EXHIBIT 10.51.1
LEASE AGREEMENT,
dated as of February 28, 2003,
by and between
SNH ALT LEASED PROPERTIES TRUST,
AS LANDLORD,
AND
AHC TRAILSIDE, INC.,
AS TENANT
TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS.................................................................................... 1
1.1 "ACCOUNTING PERIOD"...................................................................... 1
1.2 "ACQUIRING GUARANTOR".................................................................... 1
1.3 "ADDITIONAL CHARGES"..................................................................... 2
1.4 "ADDITIONAL RENT"........................................................................ 2
1.5 "AFFILIATED PERSON"...................................................................... 2
1.6 "AGREEMENT".............................................................................. 2
1.7 "ALTERRA"................................................................................ 2
1.8 "ANNUAL RENT LIMITATION AMOUNT".......................................................... 2
1.9 "APPLICABLE LAWS"........................................................................ 2
1.10 "AWARD"................................................................................. 3
1.11 "BASE NET RESIDENT REVENUES"............................................................ 3
1.12 "BASE YEAR"............................................................................. 4
1.13 "BORROWER".............................................................................. 4
1.14 "BORROWER INDEBTEDNESS"................................................................. 4
1.15 "BUSINESS DAY".......................................................................... 4
1.16 "CAPITAL ADDITION"...................................................................... 4
1.17 "CAPITAL EXPENDITURE"................................................................... 4
1.18 "CHANGE IN CONTROL"..................................................................... 4
1.19 "CLAIMS"................................................................................ 5
1.20 "CODE".................................................................................. 5
1.21 "COMMENCEMENT DATE"..................................................................... 5
1.22 "CONDEMNATION".......................................................................... 5
1.23 "CONDEMNOR"............................................................................. 5
1.24 "CONFORMING BANKRUPTCY PROCEEDING"...................................................... 5
1.25 "CONFORMING PLAN"....................................................................... 5
1.26 "CONSOLIDATED FINANCIALS"............................................................... 6
1.27 "DATE OF TAKING"........................................................................ 6
1.28 "DEFAULT"............................................................................... 6
1.29 "DISBURSEMENT RATE"..................................................................... 6
1.30 "DISTRIBUTION".......................................................................... 6
1.31 "EASEMENT AGREEMENT".................................................................... 6
1.32 "ENCUMBRANCE"........................................................................... 7
1.33 "ENTITY"................................................................................ 7
1.34 "ENVIRONMENT"........................................................................... 7
1.35 "ENVIRONMENTAL OBLIGATION".............................................................. 7
1.36 "ENVIRONMENTAL NOTICE".................................................................. 7
1.37 "EVENT OF DEFAULT"...................................................................... 7
1.38 "EXCESS NET RESIDENT REVENUES".......................................................... 7
1.39 "EXCLUDED ASSETS"....................................................................... 7
1.40 "EXHIBIT C PERSON"...................................................................... 7
1.41 "EXTENDED TERMS"........................................................................ 7
1.42 "FACILITY".............................................................................. 7
1.43 "FACILITY MORTGAGE"..................................................................... 7
1.44 "FACILITY MORTGAGEE".................................................................... 7
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TABLE OF CONTENTS
(continued)
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1.45 "FINANCIAL OFFICER'S CERTIFICATE"...................................................... 8
1.46 "FISCAL YEAR".......................................................................... 8
1.47 "FIXED TERM"........................................................................... 8
1.48 "FIXTURES"............................................................................. 8
1.49 "GAAP"................................................................................. 8
1.50 "GOVERNMENT AGENCIES".................................................................. 8
1.51 "GUARANTOR"............................................................................ 8
1.52 "GUARANTY"............................................................................. 8
1.53 "HAZARDOUS SUBSTANCES"................................................................. 8
1.54 "IMMEDIATE FAMILY"..................................................................... 9
1.55 "IMPOSITIONS".......................................................................... 9
1.56 "INDEBTEDNESS"......................................................................... 10
1.57 "INSURANCE REQUIREMENTS"............................................................... 11
1.58 "INTEREST RATE"........................................................................ 11
1.59 "LAND"................................................................................. 11
1.60 "LANDLORD"............................................................................. 11
1.61 "LANDLORD DEFAULT"..................................................................... 11
1.62 "LANDLORD LIENS"....................................................................... 11
1.63 "LEASE DOCUMENTS"...................................................................... 11
1.64 "LEASE YEAR"........................................................................... 11
1.65 "LEASED IMPROVEMENTS".................................................................. 11
1.66 "LEASED INTANGIBLE PROPERTY"........................................................... 11
1.67 "LEASED PERSONAL PROPERTY"............................................................. 12
1.68 "LEASED PROPERTY"...................................................................... 12
1.69 "LEGAL REQUIREMENTS"................................................................... 12
1.70 "LENDER"............................................................................... 12
1.71 "LIEN"................................................................................. 12
1.72 "LOAN AGREEMENT"....................................................................... 12
1.73 "LOAN DOCUMENTS"....................................................................... 12
1.74 "MANAGEMENT AGREEMENT"................................................................. 13
1.75 "MANAGER".............................................................................. 13
1.76 "MATERIAL INVESTMENT".................................................................. 13
1.77 "MINIMUM RENT"......................................................................... 13
1.78 "NET RESIDENT REVENUES"................................................................ 13
1.79 "NET WORTH"............................................................................ 14
1.80 "NOTICE"............................................................................... 14
1.81 "OFFICER'S CERTIFICATE"................................................................ 14
1.82 "OVERDUE RATE"......................................................................... 14
1.83 "PARENT"............................................................................... 14
1.84 "PERMITTED CONTROL PERSON"............................................................. 14
1.85 "PERMITTED ENCUMBRANCES"............................................................... 14
1.86 "PERMITTED LIENS"...................................................................... 15
1.87 "PERMITTED MERGER"..................................................................... 15
1.88 "PERMITTED USE"........................................................................ 15
1.89 "PERSON"............................................................................... 15
1.90 "PROPERTY"............................................................................. 15
1.91 "PROVIDER AGREEMENTS".................................................................. 15
1.92 "PURCHASE AGREEMENT"................................................................... 15
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TABLE OF CONTENTS
(continued)
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1.93 "RECORDS".............................................................................. 16
1.94 "REGULATED MEDICAL WASTES"............................................................. 16
1.95 "RENT"................................................................................. 16
1.96 "REQUIRED SUBLEASE".................................................................... 16
1.97 "SEC".................................................................................. 16
1.98 "SNDA"................................................................................. 16
1.99 "SECURED MERGER"....................................................................... 16
1.100 "SECURITY AGREEMENT".................................................................. 16
1.101 "SECURITY DEPOSIT".................................................................... 16
1.102 "STATE"............................................................................... 17
1.103 "STOCK PLEDGE"........................................................................ 17
1.104 "SUBSIDIARY".......................................................................... 17
1.105 "SUCCESSOR LANDLORD".................................................................. 17
1.106 "TANGIBLE NET WORTH".................................................................. 17
1.107 "TENANT".............................................................................. 17
1.108 "TENANT'S PERSONAL PROPERTY".......................................................... 17
1.109 "TERM"................................................................................ 18
1.110 "THIRD PARTY PAYOR PROGRAMS".......................................................... 18
1.111 "THIRD PARTY PAYORS".................................................................. 18
1.112 "UNSUITABLE FOR ITS PERMITTED USE".................................................... 18
1.113 "WORK"................................................................................ 18
ARTICLE 2 LEASED PROPERTY AND TERM...................................................................... 18
2.1 LEASED PROPERTY......................................................................... 18
2.2 CONDITION OF LEASED PROPERTY............................................................ 19
2.3 FIXED TERM.............................................................................. 20
2.4 EXTENDED TERMS.......................................................................... 20
ARTICLE 3 RENT.......................................................................................... 21
3.1 RENT.................................................................................... 21
3.2 LATE PAYMENT OF RENT, ETC............................................................... 25
3.3 NET LEASE............................................................................... 26
3.4 NO TERMINATION, ABATEMENT, ETC.......................................................... 26
3.5 SECURITY DEPOSIT........................................................................ 27
ARTICLE 4 USE OF THE LEASED PROPERTY.................................................................... 28
4.1 PERMITTED USE........................................................................... 28
4.2 COMPLIANCE WITH LEGAL/INSURANCE REQUIREMENTS, ETC....................................... 29
4.3 COMPLIANCE WITH MEDICAID AND MEDICARE REQUIREMENTS...................................... 29
4.4 ENVIRONMENTAL MATTERS................................................................... 29
ARTICLE 5 MAINTENANCE AND REPAIRS....................................................................... 31
5.1 MAINTENANCE AND REPAIR.................................................................. 31
5.2 TENANT'S PERSONAL PROPERTY.............................................................. 33
5.3 YIELD UP................................................................................ 33
5.4 MANAGEMENT AGREEMENT.................................................................... 33
ARTICLE 6 IMPROVEMENTS, ETC............................................................................. 34
6.1 IMPROVEMENTS TO THE LEASED PROPERTY..................................................... 34
6.2 SALVAGE................................................................................. 35
ARTICLE 7 LIENS......................................................................................... 35
7.1 LIENS................................................................................... 35
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TABLE OF CONTENTS
(continued)
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7.2 LANDLORD'S LIEN......................................................................... 35
ARTICLE 8 PERMITTED CONTESTS............................................................................ 36
ARTICLE 9 INSURANCE AND INDEMNIFICATION................................................................. 37
9.1 GENERAL INSURANCE REQUIREMENTS.......................................................... 37
9.2 WAIVER OF SUBROGATION................................................................... 38
9.3 FORM SATISFACTORY, ETC.................................................................. 38
9.4 NO SEPARATE INSURANCE; SELF-INSURANCE................................................... 39
9.5 INDEMNIFICATION OF LANDLORD............................................................. 39
9.6 FUTURE INSURANCE........................................................................ 40
ARTICLE 10 CASUALTY..................................................................................... 40
10.1 INSURANCE PROCEEDS..................................................................... 40
10.2 DAMAGE OR DESTRUCTION.................................................................. 41
10.3 DAMAGE NEAR END OF TERM................................................................ 42
10.4 TENANT'S PROPERTY...................................................................... 42
10.5 RESTORATION OF TENANT'S PROPERTY....................................................... 43
10.6 NO ABATEMENT OF RENT................................................................... 43
10.7 WAIVER................................................................................. 43
ARTICLE 11 CONDEMNATION................................................................................. 43
11.1 TOTAL CONDEMNATION, ETC................................................................ 43
11.2 PARTIAL CONDEMNATION................................................................... 43
11.3 NO ABATEMENT OF RENT................................................................... 44
11.4 TEMPORARY CONDEMNATION................................................................. 45
11.5 ALLOCATION OF AWARD.................................................................... 45
ARTICLE 12 DEFAULTS AND REMEDIES........................................................................ 45
12.1 EVENTS OF DEFAULT...................................................................... 45
12.2 REMEDIES............................................................................... 48
12.3 TENANT'S WAIVER........................................................................ 50
12.4 APPLICATION OF FUNDS................................................................... 50
12.5 LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT.............................................. 50
ARTICLE 13 HOLDING OVER................................................................................. 50
ARTICLE 14 LANDLORD DEFAULT............................................................................. 51
ARTICLE 15 PURCHASE RIGHTS.............................................................................. 52
ARTICLE 16 SUBLETTING AND ASSIGNMENT.................................................................... 52
16.1 SUBLETTING AND ASSIGNMENT.............................................................. 52
16.2 SUBLEASE PROVISIONS.................................................................... 53
16.3 REQUIRED SUBLEASE...................................................................... 54
16.4 PERMITTED SUBLEASE..................................................................... 55
16.5 SUBLEASE LIMITATION.................................................................... 55
ARTICLE 17 ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS............................................... 55
17.1 ESTOPPEL CERTIFICATES.................................................................. 55
17.2 FINANCIAL STATEMENTS................................................................... 56
17.3 GENERAL OPERATIONS..................................................................... 57
ARTICLE 18 LANDLORD'S RIGHT TO INSPECT.................................................................. 58
ARTICLE 19 EASEMENTS.................................................................................... 58
19.1 GRANT OF EASEMENTS..................................................................... 58
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TABLE OF CONTENTS
(continued)
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19.2 EXERCISE OF RIGHTS BY TENANT........................................................... 58
19.3 PERMITTED ENCUMBRANCES................................................................. 59
ARTICLE 20 FACILITY MORTGAGES........................................................................... 59
20.1 LANDLORD MAY GRANT LIENS............................................................... 59
20.2 SUBORDINATION OF LEASE................................................................. 59
20.3 NOTICE TO MORTGAGEE AND SUPERIOR LANDLORD.............................................. 61
ARTICLE 21 ADDITIONAL COVENANTS OF TENANT............................................................... 61
21.1 PROMPT PAYMENT OF INDEBTEDNESS......................................................... 61
21.2 CONDUCT OF BUSINESS.................................................................... 62
21.3 MAINTENANCE OF ACCOUNTS AND RECORDS.................................................... 62
21.4 NOTICE OF LITIGATION, ETC.............................................................. 62
21.5 INDEBTEDNESS........................................................................... 62
21.6 FINANCIAL CONDITION OF TENANT.......................................................... 63
21.7 FINANCIAL CONDITION OF ALTERRA......................................................... 63
21.8 DISTRIBUTIONS, PAYMENTS TO AFFILIATED PERSONS, ETC..................................... 63
21.9 PROHIBITED TRANSACTIONS................................................................ 63
21.10 LIENS AND ENCUMBRANCES................................................................ 64
21.11 MERGER; SALE OF ASSETS; ETC........................................................... 64
21.12 CHANGE OF CONTROL OF GUARANTOR........................................................ 64
ARTICLE 22 ARBITRATION.................................................................................. 65
ARTICLE 23 MISCELLANEOUS................................................................................ 66
23.1 LIMITATION ON PAYMENT OF RENT.......................................................... 66
23.2 NO WAIVER.............................................................................. 66
23.3 REMEDIES CUMULATIVE.................................................................... 66
23.4 SEVERABILITY........................................................................... 67
23.5 ACCEPTANCE OF SURRENDER................................................................ 67
23.6 NO MERGER OF TITLE..................................................................... 67
23.7 CONVEYANCE BY LANDLORD................................................................. 67
23.8 QUIET ENJOYMENT........................................................................ 67
23.9 NO RECORDATION......................................................................... 68
23.10 NOTICES............................................................................... 68
23.11 CONSTRUCTION.......................................................................... 69
23.12 COUNTERPARTS; HEADINGS................................................................ 69
23.13 APPLICABLE LAW, ETC................................................................... 70
23.14 RIGHT TO MAKE AGREEMENT............................................................... 70
23.15 ATTORNEYS' FEES....................................................................... 70
23.16 NONLIABILITY OF TRUSTEES.............................................................. 70
23.17 BANKRUPTCY REMOTE ENTITIES............................................................ 71
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LEASE AGREEMENT
THIS LEASE AGREEMENT is entered into as of February 28, 2003, by and
between (i) SNH ALT LEASED PROPERTIES TRUST, a Maryland real estate investment
trust, as landlord ("Landlord"), and (ii) AHC TRAILSIDE, INC., a Delaware
corporation, as tenant ("Tenant").
WITNESSETH :
WHEREAS, Landlord owns fee simple title to the twenty-five (25) Properties
(this and other capitalized terms used and not otherwise defined herein having
the meanings ascribed to such terms in Article 1) located in eighteen (18)
locations as more particularly described on Exhibits A-1 through A-18 attached
hereto and made a part hereof; and
WHEREAS, Landlord wishes to lease the Leased Property to Tenant and Tenant
wishes to lease the Leased Property from Landlord, all subject to and upon the
terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the mutual receipt and legal
sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree
as follows:
ARTICLE 1
DEFINITIONS
For all purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires, (a) the terms defined in this Article
shall have the meanings assigned to them in this Article and include the plural
as well as the singular, (b) all accounting terms not otherwise defined herein
shall have the meanings assigned to them in accordance with GAAP, (c) all
references in this Agreement to designated "Articles," "Sections" and other
subdivisions are to the designated Articles, Sections and other subdivisions of
this Agreement, and (d) the words "herein," "hereof," "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision.
1.1 "ACCOUNTING PERIOD" shall mean, with respect to any Property, each
calendar month or such other accounting period designated by Landlord and
Tenant.
1.2 "ACQUIRING GUARANTOR" shall mean any successor in interest to any
Guarantor, which shall be deemed to include, without limitation, (a) any Person
or group of two or more Persons acting in concert (other than a Permitted
Control Person or a group comprised exclusively of Permitted Control Persons),
that acquire the ownership of fifty percent (50%) or more of the voting power of
the outstanding shares of voting stock of any Guarantor, (b) any Person
resulting from the merger or consolidation of any Guarantor, and (c) any Person
acquiring through any one or more sales or conveyances all or substantially all
of any Guarantor's assets (including its capital stock) or business, except that
this clause (c) shall not apply to any Person solely because such Person
acquires all or substantially all of Borrower's assets in accordance with the
terms and conditions of the Loan Documents.
1.3 "ADDITIONAL CHARGES" shall have the meaning given such term in Section
3.1.4.
1.4 "ADDITIONAL RENT" shall have the meaning given such term in Section
3.1.2(a).
1.5 "AFFILIATED PERSON" shall mean, with respect to any Person, (a) in the
case of any such Person which is a partnership, any partner in such partnership,
(b) in the case of any such Person which is a limited liability company, any
member of such company, (c) any other Person which is a Parent, a Subsidiary, or
a Subsidiary of a Parent with respect to such Person or to one or more of the
Persons referred to in the preceding clauses (a) and (b), (d) any other Person
who is an officer, director, trustee or employee of, or partner in or member of,
such Person or any Person referred to in the preceding clauses (a), (b) and (c),
and (e) any other Person who is a member of the Immediate Family of such Person
or of any Person referred to in the preceding clauses (a) through (d).
1.6 "AGREEMENT" shall mean this Lease Agreement, including Exhibits A and
B attached hereto and made a part hereof, as it and they may be amended from
time to time as herein provided.
1.7 "ALTERRA" shall mean Alterra Healthcare Corporation, a Delaware
corporation, and its permitted successors and assigns.
1.8 "ANNUAL RENT LIMITATION AMOUNT" shall mean (x) for the 2004 calendar
year, Seven Million Two Hundred Twenty-Five Thousand Four Hundred Fifty Dollars
($7,225,450) and (y) for each full calendar year thereafter, the Annual Rent
Limitation Amount for the preceding annualized calendar year increased by three
percent (3%); provided however that there shall be an appropriate adjustment
made to the Annual Rent Limitation Amount simultaneously with any adjustment to
Minimum Rent pursuant to the terms of Section 3.1.1(b) or (c) or any decrease in
the amount of Additional Rent payable hereunder as a result of the reduction in
the number of units available at any of the Facilities or in the services
provided therein.
1.9 "APPLICABLE LAWS" shall mean all applicable laws, statutes,
regulations, rules, ordinances, codes, licenses, permits and orders, from time
to time in existence, of all courts of competent jurisdiction and Government
Agencies, and all applicable judicial and administrative and regulatory decrees,
judgments and orders, including common law rulings and determinations, relating
to injury to, or the protection of, real or personal property or human health or
the Environment, including, without limitation, all valid and lawful
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requirements of courts and other Government Agencies pertaining to reporting,
licensing, permitting, investigation, remediation and removal of underground
improvements (including, without limitation, treatment or storage tanks, or
water, gas or oil xxxxx), or emissions, discharges, releases or threatened
releases of Hazardous Substances, chemical substances, pesticides, petroleum or
petroleum products, pollutants, contaminants or hazardous or toxic substances,
materials or wastes whether solid, liquid or gaseous in nature, into the
Environment, or relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous Substances or
Regulated Medical Wastes, underground improvements (including, without
limitation, treatment or storage tanks, or water, gas or oil xxxxx), or
pollutants, contaminants or hazardous or toxic substances, materials or wastes,
whether solid, liquid or gaseous in nature.
1.10 "AWARD" shall mean all compensation, sums or other value awarded,
paid or received by virtue of a total or partial Condemnation of any of the
Leased Property (after deduction of all reasonable legal fees and other
reasonable costs and expenses, including, without limitation, expert witness
fees, incurred by Landlord, in connection with obtaining any such award).
1.11 "BASE NET RESIDENT REVENUES" shall mean, with respect to any
Property, Net Resident Revenues at such Property for the Base Year; provided,
however, that in the event that, with respect to any Lease Year, or portion
thereof, if there shall occur a casualty, Condemnation or a change in Legal
Requirements which necessitates a reduction in the number of units available at
the Facility located at such Property or in the services provided at such
Facility from the number of such units or the services provided during the Base
Year, in determining Additional Rent payable with respect to such Property for
such Lease Year, Base Net Resident Revenues with respect to the affected
Property shall be reduced as follows: (a) in the event of the termination of
this Agreement with respect to any Property pursuant to Article 10, 11 or 12,
all Net Resident Revenues for such Property for the period during the Base Year
equivalent to the period after the termination of this Agreement with respect to
such Property shall be subtracted from Base Net Resident Revenues; (b) in the
event of a partial closing of such Facility affecting the number of units, or
the services provided, at such Facility, Net Resident Revenues attributable to
units or services at such Facility shall be ratably allocated among all units in
service at such Facility during the Base Year and all such Net Resident Revenues
attributable to units no longer in service shall be subtracted from Base Net
Resident Revenues throughout the period of such closing; and (c) in the event of
any other change in circumstances affecting any Facility, Base Net Resident
Revenues shall be equitably adjusted in such manner as Landlord and Tenant shall
reasonably agree. It is understood and agreed that Base Net Resident Revenues
shall be calculated separately for each Property and shall not be determined on
an aggregate basis for the Leased Property.
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1.12 "BASE YEAR" shall mean the 2003 Fiscal Year.
1.13 "BORROWER" shall mean Pomacy Corporation, a Delaware corporation, and
its permitted successors and assigns, as the borrower with respect to the
Borrower Indebtedness.
1.14 "BORROWER INDEBTEDNESS" shall mean the Indebtedness evidenced by the
Loan Documents.
1.15 "BUSINESS DAY" shall mean any day other than Saturday, Sunday, or any
other day on which banking institutions in The Commonwealth of Massachusetts are
authorized by law or executive action to close.
1.16 "CAPITAL ADDITION" shall mean, with respect to any Property, any
renovation, repair or improvement to such Property, the cost of which
constitutes a Capital Expenditure.
1.17 "CAPITAL EXPENDITURE" shall mean any expenditure treated as capital
in nature in accordance with GAAP.
1.18 "CHANGE IN CONTROL" shall mean (a) the acquisition by any Person, or
two or more Persons acting in concert, of record ownership of, or the right to
vote, or the power to direct the vote of, in excess of fifty percent (50%) of
the voting power of the outstanding shares of voting stock of Tenant or any
Guarantor, as the case may be, other than pursuant to a Permitted Merger or a
Secured Merger, (b) the merger or consolidation of Tenant or any Guarantor with
or into any other Person (other than a Permitted Merger, a Secured Merger or a
merger or consolidation of any Person with or into Tenant or any Guarantor that
does not result in a Change in Control of Tenant or such Guarantor under clauses
(a), (c) or (d) of this definition), (c) any one or more sales or conveyances to
any Person of all or substantially all of its assets (including capital stock)
or business of Tenant or any Guarantor, as the case may be (other than any sale
or disposition by Borrower of all of or substantially all of its assets) or (d)
the cessation, for any reason, of the individuals who, on the Commencement Date,
constituted the board of directors of Tenant or any Guarantor (together with any
new directors elected or appointed pursuant to, and on the effective date of, a
Conforming Plan and any new directors whose election by such board or whose
nomination for election by the shareholders of Tenant or such Guarantor, as the
case may be, was approved by a vote of a majority of the directors then still in
office who were either directors on the Commencement Date or the effective date
of a Conforming Plan as aforesaid or whose election or nomination for election
was previously so approved) to constitute a majority of the board of directors
of Tenant or such Guarantor then in office; provided, however, that no Change in
Control shall be deemed to have occurred as a result or arising out of: (i) any
change in ownership resulting from the issuance of equity securities in
connection with the confirmation of any Conforming Plan or (ii) any acquisition
referred to in clause (a) of this definition with respect to the voting power of
the outstanding shares of voting stock of any
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Parent of Tenant so long as such Parent is a Guarantor and at the time of such
acquisition and immediately thereafter such Parent has a consolidated Tangible
Net Worth at least equal to Fifty Million Dollars ($50,000,000).
1.19 "CLAIMS" shall have the meaning given such term in Article 8.
1.20 "CODE" shall mean the Internal Revenue Code of 1986 and, to the
extent applicable, the Treasury Regulations promulgated thereunder, each as from
time to time amended.
1.21 "COMMENCEMENT DATE" shall mean the date of this Agreement.
1.22 "CONDEMNATION" shall mean, with respect to any Property, (a) the
exercise of any governmental power with respect to such Property, whether by
legal proceedings or otherwise, by a Condemnor of its power of condemnation, (b)
a voluntary sale or transfer of such Property by Landlord to any Condemnor,
either under threat of condemnation or while legal proceedings for condemnation
are pending, or (c) a taking or voluntary conveyance of all or part of such
Property, or any interest therein, or right accruing thereto or use thereof, as
the result or in settlement of any condemnation or other eminent domain
proceeding affecting such Property, whether or not the same shall have actually
been commenced.
1.23 "CONDEMNOR" shall mean any public or quasi-public Person, having the
power of Condemnation.
1.24 "CONFORMING BANKRUPTCY PROCEEDING" shall mean a proceeding in United
States Bankruptcy Court which is instituted pursuant to a voluntary petition for
reorganization filed by Alterra under Chapter 11 (or an involuntary petition
filed by any Person that is converted by Alterra within ten (10) days after such
filing into a voluntary petition under Chapter 11) so long as Alterra is
diligently pursuing confirmation of a Conforming Plan at all times during the
pendency of such proceeding.
1.25 "CONFORMING PLAN" shall mean a plan of reorganization of Alterra that
contains each of the following elements:
(a) The effectiveness and finality of all of the transactions
contemplated by this Agreement, the other Lease Documents, the Loan
Agreement and the other Loan Documents shall be unaffected and any
obligation of Alterra thereunder shall continue unimpaired and in full
force and effect; and
(b) Assumption by Alterra of the Required Sublease; and
(c) At least seventy percent (70%) of the voting power of the
outstanding shares of voting stock of Alterra being owned by (i) Persons
who had, prior to the filing of the bankruptcy petition instituting the
Conforming Bankruptcy Proceeding, (A) an
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ownership or other interest in Alterra's stock or debt (including any debt
of Alterra's subsidiaries guaranteed by Alterra) and/or (B) a joint
venture ownership interest in Alterra's assets or Alterra's subsidiaries'
assets, (ii) Affiliated Persons of Persons described in the foregoing
clause (i), but excluding each such Person or Affiliated Person who (1) on
the commencement of such bankruptcy case, held less than a Material
Investment in Alterra and (2) subsequent to the commencement of such
bankruptcy case and prior to or contemporaneously with the confirmation
and implementation of such plan, increases their respective investment (on
a cost basis) in Alterra by greater than ten percent (10%) and (iii)
Permitted Control Persons; and
(d) Alterra having a consolidated Net Worth of at least Thirty
Million Dollars ($30,000,000).
1.26 "CONSOLIDATED FINANCIALS" shall mean, for any Fiscal Year or other
accounting period of Alterra, annual audited and quarterly unaudited financial
statements of Alterra prepared on a consolidated basis, including Alterra's
consolidated balance sheet and the related statements of income and cash flows,
all in reasonable detail, and setting forth in comparative form the
corresponding figures for the corresponding period in the preceding Fiscal Year,
and prepared in accordance with GAAP throughout the periods reflected.
1.27 "DATE OF TAKING" shall mean, with respect to any Property, the date
the Condemnor has the right to possession of such Property, or any portion
thereof, in connection with a Condemnation.
1.28 "DEFAULT" shall mean any event or condition which with the giving of
notice and/or lapse of time would ripen into an Event of Default.
1.29 "DISBURSEMENT RATE" shall mean an annual rate of interest, as of the
date of determination, equal to the greater of (i) the Interest Rate and (ii)
the per annum rate for fifteen (15) year U.S. Treasury Obligations as published
in The Wall Street Journal plus five hundred (500) basis points; provided,
however, that in no event shall the Disbursement Rate exceed eleven and one half
percent (11.5%).
1.30 "DISTRIBUTION" shall mean (a) any declaration or payment of any
dividend (except ordinary cash dividends or dividends payable in common stock of
Tenant) on or in respect of any shares of any class of capital stock of Tenant,
(b) any purchase, redemption, retirement or other acquisition of any shares of
any class of capital stock of a corporation, (c) any other distribution on or in
respect of any shares of any class of capital stock of a corporation or (d) any
return of capital to shareholders.
1.31 "EASEMENT AGREEMENT" shall mean any conditions, covenants and
restrictions, easements, declarations, licenses and other agreements which are
Permitted Encumbrances and such other agreements as may be granted in accordance
with Section 19.1.
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1.32 "ENCUMBRANCE" shall have the meaning given such term in Section 20.1.
1.33 "ENTITY" shall mean any corporation, general or limited partnership,
limited liability company or partnership, stock company or association, joint
venture, association, company, trust, bank, trust company, land trust, business
trust, cooperative, any government or agency, authority or political subdivision
thereof or any other entity.
1.34 "ENVIRONMENT" shall mean soil, surface waters, ground waters, land,
stream, sediments, surface or subsurface strata and ambient air.
1.35 "ENVIRONMENTAL OBLIGATION" shall have the meaning given such term in
Section 4.4.1.
1.36 "ENVIRONMENTAL NOTICE" shall have the meaning given such term in
Section 4.4.1.
1.37 "EVENT OF DEFAULT" shall have the meaning given such term in Section
12.1.
1.38 "EXCESS NET RESIDENT REVENUES" shall mean, with respect to any
Property, with respect to any Lease Year, or portion thereof, the amount of Net
Resident Revenues for such Property for such Lease Year, or portion thereof, in
excess of Base Net Resident Revenues for such Property for the equivalent period
during the Base Year.
1.39 "EXCLUDED ASSETS" shall mean all (a) vehicles, (b) computers,
copiers, fax machines, employee cell phones and pagers and other similar
equipment subject to purchase money financing, all of which are listed on
Exhibit B attached hereto and made a part hereof, (c) proprietary materials and
software and trademarks, tradenames and (d) all modifications, replacements,
alterations and additions of the foregoing (but, with respect to (ii), only to
the extent the same are subject to purchase money financing).
1.40 "EXHIBIT C PERSON" shall mean any Person listed on Exhibit C attached
hereto.
1.41 "EXTENDED TERMS" shall have the meaning given such term in Section
2.4.
1.42 "FACILITY" shall mean, with respect to any Property, the assisted
living/special care facility being operated on such Property.
1.43 "FACILITY MORTGAGE" shall mean any Encumbrance placed upon the Leased
Property, or any portion thereof, in accordance with Article 20.
1.44 "FACILITY MORTGAGEE" shall mean the holder of any Facility Mortgage.
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1.45 "FINANCIAL OFFICER'S CERTIFICATE" shall mean, as to any Person, a
certificate of the chief executive officer, chief financial officer or chief
accounting officer (or such officers' authorized designee) of such Person, duly
authorized, accompanying the financial statements required to be delivered by
such Person pursuant to Section 17.2, in which such officer shall certify (a)
that such statements have been properly prepared in accordance with GAAP
(omitting footnotes) and are true, correct and complete in all material respects
and fairly present the consolidated financial condition of such Person at and as
of the dates thereof and the results of its and their operations for the periods
covered thereby, and (b), in the event that the certifying party is an officer
of Tenant and the certificate is being given in such capacity, certify that no
Event of Default has occurred and is continuing hereunder.
1.46 "FISCAL YEAR" shall mean the calendar year or such other annual
period designated by Tenant and approved by Landlord.
1.47 "FIXED TERM" shall have the meaning given such term in Section 2.3.
1.48 "FIXTURES" shall have the meaning given such term in Section 2.1(d).
1.49 "GAAP" shall mean generally accepted accounting principles
consistently applied.
1.50 "GOVERNMENT AGENCIES" shall mean any court, agency, authority, board
(including, without limitation, environmental protection, planning and zoning),
bureau, commission, department, office or instrumentality of any nature
whatsoever of any governmental or quasi-governmental unit of the United States
or any State or any county or any political subdivision of any of the foregoing,
whether now or hereafter in existence, having jurisdiction over Tenant or the
Leased Property or any portion thereof or any Facility operated thereon.
1.51 "GUARANTOR" shall mean any of Alterra, Borrower and each and every
other guarantor of Tenant's obligations under this Agreement, and each such
guarantor's successors and assigns.
1.52 "GUARANTY" shall mean any guaranty agreement executed by a Guarantor
in favor of Landlord pursuant to which the payment or performance of Tenant's
obligations under this Agreement are guaranteed, together with all
modifications, amendments and supplements thereto.
1.53 "HAZARDOUS SUBSTANCES" shall mean any substance:
(a) the presence of which requires or may hereafter require
notification, investigation or remediation under any federal, state or
local statute, regulation, rule, ordinance, order, action or policy; or
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(b) which is or becomes defined as a "hazardous waste", "hazardous
material" or "hazardous substance" or "pollutant" or "contaminant" under
any present or future federal, state or local statute, regulation, rule or
ordinance or amendments thereto including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act (42
U.S.C. section 9601 et seq.) and the Resource Conservation and Recovery
Act (42 U.S.C. section 6901 et seq.) and the regulations promulgated
thereunder; or
(c) which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic or otherwise hazardous and is or
becomes regulated by any governmental authority, agency, department,
commission, board, agency or instrumentality of the United States, any
state of the United States, or any political subdivision thereof; or
(d) the presence of which on the Leased Property, or any portion
thereof, causes or materially threatens to cause an unlawful nuisance upon
the Leased Property, or any portion thereof, or to adjacent properties or
poses or materially threatens to pose a hazard to the Leased Property, or
any portion thereof, or to the health or safety of persons on or about the
Leased Property, or any portion thereof; or
(e) without limitation, which contains gasoline, diesel fuel or
other petroleum hydrocarbons or volatile organic compounds; or
(f) without limitation, which contains polychlorinated biphenyls
(PCBs) or asbestos or urea formaldehyde foam insulation; or
(g) without limitation, which contains or emits radioactive
particles, waves or material; or
(h) without limitation, constitutes Regulated Medical Wastes.
1.54 "IMMEDIATE FAMILY" shall mean, with respect to any individual, such
individual's spouse, parents, brothers, sisters, children (natural or adopted),
stepchildren, grandchildren, grandparents, parents-in-law, brothers-in-law,
sisters-in-law, nephews and nieces and the heirs, executors, administrators,
legal representatives and successors and assigns of such individuals (if
permitted) where the context so admits or requires.
1.55 "IMPOSITIONS" shall mean, collectively, all taxes (including, without
limitation, all taxes imposed under the laws of any State, as such laws may be
amended from time to time, and all ad valorem, sales and use, or similar taxes
as the same relate to or are imposed upon Landlord, Tenant or the business
conducted upon the Leased Property), assessments (including, without limitation,
all
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assessments for public improvements or benefit, whether or not commenced or
completed prior to the date hereof), ground rents (including any minimum rent
under any ground lease, and any additional rent or charges thereunder), water,
sewer or other rents and charges, excises, tax levies, fees (including, without
limitation, license, permit, inspection, authorization and similar fees), and
all other governmental charges, in each case whether general or special,
ordinary or extraordinary, or foreseen or unforeseen, of every character in
respect of the Leased Property or the business conducted thereon by Tenant
(including all interest and penalties thereon due to any failure in payment by
Tenant), which at any time prior to, during or in respect of the Term hereof
(regardless of whether such tax, assessment, excise, tax levy, fee or lien
relates to periods prior to the Commencement Date) may be assessed or imposed on
or in respect of or be a lien upon (a) Landlord's interest in the Leased
Property, (b) the Leased Property or any part thereof or any rent therefrom or
any estate, right, title or interest therein, or (c) any occupancy, operation,
use or possession of, or sales from, or activity conducted on, or in connection
with the Leased Property or the leasing or use of the Leased Property or any
part thereof by Tenant; provided, however, that nothing contained herein shall
be construed to require Tenant to pay and the term "Impositions" shall not
include (i) any tax based on net income imposed on Landlord, (ii) any net
revenue tax of Landlord, (iii) any transfer fee or other tax imposed with
respect to the sale, exchange or other disposition by Landlord of the Leased
Property or the proceeds thereof, (iv) any intangible, documentary, transfer or
other tax imposed with respect to any Facility Mortgage or any other document or
instrument evidencing or securing any Indebtedness of Landlord or the financing
or refinancing of the Leased Property or any portion thereof, including, without
limitation, any Lien on the Leased Property arising by, through or under
Landlord or imposed with respect to any Superior Lease and any ground rents or
other rents or costs payable under the foregoing, (v) any single business, gross
receipts tax, transaction privilege, rent or similar taxes as the same relate to
or are imposed upon Landlord, (vi) any interest or penalties imposed on Landlord
as a result of the failure of Landlord to file any return or report timely and
in the form prescribed by law or to pay any tax or imposition, except to the
extent such failure is a result of a breach by Tenant of its obligations
pursuant to Section 3.1.3, (vii) any impositions imposed on Landlord that are a
result of Landlord not being considered a "United States person" as defined in
Section 7701(a)(30) of the Code, (viii) any impositions that are enacted or
adopted by their express terms as a substitute for any tax that would not have
been payable by Tenant pursuant to the terms of this Agreement or (ix) any
impositions imposed as a result of a breach of covenant or representation by
Landlord in any agreement governing Landlord's conduct or operation or as a
result of the negligence or willful misconduct of Landlord.
1.56 "INDEBTEDNESS" shall mean all obligations, contingent or otherwise,
which in accordance with GAAP should be reflected on the obligor's balance sheet
as liabilities.
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1.57 "INSURANCE REQUIREMENTS" shall mean all terms of any insurance policy
required by this Agreement and all requirements of the issuer of any such policy
and all orders, rules and regulations and any other requirements of the National
Board of Fire Underwriters (or any other body exercising similar functions)
binding upon Landlord, Tenant, any Manager or the Leased Property.
1.58 "INTEREST RATE" shall mean ten percent (10%) per annum.
1.59 "LAND" shall have the meaning given such term in Section 2.1(a).
1.60 "LANDLORD" shall have the meaning given such term in the preambles to
this Agreement and shall also include its permitted successors and assigns.
1.61 "LANDLORD DEFAULT" shall have the meaning given such term in Article
14.
1.62 "LANDLORD LIENS" shall mean liens on or against the Leased Property
or any payment of Rent (a) which result from any act of, or any claim against,
Landlord or any owner of a direct or indirect interest in the Leased Property
(excluding liens imposed by the lessor under any ground lease affecting any
portion of the Leased Property which did not arise by, through or under
Landlord), or which result from any violation by Landlord of any terms of this
Agreement, or (b) which result from liens in favor of any taxing authority by
reason of any tax owed by Landlord or any fee owner of a direct or indirect
interest in the Leased Property (excluding liens imposed by the lessor under any
ground lease affecting any portion of the Leased Property which did not arise
by, through or under Landlord); provided, however, that "Landlord Lien" shall
not include any lien resulting from any tax for which Tenant is obligated to pay
or indemnify Landlord against until such time as Tenant shall have already paid
to or on behalf of Landlord the tax or the required indemnity with respect to
the same.
1.63 "LEASE DOCUMENTS" shall mean, collectively, this Agreement, the
Purchase Agreement, the Required Sublease, the Security Agreement, the Stock
Pledge, any Guaranty and any other documents executed or delivered in connection
with any of the foregoing.
1.64 "LEASE YEAR" shall mean any Fiscal Year or portion thereof during the
Term.
1.65 "LEASED IMPROVEMENTS" shall have the meaning given such term in
Section 2.1(b).
1.66 "LEASED INTANGIBLE PROPERTY" shall mean all agreements, service
contracts, equipment leases, booking agreements and other arrangements or
agreements to which Landlord is a party and affecting the ownership, repair,
maintenance, management, leasing or operation of the Leased Property, or any
portion thereof; all books, records and files owned by Landlord and relating to
the leasing, maintenance,
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management or operation of the Leased Property, or any portion thereof; to the
extent owned by Landlord, all transferable or assignable permits, certificates
of occupancy, operating permits, sign permits, development rights and approvals,
certificates, licenses, warranties and guarantees, rights to deposits and
telephone exchange numbers identified with the Leased Property; and all other
transferable intangible property, miscellaneous rights, benefits and privileges
of any kind or character owned by or belonging to Landlord with respect to the
Leased Property or any portion thereof, but expressly excluding the Excluded
Assets.
1.67 "LEASED PERSONAL PROPERTY" shall have the meaning given such term in
Section 2.1(e), but expressly excluding the Excluded Assets.
1.68 "LEASED PROPERTY" shall have the meaning given such term in Section
2.1, but expressly excluding the Excluded Assets.
1.69 "LEGAL REQUIREMENTS" shall mean all federal, state, county, municipal
and other governmental statutes, laws, rules, orders, regulations, ordinances,
judgments, decrees and injunctions affecting the Leased Property or the
maintenance, construction, alteration or operation thereof, whether now or
hereafter enacted or in existence, including, without limitation, (a) all
permits, licenses, authorizations, certificates of need, authorizations and
regulations necessary to operate any Property for its Permitted Use, and (b) all
covenants, agreements, restrictions and encumbrances contained in any
instruments at any time in force affecting any Property, including those which
may (i) require material repairs, modifications or alterations in or to any
Property or (ii) in any way materially and adversely affect the use and
enjoyment thereof, but excluding any requirements arising as a result of
Landlord's status as a real estate investment trust.
1.70 "LENDER" shall mean SNH ALT Mortgaged Properties Trust, a Maryland
real estate investment trust, and its successors and assigns as the lender with
respect to the Borrower Indebtedness.
1.71 "LIEN" shall mean any mortgage, security interest, pledge, collateral
assignment, or other encumbrance, lien or charge of any kind, or any transfer of
property or assets for the purpose of subjecting the same to the payment of
Indebtedness or performance of any other obligation in priority to payment of
its general creditors.
1.72 "LOAN AGREEMENT" shall mean the Loan Agreement, dated as of the date
hereof, between Borrower and Lender, as it may be amended, restated,
supplemented or otherwise modified from time to time as provided therein.
1.73 "LOAN DOCUMENTS" shall have the meaning given such term in the Loan
Agreement.
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1.74 "MANAGEMENT AGREEMENT" shall mean, with respect to any Property, any
operating or management agreement from time to time entered into by Tenant with
respect to such Property in accordance with the provisions of this Agreement,
together with all amendments, modifications and supplements thereto.
1.75 "MANAGER" shall mean, with respect to any Property, the operator or
manager under any Management Agreement from time to time in effect with respect
to such Property, and its permitted successors and assigns.
1.76 "MATERIAL INVESTMENT" as used in the definition of Conforming Plan,
shall mean an investment in the stock or debt of Alterra or any subsidiary of
Alterra, to the extent that such debt is guaranteed by Alterra in an amount
equal to at least Two Million Dollars ($2,000,000) on a cost basis.
1.77 "MINIMUM RENT" shall mean an amount equal to Five Hundred Eighty-Four
Thousand Five Hundred Eighty-Three Dollars and 34/100s Dollars ($584,583.34) per
calendar month.
1.78 "NET RESIDENT REVENUES" shall mean, with respect to any Property, for
each Fiscal Year during the Term, all revenues and receipts (determined on an
accrual basis and in all material respects in accordance with GAAP) of every
kind derived from renting, using and/or operating such Property and parts
thereof, including, but not limited to: all patient, client or resident rents
and revenues received or receivable for the use of or otherwise by reason of all
units, beds and other facilities provided, meals served, services performed,
space or facilities subleased or goods sold on such Property, or any portion
thereof, including, without limitation, any other arrangements with third
parties relating to the possession or use of any portion of such Property; and
proceeds, if any, from business interruption or other loss of income insurance;
provided, however, that Net Resident Revenues shall not include the following:
revenue from professional fees or charges by physicians and unaffiliated
providers of services, when and to the extent such charges are paid over to such
physicians and unaffiliated providers of services, or are separately billed and
not included in comprehensive fees; contractual allowances (relating to any
period during the Term) for xxxxxxxx not paid by or received from the
appropriate governmental agencies or third party providers; allowances according
to GAAP for uncollectible accounts, including credit card accounts and charity
care or other administrative discounts; all proper patient or resident billing
credits and adjustments according to GAAP relating to health care accounting;
provider discounts for hospital or other medical facility utilization contracts
and credit card discounts; any amounts actually paid by Tenant for the cost of
any federal, state or local governmental programs imposed specially to provide
or finance indigent patient or resident care; federal, state or municipal
excise, sales, use, occupancy or similar taxes collected directly from patients,
clients or residents or included as part of the sales price of any goods or
services; insurance proceeds (other than proceeds from
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business interruption or other loss of income insurance); Award proceeds (other
than for a temporary Condemnation); revenues attributable to services actually
provided off-site or otherwise away from such Property, such as home health
care, to persons that are not patients, clients or residents at such Property;
revenues attributable to child care services provided primarily to employees of
such Property; any proceeds from any sale of such Property or from the
refinancing of any debt encumbering such Property; proceeds from the disposition
of furnishings, fixture and equipment no longer necessary for the operation of
the Facility located thereon; any security deposits and other advance deposits,
until and unless the same are forfeited to Tenant or applied for the purpose for
which they were collected; and interest income from any bank account or
investment of Tenant. It is understood and agreed that Net Resident Revenues
shall be calculated separately for each Property and shall not be determined on
an aggregate basis for the Leased Property.
1.79 "NET WORTH" shall mean, at the time of determination, the excess of
total assets over total liabilities, total assets and total liabilities each to
be determined in accordance with GAAP.
1.80 "NOTICE" shall mean a notice given in accordance with Section 23.10.
1.81 "OFFICER'S CERTIFICATE" shall mean a certificate signed by an officer
or other duly authorized individual of the certifying Entity duly authorized by
the board of directors or other governing body of the certifying Entity.
1.82 "OVERDUE RATE" shall mean, on any date, a per annum rate of interest
equal to the lesser of fifteen percent (15%) and the maximum rate then permitted
under applicable law.
1.83 "PARENT" shall mean, with respect to any Person, any Person which
owns directly, or indirectly through one or more Subsidiaries or Affiliated
Persons, fifty percent (50%) or more of the voting or beneficial interest in, or
otherwise has the right or power (whether by contract, through ownership of
securities or otherwise) to control, such Person.
1.84 "PERMITTED CONTROL PERSON" shall mean any Exhibit C Person which,
immediately following confirmation of the Conforming Plan, has record ownership
of, or the right to vote, or the power to direct the vote of, at least five
percent (5%) of the voting power of the outstanding shares of voting stock of
Alterra, and any Person that controls, is controlled by, or is under common
control with, an Exhibit C Person (but only for so long as such Person continues
to control, be controlled by, or be under common control with, an Exhibit C
Person).
1.85 "PERMITTED ENCUMBRANCES" shall mean, with respect to any Property,
all rights, restrictions, and easements of record set forth on Schedule B to the
applicable owner's or leasehold title insurance
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policy issued to Landlord with respect to such Property, plus any other
encumbrances as may have been granted or caused by Landlord or otherwise
consented to in writing by Landlord from time to time.
1.86 "PERMITTED LIENS" shall mean any Liens granted in accordance with
Section 21.10(a) and any Liens which relate exclusively to the Excluded Assets.
1.87 "PERMITTED MERGER" shall mean any merger, consolidation or business
combination of any Guarantor (including, without limitation, a forward or
reverse triangular merger of a Subsidiary of such Guarantor) provided that
either (a) Landlord shall have consented to such merger, consolidation or
business reorganization in its sole and absolute discretion or (b) immediately
following such merger, consolidation or business combination: (i) the
consolidated Tangible Net Worth of such Guarantor (or, in the event of a
triangular merger of such Guarantor, the Parent of such Guarantor or the Parent
of such Guarantor's successor by merger, as applicable) shall equal or exceed
the greater of (A) Fifty Million Dollars ($50,000,000) or (B) such Guarantor's
(or, in the event of a triangular merger of such Guarantor, the Parent of such
Guarantor or the Parent of such Guarantor's successor by merger, as applicable)
consolidated Tangible Net Worth immediately prior to such merger, consolidation
or business combination and (ii) no Person, or group of two or more Persons
acting in concert (other than a Permitted Control Person or a group comprised
exclusively of Permitted Control Persons) shall acquire record ownership of, or
the right to vote, or the power to direct the vote of, in excess of fifty
percent (50%) of the voting power of the outstanding shares of the voting stock
of such Guarantor (excluding any Parent of any Guarantor that holds one hundred
percent (100%) of the voting stock of such Guarantor following such merger,
consolidation or business combination, and is an Acquiring Guarantor that
complies with the provisions of Section 21.12 hereof).
1.88 "PERMITTED USE" shall mean, with respect to any Property, any use of
such Property permitted pursuant to Section 4.1.1.
1.89 "PERSON" shall mean any individual or Entity, and the heirs,
executors, administrators, legal representatives, successors and assigns of such
Person (if permitted) where the context so admits or requires.
1.90 "PROPERTY" shall have the meaning given such term in Section 2.1.
1.91 "PROVIDER AGREEMENTS" shall mean all participation, provider and
reimbursement agreements or arrangements now or hereafter in effect for the
benefit of Tenant or any Manager in connection with the operation of any
Facility relating to any right of payment or other claim arising out of or in
connection with Tenant's participation in any Third Party Payor Program.
1.92 "PURCHASE AGREEMENT" shall mean the Purchase and Sale Agreement,
dated as of the date hereof, by and among ALS-Venture II, Inc., Wynwood of
Chapel Hill, LLC and Senior Housing Properties Trust with respect to the
purchase of the Properties.
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1.93 "RECORDS" shall have the meaning given such term in Section 7.2.
1.94 "REGULATED MEDICAL WASTES" shall mean all materials generated by
Tenant, any Affiliated Person as to Tenant, subtenants, patients, occupants or
the operators of the Leased Property which are now or may hereafter be subject
to regulation pursuant to the Material Waste Tracking Act of 1988, or any
Applicable Laws promulgated by any Government Agencies.
1.95 "RENT" shall mean, collectively, the Minimum Rent, Additional Rent
and Additional Charges.
1.96 "REQUIRED SUBLEASE" shall have the meaning given such term in Section
16.3.
1.97 "SEC" shall mean the Securities and Exchange Commission.
1.98 "SNDA" shall have the meaning set forth in Section 20.2.
1.99 "SECURED MERGER" shall mean any merger, consolidation or business
combination of any Guarantor (including, without limitation, a forward or
reverse triangular merger of a Subsidiary of such Guarantor) that would be a
Permitted Merger but for the failure to satisfy the Tangible Net Worth
requirement set forth in clause (b)(i)(B) of the Permitted Merger definition in
Section 1.87 (i.e., such Guarantor or Parent of such Guarantor, as applicable,
has consolidated Tangible Net Worth in excess of $50,000,000, but such
consolidated Tangible Net Worth immediately following such merger, consolidation
or business combination does not equal or exceed such Guarantor's or Parent's
(as applicable) consolidated Tangible Net Worth immediately prior to such
merger, consolidation or business combination), provided that prior to, or
simultaneously with, and as a condition of, such merger, consolidation or
business combination, Tenant or any Guarantor shall have deposited with Landlord
a security deposit in an amount equal to the annual Minimum Rent due and payable
for the preceding twelve (12) month period under this Agreement (or, if at the
time of such merger, consolidation or business combination this Agreement was in
effect for less than twelve (12) months, an amount equal to the product of (x)
the Minimum Rent times (y) twelve(12)), such security deposit to be held and
applied by Landlord subject to and upon the terms and conditions hereof.
1.100 "SECURITY AGREEMENT" shall mean the Security Agreement, dated as of
the date hereof, made by Tenant for the benefit of Landlord, as it may be
amended, restated, supplemented or otherwise modified from time to time as
provided therein.
1.101 "SECURITY DEPOSIT" shall mean any security deposit required to be
deposited with Landlord in connection with a Secured Merger.
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1.102 "STATE" shall mean, with respect to any Property, the state,
commonwealth or district in which such Property is located.
1.103 "STOCK PLEDGE" shall mean the Stock Pledge Agreement, dated as of
the date hereof, made by Alterra in favor of Landlord with respect to the stock
of Tenant, as it may be amended, restated, supplemented or otherwise modified
from time to time as provided therein.
1.104 "SUBSIDIARY" shall mean, with respect to any Person, any Entity (a)
in which such Person owns directly, or indirectly through one or more
Subsidiaries, [fifty percent (50%)] or more of the voting or beneficial interest
or (b) which such Person otherwise has the right or power to control (whether by
contract, through ownership of securities or otherwise).
1.105 "SUCCESSOR LANDLORD" shall have the meaning given such term in
Section 20.2.
1.106 "TANGIBLE NET WORTH" shall mean, at the time of determination, the
excess of total assets over total liabilities, total assets and total
liabilities each to be determined in accordance with GAAP, excluding, however,
from the determination of total assets: (a) goodwill, organizational expenses,
research and development expenses, trademarks, trade names, copyrights, patents,
patent applications, licenses and rights in any thereof, and other similar
intangibles; (b) all deferred charges or unamortized debt discount and expense;
(c) all reserves carried and not deducted from assets; (d) treasury stock and
capital stock, obligations or other securities of, or capital contributions to,
or investments in, any Subsidiary; (e) securities which are not readily
marketable; (f) any write-up in the book value of any asset resulting from a
revaluation thereof subsequent to the Commencement Date; (g) deferred gain; and
(h) any items not included in clauses (a) through (g) above that are treated as
intangibles in conformity with GAAP.
1.107 "TENANT" shall have the meaning given such term in the preambles to
this Agreement and shall also include its permitted successors and assigns.
1.108 "TENANT'S PERSONAL PROPERTY" shall mean all of the following: (i)
consumable inventory and supplies; (ii) equipment subject to Permitted Liens;
(iii) furniture, furnishings, equipment, movable walls and partitions, machinery
and all other tangible personal property of Tenant, if any, acquired by Tenant
on and after the date hereof and located at the Leased Property or used in
Tenant's business at the Leased Property; and (iv) all modifications,
replacements, alterations and additions to such personal property installed at
the expense of Tenant, expressly excluding, however, any items included within
the definition of Excluded Assets, Fixtures and Leased Personal Property.
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1.109 "TERM" shall mean, collectively, the Fixed Term and the Extended
Terms, to the extent properly exercised pursuant to the provisions of Section
2.4, unless sooner terminated pursuant to the provisions of this Agreement.
1.110 "THIRD PARTY PAYOR PROGRAMS" shall mean all third party payor
programs in which Tenant presently or in the future may in its sole discretion
elect to participate, including, without limitation, Medicare, Medicaid,
CHAMPUS, Blue Cross and/or Blue Shield, Managed Care Plans, other private
insurance programs and employee assistance programs.
1.111 "THIRD PARTY PAYORS" shall mean Medicare, Medicaid, CHAMPUS, Blue
Cross and/or Blue Shield, private insurers and any other Person which presently
or in the future maintains Third Party Payor Programs.
1.112 "UNSUITABLE FOR ITS PERMITTED USE" shall mean, with respect to any
Facility, a state or condition of such Facility such that (a) following any
damage or destruction involving a Facility, (i) such Facility cannot be operated
on a commercially practicable basis for its Permitted Use and it cannot
reasonably be expected to be restored to substantially the same condition as
existed immediately before such damage or destruction, and as otherwise required
by Section 10.2.4, within twelve (12) months following such damage or
destruction or such longer period of time as to which business interruption
insurance is available to cover Rent and other costs related to the applicable
Property following such damage or destruction, (ii) the damage or destruction,
if uninsured, exceeds $1,000,000 or (iii) the cost of such restoration exceeds
ten percent (10%) of the fair market value of such Property immediately prior to
such damage or destruction, or (b) as the result of a partial taking by
Condemnation, such Facility cannot be operated, in the good faith judgment of
Tenant, on a commercially practicable basis for its Permitted Use.
1.113 "WORK" shall have the meaning given such term in Section 10.2.4.
ARTICLE 2
LEASED PROPERTY AND TERM
2.1 LEASED PROPERTY. Upon and subject to the terms and conditions
hereinafter set forth, Landlord leases to Tenant and Tenant leases from Landlord
all of Landlord's right, title and interest in and to all of the following (each
of items (a) through (g) below which, as of the Commencement Date, relates to
any single Facility, a "Property" and, collectively, the "Leased Property"):
(a) those certain tracts, pieces and parcels of land, as more
particularly described in Exhibits A-1 through X-00 (xxx "Xxxx");
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(x) all buildings, structures and other improvements of every kind
including, but not limited to, alleyways and connecting tunnels,
sidewalks, utility pipes, conduits and lines (on-site and off-site),
parking areas and roadways appurtenant to such buildings and structures
presently situated upon the Land (collectively, the "Leased
Improvements");
(c) all easements, rights and appurtenances relating to the Land and
the Leased Improvements;
(d) all equipment, machinery, fixtures, and other items of property,
now or hereafter permanently affixed to or incorporated into the Leased
Improvements, including, without limitation, all furnaces, boilers,
heaters, electrical equipment, heating, plumbing, lighting, ventilating,
refrigerating, incineration, air and water pollution control, waste
disposal, air-cooling and air-conditioning systems and apparatus,
sprinkler systems and fire and theft protection equipment, all of which,
to the maximum extent permitted by law, are hereby deemed by the parties
hereto to constitute real estate, together with all replacements,
modifications, alterations and additions thereto, but specifically
excluding all items included within the category of Tenant's Personal
Property (collectively, the "Fixtures");
(e) all machinery, equipment, furniture, furnishings, moveable walls
or partitions, computers or trade fixtures or other personal property of
any kind or description used or useful in Tenant's business on or in the
Leased Improvements, and located on or in the Leased Improvements, and all
modifications, replacements, alterations and additions to such personal
property, except items, if any, included within the category of Fixtures,
but specifically excluding all items included within the category of
Tenant's Personal Property (collectively, the "Leased Personal Property");
(f) all of the Leased Intangible Property; and
(g) any and all leases of space in the Leased Improvements.
The Leased Property does not include the Excluded Assets.
2.2 CONDITION OF LEASED PROPERTY. Tenant acknowledges receipt and delivery
of possession of the Leased Property and Tenant accepts the Leased Property in
its "as is" condition, subject to the rights of parties in possession, the
existing state of title, including all covenants, conditions, restrictions,
reservations, mineral leases, easements and other matters of record or that are
visible or apparent on the Leased Property, all applicable Legal Requirements,
the lien of any financing instruments, mortgages and deeds of trust existing
prior to the Commencement Date or permitted by the terms of this Agreement, and
such other matters which would be disclosed by an inspection of the Leased
Property and the record title thereto or by an accurate
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survey thereof. TENANT REPRESENTS THAT IT HAS INSPECTED THE LEASED PROPERTY AND
ALL OF THE FOREGOING AND HAS FOUND THE CONDITION THEREOF SATISFACTORY AND IS NOT
RELYING ON ANY REPRESENTATION OR WARRANTY OF LANDLORD OR LANDLORD'S AGENTS OR
EMPLOYEES WITH RESPECT THERETO AND TENANT WAIVES ANY CLAIM OR ACTION AGAINST
LANDLORD IN RESPECT OF THE CONDITION OF THE LEASED PROPERTY. LANDLORD MAKES NO
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, IN RESPECT OF THE LEASED
PROPERTY OR ANY PART THEREOF, EITHER AS TO ITS FITNESS FOR USE, DESIGN OR
CONDITION FOR ANY PARTICULAR USE OR PURPOSE OR OTHERWISE, AS TO THE QUALITY OF
THE MATERIAL OR WORKMANSHIP THEREIN, LATENT OR PATENT, IT BEING AGREED THAT ALL
SUCH RISKS ARE TO BE BORNE BY TENANT. To the maximum extent permitted by law,
however, Landlord hereby assigns to Tenant all of Landlord's rights to proceed
against any predecessor in interest or insurer for breaches of warranties or
representations or for latent defects in the Leased Property. Landlord shall
fully cooperate with Tenant in the prosecution of any such claims, in Landlord's
or Tenant's name, all at Tenant's sole cost and expense. Tenant shall indemnify,
defend, and hold harmless Landlord from and against any loss, cost, damage or
liability (including reasonable attorneys' fees) incurred by Landlord in
connection with such cooperation.
2.3 FIXED TERM. The initial term of this Agreement (the "Fixed Term")
shall commence on the Commencement Date and shall expire on December 31, 2017.
2.4 EXTENDED TERMS. Provided that no Event of Default shall have occurred
and be continuing, Tenant shall have the right to extend the Term for two (2)
consecutive renewal terms of fifteen (15) years each (collectively, the
"Extended Terms").
Each Extended Term shall commence on the day succeeding the expiration of
the Fixed Term or the preceding Extended Term, as the case may be. All of the
terms, covenants and provisions of this Agreement shall apply to each such
Extended Term, except that Tenant shall have no right to extend the Term beyond
the expiration of the Extended Terms. If Tenant shall elect to exercise the
aforesaid options, it shall do so by giving Landlord Notice thereof not later
than twelve (12) months prior to the scheduled expiration of the then current
Term, it being understood and agreed that time shall be of the essence with
respect to the giving of such Notice. If Tenant shall fail to give such Notice,
this Agreement shall automatically terminate at the end of the Fixed Term or the
preceding Extended Term, as the case may be, and Tenant shall have no further
option to extend the Term of this Agreement. If Tenant shall give such Notice,
the extension of this Agreement shall be automatically effected without the
execution of any additional documents; it being understood and agreed, however,
that Tenant and Landlord shall execute such documents and agreements as either
party shall reasonably require to evidence the same. Notwithstanding the
provisions of the foregoing sentence, if, subsequent to the giving of such
Notice, an Event of Default shall occur, at Landlord's option, the extension of
this Agreement shall cease to take effect and this Agreement shall automatically
terminate
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at the end of the Fixed Term or the preceding Extended Term, as the case may be,
and Tenant shall have no further option to extend the Term of this Agreement.
ARTICLE 3
RENT
3.1 RENT. Tenant shall pay, in lawful money of the United States of
America which shall be legal tender for the payment of public and private debts,
without offset, abatement, demand or deduction (unless otherwise expressly
provided in this Agreement), Minimum Rent and Additional Rent to Landlord and
Additional Charges to the party to whom such Additional Charges are payable,
during the Term. All payments to Landlord shall be made by wire transfer of
immediately available federal funds or by other means acceptable to Landlord in
its sole discretion. Rent for any partial Accounting Period shall be prorated on
a per diem basis.
3.1.1 MINIMUM RENT.
(a) PAYMENTS. Minimum Rent shall be paid monthly in advance on or
before the first Business Day of each calendar month.
(b) ADJUSTMENTS OF MINIMUM RENT FOLLOWING DISBURSEMENTS UNDER
SECTIONS 5.1.2(b), 10.2.3 AND 11.2. Effective on the date of each
disbursement to pay for the cost of any repairs, maintenance, renovations
or replacements pursuant to Sections 5.1.2(b), 10.2.3 or 11.2, the annual
Minimum Rent shall be increased by a per annum amount equal to the
Disbursement Rate times the amount so disbursed. If any such disbursement
is made during any month on a day other than the first Business Day of an
Accounting Period, Tenant shall pay to Landlord on the first Business Day
of the immediately following Accounting Period (in addition to the amount
of Minimum Rent payable with respect to such Accounting Period, as
adjusted pursuant to this paragraph (b)) the amount by which Minimum Rent
for the preceding Accounting Period, as adjusted for such disbursement on
a per diem basis, exceeded the amount of Minimum Rent paid by Tenant for
such preceding Accounting Period.
(c) ADJUSTMENTS OF MINIMUM RENT FOLLOWING PARTIAL LEASE TERMINATION.
If this Agreement shall terminate with respect to any Property but less
than all of the Leased Property, Minimum Rent shall be reduced by the
affected Property's allocable share of Minimum Rent as reasonably
determined by Landlord and Tenant.
3.1.2 ADDITIONAL RENT.
(a) AMOUNT. Tenant shall pay additional rent ("Additional Rent")
with respect to each Lease Year during the Term subsequent to the Base
Year, with respect to each Property, in an amount,
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not less than zero, equal to ten percent (10%) of Excess Net Resident
Revenues with respect to such Property. During the first Lease Year
following the Base Year, Tenant shall reasonably estimate the amount of
Additional Rent. For each Lease Year thereafter, monthly payments of
Additional Rent for each Property shall be calculated by Tenant using Net
Resident Revenues for such month during the preceding Lease Year.
Additional Rent shall be due and payable and delivered to Landlord as
provided in Section 3.1.2(b) and shall be reconciled on an annual basis as
provided in Section 3.1.2(c).
(b) ACCOUNTING PERIOD INSTALLMENTS. Installments of Additional Rent
for each Lease Year during the Term, or portion thereof, shall be
calculated and paid monthly in arrears, together with an Officer's
Certificate setting forth the calculation of Additional Rent due and
payable for such month.
(c) RECONCILIATION OF ADDITIONAL RENT. In addition, within ninety
(90) days after the end of the Base Year and each Lease Year thereafter
(or any portion thereof occurring during the Term), Tenant shall deliver,
or cause to be delivered, to Landlord (i) a financial report setting forth
the Net Resident Revenues for each Property for such preceding Lease Year,
or portion thereof, together with an Officer's Certificate from Tenant's
chief financial or accounting officer certifying that such report is true
and correct and (ii) for all Lease Years other than the Base Year, a
statement showing Tenant's calculation of Additional Rent due for such
preceding Lease Year based on the Net Resident Revenues set forth in such
financial report, together with an Officer's Certificate from Tenant's
chief financial or accounting officer certifying that such statement is
true and correct.
If the annual Additional Rent for such preceding Lease Year as set
forth in Tenant's statement thereof exceeds the amount previously paid
with respect thereto by Tenant, Tenant shall pay such excess to Landlord
at such time as the statement is delivered, together with interest at the
Interest Rate, which interest shall accrue from the close of such
preceding Lease Year until the date that such statement is required to be
delivered and, thereafter, such interest shall accrue at the Overdue Rate,
until the amount of such difference shall be paid or otherwise discharged.
If the annual Additional Rent for such preceding Lease Year as shown in
such statement is less than the amount previously paid with respect
thereto by Tenant, provided that no Event of Default shall have occurred
and be continuing, Landlord shall grant Tenant a credit against the
Additional Rent next coming due in the amount of such difference, together
with interest at the Interest Rate, which interest shall accrue from the
date of payment by Tenant until the date such credit is applied or paid,
as the case may be. If such credit cannot be made because the Term has
expired prior to application in full thereof, provided no Event of Default
has occurred and is
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continuing, Landlord shall pay the unapplied balance of such credit to
Tenant, together with interest at the Interest Rate, which interest shall
accrue from the date of payment by Tenant until the date of payment by
Landlord.
(d) CONFIRMATION OF ADDITIONAL RENT. Tenant shall utilize, or cause
to be utilized, an accounting system for the Leased Property in accordance
with its usual and customary practices and in accordance with GAAP, which
will accurately record all Net Resident Revenues and Tenant shall retain,
for at least three (3) years after the expiration of each Lease Year,
reasonably adequate records conforming to such accounting system showing
all Net Resident Revenues for such Lease Year. Landlord, except as
provided hereinbelow, shall have the right, exercisable by Notice to
Tenant, by its accountants or representatives, to audit the information
set forth in the Officer's Certificate referred to in subparagraph (c)
above and, in connection with such audits, to examine Tenant's books and
records with respect thereto (including supporting data and sales and
excise tax returns). If any such audit discloses a deficiency in the
payment of Additional Rent and, either Tenant agrees with the result of
such audit or the matter is otherwise compromised with Landlord, Tenant
shall forthwith pay to Landlord the amount of the deficiency, as finally
agreed or determined, together with interest at the Interest Rate, from
the date such payment should have been made to the date of payment
thereof. If any such audit discloses that Tenant paid more Additional Rent
for any Lease Year than was due hereunder, and either Landlord agrees with
the result of such audit or the matter is otherwise determined, provided
no Event of Default has occurred and is continuing, Landlord shall grant
Tenant a credit against the Additional Rent next coming due in the amount
of such difference, as finally agreed or determined, together with
interest at the Interest Rate, which interest shall accrue from the time
of payment by Tenant until the date such credit is applied or paid, as the
case may be. If such credit cannot be made because the Term has expired
prior to application in full thereof, provided no Event of Default has
occurred and is continuing, Landlord shall pay the unapplied balance of
such credit to Tenant, together with interest at the Interest Rate, which
interest shall accrue from the date of payment by Tenant until the date of
payment from Landlord. Any dispute concerning the correctness of an audit
shall be settled by arbitration pursuant to the provisions of Article 22.
Landlord shall pay for the cost of any such audit; provided, however, in
the event that such audit reveals a deficiency in the payment of
Additional Rent by Tenant of an aggregate of three percent (3%) or more,
then Tenant shall reimburse Landlord for the actual costs of such audit.
Any proprietary information obtained by Landlord with respect to Tenant
pursuant to the provisions of this Agreement shall be treated as confidential,
except that such information may be used, subject to appropriate confidentiality
safeguards, in any litigation between the
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parties and except further that Landlord may disclose such information to its
prospective lenders, provided that Landlord shall direct such lenders to
maintain such information as confidential. The obligations of Tenant and
Landlord contained in this Section 3.1.2 shall survive the expiration or earlier
termination of this Agreement.
3.1.3 ANNUAL RENT LIMITATION AMOUNT. Notwithstanding anything to the
contrary contained in this Agreement, in no event shall the aggregate amount of
Minimum Rent and Additional Rent payable in any calendar year during the Term
hereof exceed an amount equal to the Annual Rent Limitation Amount.
3.1.4 ADDITIONAL CHARGES. In addition to the Minimum Rent and Additional
Rent payable hereunder, Tenant shall pay (or cause to be paid) to the
appropriate parties and discharge (or cause to be discharged) as and when due
and payable the following (collectively, "Additional Charges"):
(a) IMPOSITIONS. Subject to Article 8 relating to permitted
contests, Tenant shall pay, or cause to be paid, all Impositions before
any fine, penalty, interest or cost (other than any opportunity cost as a
result of a failure to take advantage of any discount for early payment)
may be added for non-payment, such payments to be made directly to the
taxing authorities where feasible, and shall promptly, upon request,
furnish to Landlord copies of official receipts or other reasonably
satisfactory proof evidencing such payments. If any such Imposition may,
at the option of the taxpayer, lawfully be paid in installments (whether
or not interest shall accrue on the unpaid balance of such Imposition),
Tenant may exercise the option to pay the same (and any accrued interest
on the unpaid balance of such Imposition) in installments and, in such
event, shall pay, or cause to pay, such installments during the Term as
the same become due and before any fine, penalty, premium, further
interest or cost may be added thereto. Landlord, at its expense, shall, to
the extent required or permitted by Applicable Law, prepare and file, or
cause to be prepared and filed, all tax returns and pay all taxes due in
respect of Landlord's net income, gross receipts, sales and use, single
business, transaction privilege, rent, ad valorem, franchise taxes and
taxes on its capital stock, and Tenant, at its expense, shall, to the
extent required or permitted by Applicable Laws and regulations, prepare
and file all other tax returns and reports in respect of any Imposition as
may be required by Government Agencies. Provided no Event of Default shall
have occurred and be continuing, if any refund shall be due from any
taxing authority in respect of any Imposition paid by or on behalf of
Tenant, the same shall be paid over to or retained by Tenant. Landlord and
Tenant shall, upon request of the other, provide such data as is
maintained by the party to whom the request is made with respect to the
Leased Property as may be necessary to prepare any required returns and
reports. In the event Government Agencies classify any property covered by
this
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Agreement as personal property, Tenant shall file, or cause to be filed,
all personal property tax returns in such jurisdictions where it may
legally so file. Each party shall, to the extent it possesses the same,
provide the other, upon request, with cost and depreciation records
necessary for filing returns for any property so classified as personal
property. Where Landlord is legally required to file personal property tax
returns for property covered by this Agreement, Landlord shall provide
Tenant with copies of assessment notices in sufficient time for Tenant to
file a protest. All Impositions assessed against such personal property
shall be (irrespective of whether Landlord or Tenant shall file the
relevant return) paid by Tenant not later than the last date on which the
same may be made without interest or penalty, subject to the provisions of
Article 8.
Landlord shall give prompt Notice to Tenant of all Impositions
payable by Tenant hereunder of which Landlord at any time has knowledge;
provided, however, that Landlord's failure to give any such Notice shall
in no way diminish Tenant's obligation hereunder to pay such Impositions.
(b) UTILITY CHARGES. Tenant shall pay or cause to be paid all
charges for electricity, power, gas, oil, water and other utilities used
in connection with the Leased Property.
(c) INSURANCE PREMIUMS. Tenant shall pay or cause to be paid all
premiums for the insurance coverage required to be maintained pursuant to
Article 9.
(d) OTHER CHARGES. Tenant shall pay or cause to be paid all other
amounts, liabilities and obligations, including, without limitation,
ground rents (other than those ground rents arising from any ground leases
placed on the Leased Property or any portion thereof by Landlord), if any,
and all amounts payable under any equipment leases and all agreements to
indemnify Landlord under Sections 4.4.2 and 9.5.
(e) REIMBURSEMENT FOR ADDITIONAL CHARGES. If Tenant pays or causes
to be paid property taxes or similar or other Additional Charges
attributable to periods after the end of the Term, whether upon expiration
or sooner termination of this Agreement (other than termination by reason
of an Event of Default), Tenant may, within a reasonable time after the
end of the Term, provide Notice to Landlord of its estimate of such
amounts. Landlord shall promptly reimburse Tenant for all payments of such
taxes and other similar Additional Charges that are attributable to any
period after the Term of this Agreement.
3.2 LATE PAYMENT OF RENT, ETC. If any installment of Minimum Rent,
Additional Rent or Additional Charges (but only as to those Additional Charges
which are payable directly to Landlord) shall not be paid within ten (10) days
after its due date, Tenant shall pay Landlord, on demand, as Additional Charges,
a late charge (to the
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extent permitted by law) computed at the Overdue Rate on the amount of such
installment, from the due date of such installment to the date of payment
thereof. To the extent that Tenant pays any Additional Charges directly to
Landlord or any Facility Mortgagee pursuant to any requirement of this
Agreement, Tenant shall be relieved of its obligation to pay such Additional
Charges to the Entity to which they would otherwise be due. If any payments due
from Landlord to Tenant shall not be paid within ten (10) days after its due
date, Landlord shall pay to Tenant, on demand, a late charge (to the extent
permitted by law) computed at the Overdue Rate on the amount of such installment
from the due date of such installment to the date of payment thereof.
In the event of any failure by Tenant to pay any Additional Charges when
due, Tenant shall promptly pay and discharge, as Additional Charges, every fine,
penalty, interest and cost which is added for non-payment or late payment of
such items. Landlord shall have all legal, equitable and contractual rights,
powers and remedies provided either in this Agreement or by statute or otherwise
in the case of non-payment of the Additional Charges as in the case of
non-payment of the Minimum Rent and Additional Rent.
3.3 NET LEASE. The Rent shall be absolutely net to Landlord so that this
Agreement shall yield to Landlord the full amount of the installments or amounts
of the Rent throughout the Term, subject to any other provisions of this
Agreement which expressly provide otherwise, including those provisions for
adjustment or abatement of such Rent.
3.4 NO TERMINATION, ABATEMENT, ETC. Except as otherwise specifically
provided in this Agreement, each of Landlord and Tenant, to the maximum extent
permitted by law, shall remain bound by this Agreement in accordance with its
terms and shall not take any action without the consent of the other to modify,
surrender or terminate this Agreement. In addition, except as otherwise
expressly provided in this Agreement, Tenant shall not seek, or be entitled to,
any abatement, deduction, deferment or reduction of the Rent, or set-off against
the Rent, nor shall the respective obligations of Landlord and Tenant be
otherwise affected by reason of (a) any damage to or destruction of the Leased
Property or any portion thereof from whatever cause or any Condemnation, (b) the
lawful or unlawful prohibition of, or restriction upon, Tenant's use of the
Leased Property, or any portion thereof, or the interference with such use by
any Person or by reason of eviction by paramount title; (c) any claim which
Tenant may have against Landlord by reason of any default (other than a monetary
default) or breach of any warranty by Landlord under this Agreement or any other
agreement between Landlord and Tenant, or to which Landlord and Tenant are
parties; (d) any bankruptcy, insolvency, reorganization, composition,
readjustment, liquidation, dissolution, winding up or other proceedings
affecting Landlord or any assignee or transferee of Landlord; or (e) for any
other cause whether similar or dissimilar to any of the foregoing (other than a
monetary default by Landlord). Except as otherwise specifically provided in this
Agreement, Tenant hereby waives all rights arising from any
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occurrence whatsoever, which may now or hereafter be conferred upon it by law
(i) to modify, surrender or terminate this Agreement or quit or surrender the
Leased Property or any portion thereof, or (ii) which would entitle Tenant to
any abatement, reduction, suspension or deferment of the Rent or other sums
payable or other obligations to be performed by Tenant hereunder. The
obligations of Tenant hereunder shall be separate and independent covenants and
agreements, and the Rent and all other sums payable by Tenant hereunder shall
continue to be payable in all events unless the obligations to pay the same
shall be terminated pursuant to the express provisions of this Agreement.
3.5 SECURITY DEPOSIT. The Security Deposit (if any) shall be held by
Landlord as security for the faithful performance by Tenant of all the terms,
covenants and conditions of this Agreement to be observed and performed by
Tenant. The Security Deposit shall not be mortgaged, assigned, transferred or
otherwise encumbered by Tenant, any Guarantor or any of their respective
Affiliated Persons without the prior written consent of Landlord and any such
act on the part of Tenant or any such Guarantor or Affiliated Person without
first having obtained Landlord's consent shall be without force and effect and
shall not be binding upon Landlord.
If any Default or Event of Default shall occur and be continuing, Landlord
may, at its option and without prejudice to any other remedy which Landlord may
have on account thereof, appropriate and apply the entire Security Deposit or so
much thereof as may be necessary to compensate Landlord toward the payment of
the Rent or other sums or loss or damage sustained by Landlord due to such
breach by Tenant and Tenant shall, upon demand, restore the Security Deposit to
the original sum deposited. It is understood and agreed that the Security
Deposit is not to be considered as prepaid rent, nor shall damages be limited to
the amount of the Security Deposit. Landlord shall have no obligation to pay
interest on the Security Deposit and shall have the right to commingle the same
with Landlord's other funds. Should Tenant comply with all the terms, covenants
and conditions of this Agreement, the Security Deposit shall be returned in full
to Tenant at the end of the Term. If Landlord conveys Landlord's interest under
this Agreement, the Security Deposit, or any part thereof not previously
applied, shall be turned over by Landlord to Landlord's grantee, and Tenant
shall look solely to such grantee for proper application of the Security Deposit
in accordance with the terms of this Section 3.5 and the return thereof in
accordance herewith. Landlord agrees that it shall not pledge the Security
Deposit to any Facility Mortgagee. No Facility Mortgagee shall be responsible to
Tenant for the return or application of the Security Deposit, whether or not it
succeeds to the position of Landlord hereunder.
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ARTICLE 4
USE OF THE LEASED PROPERTY
4.1 PERMITTED USE.
4.1.1 PERMITTED USE. Tenant shall, at all times during the Term, and
at any other time that Tenant shall be in possession of the Leased Property,
continuously use and operate, or cause to be used and operated, each Property as
an assisted living/special care facility and any uses incidental thereto. Tenant
shall not use (and shall not permit any Person to use) any Property or any
portion thereof for any other use without the prior written consent of Landlord,
which approval shall not be unreasonably withheld, delayed or conditioned. No
use shall be made or permitted to be made of any Property and no acts shall be
done thereon which will cause the cancellation of any insurance policy covering
such Property or any part thereof (unless another adequate policy is available)
or which would constitute a default under any ground lease affecting such
Property (other than a ground lease placed on such Property by Landlord), nor
shall Tenant sell or otherwise provide to residents or patients therein, or
permit to be kept, used or sold in or about any Property any article which may
be prohibited by law or by the standard form of fire insurance policies, or any
other insurance policies required to be carried hereunder, or fire underwriter's
regulations. Tenant shall, at its sole cost (except as expressly provided in
Section 5.1.2(b)), comply or cause to be complied with all Insurance
Requirements. Tenant shall not take or omit to take, or permit to be taken or
omitted to be taken, any action, the taking or omission of which materially
impairs the value or the usefulness of any Property or any part thereof for its
Permitted Use.
4.1.2 NECESSARY APPROVALS. Tenant shall proceed with all due
diligence and exercise reasonable efforts to obtain and maintain, or cause to be
obtained and maintained, all approvals necessary to use and operate, for its
Permitted Use, each Property and the Facility located thereon under applicable
law and, without limiting the foregoing, shall exercise reasonable efforts to
maintain (or cause to be maintained) appropriate certifications for
reimbursement and licensure.
4.1.3 LAWFUL USE, ETC. Tenant shall not, and shall not permit any
Person to use or suffer or permit the use of any Property or Tenant's Personal
Property, if any, for any unlawful purpose. Tenant shall not, and shall not
permit any Person to, commit or suffer to be committed any waste on any
Property, or in any Facility, nor shall Tenant cause or permit any unlawful
nuisance thereon or therein. Tenant shall not, and shall not permit any Person
to, suffer nor permit any Property, or any portion thereof, to be used in such a
manner as (a) may materially and adversely impair Landlord's title thereto or to
any portion thereof or (b) may reasonably allow a claim or claims for adverse
usage or adverse possession by the public, as
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such, or of implied dedication of such Property or any portion thereof.
4.2 COMPLIANCE WITH LEGAL/INSURANCE REQUIREMENTS, ETC. Subject to the
provisions of Section 5.1.2(b) and Article 8, Tenant, at its sole expense, shall
(a) comply with (or cause to be complied with) all material Legal Requirements
and Insurance Requirements in respect of the use, operation, maintenance,
repair, alteration and restoration of the Leased Property and with the terms and
conditions of any ground lease affecting any Property (other than a ground
leases placed on the Property by Landlord), (b) perform (or cause to be
performed) all of Landlord's obligations under any ground lease affecting any
Property (other than a ground leases placed on the Property by Landlord) and (c)
procure, maintain and comply with (or cause to be procured, maintained and
complied with) all material licenses, certificates of need, permits, provider
agreements (if Tenant, in Tenant's sole discretion, elects to participate in
such provider agreements) and other authorizations and agreements required for
any use of the Leased Property and Tenant's Personal Property, if any, then
being made, and for the proper erection, installation, operation and maintenance
of the Leased Property or any part thereof.
4.3 COMPLIANCE WITH MEDICAID AND MEDICARE REQUIREMENTS. Tenant, at its
sole cost and expense, shall make (or shall cause to be made), whatever
improvements (capital or ordinary) as are required to conform the Leased
Property to such standards as may, from time to time, be required by Federal
Medicare (Title 18) or Medicaid (Title 19) for skilled and/or intermediate care
nursing programs, to the extent Tenant, in Tenant's sole discretion, elects to
participate in such programs, or any other applicable programs or legislation,
or capital improvements required by any other governmental agency having
jurisdiction over the Leased Property as a condition of the continued operation
of each Property for its Primary Intended Use.
4.4 ENVIRONMENTAL MATTERS.
4.4.1 RESTRICTION ON USE, ETC. During the Term and any other time
that Tenant shall be in possession of any Property, Tenant shall not, and shall
not permit any Person to, store, spill upon, dispose of or transfer to or from
such Property any Hazardous Substance, except in compliance with all Applicable
Laws. During the Term and any other time that Tenant shall be in possession of
any Property, Tenant shall maintain (or shall cause to be maintained) such
Property at all times free of any Hazardous Substance (except in compliance with
all Applicable Laws). Tenant shall promptly: (a) upon receipt of notice or
knowledge, notify Landlord in writing of any material change in the nature or
extent of Hazardous Substances at any Property, (b) transmit to Landlord a copy
of any report which is required to be filed by Tenant or any Manager with
respect to any Property pursuant to XXXX Title III or any other Applicable Law,
(c) transmit to Landlord copies of any citations, orders, notices or other
governmental communications received by Tenant or any Manager or their
respective agents or representatives with respect thereto
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(collectively, "Environmental Notice"), which Environmental Notice requires a
written response or any action to be taken and/or if such Environmental Notice
gives notice of and/or presents a material risk of any material violation of any
Applicable Law and/or presents a material risk of any material cost, expense,
loss or damage (an "Environmental Obligation"), (d) observe and comply with (and
cause to be observed and complied with) all Applicable Laws relating to the use,
maintenance and disposal of Hazardous Substances and all orders or directives
from any official, court or agency of competent jurisdiction relating to the use
or maintenance or requiring the removal, treatment, containment or other
disposition thereof, and (e) pay or otherwise dispose (or cause to be paid or
otherwise disposed) of any fine, charge or Imposition related thereto, unless
Tenant or any Manager shall contest the same in good faith and by appropriate
proceedings and the right to use and the value of any of the Leased Property is
not materially and adversely affected thereby.
If, at any time prior to the termination of this Agreement, Hazardous
Substances (other than those maintained in accordance with Applicable Laws) are
discovered on any Property, subject to Tenant's right to contest the same in
accordance with Article 8, Tenant shall take (and shall cause to be taken) all
actions and incur any and all expenses, as are required by any Government Agency
and by Applicable Law, (i) to clean up and remove from and about such Property
all Hazardous Substances thereon, (ii) to contain and prevent any further
release or threat of release of Hazardous Substances on or about such Property
and (iii) to use good faith efforts to eliminate any further release or threat
of release of Hazardous Substances on or about such Property.
4.4.2 INDEMNIFICATION OF LANDLORD. Tenant shall protect, indemnify
and hold harmless Landlord and each Facility Mortgagee, their trustees,
officers, agents, employees and beneficiaries, and any of their respective
successors or assigns with respect to this Agreement (collectively, the
"Indemnitees" and, individually, an "Indemnitee") for, from and against any and
all debts, liens, claims, causes of action, administrative orders or notices,
costs, fines, penalties or expenses (including, without limitation, reasonable
attorney's fees and expenses) imposed upon, incurred by or asserted against any
Indemnitee resulting from, either directly or indirectly, the presence in, upon
or under the soil or ground water of any Property or any properties surrounding
such Property of any Hazardous Substances in violation of any Applicable Law,
except to the extent the same arise from the acts or omissions of Landlord or
any other Indemnitee or during any period that Landlord or a Person designated
by Landlord (other than Tenant or any Affiliated Person as to Tenant) is in
possession of such Property from and after the date hereof. Tenant's duty herein
includes, but is not limited to, costs associated with personal injury or
property damage claims as a result of the presence prior to the expiration or
sooner termination of the Term and the surrender of such Property to Landlord in
accordance with the terms of this Agreement of Hazardous Substances in, upon or
under the soil or ground water of such Property in violation of any Applicable
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Law. Upon Notice from Landlord and any other of the Indemnitees, Tenant shall
undertake the defense, at Tenant's sole cost and expense, of any indemnification
duties set forth herein, in which event, Tenant shall not be liable for payment
of any duplicative attorneys' fees incurred by any Indemnitee.
Tenant shall, upon demand, pay (or cause to be paid) to Landlord, as an
Additional Charge, any cost, expense, loss or damage (including, without
limitation, reasonable attorneys' fees) reasonably incurred by Landlord and
arising from a failure of Tenant to observe and perform (or to cause to be
observed and performed) the requirements of this Section 4.4, which amounts
shall bear interest from the date ten (10) Business Days after written demand
therefor is given to Tenant until paid by Tenant to Landlord at the Overdue
Rate.
4.4.3 SURVIVAL. The provisions of this Section 4.4 shall survive the
expiration or sooner termination of this Agreement.
ARTICLE 5
MAINTENANCE AND REPAIRS
5.1 MAINTENANCE AND REPAIR.
5.1.1 TENANT'S GENERAL OBLIGATIONS. Tenant shall keep (or cause to
be kept), at Tenant's sole cost and expense, the Leased Property and all private
roadways, sidewalks and curbs appurtenant thereto (and Tenant's Personal
Property) in good order and repair, reasonable wear and tear excepted (whether
or not the need for such repairs occurs as a result of Tenant's or any Manager's
use, any prior use, the elements or the age of the Leased Property or Tenant's
Personal Property or any portion thereof), and shall promptly make or cause to
be made all necessary and appropriate repairs and replacements thereto of every
kind and nature, whether interior or exterior, structural or nonstructural,
ordinary or extraordinary, foreseen or unforeseen or arising by reason of a
condition existing prior to the commencement of the Term (concealed or
otherwise). All repairs shall be made in a good, workmanlike manner, consistent
with industry standards for comparable Facilities in like locales, in accordance
with all applicable federal, state and local statutes, ordinances, codes, rules
and regulations relating to any such work. Tenant shall not take or omit to take
(or permit any Person to take or omit to take) any action, the taking or
omission of which would materially and adversely impair the value or the
usefulness of the Leased Property or any material part thereof for its Permitted
Use. Tenant's obligations under this Section 5.1.1 shall be limited in the event
of any casualty or Condemnation as set forth in Article 10 and Article 11 and
Tenant's obligations with respect to Hazardous Substances are as set forth in
Section 4.4.
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5.1.2 LANDLORD'S OBLIGATIONS.
(a) Except as otherwise expressly provided in this Agreement,
Landlord shall not, under any circumstances, be required to build or
rebuild any improvement on the Leased Property, or to make any repairs,
replacements, alterations, restorations or renewals of any nature or
description to the Leased Property, whether ordinary or extraordinary,
structural or nonstructural, foreseen or unforeseen, or to make any
expenditure whatsoever with respect thereto, or to maintain the Leased
Property in any way. Except as otherwise expressly provided in this
Agreement, Tenant hereby waives, to the maximum extent permitted by law,
the right to make repairs at the expense of Landlord pursuant to any law
in effect on the date hereof or hereafter enacted. Landlord shall have the
right to give, record and post, as appropriate, notices of
nonresponsibility under any mechanic's lien laws now or hereafter
existing.
(b) If, pursuant to the terms of this Agreement, Tenant is required
to make any expenditures in connection with any repair, maintenance or
renovation with respect to any Property, Tenant may, at its election,
advance such funds or give Landlord Notice thereof, which Notice shall set
forth, in reasonable detail, the nature of the required repair, renovation
or replacement, the estimated cost thereof and such other information with
respect thereto as Landlord may reasonably require. Provided that no Event
of Default shall have occurred and be continuing and Tenant shall
otherwise comply with the applicable provisions of Article 6, Landlord
shall, within ten (10) Business Days after such Notice, subject to and in
accordance with the applicable provisions of Article 6, disburse such
required funds to Tenant (or, if Tenant shall so elect, directly to the
Manager or any other Person performing the required work) and, upon such
disbursement, the Minimum Rent shall be adjusted as provided in Section
3.1.1(b).
5.1.3 NONRESPONSIBILITY OF LANDLORD, ETC. All materialmen,
contractors, artisans, mechanics and laborers and other persons contracting with
Tenant with respect to the Leased Property, or any part thereof, are hereby
charged with notice that liens on the Leased Property or on Landlord's interest
therein are expressly prohibited and that they must look solely to Tenant to
secure payment for any work done or material furnished to Tenant or any Manager
or for any other purpose during the term of this Agreement.
Nothing contained in this Agreement shall be deemed or construed in any
way as constituting the consent or request of Landlord, express or implied, by
inference or otherwise, to any contractor, subcontractor, laborer or materialmen
for the performance of any labor or the furnishing of any materials for any
alteration, addition, improvement or repair to the Leased Property or any part
thereof or as giving Tenant any right, power or authority to contract for or
permit the rendering of any services or the furnishing of any materials that
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would give rise to the filing of any lien against the Leased Property or any
part thereof nor to subject Landlord's estate in the Leased Property or any part
thereof to liability under any mechanic's lien law of any State in any way, it
being expressly understood Landlord's estate shall not be subject to any such
liability.
5.2 TENANT'S PERSONAL PROPERTY. Tenant shall provide and maintain (or
cause to be provided and maintained) throughout the Term all such Tenant's
Personal Property as shall be necessary in order to operate in compliance with
applicable material Legal Requirements and Insurance Requirements and otherwise
in accordance with customary practice in the industry for the Permitted Use, and
all of such Tenant's Personal Property shall, upon the expiration or earlier
termination of this Agreement, become the property of Landlord. If, from and
after the Commencement Date, Tenant acquires an interest in any item of tangible
personal property (other than the Excluded Assets) on, or in connection with,
the Leased Property, or any portion thereof, which belongs to anyone other than
Tenant, Tenant shall require the agreements permitting such use to provide that
Landlord or its designee may assume Tenant's rights and obligations under such
agreement upon the termination of this Agreement and the assumption of
management or operation of the Facility by Landlord or its designee.
5.3 YIELD UP. Upon the expiration or sooner termination of this Agreement,
Tenant shall vacate and surrender the Leased Property to Landlord in
substantially the same condition in which the Leased Property was in on the
Commencement Date, except as repaired, rebuilt, restored, altered or added to as
permitted or required by the provisions of this Agreement, reasonable wear and
tear excepted (and excluding casualty damage and Condemnation, in the event that
this Agreement is terminated following a casualty or Condemnation in accordance
with Article 10 or Article 11 excepted).
In addition, upon the expiration or earlier termination of this Agreement,
Tenant shall, at Landlord's sole cost and expense, use its reasonable good faith
efforts to transfer (or cause to be transferred) to and cooperate with Landlord
or Landlord's nominee in connection with the processing of all applications for
licenses, operating permits and other governmental authorizations and all
contracts, including contracts with governmental or quasi-governmental Entities
which may be necessary for the use and operation of the Facility as then
operated (other than contracts related exclusively to the Excluded Assets). If
requested by Landlord, Tenant shall continue to manage one or more of the
Facilities after the expiration of the Term for up to one hundred eighty (180)
days, on such reasonable terms as Landlord and Tenant shall reasonably agree
upon (which terms shall include an agreement to reimburse Tenant for its
reasonable out-of-pocket costs and expenses and reasonable administrative costs
and an agreement to pay Tenant a reasonable management fee at the
then-prevailing market rates in the industry for such a Facility).
5.4 MANAGEMENT AGREEMENT. Tenant shall not, without Landlord's prior
written consent (which consent shall not be unreasonably
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withheld, delayed or conditioned), enter into, amend or modify the provisions of
any Management Agreement with respect to any Property provided, however, that
Tenant may enter into a Management Agreement with Alterra or any Subsidiary of
Alterra acting as Manager without the prior written consent of Landlord so long
as such Management Agreement complies with the remaining provisions of this
Section 5.4 and Section 21.8 and Tenant delivers a copy of such Management
Agreement to Landlord. Any Management Agreement entered into pursuant to the
provisions of this Section 5.4 shall be subordinate to this Agreement and shall
provide, inter alia, that all amounts due from Tenant to the Manager thereunder
shall be subordinate to all amounts due from Tenant to Landlord (provided that,
as long as no Event of Default has occurred and is continuing, Tenant may pay
all amounts due to a Manager pursuant to such Management Agreement) and for
termination thereof, at Landlord's option, upon the termination of this
Agreement. Tenant shall not take any action, grant any consent or permit any
action under any such Management Agreement which might have a material adverse
effect on Landlord, without the prior written consent of Landlord, which consent
shall not be unreasonably withheld, delayed or conditioned.
ARTICLE 6
IMPROVEMENTS, ETC.
6.1 IMPROVEMENTS TO THE LEASED PROPERTY. Tenant shall not make, construct
or install (or permit to be made, constructed or installed) any Capital
Additions without, in each instance, obtaining Landlord's prior written consent,
which consent shall not be unreasonably withheld, delayed or conditioned
provided that (a) construction or installation of the same would not adversely
affect or violate any material Legal Requirement or Insurance Requirement
applicable to the Leased Property and (b) Landlord shall have received an
Officer's Certificate certifying as to the satisfaction of the conditions set
out in clause (a) above; provided, however, that no such consent shall be
required in the event immediate action is required to prevent imminent harm to
person or property. Prior to commencing construction of any Capital Addition,
Tenant shall submit to Landlord, in writing, a proposal setting forth, in
reasonable detail, any such proposed improvement and shall provide to Landlord
such plans and specifications, and such permits, licenses, contracts and such
other information concerning the same as Landlord may reasonably request.
Landlord shall have thirty (30) days to review all materials submitted to
Landlord in connection with any such proposal. Failure of Landlord to respond to
Tenant's proposal within thirty (30) days after receipt of all information and
materials requested by Landlord in connection with the proposed improvement
shall be deemed to constitute approval of the same. Without limiting the
generality of the foregoing, such proposal shall indicate the approximate
projected cost of constructing such proposed improvement and the use or uses to
which it will be put. No Capital Addition shall be made which would tie in or
connect any Leased Improvements with any other improvements on property adjacent
to the Leased
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Property (and not part of the Land) including, without limitation, tie-ins of
buildings or other structures or utilities. Except as permitted herein, Tenant
shall not finance the cost of any construction of such improvement by the
granting of a lien on or security interest in the Leased Property or such
improvement, or Tenant's interest therein, without the prior written consent of
Landlord, which consent may be withheld by Landlord in Landlord's sole
discretion. Any such improvements shall, upon the expiration or sooner
termination of this Agreement, remain or pass to and become the property of
Landlord, free and clear of all encumbrances other than Permitted Encumbrances.
6.2 SALVAGE. All materials which are scrapped or removed in connection
with the making of either Capital Additions or non-Capital Additions or repairs
required by Article 5 shall be or become the property of the party that paid for
such work.
ARTICLE 7
LIENS
7.1 LIENS. Subject to Article 8, Tenant shall not, directly or indirectly,
create or allow to remain and shall promptly discharge (or cause to be
discharged), at its expense, any lien, encumbrance, attachment, title retention
agreement or claim upon the Leased Property, or any portion thereof, or Tenant's
leasehold interest therein or any attachment, levy, claim or encumbrance in
respect of the Rent, other than (a) Permitted Encumbrances, (b) restrictions,
liens and other encumbrances which are consented to in writing by Landlord in
Landlord's sole discretion, (c) liens for those taxes of Landlord which Tenant
is not required to pay hereunder, (d) subleases permitted by Article 16, (e)
liens for Impositions or for sums resulting from noncompliance with Legal
Requirements so long as the same (i) are not yet due and payable, or (ii) are
being contested in accordance with Article 8, (f) liens of mechanics, laborers,
materialmen, suppliers or vendors incurred in the ordinary course of business
that are not yet due and payable or are for sums that are being contested in
accordance with Article 8, (g) any Facility Mortgages or other liens which are
the responsibility of Landlord pursuant to the provisions of Article 20, (h)
Landlord Liens and any other voluntary liens created by Landlord and (i) liens
related exclusively to the Excluded Assets.
7.2 LANDLORD'S LIEN. In addition to any statutory landlord's lien and in
order to secure payment of the Rent and all other sums payable hereunder by
Tenant, and to secure payment of any loss, cost or damage which Landlord may
suffer by reason of Tenant's breach of this Agreement, Tenant hereby grants unto
Landlord, to the maximum extent permitted by Applicable Law, a security interest
in and an express contractual lien upon Tenant's Personal Property and Tenant's
interest in all ledger sheets, files, records, documents and instruments
(including, without limitation, computer programs, tapes and related electronic
data processing but specifically excluding the
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Excluded Assets) relating to the operation of the Facilities (the "Records") and
all proceeds therefrom, in each case subject to any Permitted Encumbrances or
Permitted Liens; and such Tenant's Personal Property shall not be removed from
the Leased Property at any time when an Event of Default has occurred and is
continuing.
Upon Landlord's request, Tenant shall execute and deliver to Landlord
financing statements in a form sufficient to perfect the security interest of
Landlord in that portion of Tenant's Personal Property in which Landlord is
entitled to a security interest and the proceeds thereof in accordance with the
provisions of the applicable laws of the State. During the continuance of an
Event of Default, Tenant hereby grants Landlord an irrevocable limited power of
attorney, coupled with an interest, to execute all such financing statements in
Tenant's name, place and stead. The security interest herein granted is in
addition to any statutory lien for the Rent.
ARTICLE 8
PERMITTED CONTESTS
Tenant shall have the right to contest the amount or validity of any
Imposition, Legal Requirement, Insurance Requirement, Environmental Obligation,
lien, attachment, levy, encumbrance, charge or claim (collectively, "Claims") as
to the Leased Property, by appropriate legal proceedings, conducted in good
faith and with due diligence, provided that (a) the foregoing shall in no way be
construed as relieving, modifying or extending Tenant's obligation to pay (or
cause to be paid) any Claims as finally determined, (b) such contest shall not
cause Landlord or Tenant to be in default under any mortgage or deed of trust
encumbering the Leased Property or any portion thereof (Landlord agreeing that
any such mortgage or deed of trust shall permit Tenant to exercise the rights
granted pursuant to this Article 8) or any interest therein or result in or
reasonably be expected to result in a lien attaching to the Leased Property or
any portion thereof (provided that Tenant shall have the right to proceed with
any such contest so long as Tenant posts collateral or otherwise bonds over any
such lien in accordance with Applicable Law and in a manner and amount which are
otherwise satisfactory to Landlord in its sole discretion), (c) no part of the
Leased Property nor any Rent therefrom shall be in any immediate danger of sale,
forfeiture, attachment or loss, and (d) Tenant shall indemnify and hold harmless
Landlord from and against any cost, claim, damage, penalty or reasonable
expense, including reasonable attorneys' fees, incurred by Landlord in
connection therewith or as a result thereof. Landlord agrees to join in any such
proceedings if required legally to prosecute such contest, provided that
Landlord shall not thereby be subjected to any liability therefor (including,
without limitation, for the payment of any costs or expenses in connection
therewith) unless Tenant agrees by agreement in form and substance reasonably
satisfactory to Landlord, to assume and indemnify Landlord with respect to the
same. Tenant shall be entitled to any refund of any Claims and such charges and
penalties or interest thereon which have
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been paid by Tenant or paid by Landlord to the extent that Landlord has been
fully reimbursed by Tenant. If Tenant shall fail (i) to pay or cause to be paid
any Claims when finally determined, (ii) to provide reasonable security therefor
or (iii) to prosecute or cause to be prosecuted any such contest diligently and
in good faith, Landlord may, upon reasonable notice to Tenant (which notice
shall not be required if Landlord shall reasonably determine that the same is
not practicable), pay such charges, together with interest and penalties due
with respect thereto, and Tenant shall reimburse Landlord therefor, upon demand,
as Additional Charges.
ARTICLE 9
INSURANCE AND INDEMNIFICATION
9.1 GENERAL INSURANCE REQUIREMENTS. At all times during the Term and at
any other time Tenant shall be in possession of any Property, Tenant shall
maintain the following insurance:
(a) Fire and extended risk with respect to each Property against
loss or damage from all causes under standard "all risk" property
insurance coverage with an agreed amount endorsement (such that the
insurance carrier has accepted the amount of coverage and has agreed that
there will be no co-insurance penalty), without exclusion for fire,
lightning, windstorm, explosion, smoke damage, vehicle damage, sprinkler
leakage, flood, vandalism, earthquake, malicious mischief or any other
risks normally covered under an extended coverage endorsement, in amounts
that are not less than the actual replacement value of the Property and
all Landlord Personal Property associated therewith (including the cost of
compliance with changes in zoning and building codes and other laws and
regulations, demolition and debris removal and increased cost of
construction);
(b) Commercial general and professional liability coverage against
claims for bodily injury, death or property damage occurring on, in or
about the Leased Property, affording the parties protection of not less
than Two Million Dollars ($2,000,000) for bodily injury or death to any
one person, and not less than Two Million Dollars ($2,000,000) in the
aggregate, each of which limits shall be increased to Five Million Dollars
($5,000,000 in the aggregate upon the earlier of June 30, 2003 or the
effective date of a Conforming Plan (and, subject to the provisions of
Section 9.6, Ten Million Dollars ($10,000,000) as and when such amount of
insurance becomes generally available to operators of assisted living
facilities owned by institutional landlords and similar to the Facilities
at commercially reasonable rates), and not less than One Million Dollars
($1,000,000) for property damage;
(c) Workers compensation coverage with respect to Leased Property
for injuries sustained by Tenant's or Manager's
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employees in the course of their employment and otherwise consistent with
all applicable legal requirements;
(d) Boiler and pressure vessels coverage with respect to the Leased
Property on fixtures and equipment which are capable of bursting or
exploding, in commercially reasonable amounts, for resulting damage to
property, bodily injury or death and with an endorsement for boiler
business interruption insurance; and
(e) Business interruption and extra expense coverage with respect to
the Leased Property for loss of rental value for a period of not less than
one year, provided that so long as Tenant continues to pay all Rent and
other amounts due hereunder and no other Event of Default exists, Tenant
shall be entitled to receive all proceeds of such business interruption
insurance.
9.2 WAIVER OF SUBROGATION. Landlord and Tenant agree that (insofar as and
to the extent that such agreement may be effective without invalidating or
making it impossible to secure insurance coverage from responsible insurance
companies doing business in any State) with respect to any property loss which
is covered by insurance then being carried by Landlord or Tenant, the party
carrying such insurance and suffering said loss releases the others of and from
any and all claims with respect to such loss; and they further agree that their
respective insurance companies (and, if Landlord shall self insure in accordance
with the terms hereof, Landlord or Tenant, as the case may be) shall have no
right of subrogation against the other on account thereof, even though extra
premium may result therefrom. In the event that any extra premium is payable by
Tenant as a result of this provision, Landlord shall not be liable for
reimbursement to Tenant for such extra premium.
9.3 FORM SATISFACTORY, ETC. All insurance policies and endorsements
required pursuant to this Article 9 shall be fully paid for, nonassessable, be
issued by insurance carriers authorized to do business in the State, and shall
be issued by reputable insurance companies, and otherwise be issued by insurance
carriers, having a general policy holder's rating of no less than "A-" in Best's
latest rating guide. All property, business interruption and liability policies
(excluding earthquake coverage) shall include no deductible in excess of Two
Hundred Fifty Thousand Dollars ($250,000) per incident. Any liability policy
carried hereunder may be a "claims made" policy, rather than an occurrence
policy, and Tenant may choose to implement an insurance program which is a fully
funded rent-a-captive program (such funding to be in an amount not less than
$2,000,000). At all times, all property, business interruption, liability and
flood insurance policies, with the exception of worker's compensation insurance
coverage, shall name Landlord and any Facility Mortgagee as additional insureds,
as their interests may appear. All loss adjustments shall be payable as provided
in Article 10, except that losses under liability and worker's compensation
insurance policies shall be payable directly to the party entitled thereto.
Tenant shall cause all insurance premiums to be paid and shall deliver
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(or cause to be delivered) policies or certificates thereof to Landlord on or
prior to their effective date (and, with respect to any renewal policy, on or
prior to the expiration of the existing policy). All such policies shall provide
Landlord (and any Facility Mortgagee if required by the same) thirty (30) days
prior written notice of any material change or cancellation of such policy. In
the event Tenant shall fail to effect (or cause to be effected) such insurance
as herein required, to pay (or cause to be paid) the premiums therefor or to
deliver (or cause to be delivered) such policies or certificates to Landlord or
any Facility Mortgagee at the times required, Landlord shall have the right,
upon Notice to Tenant, but not the obligation, to acquire such insurance and pay
the premiums therefor, which amounts shall be payable to Landlord, upon demand,
as Additional Charges, together with interest accrued thereon at the Overdue
Rate from the date such payment is made until (but excluding) the date repaid.
9.4 NO SEPARATE INSURANCE; SELF-INSURANCE. Tenant shall not take (or
permit any Person to take) out separate insurance, concurrent in form or
contributing in the event of loss with that required by this Article 9, or
increase the amount of any existing insurance by securing an additional policy
or additional policies, unless all parties having an insurable interest in the
subject matter of such insurance, including Landlord and all Facility
Mortgagees, are included therein as additional insureds and the loss is payable
under such insurance in the same manner as losses are payable under this
Agreement. In the event Tenant shall take out any such separate insurance or
increase any of the amounts of the then existing insurance, Tenant shall give
Landlord prompt Notice thereof. Except as expressly permitted in Section 9.3,
Tenant shall not self-insure (or permit any Person to self-insure).
9.5 INDEMNIFICATION OF LANDLORD. Notwithstanding the existence of any
insurance provided for herein and without regard to the policy limits of any
such insurance, Tenant shall protect, indemnify and hold harmless Landlord for,
from and against all liabilities, obligations, claims, damages, penalties,
causes of action, costs and reasonable expenses (including, without limitation,
reasonable attorneys' fees), to the maximum extent permitted by law, imposed
upon or incurred by or asserted against Landlord by reason of the following,
except to the extent caused by Landlord's gross negligence or willful
misconduct: (a) any accident, injury to or death of persons or loss of or damage
to property occurring on or about any Property or adjoining sidewalks or rights
of way, (b) any past, present or future use, misuse, non-use, condition,
management, maintenance or repair by Tenant, any Manager or anyone claiming
under any of them of any Property or Tenant's Personal Property or any
litigation, proceeding or claim by governmental entities or other third parties
to which Landlord is made a party or participant relating to any Property or
Tenant's Personal Property or such use, misuse, non-use, condition, management,
maintenance, or repair thereof including, failure to perform obligations (other
than Condemnation proceedings) to which Landlord is made a party, (c) any
Impositions that are the obligations of Tenant
- 39 -
to pay pursuant to the applicable provisions of this Agreement, and (d) any
failure on the part of Tenant or anyone claiming under Tenant to perform or
comply with any of the terms of this Agreement. Tenant, at its expense, shall
contest, resist and defend any such claim, action or proceeding asserted or
instituted against Landlord (and shall not be responsible for any duplicative
attorneys' fees incurred by Landlord) or may compromise or otherwise dispose of
the same, with Landlord's prior written consent (which consent may not be
unreasonably withheld, delayed or conditioned). The obligations of Tenant under
this Section 9.5 are in addition to the obligations set forth in Section 4.4 and
shall survive the termination of this Agreement.
9.6 FUTURE INSURANCE. Tenant agrees that as and when insurance on an
occurrence basis or an insurance program which does not involve a rent-a-captive
insurance program becomes generally available to operators of assisted living
facilities owned by institutional landlords and similar to the Facilities at
commercially reasonable rates, jointly determined by Landlord and Tenant in
their respective reasonable judgment, Tenant shall purchase and maintain such
insurance in lieu of the rent-a-captive program described in Section 9.3.
ARTICLE 10
CASUALTY
10.1 INSURANCE PROCEEDS. Except as provided in the last clause of this
sentence, all proceeds payable by reason of any loss or damage to any Property,
or any portion thereof, and insured under any policy of insurance required by
Article 9 (other than the proceeds of any business interruption insurance),
shall be paid directly to Landlord (subject to the provisions of Section 10.2)
and all loss adjustments with respect to losses payable to Landlord shall
require the prior written consent of Landlord, which consent shall not be
unreasonably withheld, delayed or conditioned; provided, however, that, so long
as no Event of Default shall have occurred and be continuing, all such proceeds
less than or equal to Two Hundred Fifty Thousand Dollars ($250,000) shall be
paid directly to Tenant and such losses may be adjusted without Landlord's
consent. If Tenant is required to reconstruct or repair any Property as provided
herein, such proceeds shall be paid out by Landlord from time to time for the
reasonable costs of reconstruction or repair of such Property necessitated by
such damage or destruction, subject to and in accordance with the provisions of
Section 10.2.4. Provided no Default or Event of Default has occurred and is
continuing, any excess proceeds of insurance remaining after the completion of
the restoration shall be paid to Tenant. In the event that the provisions of
Section 10.2.1 are applicable, the insurance proceeds shall be retained by the
party entitled thereto pursuant to Section 10.2.1.
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10.2 DAMAGE OR DESTRUCTION.
10.2.1 DAMAGE OR DESTRUCTION OF LEASED PROPERTY. If, during the
Term, any Property shall be totally or partially destroyed and the Facility
located thereon is thereby rendered Unsuitable for Its Permitted Use, either
Landlord or Tenant may, by the giving of Notice thereof to the other, terminate
this Agreement with respect to such affected Property, whereupon, this Agreement
shall terminate with respect to such affected Property and Landlord shall be
entitled to retain the insurance proceeds payable on account of such damage. In
such event, Tenant shall pay to Landlord the amount of any deductible under the
insurance policies covering such Facility, the amount of any uninsured loss and
any difference between the replacement cost of the affected Property and the
casualty insurance proceeds therefor.
10.2.2 PARTIAL DAMAGE OR DESTRUCTION. If, during the Term, any
Property shall be totally or partially destroyed but the Facility is not
rendered Unsuitable for Its Permitted Use, Tenant shall, subject to Section
10.2.3, promptly restore such Facility as provided in Section 10.2.4.
10.2.3 INSUFFICIENT INSURANCE PROCEEDS. If the cost of the repair or
restoration of the applicable Facility exceeds the amount of insurance proceeds
received by Landlord and Tenant pursuant to Section 9.1, Tenant shall give
Landlord Notice thereof which notice shall set forth in reasonable detail the
nature of such deficiency and whether Tenant shall pay and assume the amount of
such deficiency (Tenant having no obligation to do so, except that, if Tenant
shall elect to make such funds available, the same shall become an irrevocable
obligation of Tenant pursuant to this Agreement). In the event Tenant shall
elect not to pay and assume the amount of such deficiency, Landlord shall have
the right (but not the obligation), exercisable at Landlord's sole election by
Notice to Tenant given within sixty (60) days after Tenant's notice of the
deficiency, to elect to make available for application to the cost of repair or
restoration the amount of such deficiency; provided, however, in such event,
upon any disbursement by Landlord thereof, the Minimum Rent shall be adjusted as
provided in Section 3.1.1(b). In the event that neither Landlord nor Tenant
shall elect to make such deficiency available for restoration, either Landlord
or Tenant may terminate this Agreement with respect to the affected Property by
Notice to the other, whereupon, this Agreement shall so terminate and insurance
proceeds shall be distributed as provided in Section 10.2.1. It is expressly
understood and agreed, however, that, notwithstanding anything in this Agreement
to the contrary, Tenant shall be strictly liable and solely responsible for the
amount of any deductible and shall, upon any insurable loss, pay over the amount
of such deductible to Landlord at the time and in the manner herein provided for
payment of the applicable proceeds to Landlord.
10.2.4 DISBURSEMENT OF PROCEEDS. In the event Tenant is required to
restore any Facility pursuant to Section 10.2 and this Agreement is not
terminated as to the applicable Property pursuant to
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this Article 10, Tenant shall commence (or cause to be commenced) promptly and
continue diligently to perform (or cause to be performed) the repair and
restoration of such Facility (hereinafter called the "Work"), so as to restore
(or cause to be restored) the applicable Property in material compliance with
all Legal Requirements and so that such Property shall be, to the extent
practicable, substantially equivalent in value and general utility to its
general utility and value immediately prior to such damage or destruction.
Subject to the terms hereof, Landlord shall advance the insurance proceeds and
any additional amounts payable by Landlord pursuant to Section 10.2.3 or
otherwise deposited with Landlord to Tenant regularly during the repair and
restoration period so as to permit payment for the cost of any such restoration
and repair. Any such advances shall be made not more than monthly within ten
(10) Business Days after Tenant submits to Landlord a written requisition and
substantiation therefor on AIA Forms G702 and G703 (or on such other form or
forms as may be reasonably acceptable to Landlord). Landlord may, at its option,
condition advancement of such insurance proceeds and other amounts on (a) the
absence of any Event of Default, (b) its approval of plans and specifications of
an architect satisfactory to Landlord (which approval shall not be unreasonably
withheld, delayed or conditioned), (c) general contractors' estimates, (d)
architect's certificates, (e) conditional lien waivers of general contractors,
if available, (f) evidence of approval by all governmental authorities and other
regulatory bodies whose approval is required, (g), if Tenant has elected to
advance deficiency funds pursuant to Section 10.2.3, Tenant depositing the
amount thereof with Landlord and (h) such other certificates as Landlord may,
from time to time, reasonably require.
Landlord's obligation to disburse insurance proceeds under this Article 10
shall be subject to the release of such proceeds by any Facility Mortgagee to
Landlord.
Tenant's obligation to restore the applicable Facility pursuant to this
Article 10 shall be subject to the release of available insurance proceeds to
Tenant by the applicable Facility Mortgagee, if any, or Landlord, if applicable,
and, in the event such proceeds are insufficient, Landlord electing to make such
deficiency available therefor (and disbursement of such deficiency).
10.3 DAMAGE NEAR END OF TERM. Notwithstanding any provisions of Section
10.1 or 10.2 to the contrary, if damage to or destruction of any Property occurs
during the last twelve (12) months of the Term and if such damage or destruction
cannot reasonably be expected to be fully repaired and restored prior to the
date that is six (6) months prior to the end of the Term, the provisions of
Section 10.2.1 shall apply as if such Property had been totally or partially
destroyed and the Facility thereon rendered Unsuitable for Its Permitted Use.
10.4 TENANT'S PROPERTY. All insurance proceeds payable by reason of any
loss of or damage to any of Tenant's Personal Property shall be paid to Tenant
and, to the extent necessary to repair or replace Tenant's Personal Property in
accordance with Section 10.5,
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Tenant shall hold such proceeds in trust to pay the cost of repairing or
replacing damaged Tenant's Personal Property.
10.5 RESTORATION OF TENANT'S PROPERTY. If Tenant is required to restore
any Property as hereinabove provided, Tenant shall either (a) restore all
alterations and improvements made by Tenant and Tenant's Personal Property, or
(b) replace such alterations and improvements and Tenant's Personal Property
with improvements or items of the same or better quality and utility in the
operation of such Property.
10.6 NO ABATEMENT OF RENT. This Agreement shall remain in full force and
effect and Tenant's obligation to make all payments of Rent and to pay all other
charges as and when required under this Agreement shall remain unabated during
the Term notwithstanding any damage involving the Leased Property or any portion
thereof (provided that Landlord shall credit against such payments any amounts
paid to Landlord as a consequence of such damage under any business interruption
insurance obtained by Tenant hereunder). The provisions of this Article 10 shall
be considered an express agreement governing any cause of damage or destruction
to the Leased Property or any portion thereof and, to the maximum extent
permitted by law, no local or State statute, law, rule, regulation or ordinance
in effect during the Term which provides for such a contingency shall have any
application in such case.
10.7 WAIVER. Tenant hereby waives any statutory rights of termination
which may arise by reason of any damage or destruction of the Leased Property,
or any portion thereof.
ARTICLE 11
CONDEMNATION
11.1 TOTAL CONDEMNATION, ETC. If either (a) the whole of any Property
shall be taken by Condemnation or (b) a Condemnation of less than the whole of
any Property renders any Property Unsuitable for Its Permitted Use, this
Agreement shall terminate with respect to such Property, Tenant and Landlord
shall seek the Award for their interests in the applicable Property as provided
in Section 11.5.
11.2 PARTIAL CONDEMNATION. In the event of a Condemnation of less than the
whole of any Property such that such Property is still suitable for its
Permitted Use, Tenant shall, to the extent of the Award and any additional
amounts disbursed by Landlord as hereinafter provided, commence (or cause to be
commenced) promptly and continue diligently to restore (or cause to be restored)
the untaken portion of the applicable Leased Improvements so that such Leased
Improvements shall constitute a complete architectural unit of the same general
character and condition (as nearly as may be possible under the circumstances)
as such Leased Improvements existing immediately prior to such Condemnation, in
material compliance with all Legal Requirements, subject to the provisions of
this Section 11.2. If the
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cost of the repair or restoration of the affected Property exceeds the amount of
the Award, Tenant shall give Landlord Notice thereof which notice shall set
forth in reasonable detail the nature of such deficiency and whether Tenant
shall pay and assume the amount of such deficiency (Tenant having no obligation
to do so, except that if Tenant shall elect to make such funds available, the
same shall become an irrevocable obligation of Tenant pursuant to this
Agreement). In the event Tenant shall elect not to pay and assume the amount of
such deficiency, Landlord shall have the right (but not the obligation),
exercisable at Landlord's sole election by Notice to Tenant given within sixty
(60) days after Tenant's Notice of the deficiency, to elect to make available
for application to the cost of repair or restoration the amount of such
deficiency; provided, however, in such event, upon any disbursement by Landlord
thereof, the Minimum Rent shall be adjusted as provided in Section 3.1.1(b). In
the event that neither Landlord nor Tenant shall elect to make such deficiency
available for restoration, either Landlord or Tenant may terminate this
Agreement with respect to the affected Property by Notice to the other and the
entire Award shall be allocated as set forth in Section 11.5.
Subject to the terms hereof, Landlord shall contribute to the cost of
restoration that part of the Award necessary to complete such repair or
restoration, together with severance and other damages awarded for the taken
Leased Improvements and any deficiency Landlord has agreed to disburse, to
Tenant regularly during the restoration period so as to permit payment for the
cost of such repair or restoration. Landlord may, at its option, condition
advancement of such Award and other amounts on (a) the absence of any Event of
Default, (b) its approval of plans and specifications of an architect
satisfactory to Landlord (which approval shall not be unreasonably withheld,
delayed or conditioned), (c) general contractors' estimates, (d) architect's
certificates, (e) conditional lien waivers of general contractors, if available,
(f) evidence of approval by all governmental authorities and other regulatory
bodies whose approval is required, (g), if Tenant has elected to advance
deficiency funds pursuant to the preceding paragraph, Tenant depositing the
amount thereof with Landlord and (h) such other certificates as Landlord may,
from time to time, reasonably require. Landlord's obligation under this Section
11.2 to disburse the Award and such other amounts shall be subject to (i) the
collection thereof by Landlord, (ii) the satisfaction of any applicable
requirements of any applicable Facility Mortgage, and (iii) the release of such
Award by the applicable Facility Mortgagee to Landlord. Tenant's obligation to
restore the applicable Leased Improvements shall be subject to the release of
the Award by any applicable Facility Mortgagee or by Landlord.
11.3 NO ABATEMENT OF RENT. Other than as specifically provided in this
Agreement, this Agreement shall remain in full force and effect and Tenant's
obligation to make all payments of Rent and to pay all other charges as and when
required under this Agreement shall remain unabated during the Term
notwithstanding any Condemnation involving the Leased Property, or any portion
thereof. The provisions
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of this Article 11 shall be considered an express agreement governing any
Condemnation involving the Leased Property, or any portion thereof, and, to the
maximum extent permitted by law, no local or State statute, law, rule,
regulation or ordinance in effect during the Term which provides for such a
contingency shall have any application in such case.
11.4 TEMPORARY CONDEMNATION. In the event of any temporary Condemnation of
any Property or Tenant's interest therein, this Agreement shall continue in full
force and effect and Tenant shall continue to pay (or cause to be paid), in the
manner and on the terms herein specified, the full amount of the Rent. Tenant
shall continue to perform and observe (or cause to be performed and observed)
all of the other terms and conditions of this Agreement on the part of the
Tenant to be performed and observed. Provided no Event of Default has occurred
and is continuing, the entire amount of any Award made for such temporary
Condemnation allocable to the Term, whether paid by way of damages, rent or
otherwise, shall be paid to Tenant. Tenant shall, promptly upon the termination
of any such period of temporary Condemnation, at its sole cost and expense,
restore the affected Property to the condition that existed immediately prior to
such Condemnation, in material compliance with all applicable Legal
Requirements, unless such period of temporary Condemnation shall extend beyond
the expiration of the Term, in which event Tenant shall not be required to make
such restoration.
11.5 ALLOCATION OF AWARD. Except as provided in Section 11.4 and the
second sentence of this Section 11.5, the total Award shall be solely the
property of and payable to Landlord. Any portion of the Award made for the
taking of Tenant's leasehold interest in the Leased Property, loss of business
during the remainder of the Term, the taking of Tenant's Personal Property, the
taking of Capital Additions paid for by Tenant and Tenant's removal and
relocation expenses shall be the sole property of and payable to Tenant (subject
to the provisions of Section 11.2). In any Condemnation proceedings, Landlord
and Tenant shall each seek its own Award in conformity herewith, at its own
expense.
ARTICLE 12
DEFAULTS AND REMEDIES
12.1 EVENTS OF DEFAULT. The occurrence of any one or more of the following
events shall constitute an "Event of Default" hereunder:
(a) should Tenant fail to make any payment of the Minimum Rent or
Additional Rent hereunder and such failure continues for five (5) days
after the date such payment was due, or should Tenant fail to make any
payment of the Additional Charges or any other sum payable by Tenant
hereunder and such failure continues for five (5) days after Tenant
receives Notice of such nonpayment; or
- 45 -
(b) should Tenant fail to maintain the insurance coverages required
under Article 9; or
(c) should Tenant default in the due observance or performance of
any of the terms, covenants or agreements contained herein to be performed
or observed by it hereunder (other than as specified in clauses (a) and
(b) above) and should such default continue for a period of thirty (30)
days after Notice thereof from Landlord to Tenant; provided, however, that
if such default is susceptible of cure but such cure cannot be
accomplished with due diligence within such period of time and if, in
addition, Tenant commences to cure or cause to be cured such default
within thirty (30) days after Notice thereof from Landlord and thereafter
prosecutes the curing of such default with all due diligence, such period
of time shall be extended to such period of time (not to exceed an
additional sixty (60) days in the aggregate) as may be necessary to cure
such default with all due diligence; or
(d) should any obligation of Tenant in respect of any Indebtedness
for money borrowed or for any material property or services, or any
guaranty relating thereto, be declared to be or become due and payable
prior to the stated maturity thereof, or should there occur and be
continuing with respect to any such Indebtedness any event of default
under any instrument or agreement evidencing or securing the same, the
effect of which is to permit the holder or holders of such instrument or
agreement or a trustee, agent or other representative on behalf of such
holder or holders, to cause any such obligations to become due prior to
its stated maturity; or
(e) should an event of default by Tenant, any Guarantor or any
Affiliated Person as to Tenant or any Guarantor occur and be continuing
beyond the expiration of any applicable cure period under any of the other
Lease Documents (other than this Agreement); or
(f) should an event of default by Alterra, Borrower, or any
Guarantor or any Affiliated Person as to such Entities (including, without
limitation, Tenant), occur and be continuing beyond the expiration of any
applicable cure period under any of the Loan Documents; or
(g) should Tenant or any Guarantor generally not be paying its debts
as they become due or should Tenant or any Guarantor make a general
assignment for the benefit of creditors; provided, however that (i) the
failure of Alterra to generally not be paying its debts as they become due
or the making of a general assignment by Alterra for the benefit of
creditors shall not constitute an Event of Default hereunder if such
failure or assignment occurs on or prior to January 31, 2003 or at any
time during the pendency of a Conforming Bankruptcy Proceeding filed on or
prior to January 31, 2003 and (ii) the sale or disposition
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by Borrower of the collateral pledged for the Borrower Indebtedness shall
not constitute an Event of Default hereunder provided Lender releases the
applicable Mortgage for such collateral in connection therewith; or
(h) should any petition be filed by or against Tenant or any
Guarantor under the Federal bankruptcy laws, or should any other
proceeding be instituted by or against Tenant or any Guarantor seeking to
adjudicate Tenant or any Guarantor bankrupt or insolvent, or seeking
liquidation, reorganization, arrangement, adjustment or composition of
Tenant's debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, custodian or other
similar official for Tenant or any Guarantor or for any substantial part
of the property of Tenant or any Guarantor and such proceeding is not
dismissed within one hundred eighty (180) days after institution thereof;
provided, however, that the failure of Alterra to comply with this clause
(h) shall not constitute an Event of Default hereunder if such failure or
assignment occurs on or prior to January 31, 2003 or at any time during
the pendency of a Conforming Bankruptcy Proceeding filed on or prior to
January 31, 2003; or
(i) should Tenant or any Guarantor cause or institute any proceeding
for its dissolution or termination (provided that Borrower may institute a
proceeding for its dissolution once the Borrower Indebtedness has been
satisfied and paid in full); or
(j) should the estate or interest of Tenant in the Leased Property
or any part thereof be levied upon or attached in any proceeding and the
same shall not be vacated or discharged within the later of (x) ninety
(90) days after commencement thereof, unless the amount in dispute is less
than One Hundred Thousand Dollars ($100,000), in which case Tenant shall
give notice to Landlord of the dispute but Tenant may defend in any
suitable way, and (y) two hundred seventy (270) days after receipt by
Tenant of Notice thereof from Landlord (unless Tenant shall be contesting
such lien or attachment in good faith in accordance with Article 8); or
(k) should there occur any direct or indirect Change in Control of
Tenant or any Guarantor, except as otherwise permitted by Article 16; or
(l) should Tenant fail to provide a Guaranty from any Acquiring
Guarantor in accordance with the provisions of Section 21.12 and such
failure shall continue for a period of fifteen (15) days after Notice
thereof from Landlord to Tenant; or
(m) should a final unappealable determination be made by the
applicable Government Agency that Tenant shall have failed to comply with
applicable Medicare and/or Medicaid regulations in
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the operation of any Facility, as a result of which failure Tenant is
declared ineligible to receive reimbursements under the Medicare and/or
Medicaid programs for such Facility; provided, however, that Tenant may
elect, in Tenant's sole discretion, to not participate in Medicare and/or
Medicaid programs for all or any portion of the Leased Property at any
time and from time, and if Tenant so elects by Notice to Landlord given
within thirty (30) days after a determination has been reached with
respect to any Facility for which Tenant has been declared ineligible,
then such determination shall not constitute an Event of Default
hereunder;
then, and in any such event, Landlord, in addition to all other remedies
available to it, may terminate this Agreement with respect to any or all of the
Leased Property by giving Notice thereof to Tenant and upon the expiration of
the time, if any, fixed in such Notice, this Agreement shall terminate with
respect to all or the designated portion of the Leased Property and all rights
of Tenant under this Agreement with respect thereto shall cease. Landlord shall
have and may exercise all rights and remedies available at law and in equity to
Landlord as a result of Tenant's breach of this Agreement.
Upon the occurrence of an Event of Default, Landlord may, in addition to
any other remedies provided herein, enter upon the Leased Property or any
portion thereof and take possession of any and all of Tenant's Personal
Property, if any, and the Records, without liability for trespass or conversion
(Tenant hereby waiving any right to notice or hearing prior to such taking of
possession by Landlord) and sell the same at public or private sale, after
giving Tenant reasonable Notice of the time and place of any public or private
sale, at which sale Landlord or its assigns may purchase all or any portion of
Tenant's Personal Property, if any, unless otherwise prohibited by law. Unless
otherwise provided by law and without intending to exclude any other manner of
giving Tenant reasonable notice, the requirement of reasonable Notice shall be
met if such Notice is given at least ten (10) days before the date of sale. The
proceeds from any such disposition, less all expenses incurred in connection
with the taking of possession, holding and selling of such property (including,
reasonable attorneys' fees) shall be applied as a credit against the
indebtedness which is secured by the security interest granted in Section 7.2.
Any surplus shall be paid to Tenant or as otherwise required by law and Tenant
shall pay any deficiency to Landlord, as Additional Charges, upon demand.
12.2 REMEDIES. None of (a) the termination of this Agreement pursuant to
Section 12.1, (b) the repossession of the Leased Property or any portion
thereof, (c) the failure of Landlord to relet the Leased Property or any portion
thereof, nor (d) the reletting of all or any of portion of the Leased Property,
shall relieve Tenant of its liability and obligations hereunder, all of which
shall survive any such termination, repossession or reletting. In the event of
any such termination, Tenant shall forthwith pay to Landlord all Rent due and
payable with respect to the Leased Property, or terminated portion
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thereof, through and including the date of such termination. Thereafter, Tenant,
until the end of what would have been the Term of this Agreement in the absence
of such termination, and whether or not the Leased Property or any portion
thereof shall have been relet, shall be liable to Landlord for, and shall pay to
Landlord, as current damages, the Rent (Additional Rent to be reasonably
calculated by Landlord based on historical Net Resident Revenues) and other
charges which would be payable hereunder for the remainder of the Term had such
termination not occurred, less the net proceeds, if any, of any reletting of the
Leased Property, or any portion thereof, after deducting all reasonable expenses
in connection with such reletting, including, without limitation, all
repossession costs, brokerage commissions, legal expenses, attorneys' fees,
advertising, expenses of employees, alteration costs and expenses of preparation
for such reletting. Tenant shall pay such current damages to Landlord monthly on
the days on which the Minimum Rent would have been payable hereunder if this
Agreement had not been so terminated with respect to such of the Leased
Property.
At any time after such termination, whether or not Landlord shall have
collected any such current damages, as liquidated final damages beyond the date
of such termination, at Landlord's election, Tenant shall pay to Landlord an
amount equal to the present value (as reasonably determined by Landlord) of the
excess, if any, of the Rent and other charges which would be payable hereunder
from the date of such termination (assuming that, for the purposes of this
paragraph, annual payments by Tenant on account of Impositions and Additional
Rent would be the same as payments required for the immediately preceding twelve
calendar months, or if less than twelve calendar months have expired since the
Commencement Date, the payments required for such lesser period projected to an
annual amount) for what would be the then unexpired term of this Agreement if
the same remained in effect, over the fair market rental for the same period.
Nothing contained in this Agreement shall, however, limit or prejudice the right
of Landlord to prove and obtain in proceedings for bankruptcy or insolvency an
amount equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, the damages are to be
proved, whether or not the amount be greater than, equal to, or less than the
amount of the loss or damages referred to above.
In case of any Event of Default, re-entry, expiration and dispossession by
summary proceedings or otherwise, Landlord may, (a) relet the Leased Property or
any part or parts thereof, either in the name of Landlord or otherwise, for a
term or terms which may at Landlord's option, be equal to, less than or exceed
the period which would otherwise have constituted the balance of the Term and
may grant concessions or free rent to the extent that Landlord considers
advisable and necessary to relet the same, and (b) may make such reasonable
alterations, repairs and decorations in the Leased Property or any portion
thereof as Landlord, in its sole and absolute discretion, considers advisable
and necessary for the purpose of reletting the Leased Property; and the making
of such alterations,
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repairs and decorations shall not operate or be construed to release Tenant from
liability hereunder as aforesaid. Landlord shall in no event be liable in any
way whatsoever for any failure to relet all or any portion of the Leased
Property, or, in the event that the Leased Property is relet, for failure to
collect the rent under such reletting. To the maximum extent permitted by law,
Tenant hereby expressly waives any and all rights of redemption granted under
any present or future laws in the event of Tenant being evicted or dispossessed,
or in the event of Landlord obtaining possession of the Leased Property, by
reason of the occurrence and continuation of an Event of Default hereunder.
12.3 TENANT'S WAIVER. IF THIS AGREEMENT IS TERMINATED PURSUANT TO SECTION
12.1 OR 12.2, TENANT WAIVES, TO THE EXTENT PERMITTED BY LAW, ANY RIGHT TO A
TRIAL BY JURY IN THE EVENT OF SUMMARY PROCEEDINGS TO ENFORCE THE REMEDIES SET
FORTH IN THIS ARTICLE 12, AND THE BENEFIT OF ANY LAWS NOW OR HEREAFTER IN FORCE
EXEMPTING PROPERTY FROM LIABILITY FOR RENT OR FOR DEBT.
12.4 APPLICATION OF FUNDS. Any payments received by Landlord under any of
the provisions of this Agreement during the existence or continuance of any
Event of Default (and any payment made to Landlord rather than Tenant due to the
existence of any Event of Default) shall be applied to Tenant's current and past
due obligations under this Agreement in such order as Landlord may determine or
as may be prescribed by the laws of the State. Any balance shall be paid to
Tenant.
12.5 LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT. If an Event of Default
shall have occurred and be continuing, Landlord, after Notice to Tenant (which
Notice shall not be required if Landlord shall reasonably determine immediate
action is necessary to protect person or property), without waiving or releasing
any obligation of Tenant and without waiving or releasing any Event of Default,
may (but shall not be obligated to), at any time thereafter, make such payment
or perform such act for the account and at the expense of Tenant, and may, to
the maximum extent permitted by law, enter upon the Leased Property or any
portion thereof for such purpose and take all such action thereon as, in
Landlord's sole and absolute discretion, may be necessary or appropriate
therefor. No such entry shall be deemed an eviction of Tenant. All reasonable
costs and expenses (including, without limitation, reasonable attorneys' fees)
incurred by Landlord in connection therewith, together with interest thereon (to
the extent permitted by law) at the Overdue Rate from the date such sums are
paid by Landlord until repaid, shall be paid by Tenant to Landlord, on demand.
ARTICLE 13
HOLDING OVER
Any holding over by Tenant after the expiration or sooner termination of
this Agreement shall be treated as a daily tenancy at
- 50 -
sufferance at a rate equal to two (2) times the Minimum Rent and other charges
herein provided (prorated on a daily basis). Tenant shall also pay to Landlord
all damages (direct or indirect) sustained by reason of any such holding over.
Otherwise, such holding over shall be on the terms and conditions set forth in
this Agreement, to the extent applicable. Nothing contained herein shall
constitute the consent, express or implied, of Landlord to the holding over of
Tenant after the expiration or earlier termination of this Agreement.
Notwithstanding the foregoing, if Landlord or Landlord's nominee fails to obtain
all licenses, operating permits and other governmental or quasi-governmental
authorizations or contracts which may be necessary for the use and operation of
any Facility on or before the expiration of the Term, and provided that Tenant
has cooperated with Landlord or Landlord's nominee to effect the transfer of
such licenses, permits, authorizations and contracts pursuant to Section 5.3,
then Tenant's occupancy after the Term has been terminated or expires shall not
be deemed to be holding over under this Article 13, but rather Tenant shall
continue to manage the Facility as a tenant at will pursuant to the provisions
of Section 5.3 until such time as Landlord or its nominee shall be obtained all
such necessary authorizations or contracts.
ARTICLE 14
LANDLORD DEFAULT
If Landlord shall default in the performance or observance of any of its
covenants or obligations set forth in this Agreement or any obligation of
Landlord, if any, under any agreement affecting any Property, the performance of
which is not Tenant's obligation pursuant to this Agreement, and any such
default shall continue for a period of thirty (30) days after Notice thereof
from Tenant to Landlord and any applicable Facility Mortgagee, or such
additional period as may be reasonably required to correct the same, Tenant may
declare the occurrence of a "Landlord Default" by a second Notice to Landlord
and to such Facility Mortgagee. Thereafter, Tenant may forthwith cure the same
and, subject to the provisions of the following paragraph, invoice Landlord for
costs and expenses (including reasonable attorneys' fees and court costs)
incurred by Tenant in curing the same, together with interest thereon (to the
extent permitted by law) from the date Landlord receives Tenant's invoice until
paid, at the Overdue Rate. Tenant shall have no right to terminate this
Agreement for any default by Landlord hereunder and no right, for any such
default, to offset or counterclaim against any Rent or other charges due
hereunder.
If Landlord shall in good faith dispute the occurrence of any Landlord
Default and Landlord, before the expiration of the applicable cure period, shall
give Notice thereof to Tenant, setting forth, in reasonable detail, the basis
therefor, no Landlord Default shall be deemed to have occurred and Landlord
shall have no obligation with respect thereto until final adverse determination
thereof. If Tenant and Landlord shall fail, in good faith, to resolve any such
dispute
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within ten (10) days after Landlord's Notice of dispute, either may submit the
matter for resolution in accordance with Article 22.
ARTICLE 15
PURCHASE RIGHTS
Landlord shall have the option to purchase Tenant's Personal Property, at
the expiration or termination of this Agreement, for an amount equal to the then
fair market value thereof (current replacement cost as determined by agreement
of the parties or, in the absence of such agreement, appraisal), subject to, and
with appropriate price adjustments for, all equipment leases, conditional sale
contracts, UCC-1 financing statements and other encumbrances to which such
Personal Property is subject. Upon the expiration or sooner termination of this
Agreement, Tenant shall use its reasonable efforts to transfer and assign, or
cause to be transferred and assigned, to Landlord or its designee, or assist
Landlord or its designee in obtaining, any contracts, licenses, and certificates
required for the then operation of the Leased Property.
ARTICLE 16
SUBLETTING AND ASSIGNMENT
16.1 SUBLETTING AND ASSIGNMENT. Except as provided in Sections 16.3 and
16.4, Tenant shall not, without Landlord's prior written consent (which consent
may be given or withheld in Landlord's sole and absolute discretion), assign,
mortgage, pledge, hypothecate, encumber or otherwise transfer this Agreement or
sublease or permit the sublease (which term shall be deemed to include the
granting of concessions, licenses and the like), of all or any part of the
Leased Property or suffer or permit this Agreement or the leasehold estate
created hereby or any other rights arising under this Agreement to be assigned,
transferred, mortgaged, pledged, hypothecated or encumbered, in whole or in
part, whether voluntarily, involuntarily or by operation of law, or permit the
use or operation of all or any part of the Leased Property by anyone other than
Tenant, any Manager approved by Landlord pursuant to the applicable provisions
of this Agreement or residents and patients of Tenant, or the Leased Property or
any part thereof to be offered or advertised for assignment or subletting. For
purposes of this Section 16.1, an assignment of this Agreement shall be deemed
to include, without limitation, any direct or indirect Change in Control of
Tenant.
If this Agreement is assigned or if all or any part of the Leased Property
is sublet (or occupied by anybody other than Tenant or any Manager, their
respective employees or residents or patients of Tenant), Landlord may collect
the rents from such assignee, subtenant or occupant, as the case may be, and
apply the net amount collected to the Rent herein reserved, but no such
collection shall be deemed a waiver of the provisions set forth in the first
paragraph of this Section 16.1, the acceptance by Landlord of such assignee,
subtenant
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or occupant, as the case may be, as a tenant, or a release of Tenant from the
future performance by Tenant of its covenants, agreements or obligations
contained in this Agreement.
Any assignment or transfer of Tenant's interest under this Agreement shall
be subject to such assignee's or transferee's delivery to Landlord of (a) a
pledge of the stock, partnership, membership or other ownership interests of
such assignee or other transferee to secure Tenant's obligations under the Lease
Documents, which pledge shall be in form and substance satisfactory to Landlord
in its sole discretion and (b) a security agreement granting Landlord a security
interest in all of such assignee's or transferee's right, title and interest in
and to any personal property, intangibles and fixtures (other than accounts
receivable and subject to Permitted Liens) with respect to any Property which is
subject to any such assignment or transfer to secure Tenant's obligations under
the Lease Documents, which security agreement shall be in form and substance
satisfactory to Landlord in its sole discretion.
No subletting or assignment shall in any way impair the continuing primary
liability of Tenant hereunder (unless Landlord and Tenant expressly otherwise
agree that Tenant shall be released from all obligations hereunder), and no
consent to any subletting or assignment in a particular instance shall be deemed
to be a waiver of the prohibition set forth in this Section 16.1. No assignment,
subletting or occupancy shall affect any Permitted Use. Any subletting,
assignment or other transfer of Tenant's interest under this Agreement in
contravention of this Section 16.1 shall be voidable at Landlord's option.
16.2 SUBLEASE PROVISIONS. Any sublease of all or any portion of the Leased
Property entered into on or after the date hereof shall provide as follows: (a)
that it is subject and subordinate to this Agreement and to the matters to which
this Agreement is or shall be subject or subordinate; (b) that in the event of
termination of this Agreement or reentry or dispossession of Tenant by Landlord
under this Agreement, Landlord may, at its option, terminate such sublease or
take over all of the right, title and interest of Tenant, as sublessor under
such sublease, and such subtenant shall, at Landlord's option, attorn to
Landlord pursuant to the then executory provisions of such sublease, except that
neither Landlord nor any Facility Mortgagee, as holder of a mortgage or as
Landlord under this Agreement, if such Facility Mortgagee succeeds to that
position, shall (i) be liable for any act or omission of Tenant under such
sublease, (ii) be subject to any credit, counterclaim, offset or defense which
theretofore accrued to such subtenant against Tenant, (iii) be bound by any
previous modification of such sublease not consented to in writing by Landlord
or by any previous prepayment of more than one (1) month's Rent, (iv) be bound
by any covenant of Tenant to undertake or complete any construction of the
Leased Property or any applicable portion thereof, (v) be required to account
for any security deposit of the subtenant other than any security deposit
actually delivered to Landlord by Tenant, (vi) be bound by any obligation to
make any payment to such
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subtenant or grant any credits, except for services, repairs, maintenance and
restoration provided for under the sublease that are performed after the date of
such attornment, (vii) be responsible for any monies owing by Tenant to the
credit of such subtenant unless actually delivered to Landlord by Tenant, or
(viii) be required to remove any Person occupying any applicable portion of the
Leased Property; and (c), in the event that such subtenant receives a written
Notice from Landlord or any Facility Mortgagee stating that an Event of Default
has occurred and is continuing, such subtenant shall thereafter be obligated to
pay all rentals accruing under such sublease directly to the party giving such
Notice or as such party may direct. All rentals received from such subtenant by
Landlord or the Facility Mortgagee, as the case may be, shall be credited
against the amounts owing by Tenant under this Agreement and such sublease shall
provide that the subtenant thereunder shall, at the request of Landlord, execute
a suitable instrument in confirmation of such agreement to attorn. An original
counterpart of each such sublease and assignment and assumption, duly executed
by Tenant and such subtenant or assignee, as the case may be, in form and
substance reasonably satisfactory to Landlord, shall be delivered promptly to
Landlord and (a) in the case of an assignment, the assignee shall assume in
writing and agree to keep and perform all of the terms of this Agreement on the
part of Tenant to be kept and performed and shall be, and become, jointly and
severally liable with Tenant for the performance thereof and (b) in case of
either an assignment or subletting, Tenant shall remain primarily liable, as
principal rather than as surety, for the prompt payment of the Rent and for the
performance and observance of all of the covenants and conditions to be
performed by Tenant hereunder.
The provisions of this Section 16.2 shall not be deemed a waiver of the
provisions set forth in the first paragraph of Section 16.1.
16.3 REQUIRED SUBLEASE. On the Commencement Date, Tenant and Alterra shall
enter into a sublease agreement (the "Required Sublease") pursuant to which
Tenant shall sublease to Alterra, and Alterra shall sublease from Tenant, all of
Tenant's right, title and interest in and to the Leased Property. The Required
Sublease shall require Alterra to pay and perform all of the obligations and
liabilities of Tenant under this Agreement, shall be in a form and substance
reasonably satisfactory to Landlord and shall be subject to the provisions of
this Article 16 (including, without limitation, the requirements that a
counterpart of such Required Sublease shall be delivered to Landlord and that
Tenant shall assign its interests under thereunder to Landlord) and any other
express conditions or limitations set forth in this Agreement. Neither Tenant
nor Alterra shall terminate or otherwise amend or modify any of the terms or
provisions of the Required Sublease without the prior written consent of
Landlord, which consent may be withheld in Landlord's sole discretion; provided,
however, that following the first anniversary of the effective date of the
confirmation of a Conforming Plan or upon Landlord's consent, which consent
shall not be unreasonably withheld or delayed, and , provided, further, that no
Event of Default shall be
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outstanding hereunder, Tenant may terminate, amend or modify the Required
Sublease in its discretion.
16.4 PERMITTED SUBLEASE Notwithstanding the foregoing, including, without
limitation, Section 16.2, but subject to the provisions of Section 16.5 and any
other express conditions or limitations set forth herein, Tenant or Alterra may
(a) enter into third party residency or occupancy leases or agreements with
respect to the beds or units located at the Facilities; (b) enter into subleases
of space at any Property for use as a laundry, commissary, beauty or xxxxxx
shop, physical therapist, pharmacy or child care purposes or other similar
concessions in furtherance of the Permitted Use, so long as (i) such subleases
will not reduce the number of units at any Facility, (ii) such subleases will
not violate or affect any Legal Requirement or Insurance Requirement, (iii) any
such sublease will not demise, in the aggregate, more than fifteen percent (15%)
of the and square footage of the applicable Facility; and (iv) Tenant shall
provide such additional insurance coverage applicable to the activities to be
conducted in such subleased space as Landlord and any Facility Mortgagee may
reasonably require; and (c) in each instance after Notice to Landlord, enter
into one or more subleases with wholly-owned subsidiaries (direct or indirect)
of Alterra with respect to the Leased Property or any portion thereof, provided
Tenant and/or Alterra (as applicable) assign their interests under any such
sublease to Landlord and the sublessee delivers to Landlord a Guaranty in form
and substance satisfactory to Landlord in its sole discretion (except that once
any sublessee provides such a Guaranty, so long as such Guaranty remains in full
force and effect, no subsequent subletting to such Sublessee at another facility
shall require the delivery of an additional Guaranty).
16.5 SUBLEASE LIMITATION. Anything contained in this Agreement to the
contrary notwithstanding, Tenant shall not sublet all or any portion of the
Leased Property on any basis such that the rental to be paid by any sublessee
thereunder would be based, in whole or in part, on the net income or profits
derived by the business activities of such sublessee or any other formula such
that any portion of such sublease rental would fail to qualify as "rents from
real property" within the meaning of Section 856(d) of the Code, or any similar
or successor provision thereto or would otherwise disqualify Landlord for
treatment as a "real estate investment trust" under the Code.
ARTICLE 17
ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS
17.1 ESTOPPEL CERTIFICATES. At any time and from time to time, but not
more than a reasonable number of times per year, upon not less than ten (10)
Business Days prior Notice by either party, the party receiving such Notice
shall furnish to the other an Officer's Certificate certifying that this
Agreement is unmodified and in full force and effect (or that this Agreement is
in full force and effect as modified and setting forth the modifications), the
date to which
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the Rent has been paid, that no Default or an Event of Default has occurred and
is continuing or, if a Default or an Event of Default shall exist, specifying in
reasonable detail the nature thereof, and the steps being taken to remedy the
same, and such additional information as the requesting party may reasonably
request. Any such certificate furnished pursuant to this Section 17.1 may be
relied upon by the requesting party, its lenders and any prospective purchaser
or mortgagee of all or any portion of the Leased Property or the leasehold
estate created hereby.
17.2 FINANCIAL STATEMENTS. Tenant shall furnish or cause Alterra to
furnish, as applicable, the following statements to Landlord:
(a) within forty-five (45) days after each of the first three fiscal
quarters of any Fiscal Year, the most recent Consolidated Financials,
accompanied by the Financial Officer's Certificate;
(b) within ninety (90) days after the end of each Fiscal Year, the
most recent Consolidated Financials and financials of Tenant for such
year, certified by an independent certified public accountant reasonably
satisfactory to Landlord and accompanied by a Financial Officer's
Certificate, together with an unaudited balance sheet and the related
statements of income and cash flow for Tenant, accompanied by a Financial
Officer's Certificate;
(c) within forty-five (45) days after the end of each month, an
unaudited operating statement and statement of capital expenditures
prepared on a Facility by Facility basis and a combined basis, including
occupancy percentages and average rate, accompanied by a Financial
Officer's Certificate;
(d) at any time and from time to time upon not less than ten (10)
days Notice from Landlord or such additional period as may be reasonable
under the circumstances, any Consolidated Financials or any other audited
or unaudited financial reporting information required to be filed by
Landlord with any securities and exchange commission, the SEC or any
successor agency, or any other governmental authority, or required
pursuant to any order issued by any court, governmental authority or
arbitrator in any litigation to which Landlord is a party, for purposes of
compliance therewith; provided, however, that, except as to calculations
pertaining to Net Resident Revenues, Tenant shall not be required to
provide audited financials with respect to Tenant or with respect to any
individual Facility unless Landlord shall agree to pay for the cost
thereof;
(e) promptly, after receipt or sending thereof, copies of all
notices given or received by Tenant under any Management Agreement; and
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(f) promptly, upon Notice from Landlord, such other information
concerning the business, financial condition and affairs of Tenant and any
Guarantor as Landlord reasonably may request from time to time.
Landlord may at any time, and from time to time, provide any Facility
Mortgagee with copies of any of the foregoing statements, subject to Landlord
obtaining the agreement of such Facility Mortgagee to maintain such statements
and the information therein as confidential. Notwithstanding anything contained
in this Section 17.2, if the SEC shortens the time periods for filing of
financial reporting information required to be filed with the SEC by Alterra,
Landlord or any Affiliated Person as to Landlord, then the time periods in
Sections 17.2(a), (b) and (c) shall be reduced to the shorter time period
required in order to permit Landlord to satisfy any requirements of the SEC.
17.3 GENERAL OPERATIONS. Tenant covenants and agrees to furnish to
Landlord, within twenty (20) days after receipt or modification thereof, copies
of:
(a) all licenses authorizing Tenant or any Manager to operate any
Facility for its Primary Intended Use;
(b) all Medicare and Medicaid certifications, together with provider
agreements and all material correspondence relating thereto with respect
to any Facility (excluding, however, correspondence which may be subject
to any attorney client privilege);
(c) if required under Applicable Law with respect to any Facility, a
license for each individual employed as administrator with respect to such
Facility;
(d) all reports of surveys, statements of deficiencies, plans of
correction, and all material correspondence relating thereto, including,
without limitation, all reports and material correspondence concerning
compliance with or enforcement of licensure, Medicare/Medicaid, and
accreditation requirements, including physical environment and Life Safety
Code survey reports (excluding, however, correspondence which may be
subject to any attorney client privilege) and further provided that any
such report or statement indicating a finding of "Immediate Jeopardy"
shall be forwarded to Landlord immediately upon Tenant's receipt thereof;
and
(e) with reasonable promptness, such other confirmation as to the
licensure and Medicare and Medicaid participation of Tenant as Landlord
may reasonably request from time to time.
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ARTICLE 18
LANDLORD'S RIGHT TO INSPECT
Tenant shall permit Landlord and its authorized representatives to inspect
all or any portion of the Leased Property during usual business hours upon not
less than forty-eight (48) hours' notice and to make such repairs as Landlord is
permitted or required to make pursuant to the terms of this Agreement, provided
that any inspection or repair by Landlord or its representatives will not
unreasonably interfere with Tenant's use and operation of the same and further
provided that in the event of an emergency, as determined by Landlord in its
reasonable discretion, prior Notice shall not be necessary.
ARTICLE 19
EASEMENTS
19.1 GRANT OF EASEMENTS. Provided no Event of Default has occurred and is
continuing, Landlord will join in granting and, if necessary, modifying or
abandoning such rights-of-way, easements and other interests as may be
reasonably requested by Tenant for ingress and egress, and electric, telephone,
gas, water, sewer and other utilities so long as:
(a) the instrument creating, modifying or abandoning any such
easement, right-of-way or other interest is satisfactory to and approved
by Landlord (which approval shall not be unreasonably withheld, delayed or
conditioned);
(b) Landlord receives an Officer's Certificate from Tenant stating
(i) that such grant, modification or abandonment is not detrimental to the
proper conduct of business on such Property, (ii) the consideration, if
any, being paid for such grant, modification or abandonment (which
consideration shall be paid by Tenant), (iii) that such grant,
modification or abandonment does not impair the use or value of such
Property for the Permitted Use, and (iv) that, for as long as this
Agreement shall be in effect, Tenant will perform all obligations, if any,
of Landlord under any such instrument; and
(c) Landlord receives evidence satisfactory to Landlord that the
Manager has granted its consent to such grant, modification or abandonment
in accordance with the requirements of such Manager's Management Agreement
or that such consent is not required.
19.2 EXERCISE OF RIGHTS BY TENANT. So long as no Event of Default has
occurred and is continuing, Tenant shall have the right to exercise all rights
of Landlord under the Easement Agreements and, in connection therewith, Landlord
shall execute and promptly return to Tenant such documents as Tenant shall
reasonably request. Tenant
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shall perform all obligations of Landlord under the Easement Agreements.
19.3 PERMITTED ENCUMBRANCES. Any agreements entered into in accordance
with this Article 19 shall be deemed a Permitted Encumbrance.
ARTICLE 20
FACILITY MORTGAGES
20.1 LANDLORD MAY GRANT LIENS. Without the consent of Tenant, Landlord
may, from time to time, directly or indirectly, create or otherwise cause to
exist any lien, encumbrance or title retention agreement, including, without
limitation, any Facility Mortgage ("Encumbrance") upon the Leased Property, or
any portion thereof or interest therein, to secure any borrowing or other means
of financing or refinancing. Any such Facility Mortgage shall be subject to the
terms and conditions of Article 10 and Article 11 of this Agreement and Landlord
shall exercise reasonable efforts to have provisions included in each such
Facility Mortgage requiring the Facility Mortgagee thereunder to disburse
insurance proceeds and Condemnation awards received in accordance with the terms
and conditions of Articles 10 and 11 of this Agreement. Notwithstanding the
foregoing, any such requirement to release insurance proceeds or Condemnation
awards shall be subject to such Facility Mortgagee's standard terms and
conditions for borrowings and other financings or refinancings of comparable
size, nature and type, such as provisions granting the Facility Mortgagee the
right to review and approve the plans and specifications for the work, the
architect and contractor for the work and any contracts relating thereto,
Tenant's providing evidence of compliance with applicable law and having
obtained all permits and approvals relating thereto, Tenant providing bonds or
other guaranties of completion of the work, requirements relating to progress
payments and retainage and the like.
20.2 SUBORDINATION OF LEASE. Provided that Tenant receives the SNDA
required under this Section 20.2, this Agreement and any and all rights of
Tenant hereunder are, and shall be, subject and subordinate (as applicable) to
(i) any ground or master lease entered into by Landlord and all renewals,
extensions, modifications and replacements thereof (collectively, "Superior
Leases") and (ii) all Encumbrances entered into by Landlord which may now or
hereafter affect the Leased Property or any portion thereof or any improvements
thereon, whether or not such Encumbrances shall also cover other lands and/or
buildings and/or leases, to each and every advance made or hereafter to be made
under such Encumbrances, and to all renewals, modifications, replacements and
extensions of such Encumbrances and all consolidations of such Encumbrances
(collectively "Superior Mortgages"). Furthermore, if any lessor under any
Superior Lease (a "Superior Lessor") or the holder, trustee or beneficiary of a
Superior Mortgage (a "Superior Mortgagee") shall succeed to the rights of
Landlord under this Agreement (such person, a "Successor Landlord")
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whether through possession or foreclosure or delivery of a new lease or deed, or
otherwise, at such Successor Landlord's request, Tenant shall attorn to and
recognize such Successor Landlord as Tenant's landlord under this Agreement.
This section shall be self operative and no further instrument of subordination
shall be required. In confirmation of such subordination and attornment, Tenant
shall promptly execute, acknowledge and deliver any instrument that Landlord,
any Superior Lessor or any Superior Mortgagee or any of their respective
successors in interest may reasonably request to evidence such subordination
and/or attornment.
Simultaneously with Landlord subjecting the Leased Property or any portion
thereof to any Superior Lease or Superior Mortgage, and as a condition to the
subordination of Tenant's estate hereunder, Landlord shall cause the Superior
Landlord or the Superior Mortgagee, as the case may be, to execute and deliver
to Tenant a recordable subordination, nondisturbance and attornment agreement
(the "SNDA") on such Superior Landlord's or Superior Mortgagee's standard form;
provided, however, that such standard form shall not impose any additional
obligations or burdens on Tenant which are not otherwise provided for in this
Agreement. Pursuant to such SNDa, Tenant and such Superior Landlord or Superior
Mortgagee shall agree that in the event such Superior Landlord, Superior
Mortgagee or the nominee, designee or successor or assign of any Superior
Landlord or Superior Mortgagee shall succeed to the rights of Landlord under
this Agreement and become a "Successor Landlord", whether through possession or
successful bid at foreclosure or other similar action or delivery of a new lease
or deed, or otherwise, then (a) this Agreement and Tenant's leasehold estate
shall not be disturbed or affected thereby and shall remain in full force and
effect as a lease between Successor Landlord and Tenant and (b) Tenant shall
attorn to and recognize the Successor Landlord as Tenant's landlord under this
Agreement, whereupon, this Agreement shall continue in full force and effect as
a direct lease between the Successor Landlord and Tenant upon all of the terms,
conditions and covenants as are set forth in this Agreement, except that the
Successor Landlord (unless formerly the landlord under this Agreement or its
Affiliate, nominee or designee) shall not be (i) liable in any way to Tenant for
any act or omission, neglect or default on the part of any prior Landlord under
this Agreement, (ii) responsible for any monies owing by or on deposit with any
prior Landlord to the credit of Tenant (except to the extent actually paid or
delivered to the Successor Landlord), (iii) subject to any counterclaim or
setoff which theretofore accrued to Tenant against any prior Landlord, (iv)
bound by any modification of this Agreement subsequent to such Superior Lease or
Superior Mortgage, or by any previous prepayment of Rent for more than one (1)
month in advance of the due date hereunder, which was not approved in writing by
the Superior Landlord or Superior Mortgagee thereto, (v) liable to Tenant beyond
the Successor Landlord's interest in the Leased Property and the rents, income,
receipts, revenues, issues and profits issuing from the Leased Property, (vi)
responsible for the performance of any work to be done by the Landlord under
this Agreement to render the Leased Property ready for occupancy by Tenant
(subject to Landlord's
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obligations under Section 5.1.2(b) or with respect to any insurance or
Condemnation proceeds), or (vii) required to remove any Person occupying the
Leased Property or any part thereof, except if such person claims by, through or
under the Successor Landlord. The SNDA shall further provide, and each Superior
Landlord, Superior Mortgagee and any Successor Landlord shall agree and be
liable (A) to pay to Tenant any amounts owed under Section 5.1.2(b), and (B) to
pay to Tenant any portions of insurance proceeds or Awards received by any of
them and required to be paid to Tenant pursuant to the terms of this Agreement,
and, as a condition to any mortgage, lien or lease in respect of the Leased
Property, or any portion thereof, and the subordination of this Agreement
thereto, the mortgagee, lienholder or lessor, as applicable, shall expressly
agree, for the benefit of Tenant, to make such payments, which agreement shall
be embodied in an instrument in form reasonably satisfactory to Tenant.
20.3 NOTICE TO MORTGAGEE AND SUPERIOR LANDLORD. Subsequent to the receipt
by Tenant of Notice from Landlord as to the identity of any Superior Landlord or
Superior Mortgagee under a Superior Lease or Superior Mortgage which affects all
or any portion of the Leased Property and which complies with Section 20.1
(which Notice shall be accompanied by a copy of the applicable mortgage or
lease), no Notice from Tenant to Landlord as to a default by Landlord under this
Agreement shall be effective with respect to such Superior Landlord or Superior
Mortgagee unless and until a copy of the same is given to such Superior Landlord
or Superior Mortgagee at the address set forth in the above described Notice,
and the curing of any of Landlord's defaults within the applicable notice and
cure periods set forth in Article 14 by such Superior Landlord or Superior
Mortgagee shall be treated as performance by Landlord.
ARTICLE 21
ADDITIONAL COVENANTS OF TENANT
21.1 PROMPT PAYMENT OF INDEBTEDNESS. Tenant shall (a) pay or cause to be
paid when due all payments of principal of and premium and interest on Tenant's
Indebtedness for money borrowed (including, without limitation, causing Alterra
and Borrower to pay the Borrower Indebtedness) and shall not permit or suffer
any such Indebtedness to become or remain in default beyond any applicable grace
or cure period, (b) pay or cause to be paid when due all lawful claims for labor
and rents with respect to the Leased Property, (c) pay or cause to be paid when
due all trade payables and (d) pay or cause to be paid when due all other of
Tenant's Indebtedness upon which it is or becomes obligated, except, in each
case, other than that referred to in clause (a), to the extent payment is being
contested in good faith by appropriate proceedings in accordance with Article 8
and if Tenant shall have set aside on its books adequate reserves with respect
thereto in accordance with GAAP, if appropriate, or unless and until
foreclosure, distraint sale or other similar proceedings shall have been
commenced.
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21.2 CONDUCT OF BUSINESS. Tenant shall not engage in any trade or business
other than the leasing and operation of the Leased Property (including any
incidental or ancillary business relating thereto) pursuant to the terms and
conditions of this Agreement and shall do or cause to be done all things
necessary to preserve, renew and keep in full force and effect and in good
standing its corporate existence and its rights and licenses necessary to
conduct such business.
21.3 MAINTENANCE OF ACCOUNTS AND RECORDS. Tenant shall keep or cause to be
kept true records and books of account of Tenant in which full, true and correct
entries will be made of dealings and transactions in relation to the business
and affairs of Tenant in accordance with GAAP. Tenant shall apply accounting
principles in the preparation of the financial statements of Tenant which are in
accordance with GAAP.
21.4 NOTICE OF LITIGATION, ETC. Tenant shall give prompt Notice to
Landlord of any litigation or any administrative proceeding to which it may
hereafter become a party of which Tenant has notice or actual knowledge which
involves a potential liability equal to or greater than One Hundred Thousand
Dollars ($100,000) or which may otherwise result in any material adverse change
in the business, operations, property, prospects, results of operation or
condition, financial or other, of Tenant. Forthwith upon Tenant obtaining
knowledge of any Default, Event of Default or any default or event of default
under any agreement relating to Indebtedness for money borrowed in an aggregate
amount exceeding, at any one time, One Hundred Thousand Dollars ($100,000), or
any event or condition that would be required to be disclosed in a current
report filed by Tenant on Form 8-K or in Part II of a quarterly report on Form
10-Q if Tenant were required to file such reports under the Securities Exchange
Act of 1934, as amended, Tenant shall furnish Notice thereof to Landlord
specifying the nature and period of existence thereof and what action Tenant has
taken or is taking or proposes to take with respect thereto.
21.5 INDEBTEDNESS. Tenant shall not create, incur, assume or guarantee, or
permit to exist, or become or remain liable directly or indirectly upon, any
Indebtedness except the following:
(a) Borrower Indebtedness; or
(b) Indebtedness of Tenant to Landlord; or
(c) Indebtedness of Tenant for Impositions, to the extent that
payment thereof shall not at the time be required to be made in accordance
with the provisions of Article 8; or
(d) Indebtedness of Tenant in respect of judgments or awards (i)
which have been in force for less than the applicable appeal period and in
respect of which execution thereof shall have been stayed pending such
appeal or review, or (ii) which are
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fully covered by insurance payable to Tenant or Manager (subject to any
applicable deductible), or (iii) which are for an amount not in excess of
One Hundred Thousand Dollars ($100,000) in the aggregate at any one time
outstanding in excess of any insurance in effect, plus any applicable
deductible and (A) which have been in force for not longer than the
applicable appeal period, so long as execution is not levied thereunder or
(B) in respect of which an appeal or proceedings for review shall at the
time be prosecuted in good faith in accordance with the provisions of
Article 8, and in respect of which execution thereof shall have been
stayed pending such appeal or review; or
(e) Indebtedness for purchase money financing in accordance with
Section 21.10(a) and other operating liabilities incurred in the ordinary
course of Tenant's business; or
(f) Indebtedness of Tenant to suppliers of goods and services in the
ordinary course of the operation of Tenant's business at the Leased
Property.
21.6 FINANCIAL CONDITION OF TENANT. Tenant shall at all times maintain a
positive Tangible Net Worth. Each Officer's Certificate delivered by Tenant to
Landlord under Section 17.2(b) shall certify as to Tenant's compliance with this
requirement.
21.7 FINANCIAL CONDITION OF ALTERRA. At the time of the confirmation of
the Conforming Plan, Alterra shall have a consolidated Net Worth of at least
Thirty Million Dollars ($30,000,000). Tenant shall provide Landlord with, or
cause Landlord to be provided with, evidence satisfactory to Landlord, in its
sole discretion, of compliance with the foregoing requirement within five (5)
days of the date of the confirmation of the Conforming Plan.
21.8 DISTRIBUTIONS, PAYMENTS TO AFFILIATED PERSONS, ETC. Tenant shall not
declare, order, pay or make, directly or indirectly, any Distributions or any
payment to any Affiliated Person of Tenant (including payments in the ordinary
course of business) or set apart any sum or property therefor, or agree to do
so, if, at the time of such proposed action, or immediately after giving effect
thereto, any Event of Default shall have occurred and be continuing. Otherwise,
as long as no Event of Default shall have occurred and be continuing, Tenant may
make Distributions and payments to Affiliated Persons without restriction;
provided, however, that Tenant may enter into a Management Agreement, subject to
the provisions of Section 5.4, with any Affiliated Person of Tenant provided
that no Event of Default shall have occurred and be continuing.
21.9 PROHIBITED TRANSACTIONS. Tenant shall not permit to exist or enter
into any agreement or arrangement whereby it engages in a transaction of any
kind with any Affiliated Person as to Tenant or any Guarantor, except on terms
and conditions which are commercially reasonable.
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21.10 LIENS AND ENCUMBRANCES. Except as permitted by Section 7.1 and
Section 21.5, Tenant shall not create or incur or suffer to be created or
incurred or to exist any Lien on this Agreement or any of Tenant's assets,
properties, rights or income, or any of its interest therein, now or at any time
hereafter owned, other than the following Permitted Liens:
(a) Security interests securing the purchase price of equipment or
personal property whether acquired before or after the Commencement Date;
provided, however, that (i) such Lien shall at all times be confined
solely to the asset in question and (ii) the aggregate principal amount of
Indebtedness secured by any such Lien shall not exceed the cost of
acquisition or construction of the property subject thereto;
(b) Permitted Encumbrances;
(c) Security interests in Accounts or Chattel Paper, in Support
Obligations, General Intangibles or Deposit Accounts relating to such
Accounts or Chattel Paper, in any Instruments or Investment Property
evidencing or arising from such Accounts or Chattel Paper, in any
documents, books, records or other information (including, without
limitation, computer programs, tapes, discs, punch cards, data processing
software and related property and rights) maintained with respect to any
property described in this Section 21.10(c) or in any Proceeds of any of
the foregoing (capitalized terms used in this Section 21.10(c) without
definition being used as defined in or for purposes of Article 9 of the
Uniform Commercial Code as in effect in the Commonwealth of
Massachusetts); and
(d) To secure Indebtedness permitted pursuant to Section(s) 21.5
(a)-(e).
21.11 MERGER; SALE OF ASSETS; ETC. Without Landlord's prior written
consent (which consent may be given or withheld in Landlord's sole discretion),
Tenant shall not (i) sell, lease (as lessor or sublessor), transfer or otherwise
dispose of, or abandon, all or any material portion of its assets (including
capital stock) or business other than the Excluded Assets to any Person, (ii)
merge into or with or consolidate with any other Entity, or (iii) sell, lease
(as lessor or sublessor), transfer or otherwise dispose of, or abandon, any
personal property or fixtures or any real property other than the Excluded
Assets; provided, however, that, notwithstanding the provisions of clause (iii)
preceding, Tenant may dispose of equipment or fixtures which have become
inadequate, obsolete, worn-out, unsuitable, undesirable or unnecessary, provided
substitute equipment or fixtures having equal or greater value and utility (but
not necessarily having the same function) have been provided.
21.12 CHANGE OF CONTROL OF GUARANTOR. Tenant shall cause each Acquiring
Guarantor, as a condition of, and prior to, such Person becoming an Acquiring
Guarantor, to execute a Guaranty in favor of
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Landlord pursuant to which the Acquiring Guarantor shall guarantee the payment
and performance of Tenant's obligations under this Lease. It is expressly
understood and agreed that the foregoing is not intended to release any
Guarantor from its liabilities and obligations under its Guaranty and that all
Guarantors shall in all events remain liable under its Guaranty.
ARTICLE 22
ARBITRATION
Landlord or Tenant may elect to submit any dispute hereunder or arising in
connection herewith that has an amount in controversy in excess of Two Hundred
Fifty Thousand Dollars ($250,000) to arbitration hereunder. Any such dispute
shall be conducted in Boston, Massachusetts in accordance with the Commercial
Arbitration Rules of the American Association as then in effect and the decision
of the arbitrators with respect to such dispute shall be binding, final and
conclusive on the parties. Any arbitration hereunder shall occur under the
auspices of the Massachusetts Arbitration Act.
In the event Landlord or Tenant shall elect to submit any such dispute to
arbitration hereunder, Landlord and Tenant shall each appoint and pay all fees
of a fit and impartial person as arbitrator with at least ten (10) years' recent
professional experience in the general subject matter of the dispute. Notice of
such appointment shall be sent in writing by each party to the other, and the
arbitrators so appointed, in the event of their failure to agree within thirty
(30) days after the appointment of the second arbitrator upon the matter so
submitted, shall appoint a third arbitrator. If either Landlord or Tenant shall
fail to appoint an arbitrator, as aforesaid, for a period of twenty (20) days
after written notice from the other party to make such appointment, then the
arbitrator appointed by the party having made such appointment shall appoint a
second arbitrator and the two (2) so appointed shall, in the event of their
failure to agree upon any decision within thirty (30) days thereafter, appoint a
third arbitrator. If such arbitrators fail to agree upon a third arbitrator
within forty five (45) days after the appointment of the second arbitrator, then
such third arbitrator shall be appointed by the American Arbitration Association
from its qualified panel of arbitrators, and shall be a person having at least
ten (10) years' recent professional experience as to the subject matter in
question. The fees of the third arbitrator and the expenses incident to the
proceedings shall be borne equally between Landlord and Tenant, unless the
arbitrators decide otherwise. The fees of respective counsel engaged by the
parties, and the fees of expert witnesses and other witnesses called for the
parties, shall be paid by the respective party engaging such counsel or calling
or engaging such witnesses.
The decision of the arbitrators shall be rendered within thirty (30) days
after appointment of the third arbitrator. Such decision shall be in writing and
in duplicate, one counterpart thereof to be
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delivered to Landlord and one to Tenant. A judgment of a court of competent
jurisdiction may be entered upon the award of the arbitrators in accordance with
the rules and statutes applicable thereto then obtaining.
Landlord and Tenant acknowledge and agree that, to the extent any such
dispute shall involve any Manager and be subject to arbitration pursuant to such
Manager's Management Agreement, Landlord and Tenant shall cooperate to
consolidate any such arbitration hereunder and under such Management Agreement
into a single proceeding.
ARTICLE 23
MISCELLANEOUS
23.1 LIMITATION ON PAYMENT OF RENT. All agreements between Landlord and
Tenant herein are hereby expressly limited so that in no contingency or event
whatsoever, whether by reason of acceleration of Rent, or otherwise, shall the
Rent or any other amounts payable to Landlord under this Agreement exceed the
maximum permissible under applicable law, the benefit of which may be asserted
by Tenant as a defense, and if, from any circumstance whatsoever, fulfillment of
any provision of this Agreement, at the time performance of such provision shall
be due, shall involve transcending the limit of validity prescribed by law, or
if from any circumstances Landlord should ever receive as fulfillment of such
provision such an excessive amount, then, ipso facto, the amount which would be
excessive shall be applied to the reduction of the installment(s) of Minimum
Rent next due and not to the payment of such excessive amount. This provision
shall control every other provision of this Agreement and any other agreements
between Landlord and Tenant.
23.2 NO WAIVER. No failure by Landlord or Tenant to insist upon the strict
performance of any term hereof or to exercise any right, power or remedy
consequent upon a breach thereof, and no acceptance of full or partial payment
of Rent during the continuance of any such breach, shall constitute a waiver of
any such breach or of any such term. To the maximum extent permitted by law, no
waiver of any breach shall affect or alter this Agreement, which shall continue
in full force and effect with respect to any other then existing or subsequent
breach.
23.3 REMEDIES CUMULATIVE. To the maximum extent permitted by law, each
legal, equitable or contractual right, power and remedy of Landlord or Tenant,
now or hereafter provided either in this Agreement or by statute or otherwise,
shall be cumulative and concurrent and shall be in addition to every other
right, power and remedy and the exercise or beginning of the exercise by
Landlord or Tenant (as applicable) of any one or more of such rights, powers and
remedies shall not preclude the simultaneous or subsequent exercise by Landlord
or Tenant of any or all of such other rights, powers and remedies.
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23.4 SEVERABILITY. Any clause, sentence, paragraph, section or provision
of this Agreement held by a court of competent jurisdiction to be invalid,
illegal or ineffective shall not impair, invalidate or nullify the remainder of
this Agreement, but rather the effect thereof shall be confined to the clause,
sentence, paragraph, section or provision so held to be invalid, illegal or
ineffective, and this Agreement shall be construed as if such invalid, illegal
or ineffective provisions had never been contained therein.
23.5 ACCEPTANCE OF SURRENDER. No surrender to Landlord of this Agreement
or of the Leased Property or any part thereof, or of any interest therein, shall
be valid or effective unless agreed to and accepted in writing by Landlord and
no act by Landlord or any representative or agent of Landlord, other than such a
written acceptance by Landlord, shall constitute an acceptance of any such
surrender.
23.6 NO MERGER OF TITLE. It is expressly acknowledged and agreed that it
is the intent of the parties that there shall be no merger of this Agreement or
of the leasehold estate created hereby by reason of the fact that the same
Person may acquire, own or hold, directly or indirectly this Agreement or the
leasehold estate created hereby and the fee estate or ground landlord's interest
in the Leased Property.
23.7 CONVEYANCE BY LANDLORD. If Landlord or any successor owner of all or
any portion of the Leased Property shall convey all or any portion of the Leased
Property in accordance with the terms hereof other than as security for a debt,
and the grantee or transferee of such of the Leased Property shall expressly
assume all obligations of Landlord hereunder arising or accruing from and after
the date of such conveyance or transfer, Landlord or such successor owner, as
the case may be, shall thereupon be released from all future liabilities and
obligations of Landlord under this Agreement with respect to such of the Leased
Property arising or accruing from and after the date of such conveyance or other
transfer and all such future liabilities and obligations shall thereupon be
binding upon the new owner.
23.8 QUIET ENJOYMENT. Tenant shall peaceably and quietly have, hold and
enjoy the Leased Property for the Term, free of hindrance or molestation by
Landlord or anyone claiming by, through or under Landlord, but subject to (a)
any Encumbrance permitted under Article 20 or otherwise permitted to be created
by Landlord hereunder, (b) all Permitted Encumbrances, (c) liens as to
obligations of Landlord that are either not yet due or which are being contested
in good faith and by proper proceedings, provided the same do not materially
interfere with Tenant's ability to operate any Facility and (d) liens that have
been consented to in writing by Tenant. Except as otherwise provided in this
Agreement, no failure by Landlord to comply with the foregoing covenant shall
give Tenant any right to cancel or terminate this Agreement or xxxxx, reduce or
make a deduction from or offset against the Rent or any other sum payable under
this Agreement, or to fail to perform any other obligation of Tenant hereunder.
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23.9 NO RECORDATION. Neither Landlord nor Tenant shall record this
Agreement; provided, however, that, upon Tenant's request and at Tenant's sole
cost and expense, Landlord shall execute (and Tenant may record) a Memorandum of
Lease, in each county in which any portion of the Leased Property is located.
23.10 NOTICES.
(a) Any and all notices, demands, consents, approvals, offers,
elections and other communications required or permitted under this
Agreement shall be deemed adequately given if in writing and the same
shall be delivered (i) by hand, (ii) by telecopier with electronic
confirmation of receipt (provided a conforming copy is immediately
delivered by hand or by Federal Express or a similar expedited commercial
carrier) or (iii) by mail or Federal Express or similar expedited
commercial carrier, addressed to the recipient of the notice with all
freight charges prepaid.
(b) All notices required or permitted to be sent hereunder shall be
deemed to have been given for all purposes of this Agreement upon the date
of acknowledged receipt, in the case of a notice by telecopier, and, in
all other cases, upon the date of receipt or refusal, except that whenever
under this Agreement a notice is either received on a day which is not a
Business Day or is required to be delivered on or before a specific day
which is not a Business Day, the day of receipt or required delivery shall
automatically be extended to the next Business Day.
(c) All such notices shall be addressed,
if to Landlord:
c/o Senior Housing Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxxx
Telecopier No. (000) 000-0000
with a copy to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Telecopier No. (000) 000-0000
if to Tenant to:
Alterra Healthcare Corporation
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxxxxx
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Telecopier No. (000) 000-0000
with a copy to:
Xxxxxx & Xxxxxx LLP
2700 International Tower
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxx, Esq.
Telecopier No. (000) 000-0000
(d) By notice given as herein provided, the parties hereto and their
respective successors and assigns shall have the right from time to time
and at any time during the term of this Agreement to change their
respective addresses effective upon receipt by the other parties of such
notice and each shall have the right to specify as its address any other
address within the United States of America.
23.11 CONSTRUCTION. Anything contained in this Agreement to the contrary
notwithstanding, all claims against, and liabilities of, Tenant or Landlord
arising prior to any date of termination or expiration of this Agreement with
respect to the Leased Property shall survive such termination or expiration. In
no event shall Landlord be liable for any consequential damages suffered by
Tenant as the result of a breach of this Agreement by Landlord. Neither this
Agreement nor any provision hereof may be changed, waived, discharged or
terminated except by an instrument in writing signed by the party to be charged.
All the terms and provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns. Each term or provision of this Agreement to be performed by Tenant
shall be construed as an independent covenant and condition. Time is of the
essence with respect to the provisions of this Agreement. Except as otherwise
set forth in this Agreement, any obligations of Tenant (including without
limitation, any monetary, repair and indemnification obligations) and Landlord
shall survive the expiration or sooner termination of this Agreement. Whenever
it is provided in this Agreement that Tenant shall direct any Manager to take
any action, Tenant shall not be deemed to have satisfied such obligation unless
Tenant shall have exhausted all applicable rights and remedies of Tenant as
"Owner" under such Manager's Management Agreement.
23.12 COUNTERPARTS; HEADINGS. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but which, when
taken together, shall constitute but one instrument and shall become effective
as of the date hereof when copies hereof, which, when taken together, bear the
signatures of each of the parties hereto shall have been signed. Headings in
this Agreement are for purposes of reference only and shall not limit or affect
the meaning of the provisions hereof.
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23.13 APPLICABLE LAW, ETC. This Agreement shall be interpreted, construed,
applied and enforced in accordance with the laws of The Commonwealth of
Massachusetts applicable to contracts between residents of Massachusetts which
are to be performed entirely within Massachusetts, regardless of (i) where this
Agreement is executed or delivered; or (ii) where any payment or other
performance required by this Agreement is made or required to be made; or (iii)
where any breach of any provision of this Agreement occurs, or any cause of
action otherwise accrues; or (iv) where any action or other proceeding is
instituted or pending; or (v) the nationality, citizenship, domicile, principal
place of business, or jurisdiction of organization or domestication of any
party; or (vi) whether the laws of the forum jurisdiction otherwise would apply
the laws of a jurisdiction other than Massachusetts; or (vii) any combination of
the foregoing. Notwithstanding the foregoing, the laws of the State shall apply
to the perfection and priority of liens upon and the disposition of any
Property.
23.14 RIGHT TO MAKE AGREEMENT. Each party warrants, with respect to
itself, that neither the execution of this Agreement, nor the consummation of
any transaction contemplated hereby, shall violate any provision of any law, or
any judgment, writ, injunction, order or decree of any court or governmental
authority having jurisdiction over it; nor result in or constitute a breach or
default under any indenture, contract, other commitment or restriction to which
it is a party or by which it is bound; nor require any consent, vote or approval
which has not been given or taken, or at the time of the transaction involved
shall not have been given or taken. Each party covenants that it has and will
continue to have throughout the term of this Agreement and any extensions
thereof, the full right to enter into this Agreement and perform its obligations
hereunder.
23.15 ATTORNEYS' FEES. If any lawsuit or arbitration or other legal
proceeding arises in connection with the interpretation or enforcement of this
Agreement, the prevailing party therein shall be entitled to receive from the
other party the prevailing party's costs and expenses, including reasonable
attorneys' fees incurred in connection therewith, in preparation therefor and on
appeal therefrom, which amounts shall be included in any judgment therein.
23.16 NONLIABILITY OF TRUSTEES. THE DECLARATION OF TRUST ESTABLISHING
LANDLORD, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (COLLECTIVELY,
THE "DECLARATION"), IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS AND
TAXATION OF THE STATE OF MARYLAND, PROVIDES, AND TENANT AGREES, THAT THE NAME
["SNH ALT LEASED PROPERTIES TRUST"] REFERS TO THE TRUSTEES UNDER THE DECLARATION
COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO
TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF LANDLORD SHALL BE HELD TO
ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM
AGAINST, LANDLORD. ALL PERSONS DEALING WITH LANDLORD, IN ANY WAY, SHALL LOOK
ONLY TO THE ASSETS OF LANDLORD FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF
ANY OBLIGATION.
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23.17 BANKRUPTCY REMOTE ENTITIES. At Landlord's request, Tenant shall make
such amendments, modifications or other changes to its charter documents and
governing bodies (including, without limitation, Tenant's board of directors),
and take such other action, as may from time to time be necessary to qualify
Tenant as a "bankruptcy remote entity," provided that Landlord shall reimburse
Tenant for all costs and expenses reasonably incurred by Tenant in connection
with the making of such amendments or modifications.
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IN WITNESS WHEREOF, the parties have executed this Agreement as a sealed
instrument as of the date above first written.
LANDLORD:
SNH ALT LEASED PROPERTIES TRUST, a
Maryland real estate investment trust
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
Treasurer
TENANT:
AHC TRAILSIDE, INC., a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Xxxx X. Xxxxxxxxx
Vice President
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EXHIBITS A-1 THROUGH A-18
LAND
[SEE ATTACHED COPIES.]
EXHIBIT B
LIST OF PURCHASE MONEY FINANCING ARRANGEMENTS,
EQUIPMENT LEASES AND SIMILAR ARRANGEMENTS
[SEE ATTACHED COPY.]
EXHIBIT C
PERMITTED CONTROL PERSONS
[SEE ATTACHED COPY.]
