of receipt, Lessee shall furnish to Lessor
copies of all notices and demands from any third party payor, including,
without limitation, Medicare and/or Medicaid, concerning overpayment which
will or may result in a repayment or a refund in excess of One Million
Dollars ($1,000,000). Lessee hereby agrees that in the event of receipt of
such notices or demands Lessor shall have the right, at Lessor's option,
to participate in the appeal of such notices and demands.
(e) Lessee shall furnish to Lessor on a monthly basis ongoing status
reports (in form and content acceptable to Lessor) of any governmental
investigations of the Lessee and any of its Affiliates, or the Facility,
conducted by the United States Attorney, State Attorney General, the
Office of the Inspector General of the Department of Health and Human
Services, or any other Governmental Entity.
(f) Lessee shall furnish to Lessor immediately upon receipt thereof
copies of all notices of adverse events or deficiencies as defined by
regulations or standards of the Joint Commission on the Accreditation of
Healthcare Organizations ("JCAHO") or the equivalent of the accrediting
body relied upon by the Lessee in the operation of the Facility or any
part thereof.
(g) Lessee shall furnish to Lessor immediately upon receipt thereof
copies of all notices that the Lessee is not in compliance with the
Standards for Privacy of Individually Identifiable Health Information and
the Transaction and Code Set Standards which were promulgated pursuant to
the Health Insurance Portability and Accountability Act of 1996 ("HIPAA").
(h) Lessor reserves the right to require such other financial
information from Lessee at such other times as it shall deem reasonably
necessary. All financial statements and information must be in such form
and detail as Lessor shall from time to time, but not unreasonably,
request.
43
Subject to the rights of Lessor as provided in Section 41.11 of this
Lease, Lessor and Lessee agree that all financial information disclosed
pursuant to this Article XXV shall be kept in strictest confidence and
shall not be disclosed to any person or entity.
ARTICLE XXV
INSPECTION AND FEES
Lessee shall permit Lessor, MPT Development Services and their respective
authorized representatives to inspect the Leased Property during usual business
hours subject to any security, health, safety or confidentiality requirements of
Lessee, any governmental agency, any Insurance Requirements relating to the
Leased Property, or imposed by law or applicable regulations. Lessee shall pay
to MPT Development Services on the Commencement Date an amount equal to Five
Thousand and 00/100 Dollars ($5,000.00) ("Inspection Fee") to cover the cost of
the physical inspections of the Leased Property. Commencing on January 1, 2006,
and continuing on January 1 of each year thereafter throughout the Term of this
Lease, the Inspection Fee to be paid by Lessee shall be increased by an amount
equal to the greater of (A) two and one-half percent (2.5%) per annum of the
prior year's Inspection Fee, or (B) the percentage by which the CPI on the
Adjustment Date shall have increased over the CPI figure in effect on the then
just previous Adjustment Date.
In addition to the Inspection Fee, on the Commencement Date Lessee shall
also pay to MPT Development Services a fee in the amount of Fifty Thousand and
No/100 Dollars ($50,000.00) to cover the inspection of the Facility during the
Construction Period.
ARTICLE XXVI
NO WAIVER
No failure by Lessor or Lessee to insist upon the strict performance of
any term hereof or to exercise any right, power or remedy consequent upon a
breach thereof, and no acceptance of full or partial payment of Rent during the
continuance of any such breach, shall constitute a waiver of any such breach or
any such term. To the extent permitted by law, no waiver of any breach shall
affect or alter this Lease, which shall continue in full force and effect with
respect to any other then existing or subsequent breach.
ARTICLE XXVII
REMEDIES CUMULATIVE
To the extent permitted by law, each legal, equitable or contractual
right, power and remedy of Lessor or Lessee now or hereafter provided either in
this Lease or by statute or otherwise shall be cumulative and concurrent and
shall be in addition to every other right, power and remedy and the exercise or
beginning of the exercise by Lessor or Lessee of any one or more of such rights,
powers and remedies shall not preclude the simultaneous or subsequent exercise
by Lessor or Lessee of any or all of such other rights, powers and remedies.
ARTICLE XXVIII
SURRENDER
No surrender to Lessor of this Lease or of the Leased Property or any part
of any thereof, or of any interest therein, shall be valid or effective unless
agreed to and accepted in writing by Lessor and no act by Lessor or any
representative or agent of Lessor, other than such a written acceptance by
Lessor, shall constitute an acceptance of any such surrender.
44
ARTICLE XXIX
NO MERGER OF TITLE
There shall be no merger of this Lease or of the leasehold estate created
hereby by reason of the fact that the same person, firm, corporation or other
entity may acquire, own or hold, directly or indirectly, (a) this Lease or the
leasehold estate created hereby or any interest in this Lease or such leasehold
estate and (b) the fee estate in the Leased Property.
ARTICLE XXX
TRANSFERS BY LESSOR
If Lessor or any successor owner of the Leased Property shall convey the
Leased Property in accordance with the terms hereof, other than as security for
a debt, and the grantee or transferee of the Leased Property shall expressly
assume all obligations of Lessor hereunder arising or accruing from and after
the date of such conveyance or transfer, and shall be reasonably capable of
performing the obligations of Lessor hereunder, Lessor or such successor owner,
as the case may be, shall thereupon be released from all future liabilities and
obligations of the Lessor under this Lease arising or accruing from and after
the date of such conveyance or other transfer as to the Leased Property and all
such future liabilities and obligations shall thereupon be binding upon the new
owner.
ARTICLE XXXI
QUIET ENJOYMENT
So long as Lessee shall pay all Rent as the same becomes due and shall
fully comply with all of the terms of this Lease and fully perform its
obligations hereunder and under the Other Leases, Lessee shall peaceably and
quietly have, hold and enjoy the Leased Property for the Term hereof, free of
any claim or other action by Lessor or anyone claiming by, through or under
Lessor, but subject to all liens and encumbrances of record as of the date
hereof or hereafter consented to by Lessee. No failure by Lessor to comply with
the foregoing covenant shall give Lessee any right to cancel or terminate this
Lease, or to fail to pay any other sum payable under this Lease, or to fail to
perform any other obligation of Lessee hereunder. Notwithstanding the foregoing,
Lessee shall have the right by separate and independent action to pursue any
claim it may have against Lessor as a result of a breach by Lessor of the
covenant of quiet enjoyment contained in this Article XXXI.
ARTICLE XXXII
NOTICES
All notices, demands, consents, approvals, requests and other
communications under this Lease shall be in writing and shall be either (a)
delivered in person, (b) sent by certified mail, return receipt requested, (c)
delivered by a recognized delivery service or (d) sent by facsimile transmission
and addressed as follows:
(a) if to Lessee: Monroe Hospital, LLC
0000 Xxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, M.D.
Fax: (000) 000-0000
45
with a copy to: Xxxxxxx, Xxxxx & Diamond, LLC
00 Xxxx Xxxxxx Xxxxxx
Xxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
(b) if to Lessor: MPT of Bloomington, LLC
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn.: Xxxxxxx X. Xxxxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Xxxxxx X. Xxxx, Esq.
Baker, Donelson, Bearman, Xxxxxxxx & Xxxxxxxxx
0000 XxxxxXxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
or to such other address as either party may hereafter designate, and shall be
effective upon receipt. A notice, demand, consent, approval, request and other
communication shall be deemed to be duly received if delivered in person or by a
recognized delivery service, when left at the address of the recipient and if
sent by facsimile, upon receipt by the sender of an acknowledgment or
transmission report generated by the machine from which the facsimile was sent
indicating that the facsimile was sent in its entirety to the recipient's
facsimile number; provided that if a notice, demand, consent, approval, request
or other communication is served by hand or is received by facsimile on a day
which is not a Business Day, or after 5:00 p.m. on any Business Day at the
addressee's location, such notice or communication shall be deemed to be duly
received by the recipient at 9:00 a.m. on the first Business Day thereafter.
ARTICLE XXXIII
APPRAISAL
In the event that it becomes necessary to determine the Fair Market Value,
Fair Market Value Purchase Price or Fair Market Added Value of the Leased
Property for any purpose of this Lease, the party required or permitted to give
notice of such required determination shall include in the notice the name of a
person selected to act as an appraiser on its behalf. Lessor and Lessee agree
that any appraisal of the Leased Property shall be without regard to the
termination of this Lease or any purchase options contained herein and shall
assume the Lease is in place for a term of fifteen (15) years, and shall not
take into account any purchase options contained herein. Within ten (10) days
after receipt of any such notice, Lessor (or Lessee, as the case may be) shall
by notice to Lessee (or Lessor, as the case may be) appoint a second person as
an appraiser on its behalf. The appraisers thus appointed (each of whom must be
a member of the American Institute of Real Estate Appraisers or any successor
organization thereto) shall, within forty-five (45) days after the date of the
notice appointing the first (1st) appraiser, proceed to appraise the Leased
Property, to determine the Fair Market Value, Fair Market Value Purchase Price
or Fair Market Added Value thereof as of the relevant date (giving effect to the
impact, if any, of inflation from the date of their decision to the relevant
date); provided, however, that if only one (1) appraiser shall have been so
appointed, or if two (2) appraisers shall have been so appointed but only one
(1) such appraiser shall have made such determination within fifty (50) days
after the making of Lessee's or Lessor's request, then the determination of such
appraiser shall be final and binding upon the parties. If two (2) appraisers
shall have been appointed and shall have made their determinations within the
respective requisite periods set forth above and if the difference between the
amounts so determined shall not exceed ten percent (10%) of the lesser of such
amounts, then the Fair Market Value,
46
Fair Market Value Purchase Price or Fair Market Added Value shall be an amount
equal to fifty percent (50%) of the sum of the amounts so determined. If the
difference between the amounts so determined shall exceed ten percent (10%) of
the lesser of such amounts, then such two (2) appraisers shall have twenty (20)
days to appoint a third (3rd) appraiser, but if such appraisers fail to do so,
then either party may request the American Arbitration Association or any
successor organization thereto to appoint an appraiser within twenty (20) days
of such request, and both parties shall be bound by any appointment so made
within such 20-day period. If no such appraiser shall have been appointed within
such twenty (20) days or within ninety (90) days of the original request for a
determination of Fair Market Value, Fair Market Value Purchase Price or Fair
Market Added Value, whichever is earlier, either Lessor or Lessee may apply to
any court having jurisdiction to have appointment made by such court. Any
appraiser appointed, by the American Arbitrator Association or by such court
shall be instructed to determine the Fair Market Value, Fair Market Value
Purchase Price or Fair Market Added Value within thirty (30) days after
appointment of such appraiser. The determination of the appraiser which differs
most in terms of dollar amount from the determinations of the other two (2)
appraisers shall be excluded, and fifty percent (50%) of the sum of the
remaining two (2) determinations shall be final and binding upon Lessor and
Lessee as the Fair Market Value, Fair Market Value Purchase Price or Fair Market
Added Value for such interest. This provision for determination by appraisal
shall be specifically enforceable to the extent such remedy is available under
applicable law, and any determination hereunder shall be final and binding upon
the parties except as otherwise provided by applicable law. Lessor and Lessee
shall each pay the fees and expenses of the appraiser appointed by it and each
shall pay one-half of the fees and expenses of the third appraiser and one-half
of all other costs and expenses incurred in connection with each appraisal.
ARTICLE XXXIV
PURCHASE RIGHTS
34.1 LESSEE'S OPTIONS TO PURCHASE. So long as Lessee is not in default,
and no event has occurred which with the giving of notice or the passage of time
or both would constitute such a default, under the terms of this Lease, the
Other Leases, the Tenant Leases, the Loan and the Loan Documents, at the
expiration of the Fixed Term and at the expiration of each Extension Term of
this Lease, the Lessee shall have the option, to be exercised by written notice
to the Lessor at least sixty (60) days prior to the expiration of the Fixed Term
or the Extension Term, as applicable, to purchase the Leased Property at a
purchase price equal to the greater of (i) the Fair Market Value of the Leased
Property, or (ii) the Total Development Costs (including any Capital Additions
funded by the Lessor, but excluding any Capital Additions funded by the Lessee),
as increased by an amount equal to the greater of (A) two and one-half percent
(2.5%) per annum from the date hereof, or (B) the rate of increase in the CPI on
each Adjustment Date. Notwithstanding anything contained herein to the contrary,
in no event shall the purchase price be less than the Fair Market Value of the
Leased Property. Unless expressly otherwise provided in this Section 34.1, in
the event the Lessee exercises such option to purchase the Leased Property, (i)
the terms set forth in Article XVIII shall apply, (ii) Lessee shall continue
paying Rent as required under this Lease until the purchase is closed, and (iii)
the sale/purchase must be closed within ninety (90) days after the date of the
written notice from Lessee to Lessor. If Lessee does not exercise Lessee's
option to purchase as specified herein, Lessor shall be free after the
expiration of said sixty (60) day period to sell the Leased Property to any
party on any terms as it deems acceptable in its sole discretion.
Notwithstanding any provision herein to the contrary, this Lease, and
specifically Lessee's rights as set forth in this Section 34.1, are and shall be
subject, subordinate and inferior to any Facility Instrument. This provision
shall be self-operative. However, any Facility Lender may from time to time
request that such subordination be evidenced by a separate written agreement.
Within ten (10) days following written request by any Facility Lender, the
Lessee shall execute and deliver to such Facility Lender a written agreement, in
form and substance satisfactory to such Facility Lender and any applicable
rating agency. In the event Lessee fails or refuses to execute and deliver such
written agreement within such ten (10) day period, then, in addition to all
other remedies available at law or in equity, the Lessor shall be entitled to
terminate Lessee's rights under this Section 34.1 upon delivery of five (5)
days' written notice to Lessee. In the event Lessee has not executed and
delivered to such Facility Lender and any applicable rating agency, if any, the
written agreement requested within such five (5) day
47
period, then in such event, Lessee's rights under this Section 34.1 shall be
deemed forfeited and of no further force or effect.
34.2 LESSOR'S OPTION TO PURCHASE LESSEE'S PERSONAL PROPERTY. Effective on
not less than ninety (90) days' prior written notice given at any time within
one hundred eighty (180) days prior to the expiration of the Term of this Lease,
but not later than ninety (90) days prior to such expiration, or such shorter
notice as shall be appropriate if this Lease is terminated prior to its
expiration date, Lessor shall have the option to purchase all (but not less than
all) of Lessee's Personal Property, if any, at the expiration or termination of
this Lease, for an amount equal to the net sound insurable value thereof
(current replacement cost less accumulated depreciation on the books of Lessee
pertaining thereto), subject to, and with appropriate price adjustments for, all
equipment leases, conditional sale contracts, security interests and other
encumbrances to which Lessee's Personal Property is subject.
34.3 SURVIVAL. Lessee's purchase rights under this Section 34 or elsewhere
in this Lease shall survive the sale or conveyance of the Facility and shall run
with this Lease in favor of Lessee's successors and permitted assigns, subject
to the terms hereof.
ARTICLE XXXV
[INTENTIONALLY OMITTED]
ARTICLE XXXVI
[INTENTIONALLY OMITTED]
ARTICLE XXXVII
FINANCING OF THE LEASED PROPERTY
Lessor agrees that, if it grants or creates any mortgage, lien,
encumbrance or other title retention agreement ("Encumbrances") upon the Leased
Property, Lessor will use reasonable efforts to obtain an agreement from the
holder of each such Encumbrance whereby such holder agrees (a) to give Lessee
the same notice, if any, given to Lessor of any default or acceleration of any
obligation underlying any such Encumbrance or any sale in foreclosure of such
Encumbrance, (b) to permit Lessee, after twenty (20) days prior written notice,
to cure any such default on Lessor's behalf within any applicable cure period,
in which event Lessor agrees to reimburse Lessee for any and all reasonable
out-of-pocket costs and expenses incurred to effect any such cure (including
reasonable attorneys' fees), (c) to permit Lessee to appear with its
representatives and to bid at any foreclosure sale with respect to any such
Encumbrance, (d) that, if subordination by Lessee is requested by the holder of
each such Encumbrance, to enter into an agreement with Lessee containing the
provisions described in Article XXXVIII of this Lease, and (e) Lessor further
agrees that no such Encumbrance shall in any way prohibit, derogate from, or
interfere with Lessee's right and privilege to collaterally assign its leasehold
and contract rights hereunder provided such collateral assignment and rights
granted to the assignee thereunder shall be subordinate to the rights of the
holder of an Encumbrance as provided in Article XXXVIII hereof.
ARTICLE XXXVIII
SUBORDINATION AND NON-DISTURBANCE
At the request from time to time by one or more Facility Lender, within
ten (10) days from the date of request, Lessee shall execute and deliver within
such ten (10) day period, to such Facility Lender, a written
48
agreement in a form reasonably acceptable to such Facility Lender whereby Lessee
subordinates this Lease and all of its rights and estate hereunder to each
Facility Instrument that encumbers the Leased Property or any part thereof and
agrees with each such Facility Lender that Lessee will attorn to and recognize
such Facility Lender or the purchaser at any foreclosure sale or any sale under
a power of sale contained in any such Facility Instrument as the case may be, as
Lessor under this Lease for the balance of the Term then remaining, subject to
all of the terms and provisions of this Lease; provided, however, that each such
Facility Lender simultaneously executes and delivers to Lessee a written
agreement consenting to this Lease and agreeing that, notwithstanding any such
other mortgage, deed of trust, right, title or interest, or any default,
expiration, termination, foreclosure, sale, entry or other act or omission
under, pursuant to or affecting any of the foregoing, Lessee shall not be
disturbed in peaceful enjoyment of the Leased Property nor shall this Lease be
terminated or canceled at any time, except in the event Lessee is in default
under the terms of this Lease.
ARTICLE XXXIX
LICENSES
Lessee (it being agreed that, for purposes of this Article XXXIX, the term
"Lessee" shall include ASC for all periods until cessation of the Ambulatory
Surgery Center business by ASC as provided in this Lease) shall maintain at all
times during the Term hereof and any holdover period all federal, state and
local governmental licenses, approvals, qualifications, variances, certificates
of need, franchises, accreditations, certificates, certifications, consents,
permits and other authorizations and all contracts, including contracts with
governmental or quasi-governmental entities which may be necessary or useful in
the operation of the Facility (collectively, the "Licenses"), and shall qualify
and comply with all applicable laws as they may from time to time exist,
including those applicable to certification and participation as a provider
under Medicare and Medicaid legislation and regulations.
Lessee shall not, without the prior written consent of Lessor, which may
be granted or withheld in its sole discretion, effect or attempt to effect any
change in the license category or status of the Facility or any part thereof.
Under no circumstances shall Lessee have the right to transfer any of the
Licenses to any location other than the Facility or to any other person or
entity (except to Lessor as contemplated herein), whether before, during or
after the Term hereof. Following the termination of this Lease, Lessee shall
retain no rights whatsoever to the Licenses, and Lessee will not move or attempt
to move the Licenses to any other location. To the extent that Lessee has or
will extend any right, title, or claim of right whatsoever in and to the
Licenses or the right to operate the Facility, all such right, title, or claim
of right shall automatically revert to the Lessor or to Lessor's designee upon
termination of this Lease, to the extent permitted by law. Upon any termination
of this Lease or any breach or default by Lessee hereunder (which breach or
default is not cured within any applicable grace period and which results in
Lessor terminating this Lease), to the extent permitted by law, Lessor shall
have the sole, complete, unilateral, absolute and unfettered right to cause all
Licenses to be reissued in Lessor's name or in the name of Lessor's designee
upon application therefor to the issuing authority, and to further have the
right to have any and all provider and/or third party payor agreements as a
provider in the Medicare and/or Medicaid and other federal healthcare programs
issued in Lessor's name or in the name of Lessor's designee.
Upon the termination of this Lease (assuming Lessee does not purchase the
Leased Property as expressly provided herein) and for reasonable periods of time
immediately before and after such termination, Lessee shall use its best
efforts, without additional consideration to Lessee, to facilitate an orderly
transfer of the operation and occupancy of the Facility to Lessor or any new
lessee or operator selected by Lessor, it being understood and agreed that such
cooperation shall include, without limitation, (a) Lessee's transfer and
assignment if and to the extent permitted by law, to Lessor, Lessor's nominee or
Lessor's new lessee or operator of any and all Licenses, (b) Lessee's use of
best efforts to maintain, to the maximum extent allowed by applicable law, the
effectiveness of any and all such Licenses until such time as any new Licenses
necessary for any new Lessee or operator to operate the
49
Facility have been issued, and (c) the taking of such other actions as are
required by applicable law or as are reasonably requested by Lessor. Upon any
termination of this Lease or any breach or default by Lessee hereunder (which
breach or default is not cured within any applicable grace period and which
results in Lessor terminating this Lease), to the extent permitted by law,
Lessor shall have the sole, complete, unilateral, absolute and unfettered right
to cause any and all Licenses to be reissued in Lessor's name or in the name of
Lessor's designee upon application therefor to the appropriate authority, if
required, and to further have the right, to the extent permitted by law, to have
any and all Medicare and Medicaid and any other provider and/or third party
payor agreements issued in Lessor's name or in the name of Lessor's designee.
The provisions of this Article XXXIX are in addition to the other provisions of
this Lease.
It is an integral condition of this Lease that Lessee covenants and agrees
not to sell, move, modify, cancel, surrender, transfer, assign, sell, relocate,
pledge, secure, convey or in any other manner encumber any License or any
governmental or regulatory approval, consent or authorization of any kind to
operate the Facility. To the extent permitted by law, Lessee hereby grants to
Lessor a landlord's lien on the Licenses.
Lessee shall immediately (within ten (10) days) notify Lessor in writing
of any notice, action or other proceeding or inquiry of any governmental agency,
bureau or other authority whether federal, state, or local, of any kind, nature
or description, which could adversely affect any material License or Medicare
and/or Medicaid-certification status, or accreditation status of the Facility,
or the ability of Lessee to maintain its status as the licensed and accredited
operator of the Facility or which alleges noncompliance with any law. Lessee
shall immediately (within ten (10) days) upon Lessee's receipt, furnish Lessor
with a copy of any and all such notices and Lessor shall have the right, but not
the obligation, to attend and/or participate, in Lessor's sole and absolute
discretion, in any such actions or proceedings. Lessee shall act diligently to
correct any deficiency or deal effectively with any "adverse action" or other
proceedings, inquiry or other governmental action, so as to maintain the
licensure and Medicare and/or Medicaid-certification status stated herein in
good standing at all times. Lessee shall not agree to any settlement or other
action with respect to such proceedings or inquiry which affects the use of the
Leased Property or any portion thereof as provided herein without the prior
written consent of Lessor, which consent shall not be unreasonably withheld or
delayed. Lessee agrees to sign, acknowledge, provide and deliver to Lessor (and
if Lessee fails to do so upon request of Lessor, Lessee hereby irrevocably
appoints Lessor, as agent of Lessee for such express purposes) any and all
documents, instruments or other writings which are or may become necessary,
proper and/or advisable to cause any and all hospital licenses required for the
Primary Intended Use, Department of Human Services of the State of Indiana
("DHS") provider agreements, and/or state or federal Title XVIII and/or Title
XIX provider agreements to be obtained (either in total or individually) in the
name of Lessor or the name of Lessor's designee in the event that Lessor
reasonably determines in good faith that (irrespective of any claim, dispute or
other contention or challenge of Lessee) there is any breach, default or other
lapse in any representation, warranty, covenant or other delegation of duty to
Lessee (beyond any applicable grace or cure period) and the issuing government
agency has threatened or asserted that such license or provider agreement will
terminate or has lapsed or that Lessee's license or certification or
accreditation status is in jeopardy. This power is coupled with the ownership
interest of Lessor in and to the Facility and all incidental rights attendant to
any and all of the foregoing rights.
ARTICLE XL
COMPLIANCE WITH HEALTHCARE LAWS
Lessee (which, for purposes of this Article XL, shall include ASC for all
periods until cessation of the Ambulatory Surgery Center business by ASC as
provided in this Lease) hereby covenants, warrants and represents to Lessor that
as of the Commencement Date and throughout the Term: (i) Lessee shall be, and
shall continue to be validly licensed, Medicare and/or Medicaid certified, and,
if required, accredited to operate the Facility in accordance with the
applicable rules and regulations of the State of Indiana, federal governmental
authorities and accrediting bodies, including, but not limited to, the United
States Department of Health and Human Services,
50
DHSS, DHS and CMS; and/or (ii) Lessee shall be, and shall continue to be,
certified by and the holder of valid provider agreements with Medicare/Medicaid
issued by DHHS, DHS and/or CMS and shall remain so certified and shall remain
such a holder in connection with its operation of the Primary Intended Use on
the Leased Property as a licensed and Medicare and/or Medicaid certified general
acute care hospital facility; (iii) Lessee shall be, and shall continue to be in
substantial compliance with and shall remain in substantial compliance with all
state and federal laws, rules, regulations and procedures with regard to the
operation of the Facility, including, without limitation, substantial compliance
under HIPAA; (iv) Lessee shall operate the Facility in a manner consistent with
high quality acute care services and sound reimbursement principles under the
Medicare and/or Medicaid programs and as required under state and federal law;
and (v) Lessee shall not abandon, terminate, vacate or fail to renew any
license, certification, accreditation, certificate, approval, permit, waiver,
provider agreement or any other authorization which is required for the lawful
and proper operation of the Facility or in any way commit any act which will or
may cause any such license, certification, accreditation, certificate, approval,
permit, waiver, provider agreement or other authorization to be revoked by any
federal, state or local governmental authority or accrediting body having
jurisdiction thereof.
ARTICLE XLI
MISCELLANEOUS
41.1 GENERAL. Anything contained in this Lease to the contrary
notwithstanding, all claims against, and liabilities of, Lessee or Lessor
arising prior to any date of expiration or termination of this Lease shall
survive such expiration or termination. If any term or provision of this Lease
or any application thereof shall be invalid or unenforceable, the remainder of
this Lease and any other application of such term or provision shall not be
affected thereby. If any late charges provided for in any provision of this
Lease are based upon a rate in excess of the maximum rate permitted by
applicable law, the parties agree that such charges shall be fixed at the
maximum permissible rate. Neither this Lease nor any provision hereof may be
changed, waived, discharged or terminated except by an instrument in writing and
in recordable form signed by Lessor and Lessee. All the terms and provisions of
this Lease shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. The headings in this Lease are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
41.2 LESSOR'S EXPENSES. In addition to other provisions herein, Lessee
agrees and shall pay and/or reimburse Lessor's costs and expenses, including
legal fees, incurred or resulting from and relating to (a) requests by Lessee
for approval or consent under this Lease, (b) requests by Lessor for approval or
consent under this Lease and all other documents executed between Lessor and
Lessee in connection herewith, (c) any circumstances or developments which give
rise to Lessor's right of consent or approval, (d) circumstances resulting from
any action or inaction by Lessee contrary to the lease provisions, and (e) a
request for changes including, but not limited to (i) the permitted use of the
Leased Property, (ii) alterations and improvements to the Leased Improvements,
(iii) subletting or assignment, and (iv) any other changes in the terms,
conditions or provisions of this Lease. Such expenses and fees shall be paid by
Lessee within thirty (30) days of the submission of a statement for the same or
such amount(s) shall become Additional Charges and subject to the Overdue Rate
after the thirty (30) days.
41.3 ENTIRE AGREEMENT; MODIFICATIONS. This Lease embodies and constitutes
the entire understanding between the parties with respect to the transactions
contemplated herein, and all prior to contemporaneous agreements,
understandings, representations and statements (oral or written) are merged into
this Lease. Neither this Lease nor any provision hereof may be modified or
amended except by an instrument in writing signed by Lessor and Lessee.
41.4 LEASE GUARANTY. Intentionally Omitted.
41.5 LESSOR'S RIGHT TO SELL. Lessee understands that Lessor may sell its
interest in the Leased Property in whole or in part. The Lessee agrees that any
purchaser may exercise any and all rights of Lessor, as fully as if
51
such had made the purchase of the Leased Property directly from the Lessee as
set out in the Purchase Agreement; provided, however, such purchaser shall be
subject to the same restrictions imposed upon Lessor hereunder. Lessor may
divulge to any such purchaser all information, reports, financial statements,
certificates and documents obtained by it from Lessee.
41.6 FUTURE FINANCING. Lessee hereby agrees that if at any time during the
Term Lessee purchases or contemplates the purchase of a facility, or property to
be used, for the operation of a healthcare business, Lessee shall notify Lessor
in writing ("Lessee's Notice") of such purchase or contemplated purchase, and
Lessor shall have the first opportunity to provide financing for such purchase,
expansion or renovation upon terms mutually agreeable to Lessor and Lessee.
Lessor shall notify Lessee in writing on or before the expiration of twenty (20)
business days after receipt of Lessee's Notice whether Lessor is interested in
providing such financing. If Lessor agrees to provide the financing, the terms
and conditions of such financing will be contingent upon, among other things,
performance benchmarks acceptable to Lessor and the Lessor's satisfaction and
approval of other due diligence requirements.
41.7 LETTER OF CREDIT. As security for the performance of Lessee's
obligations hereunder, Lessee shall, within two (2) business days from the
Commencement Date, obtain and deliver to Lessor an unconditional and irrevocable
letter of credit from a bank acceptable to Lessor (the "Letter of Credit")
naming Lessor beneficiary thereunder, in an amount equal to Three Million Seven
Hundred Twenty Seven Thousand Five Hundred and No/100 Dollars ($3,727,500.00),
and upon terms, conditions and provisions acceptable to Lessor. At such time as
the operations at the Facility have for two (2) consecutive fiscal years
generated an EBITDAR coverage of at least two (2) times the Base Rent, the
Letter of Credit may be reduced to an amount equal to six (6) months of the then
amount of Base Rent then in effect.
41.8 CASH INJECTION;TANGIBLE NET WORTH; RESTRICTIONS ON DISTRIBUTIONS. As
of the Commencement Date, Lessee shall provide evidence, in a form reasonably
satisfactory to Lessor, that it has received from its equity owners at least
Nine Million Nine Hundred Fifty Thousand and No/100 Dollars ($9,950,000.00) in
cash equity. In addition thereto, on the Commencement Date and at such other
times during the Term, Lessee shall deliver to Lessor unaudited balance sheets
of Lessee confirming that Lessee has a Tangible Net Worth of at least Six
Million and No/100 Dollars ($6,000,000.00) (the "Required Tangible Net Worth").
The unaudited balance sheets delivered on the Commencement Date must be dated on
or after August 31, 2005. In the event the Tangible Net Worth of Lessee at any
given time is greater than the Required Tangible Net Worth, then Lessee shall
deliver unaudited balance sheets of Lessee on a quarterly basis within thirty
(30) days of the end of each calendar quarter of each calendar year. In the
event the Tangible Net Worth of Lessee is less than the Required Tangible Net
Worth, then Lessee shall deliver unaudited balance sheets of Lessee on a monthly
basis within thirty (30) days of the end of each month until such time that the
Tangible Net Worth of the Lessee, as reflected in an unaudited balance sheet
delivered to Lessor, is more than the Required Tangible Net Worth, at which time
Lessee shall deliver unaudited balance sheets of Lessee within thirty (30) days
of the end of each calendar quarter. The unaudited balance sheets required to be
delivered hereunder shall be certified as true and correct, with the possible
exception of immaterial ledger entries, by the chief financial officer (or other
officer acceptable to Lessor) of Lessee. Lessee shall not make any distribution
or payment (including any payment for the acquisition of Ambulatory Surgery
Center by ASC) to its equity owners (or permit any payment to be made by ASC
other than dividend distributions to Lessee or payments to unrelated third
parties in the ordinary course of business) if, at the time of the proposed
distribution or payment (i) a default shall have occurred and be continuing
under this Lease or (ii) following such distribution or payment the Tangible Net
Worth of Lessee does not at least equal the Required Tangible Net Worth. Prior
to any such distribution or payment, Lessee shall furnish Lessor with evidence
reasonably satisfactory to Lessor that such Required Tangible Net Worth
threshold continues to be maintained after giving effect to such proposed
distribution or payment. Lessee represents and warrants that its Organizational
Documents are not in conflict with the foregoing restrictions on distributions
and payments and, if at any time Lessor determines that the Organizational
Documents are in conflict with the foregoing restrictions, Lessee shall amend
its Organizational Documents to eliminate such conflict and conform to the
requirements set forth in this Section 41.8.
52
41.9 ADDITIONAL LETTER OF CREDIT. In the event Lessee obtains a letter of
credit or other form of credit enhancement from a sublessee, subtenant,
operating company, management company, or any other individual or entity
relating to the Facility, (the "Additional Letter of Credit"), such Additional
Letter of Credit shall name Lessor as a beneficiary thereunder and shall be in a
form acceptable to Lessor. Lessee hereby grants to Lessor a security interest in
the Additional Letter of Credit. Lessee shall, within ten (10) days from demand
execute, and cause any applicable sublessee, subtenant, operating company,
management company, or any other individual or entity to execute and deliver,
all documents (including, without limitation, all bank/lender required
documents) necessary for Lessor to perfect its security interest in the
Additional Letter of Credit.
41.10 CHANGE IN OWNERSHIP/CONTROL. So long as this Lease remains in
effect, the aggregate ownership of the current members of Lessee shall not be
reduced below fifty-one percent (51%) and the ASC shall continue to be
wholly-owned by Lessee.
41.11 LESSOR SECURITIES OFFERING AND FILINGS. Notwithstanding anything
contained herein to the contrary, in connection with a public offering or the
private placement of securities of Lessor or MPT, or their efforts to obtain
financing for the Leased Property, Lessor and MPT may disclose that Lessor has
entered into this Lease with the Lessee respecting the Facility and the Leased
Property and may provide and disclose other information regarding this Lease,
the Lessee, ASC, the Leased Property, the Facility, the Commitment Letter, and
such other additional information which Lessor and MPT may reasonably deem
necessary, to its proposed investors in such public offering or private offering
of securities or any prospective lenders with respect to such financing. Lessee
shall cooperate with Lessor and MPT by providing financial and other information
reasonably requested by Lessor and MPT in connection with such offering of
securities or financing. Lessor and MPT shall have the right of access to the
Facility, at reasonable business hours and upon advance notice, and all
documentation and information relating to the Facility.
41.12 NON-RECOURSE AS TO LESSOR. Anything contained herein to the contrary
notwithstanding, any claim based on or in respect of any liability of Lessor
under this Lease shall be enforced only against the Leased Property and not
against any other assets, properties or funds of (i) Lessor, (ii) any director,
officer, general partner, shareholder, limited partner, beneficiary, employee or
agent of Lessor or any general partner of Lessor or any of its general partners
(or any legal representative, heir, estate, successor or assign of any thereof),
(iii) any predecessor or successor partnership or corporation (or other entity)
of Lessor or any of its general partners, shareholders, officers, directors,
employees or agents, either directly or through Lessor or its general partners,
shareholders, officers, directors, employees or agents or any predecessor or
successor partnership or corporation (or other entity), or (iv) any person
affiliated with any of the foregoing, or any director, officer, employee or
agent of any thereof.
41.13 COVENANTS, RESTRICTIONS AND RECIPROCAL EASEMENTS. Lessee
acknowledges that Lessor will execute and record the Declaration which will
affect the Leased Property and Lessee agrees to abide by all of the terms,
provisions, conditions and restrictions set forth therein. Lessor shall also
have the right, but not the obligation, to place of record all covenants,
restrictions and reciprocal easements (collectively the "Declarations") which
Lessor deems necessary for the ownership and operation of the Facility, such
Declarations to be in form and content acceptable to Lessor, in its reasonable
discretion.
41.14 FORCE MAJEURE. Except for Rent and other monetary obligations
payable pursuant to the terms of this Lease, in the event Lessor or Lessee shall
be delayed, hindered in or prevented from the performance of any act required
under this Lease by reason of strikes, lockouts, labor troubles, inability to
procure materials, failure of power, unavailability of any utility service,
restrictive governmental laws or regulations, riots, insurrections, the failure
to act, or default of another party, war, or other reason beyond Lessor's or
Lessee's control (individually "Force Majeure"), then performance of such act
shall be excused for the period of the delay, and the period of the performance
of any such act shall be extended for a period equivalent to the period of such
delay. Within ten (10) business days following the occurrence of Force Majeure,
the party claiming a delay due to such event shall give written notice to the
other setting forth a reasonable estimate of such delay.
53
41.15 MANAGEMENT AGREEMENTS. Lessee shall not engage any Management
Company or allow any tenants, subtenants or sublessees of the Facility to engage
any Management Company, without Lessor's prior written consent, which consent
shall not be unreasonably withheld; provided, however, Lessor's rights relating
to any Management Company as set forth in Section 16.2 hereof shall be at
Lessor's sole and absolute discretion. Lessee shall, if required by Lessor,
assign all of Lessee's rights under the Management Agreement to Lessor and
Lessor shall be entitled to assign same to Lessor's lender. At the request of
the Lessor from time to time, Lessee shall execute and deliver (and require the
tenants, subtenants or sublessees to execute and deliver, if applicable) an
assignment relating to the Management Agreements, which assignment shall be in
such form and content as reasonably acceptable to Lessor and/or any lender
providing financing to Lessor, and shall be delivered to Lessor within ten (10)
days after Lessor's request. Lessee agrees that all Management Agreements
entered into in connection with the Leased Property shall expressly contain
provisions acceptable to Lessor which (i) require an assignment of the
Management Agreements to Lessor upon request by Lessor, (ii) xxxxx Xxxxxx the
right to terminate the Management Agreement (individually or collectively, if
more than one (1)) upon a default hereunder or upon a default under such
applicable Management Agreement, and (iii) require the Management Company to
execute and deliver to Lessor within ten (10) days from Lessor's request an
estoppel certificate and/or assignment agreement as required by Lessor and/or
Lessor's lender providing financing to Lessor, in such form and content as is
acceptable to Lessor and/or its lender. At the request of the Lessor from time
to time, Lessee shall execute and obtain from all parties subject to such
Management Agreements executed written confirmation of such assignment, which
shall be delivered to Lessor within ten (10) days from Lessor's request.
41.16 GOVERNING LAW. THIS LEASE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS
EXECUTED AND PERFORMED IN SUCH STATE, WITHOUT GIVING EFFECT TO CONFLICTS OF LAW
PRINCIPLES.
41.17 JURISDICTION AND VENUE. LESSOR AND LESSEE CONSENT TO PERSONAL
JURISDICTION IN THE STATE OF DELAWARE. LESSOR AND LESSEE AGREE THAT ANY ACTION
OR PROCEEDING ARISING FROM OR RELATED TO THIS LEASE SHALL BE BROUGHT AND TRIED
EXCLUSIVELY IN THE STATE OR FEDERAL COURTS OF THE STATE OF DELAWARE. EACH OF THE
PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF
VENUE OF ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT. LESSEE
EXPRESSLY ACKNOWLEDGES THAT DELAWARE IS A FAIR, JUST AND REASONABLE FORUM AND
LESSEE AGREES NOT TO SEEK REMOVAL OR TRANSFER OF ANY ACTION FILED BY LESSOR IN
SAID COURTS. FURTHER, LESSOR AND LESSEE IRREVOCABLY AND UNCONDITIONALLY WAIVE
ANY CLAIM THAT SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN ANY
INCONVENIENT FORUM. SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY
CERTIFIED MAIL ADDRESSED TO A PARTY AT THE ADDRESS DESIGNATED PURSUANT TO
ARTICLE XXXII HEREOF SHALL BE EFFECTIVE SERVICE OF PROCESS AGAINST SUCH PARTY
FOR ANY ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT. A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT MAY BE ENFORCED IN ANY OTHER
COURT TO WHOSE JURISDICTION ANY OF THE PARTIES IS OR MAY BE SUBJECT.
41.18 COUNTERPARTS. This Lease may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same instrument.
41.19 REQUIRED RECONVEYANCE AND AMENDMENT. Lessee acknowledges that Lessor
has entered into the Repurchase Agreement whereby Lessor is required to reconvey
to SIMP II a certain portion of the Land (the "Repurchase Land") in accordance
with the terms, provisions and conditions of the Repurchase Agreement. Lessee
agrees to (i) execute and deliver to Lessor, immediately upon Lessor's request,
an amendment to this Lease, the Lease Assignment and the memorandum of lease
executed pursuant to Article XLII whereby the legal description of the Land
leased to Lessee pursuant to this Lease shall be revised to exclude the
Repurchase Land, and (ii) obtain and deliver to Lessor lien waiver affidavits
and other certifications reasonably required by Lessor and SIMP II from third
54
parties which have performed work or provided services and/or materials for the
installation of utilities and any other work, services or materials which affect
any portion of the Repurchase Land. Lessee acknowledges and agrees that it shall
be responsible for all Impositions, Additional Charges and all obligations and
liabilities on an absolute net basis as set forth in the Lease regarding the
Repurchase Land from the Commencement Date until the date of the transfer of the
Repurchase Land to SIMP II. Lessor and Lessee acknowledge that the Repurchase
Land will be transferred to SIMP II upon written confirmation satisfactory to
Lessor in its sole discretion that the subdivision of the Land and the Phase I
Plat (as herein defined) have been approved by the proper Governmental Entity
and all appeal periods have expired (the "Subdivision Approval"). Lessee agrees
to use, and to cause its representatives, agents, employees and contractors to
use, commercially reasonable efforts to obtain the Subdivision Approval as soon
as practicable.
Lessee acknowledges, covenants and agrees that (i) the Repurchase Land
shall not be improved in any manner, except as shown on that certain Preliminary
Plat dated May 24, 2005, prepared by Xxxxx Xxxxxxxxx & Associates, Inc. and the
Phase I Plat to be prepared by Xxxxx Xxxxxxxxx & Associates, Inc. (the "Phase I
Plat") (as each may be amended from time to time after obtaining written consent
from Lessor), (ii) Lessee shall not assign its rights under this Lease with
respect to the Repurchase Land, or sublease any portion of the Repurchase Land
and (iii) Lessee's purchase options set forth herein are subject to the
reconveyance of the Repurchase Land pursuant to the Repurchase Agreement.
ARTICLE XLII
MEMORANDUM OF LEASE
Lessor and Lessee shall, promptly upon the request of either, enter into a
short form memorandum of this Lease, in form suitable for recording under the
laws of the state in which the Leased Property is located in which reference to
this Lease, and all options contained herein, shall be made.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
55
IN WITNESS WHEREOF, the parties have caused this Lease to be executed and
their respective seals to be hereunto affixed and attested by their respective
officers thereunto duly authorized.
LESSOR:
MPT OF BLOOMINGTON, LLC
BY: MPT OPERATING PARTNERSHIP, L.P.
ITS: SOLE MEMBER
By: /s/ Xxxxxx X. Xxxxx, Xx.
------------------------------------------
Xxxxxx X. Xxxxx, Xx.
Its: President and Chief Executive Officer
LESSEE:
MONROE HOSPITAL, LLC
By: /s/ Xxxxx X. Xxxxxx, M.D.
------------------------------------------
Its: Manager
STATE OF _____________ )
) SS
COUNTY OF ____________ )
Before me, a Notary Public in and for said county and state, personally
appeared XXXXXX X. XXXXX, XX. in his capacity as President and Chief Executive
Officer of MPT Operating Partnership, L.P., the Sole Member MPT of Bloomington,
LLC, a Delaware limited liability company, who acknowledged the execution of the
foregoing instrument for and on behalf of said entity.
WITNESS my hand and Notarial Seal this _______ day of October, 2005.
_________________________________________
Notary Public
Printed Name: ___________________________
My Commission Expires: __________________
My County of Residence is: ______________
STATE OF _____________ )
) SS
COUNTY OF ____________ )
Before me, the undersigned Notary Public in and for said county and state,
personally appeared ____________________ in his capacity as Chief Manager of
Monroe Hospital, LLC, an Indiana limited liability company, who acknowledged the
execution of the foregoing instrument for and on behalf of said entity.
WITNESS my hand and Notarial Seal this _______ day of October, 2005.
_________________________________________
Notary Public
Printed Name: ___________________________
My Commission Expires: __________________
My County of Residence is: ______________
EXHIBIT A
PROPERTY DESCRIPTION
A part of the Northwest quarter of Section 19, Township 8 North, Range 1 West,
in Monroe County, Indiana, and being more particularly described as follows:
Commencing at the Northwest corner of said quarter section; thence South 00
degrees 21 minutes 00 seconds West along the West line of said quarter section
22.60 feet to the point of beginning; thence on the West right-of-way of Xxxxx
Xxxx 00 the following eight (8) courses: 1) South 79 degrees 27 minutes 41
seconds East 126.26 feet to a concrete right-of-way monument found; thence 2)
South 88 degrees 52 minutes 36 seconds East 200.87 feet to a fence post found;
thence 3) South 67 degrees 13 minutes 53 seconds East 213.39 feet to a fence
post found; thence 4) 1505.68 feet along a 5956.82 foot non-tangent curve to the
left whose chord bears South 32 degrees 00 minutes 44 seconds East 1501.68 feet
to a fence post found; thence 5) South 39 degrees 15 minutes 17 seconds East
481.75 feet to a fence post found; 6) South 01 degree 55 minutes 00 seconds West
96.34 feet; thence 7) South 37 degrees 32 minutes 13 seconds West 250.00 feet;
thence 8) South 20 degrees 08 minutes 44 seconds West 130.81 feet to a concrete
monument found; thence South 37 degrees 25 minutes 54 seconds West along the
North right-of-way of Rockport Road 15.37 feet to a 5/8 inch rebar with cap
stamped SNA; thence North 00 degrees 22 minutes 46 seconds East along the East
line of (D.R. 295, Page 472) 239.69 feet to a 5/8 inch rebar with cap stamped
SNA; thence North 88 degrees 37 minutes 16 seconds West along the North line of
said D.R. 295, Page 472, Winter Park Subdivision (Plat Cabinet B, Envelope 152)
and Stansifers Subdivision (Plat Cabinet B, Envelope 142) 1426.33 feet to a
railroad spike set; thence North 00 degrees 21 minutes 00 seconds East along the
West line of the Northwest quarter 1911.54 feet to the point of beginning,
containing 46.24 acres, more or less.
EXHIBIT B
PERMITTED EXCEPTIONS
1. Electric Pole Line Easement granted to Public Service Company of Indiana,
Inc. dated February 7, 1957, and recorded February 13, 1957, in Deed
Record 123, Page 64, in the Office of the Recorder of Monroe County,
Indiana, and as located on the Land Title Survey performed by Xxxx Xxxxxxx
of Xxxxx Xxxxxxxxx & Associates, Inc. dated September 9, 2004.
2. Gas Line Easement granted to Indiana Gas Company, Inc. dated March 24,
1971, and recorded March 24, 1971, in Deed Record 202, Pages 176-177, in
the Office of the Recorder of Monroe County, Indiana, and as located on
the Land Title Survey performed by Xxxx Xxxxxxx of Xxxxx Xxxxxxxxx &
Associates, Inc. dated September 9, 2004.
3. Gas Line Easement granted to Indiana Gas Company, Inc. dated July 14,
1972, and recorded July 14, 1972, in Deed Record 213, Pages 272-273, in
the Office of the Recorder of Monroe County, Indiana, and as located on
the Land Title Survey performed by Xxxx Xxxxxxx of Xxxxx Xxxxxxxxx &
Associates, Inc. dated September 9, 2004.
4. Overhead electric line along the West side of said land as shown on the
Land Title Survey performed by Xxxx Xxxxxxx of Xxxxx Xxxxxxxxx &
Associates, Inc. dated September 9, 2004.
5. Waiver of Protest of Annexation recorded August 4, 2005, as Instrument No.
2005015481 in the Office of the Recorder of Monroe County, Indiana.
6. Permanent Blanket Sanitary Sewer, Water and Public Storm Drainage Easement
granted to City of Bloomington Utilities dated August 3, 2005, and
recorded August 4, 2005, as Instrument No. 2005015554 in the Office of the
Recorder of Monroe County, Indiana.
7. Encroachment Agreement dated August 4, 2005, by and between Southern
Indiana Medical Park II, LLC and PSI Energy, Inc. recorded September 7,
2005, as Instrument No. 2005018228 in the Office of the Recorder of Monroe
County, Indiana.
EXHIBIT C
EXISTING SUBLEASES
None.
