EXHIBIT 10.18
MASTER LEASE DOCUMENT
GENERAL TERMS AND CONDITIONS
DATED AS OF DECEMBER 28, 1990,
FOR LEASES TO BE EXECUTED BY
HEALTH AND REHABILITATION PROPERTIES TRUST
(Known in Wisconsin as "Health and Rehabilitation
Properties REIT"), AS LANDLORD,
AND
AMS PROPERTIES, INC., AS TENANT
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS............................................................................................2
ARTICLE 2 LEASED PROPERTY AND TERM..............................................................................12
2.1 Leased Property...........................................................................12
2.2 Condition of Leased Property..............................................................13
2.3 Fixed Term................................................................................14
2.4 Extended Terms............................................................................14
ARTICLE 3 RENT..................................................................................................15
3.1 Rent......................................................................................15
3.2 Late Payment of Rent......................................................................23
3.3 Net Lease.................................................................................23
3.4 No Termination, Abatement, Etc............................................................24
ARTICLE 4 USE OF THE APPLICABLE LEASED PROPERTY.................................................................24
4.1 Permitted Use.............................................................................24
4.2 Compliance with Legal and Insurance Requirements, Etc.....................................26
4.3 Compliance with Medicaid and Medicare Requirements........................................26
4.4 Environmental Matters.....................................................................26
ARTICLE 5 MAINTENANCE AND REPAIRS...............................................................................27
5.1 Maintenance and Repair....................................................................27
5.2 Tenant's Personal Property................................................................28
5.3 Yield Up..................................................................................29
5.4 Encroachments, Restrictions, Etc..........................................................29
5.5 Landlord to Grant Easements, Etc..........................................................30
ARTICLE 6 CAPITAL ADDITIONS, ETC................................................................................31
6.1 Construction of Capital Additions to the Leased Property..................................31
6.2 Capital Additions Financed or Paid For by Tenant..........................................32
6.3 Non-Capital Additions.....................................................................34
6.4 Salvage...................................................................................34
ARTICLE 7 LIENS.................................................................................................34
7.1 Liens.....................................................................................34
7.2 Landlord's Lien...........................................................................35
ARTICLE 8 PERMITTED CONTESTS....................................................................................35
ARTICLE 9 INSURANCE AND INDEMNIFICATION.........................................................................36
9.1 General Insurance Requirements............................................................36
9.2 Replacement Cost..........................................................................37
9.3 Waiver of Subrogation.....................................................................38
9.4 Form Satisfactory, Etc....................................................................38
9.5 Blanket Policy............................................................................39
9.6 No Separate Insurance.....................................................................39
9.7 Indemnification of Landlord...............................................................39
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........................................................................43
10.5 Restoration of Tenant's Property.........................................................43
10.6 Abatement of Rent........................................................................43
10.7 Termination of Rights of First Refusal and Option to Purchase............................44
10.8 Waiver...................................................................................44
ARTICLE 11 CONDEMNATION..........................................................................................44
11.1 Total Condemnation, Etc..................................................................44
11.2 Partial Condemnation.....................................................................44
11.3 Abatement of Rent........................................................................45
11.4 Temporary Condemnation...................................................................45
11.5 Allocation of Award......................................................................46
11.6 Termination of Rights of First Refusal and Option to Purchase............................46
ARTICLE 12 DEFAULTS AND REMEDIES.................................................................................46
12.1 Events of Default........................................................................50
12.2 Remedies.................................................................................52
12.3 TENANT'S WAIVER..........................................................................52
12.4 Application of Funds.....................................................................52
12.5 Failure to Conduct Business..............................................................52
12.6 Landlord's Right to Cure Tenant's Default................................................53
12.7 Trade Names..............................................................................53
ARTICLE 13 HOLDING OVER..........................................................................................53
ARTICLE 14 LANDLORD'S DEFAULT....................................................................................53
ARTICLE 15 PURCHASE OF LEASED PROPERTY...........................................................................54
ARTICLE 16 SUBSTITUTION OF PROPERTY FOR THE LEASED PROPERTY......................................................55
16.1 Tenant's Substitution Option.............................................................55
16.2 Landlord's Substitution Option...........................................................56
16.3 Substitution Procedures..................................................................56
16.4 Conditions to Substitution...............................................................57
16.5 Conveyance to Tenant.....................................................................59
16.6 Expenses.................................................................................59
ARTICLE 17 SUBLETTING AND ASSIGNMENT.............................................................................60
17.1 Subletting and Assignment................................................................60
17.2 Required Sublease Provisions.............................................................61
17.3 Permitted Sublease.......................................................................62
17.4 Sublease Limitation......................................................................62
ARTICLE 18 ESTOPPEL CERTIFICATES.................................................................................62
ARTICLE 19 LANDLORD'S RIGHT TO INSPECT...........................................................................63
ARTICLE 20 APPRAISAL.............................................................................................63
20.1 Appraisal Procedure......................................................................63
20.2 Landlord's Right to Appraisal............................................................64
ARTICLE 21 RIGHTS OF FIRST REFUSAL; OPTION TO PURCHASE...........................................................64
21.1 First Refusal to Purchase................................................................64
21.2 First Refusal to Lease...................................................................65
21.3 Landlord's Option to Purchase the Tenant's Personal
Property; Transfer of Licenses.........................................................66
21.4 Tenant's Option to Purchase the Collective Leased Properties.............................67
ARTICLE 22 FACILITY MORTGAGES....................................................................................67
22.1 Landlord may Grant Liens.................................................................67
22.2 Subordination of Lease...................................................................68
22.3 Notice to Mortgagee and Ground Landlord..................................................70
ARTICLE 23 MISCELLANEOUS.........................................................................................70
23.1 No Waiver................................................................................70
23.2 Remedies Cumulative......................................................................70
23.3 Acceptance of Surrender..................................................................70
23.4 No Merger of Title.......................................................................71
23.5 Conveyance by Landlord...................................................................71
23.6 Quiet Enjoyment..........................................................................71
23.7 NON-LIABILITY OF TRUSTEES................................................................71
23.8 Landlord's Consent of Trustees...........................................................72
23.9 Memorandum of Lease......................................................................72
23.10 Notices.................................................................................72
23.11 Incorporation by Reference..............................................................72
23.12 Construction............................................................................73
23.13 GOVERNING LAW...........................................................................74
SCHEDULE 1 LIST OF TRANSACTION DOCUMENTS
MASTER LEASE DOCUMENT
THIS MASTER LEASE DOCUMENT, GENERAL TERMS AND CONDITIONS (hereinafter
the "Master Lease Document") is prepared for and will be adopted as part of each
lease to be executed by HEALTH AND REHABILITATION PROPERTIES TRUST, a Maryland
real estate investment trust (known in Wisconsin as "Health and Rehabilitation
Properties REIT"), having its principal office at 000 Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, as Landlord, and AMS PROPERTIES, INC., a Delaware
corporation having its principal office at 000 Xxxx Xxx Xxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxxxx 00000, as Tenant.
RECITALS
This Master Lease Document is made and entered into with reference to
the following recitals:
A. Landlord, Tenant, American Medical Services, Inc., a Wisconsin
corporation ("AMS"), which owns beneficially and of record all of the
capital stock of Tenant, AMS Holding Co., a California corporation
("AMSHC"), which owns beneficially and of record all of the capital
stock of AMS, and Host Masters, Inc., a California corporation ("HMI"),
which owns beneficially and of record all of the capital stock of
AMSHC, have entered into an Acquisition Agreement, Agreement to Lease
and Mortgage Loan Agreement dated as of even date herewith (as the same
may be amended, modified or supplemented from time to time, the
"Acquisition Agreement"), pursuant to which, inter alia, Landlord
agreed to acquire from AMS and simultaneously to lease to Tenant
certain parcels of real property and improvements (the "Collective
Leased Properties") each for use and operation as a licensed nursing
home or as otherwise described on Exhibit A-1 hereto. The Collective
Leased Properties are identified in Exhibit A-2 hereto.
B. Landlord and Tenant have executed and delivered a lease for each of the
Collective Leased Properties of each of which leases are substantially
in the form of Exhibit B hereto and incorporate by reference this
Master Lease Document. Each such lease is hereinafter referred to as a
"Lease".
C. Notwithstanding anything herein to the contrary, the terms and
conditions of this Master Lease Document shall be construed and
interpreted as to each Lease as if a separate lease containing all the
terms of this Master Lease Document and such Lease had been executed by
Landlord and Tenant with respect to the Collective Leased Property
described in such Lease.
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NOW, THEREFORE, in consideration of the foregoing, and of other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Landlord and Tenant agree as follows:
ARTICLE 1
DEFINITIONS
For all purposes of this Master Lease Document, except as otherwise
expressly provided or unless the context otherwise requires, (i) 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, (ii) all accounting terms not
otherwise defined herein shall have the meanings assigned to them in ac cordance
with generally accepted accounting principles consistently applied, (iii) all
references in this Master Lease Document to designated "Articles," "Sections"
and other subdivisions are to the designated Articles, Sections and other
subdivisions of this Master Lease Document and (iv) the words "herein,"
"hereof," "hereunder" and other words of similar import refer to this Master
Lease Document as a whole and not to any particular Article, Section or other
subdivision.
Acquisition Agreement: As defined in the recital clauses hereto.
Additional Charges: As defined in Section 3.1.3.
Additional Rent: As defined in Section 3.1.2 with respect to the
applicable Leased Property.
Additional Rent Adjustment Date shall mean, for any Fiscal Year, the
date on which an amount of Net Patient Revenues shall have been generated by
each of the Collective Leased Properties, such that (a) five percent (5%) of the
sum of the excess, for all the Collective Leased Properties, of (x) the Net
Patient Revenues for each Collective Leased Property for such Fiscal Year
through such date over (y) the Net Patient Revenues for such Collective Leased
Property during the Base Year shall equal (b) two percent (2%) of the sum of the
Adjusted Purchase Prices of all the Collective Leased Properties.
Adjusted Purchase Price shall mean, for the applicable Leased Property
or Collective Leased Property, as the case may be, the Purchase Price of such
Leased Property or Collective Leased Property, plus the aggregate amount of all
disbursements made by Landlord with respect to such Leased Property or
Collective Leased Property pursuant to the terms of the Renovation Funding
Agreement, plus any amount disbursed or advanced by Landlord to finance, or to
reimburse Tenant for its financing of, any Capital Addition to such Leased
Property or Collective Leased Property (but excluding any amounts disbursed by
Landlord under the terms of the Renovation Escrow Agreement), less the amount of
any Award
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or the proceeds of any insurance received by Landlord in connection
with a partial Condemnation or a partial casualty involving the applicable
Leased Property as described in Section 11.2 or 10.2.2, and not applied by
Landlord to the restoration of the applicable Leased Property as provided
therein.
Affiliate shall mean as to any Person (a) any other Person which,
directly or indirectly, controls or is controlled by or is under common control
with such Person, (b) any other Person that owns, beneficially, directly or
indirectly, five percent (5%) or more on a consolidated basis, of the
outstanding capital stock, shares, equity or beneficial interests of such
Person, (c) any officer, director, employee, general partner or trustee of such
Person or any other Person controlling, controlled by or under common control
with such Person (excluding trustees and Persons serving in similar capacities
who are not otherwise an Affiliate of such Person), or (d) with respect to any
individual, a spouse, any ancestor or descendant, or any other relative (by
blood, adoption or marriage), within the third degree, of such individual. For
the purposes of this definition, "control" (including the correlative meanings
of the terms "controlled by" and "under common control with"), as used with
respect to any Person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
Person, through the ownership of voting securities, partnership interests or
other equity interests.
AMS: As defined in the recital clauses hereto.
AMSHC: As defined in the recital clauses hereto.
Award shall mean all compensation, sums or other value awarded, paid or
received by virtue of a total or partial Condemnation of the applicable 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).
Base Net Patient Revenues shall mean, for the applicable Leased
Property, Net Patient Revenues for such Leased Property for the Base Year.
Base Year shall mean the year beginning January 1, 1991, and ending
December 31, 1991.
Business Day shall mean any day other than Saturday, Sunday, or any
other day on which banking institutions in the State are authorized by law or
executive action to close.
Capital Addition shall mean one or more new buildings, or one or more
additional structures annexed to any portion of any of the Leased Improvements
with respect to the applicable Leased Property, or the material expansion of
existing improvements, which are constructed on any parcel or portion of the
Land during
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the Term, including, the construction of a new wing or new story to the
renovation of existing improvements on such Leased Property in order to provide
a functionally new facility needed to provide services not previously offered,
or any expansion, construction, renovation or conversion in order to increase
the bed capacity of the Facility located on the applicable Leased Property, to
change the purpose for which such beds are utilized or to materially improve the
quality of such Facility.
Capital Additions Cost shall mean the cost of any Capital Addition
proposed to be made by Tenant at the applicable Leased Property, whether paid
for by Tenant or Landlord. Such cost shall include (a) the cost of construction
of the Capital Addition, including site preparation and improvement, materials,
labor, supervision, developer and administrative fees, legal fees, and related
design, engineering and architectural services, the cost of any fixtures, the
cost of equipment and other personalty, the cost of construction financing
(including, but not limited to, capitalized interest) and other miscellaneous
costs approved by Landlord, (b) if agreed to by Landlord in writing, in advance,
the cost of any land (including all related acquisition costs incurred by
Tenant) contiguous to the Leased Property which is to become a part of the
Leased Property purchased for the purpose of placing thereon the Capital
Addition or any portion thereof or for providing means of access thereto, or
parking facilities therefor, including the cost of surveying the same, (c) the
cost of insurance, real estate taxes, water and sewage charges and other
carrying charges for such Capital Addition during construction, (d) title
insurance charges, (e) reasonable attorneys' fees and expenses, (f) filing,
registration and recording taxes and fees, (g) documentary stamp or transfer
taxes, and (h) all actual and reasonable costs and expenses of Landlord and
Tenant and, if agreed to by Landlord in writing, in advance, any Lending
Institution committed to finance the Capital Addition, including, but not
limited to, all (i) reasonable attorneys' fees and expenses, (ii) printing
expenses, (iii) filing, registration and recording taxes and fees, (iv)
documentary stamp or transfer taxes, (v) title insurance charges and appraisal
fees, (vi) rating agency fees, and (vii) if agreed to by Landlord in writing, in
advance, commitment fees charged by any Lending Institution advancing or
offering to advance any portion of any financing to which Landlord has consented
in writing for such Capital Addition.
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.
Collective Leased Properties: As defined in the recital clauses hereto.
Commencement Date: As defined in the applicable Lease.
Condemnation shall mean, as to the applicable Leased Property, (a) the
exercise of any governmental power, whether by
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legal proceedings or otherwise, by a Condemnor, (b) a voluntary sale or transfer
by Landlord to any Condemnor, either under threat of condemnation or while legal
proceedings for condemnation are pending, and (c) a taking or voluntary
conveyance of all or part of such Leased 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 Leased Property,
whether or not the same shall have actually been commenced.
Condemnor shall mean any public or quasi-public authority, or private
corporation or individual, having the power of Condemnation.
Date of Taking shall mean, as to the applicable Leased Property, the
date the Condemnor has the right to possession of such Leased Property, or any
portion thereof, in connection with a Condemnation.
Default shall mean (a) any Event of Default and (b) and any condition
or event that (i) with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default and (ii) either relates to
the payment of Rent or relates to a matter as to which Landlord has given Notice
of default to Tenant.
Encumbrance: As defined in Section 22.1.
Event of Default: As defined in Section 12.1.
Excess Net Patient Revenues shall mean, for the applicable Leased
Property for any Fiscal Year or quarter thereof, the amount of Net Patient
Revenues for such Leased Property for such Fiscal Year (or applicable quarter
thereof) in excess of the Base Net Patient Revenues for such Leased Property
(or, with respect to any quarter in any Fiscal Year, twenty-five percent (25%)
of the total Base Net Patient Revenues for such Leased Property); provided that
such term shall mean, (i) with respect to any partial Fiscal Year (other than as
to any complete quarter thereof), the amount by which the Net Patient Revenues
for such Leased Property for such partial Fiscal Year, prorated to reflect the
number of days in such partial Fiscal Year, exceeds the product of (x) a
fraction of which the numerator is the number of days in such partial Fiscal
Year, and the denominator is 360, multiplied by (y) the total Base Net Patient
Revenues for such Leased Property; and (ii) with respect to any partial quarter,
the amount by which the Net Patient Revenues for such Leased Property for such
partial quarter, prorated to reflect the number of days in such partial quarter,
exceeds the product of (x) a fraction of which the numerator is the number of
days in such partial quarter, and the denominator is 360, multiplied by (y) the
total Base Net Patient Revenues for such Leased Property.
Extended Term(s): As defined in Section 2.4.
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Facility shall mean the facility being operated or proposed to be rated
on the applicable Leased Property.
Facility Mortgage shall mean any Encumbrance placed upon the applicable
Leased Property in accordance with Article 22 hereof.
Facility Mortgagee shall mean the holder of any Facility Mortgage.
Facility Trade Name shall mean any name under which Tenant holds or has
held itself out to the public in operating the Facility with respect to the
applicable Leased Property at any time during the Term.
Fair Market Added Value shall mean, as to any applicable Leased
Property, the Fair Market Value of such Leased Property (including all Capital
Additions) less the Fair Market Value of such Leased Property determined as if
no Tenant's Capital Additions had been constructed.
Fair Market Rental shall mean, as to the applicable Leased Property,
the rental which a willing tenant not compelled to rent would pay a willing
landlord not compelled to lease for the use and occupancy of such Leased
Property (including all Capital Additions other than Tenant's Capital Additions)
on the terms and conditions of the applicable Lease for the term in question,
assuming Tenant is not in default thereunder and determined in accordance with
the appraisal procedures set forth in Article 20 hereof or in such other manner
as shall be mutually acceptable to Landlord and Tenant.
Fair Market Value shall mean the price that a willing buyer not
compelled to buy would pay a willing seller not compelled to sell for the
applicable Leased Property, (a) assuming the same is unencumbered by the
applicable Lease, (b) determined in accordance with the appraisal procedures set
forth in Article 20 hereof or in such other manner as shall be mutually
acceptable to-Landlord and Tenant, and (c) not taking into account any reduction
in value resulting from any indebtedness to which such property is subject,
except the positive or negative effect on the value of such Leased Property
attributable to the interest rate, amortization schedule, maturity date,
prepayment penalty and other terms and conditions of any Encumbrance which is
not removed at or prior to the closing of the transaction as to which such Fair
Market Value determination is being made.
Fair Market Value Purchase Price shall mean the Fair Market Value of
the applicable Leased Property less the Fair Market Added Value.
Fiscal Year shall mean the twelve (12) month period from January 1 to
December 31.
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Five Percent Additional Rent shall mean, for the applicable Lease
Property and for any Fiscal Year, the sum equal to five percent (5%) o all
Excess Net Patient Revenues for such Leased Property for such Fiscal Year
through the Additional Rent Adjustment Date.
Fixed Term: As defined in Section 2.3.
Fixtures: As defined in Section 2.1(d).
Guarantor shall mean any guarantor of Tenant's obligations under the
applicable Lease, including, without limitation, AMS and AMSHC.
Hazardous Substances: As defined in Section 4.4.
HRP Shares Pledge Agreement shall mean the HRP Shares Pledge Agreement
dated as of even date herewith by Tenant in favor of Landlord, as the same may
be amended, modified or supplemented from time to time.
Impositions shall mean for the applicable Leased Property,
collectively, all taxes (including, without limitation, all taxes imposed under
the laws of the State, as such laws may be amended from time to time, and all ad
valorem, sales and use, single business, gross receipts, transaction privilege,
rent or similar taxes as the same relate to or are imposed upon Tenant or its
business conducted upon the applicable Leased Property), assessments (including,
without limitation, all assessments for public improvements or benefit, whether
or not commenced or completed prior to the date hereof and whether or not to be
completed within the Term), ground rents (including any minimum rent under any
ground lease, and any additional rent or charges thereunder, whether payable by
reference to Rent payable hereunder or otherwise), 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 applicable 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 may be assessed or imposed on
or in respect of or be a lien upon (a) Landlord's interest in such Leased
Property, (b) such 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 such Leased Property or the leasing or use of such Leased Property or any
part thereof by Tenant. Provided, however, nothing contained in the Lease with
respect to the ap plicable Leased Property shall be construed to require Tenant
to pay (1) any tax based on net income imposed on Landlord, or (2) any transfer,
or net revenue tax of Landlord, or (3) any transfer
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fee or other tax imposed with respect to the sale, exchange or other disposition
by Landlord of the applicable Leased Property or the proceeds thereof (other
than in connection with the sale, exchange or other disposition to, or in
connection with a transaction involving, Tenant), or (4) any single business,
gross receipts (other than a tax on any rent received by Landlord from Tenant),
transaction privilege, rent or similar taxes as the same related to or are
imposed upon Landlord, except to the extent that any tax assessment, tax levy or
charge, which Tenant is obligated to pay pursuant to the first sentence of this
definition and which is in effect at any time during the Term hereof is totally
or partially repealed, and a tax, assessment, tax levy or charge set forth in
clause (1) or (2) is levied, assessed or imposed expressly in lieu thereof.
Independent Trustees shall mean Trustees who, in their individual
capacity, (a) are not Affiliates of Tenant and (b) do not perform any services
for Landlord except as Trustees.
Insurance Requirements shall mean all terms of any insurance policy
required by the Lease with respect to the applicable Leased Property and all
requirements of the issuer of any such policy.
Land: As defined in Section 2.1(a) with respect to the applicable
Lease.
Landlord shall mean Health and Rehabilitation Properties Trust, a
Maryland real estate investment trust, and its successors and assigns.
Lease: As defined in the recital clauses hereto.
Leased Improvements: As defined in Section 2.1(b) with respect to the
applicable Lease.
Leased Personal Property: As defined in Section 2.1(e) with respect to
the applicable Lease.
Leased Property: As defined in Section 2.1 with respect to the
applicable Lease.
Legal Requirements shall mean, as to the applicable Leased Property,
all federal, state, county, municipal and other governmental statutes, laws,
rules, orders, regulations, ordinances, judgments, decrees and injunctions
affecting such 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, certificates of need,
authorizations and regulations necessary to operate such Leased Property for its
Primary Intended Use, and (b) all covenants, agreements, restrictions and
encumbrances contained in any instruments at any time in force affecting such
Leased Property, including those which may (i) require material repairs,
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modifications or alterations in or to such Leased Property or (ii) in any way
adversely affect the use and enjoyment thereof.
Minimum Rent: As defined in the applicable Lease, as the same may be
adjusted from time to time in accordance with Section 3.1.1.
Net Patient Revenues with respect to the Facility located at the
applicable Leased Property (or Collective Leased Property, as the case may be),
shall mean all revenues (determined in ac cordance with GAAP, except as provided
below) received or receivable from or by reason of the operation of such
Facility, or any other use of such Facility, including without limitation all
patient or client revenues received or receivable for the use of or otherwise by
reason of all rooms, beds and other facilities provided, meals served, services
performed or provided, space or facilities subleased or goods sold at such
Facility, including, without limitation, any other arrangements with third
parties relating to the possession or use of any portion of such Facility;
provided, however, that Net Patient Revenues shall not include:
(a) revenue from professional fees or charges by physicians and
unaffiliated providers of ancillary services, when and to the extent such
charges are paid over to such physicians or unaffiliated providers of ancillary
services, or are separately billed and not included in comprehensive fees;
(b) non-operating revenues such as interest income or income from the
sale of assets not sold in the ordinary course of business;
(c) revenues attributable to services actually provided off-site or
otherwise away from such Facility, such as home health care, to persons that are
not patients at such Facility;
(d) all revenues attributable to Tenant's Capital Additions; and
(e) revenues attributable to child care services used primarily for
employees of such Facility.
Notice shall mean a notice given in accordance with Section 24.10.
Officer's Certificate shall mean a certificate signed by a Responsible
Officer.
Overdue Rate shall mean, on any date, a per annum rate of interest
equal to (a) two percent (2%), plus (b) a percentage equal to (i) the quotient
(expressed as a decimal) of the aggregate Minimum Rent payable for all the
Collective Leased Properties for the then current Fiscal Year, divided by the
aggregate of the then Adjusted Purchase Prices for the Collective Leased
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Properties, multiplied by (ii) 100; but in no event greater than the maximum
rate then permitted under applicable law.
Permitted Encumbrances shall mean, with respect to the applicable
Leased Property those matters, if any, set forth on Exhibit B of the Lease with
respect thereto.
Person shall mean any individual, corporation, general or limited
partnership, stock company or association, joint venture, association, company,
trust, bank, trust company, land trust, business trust, any government or agency
or political subdivision thereof or any other entity.
Primary Intended Use: As defined in Section 4.1.1.
Purchase Price(s): With respect to the applicable Leased Property, the
amount identified as such in the applicable Lease and, with respect to each
Collective Leased Property, the amount identified as such in the Lease for such
Collective Leased Property.
Relevant Percentage shall mean, with respect to the first quarter of
any Fiscal Year, twenty-five percent (25%), with respect to the second quarter
of such Fiscal Year, fifty percent (50%), with respect to the third quarter of
such Fiscal Year, seventy-five percent (75%), and with respect to the fourth
quarter of such Fiscal Year, one hundred percent (100%).
Renovation Escrow Agreement shall mean the Renovation Escrow Agreement
dated as of even date herewith between Tenant and Landlord, relating to certain
improvements to be made at the Collective Leased Properties, as the same may be
amended, modified or supplemented from time to time.
Renovation Funding Agreement shall mean the Renovation Funding
Agreement dated as of even date herewith between Tenant and Landlord, relating
to certain required improvements to be made at the Collective Leased Properties,
as the same may be amended, modified or supplemented from time to time.
Rent shall mean, collectively, the Minimum Rent, Additional Rent and
Additional Charges payable with respect to the applicable Leased Property.
Responsible Officer shall mean Xxxxxx X. Xxxxxxxx, or successor chief
executive officer of Tenant.
SEC shall mean the Securities and Exchange Commission.
State shall mean the State or Commonwealth in which the applicable
Leased Property is located.
Subsidiary shall mean, with respect to any Person, any corporation or
other entity of which securities or other ownership
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interests having ordinary voting power to elect a majority of the board of
directors or other Persons performing similar functions are at the time directly
or indirectly owned by such Person.
Substitute Properties: As defined in Article 16.
Substitution Date: As defined in Article 16.
Tenant's Capital Additions: As defined in Section 6.4.
Tenant's Personal Property shall mean (a) all motor vehicles and (b)
consumable inventory and supplies, furniture, furnishings, movable walls and
partitions, equipment and machinery and all other personal property of Tenant
acquired by Tenant after the date hereof and located on the applicable Leased
Property or used in Tenant's business on such Leased Property and all modifica
tions, replacements, alterations and additions to such personal property
installed at the expense of Tenant, other than any items included within the
definition of Fixtures or Leased Personal Property.
Term shall mean, collectively, for the applicable Lease, the Fixed term
and any Extended Term(s), to the extent properly exercised pursuant to the
provisions of Section 2.4, unless sooner terminated pursuant to the provisions
of this Master Lease Document or the applicable Lease.
Test Rate shall mean the minimum interest rate necessary to avoid
imputation of original issue discount or interest income under Sections 483 or
1272 of the Code or any similar provision.
Transaction Documents shall mean the documents listed on Schedule 1
hereto.
Trustees shall mean the trustees of Landlord.
TW Note shall mean, collectively, the Payment Obligation, dated as of
even date herewith, by AMS in favor of AMS Holdings, Inc., a New York
corporation, any guaranty thereof and the Real Estate Collateral Agreement (as
defined therein), as each of the same may be amended, modified or supplemented
from time to time.
Unavoidable Delays shall mean delays due to strikes, lock-outs,
inability to procure materials, power failure, acts of God, governmental
restrictions, enemy action, civil commotion, unavoidable casualty or any other
causes beyond the reasonable control of the party responsible for performing an
obligation hereunder, but in no event to exceed forty-five (45) days (provided
that lack of funds shall not be deemed a cause beyond the control of Tenant) so
long as Tenant shall use reasonable efforts to alleviate the cause of such delay
and thereafter promptly perform such obligation, and so long as, in any event,
no permit, license, certificate of need or authorization necessary to operate
such Leased Property for its Primary Intended Use is adversely
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affected or subject to any danger of revocation or termination. In no event
shall Tenant's obligation to pay the Rent be affected by Unavoidable Delays.
Unsuitable for its Primary Intended Use shall mean a state or condition
of the Facility located at if applicable Leased Property such that (a) following
any damage or destruction involv ing such Leased Property, such Leased Property
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 a period equal to eighteen (18) months
following such damage or destruction or such shorter period of time as to which
business interruption insurance is available to cover Rent and other costs
related to such Leased Property following 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 Landlord, on a commercially practicable
basis for its Primary Intended Use taking into account, among other relevant
factors, the number of usable beds, the amount of square footage, or the
revenues affected by such damage or destruction or partial taking.
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 with respect to each
applicable Lease all of the following (collectively, the "Leased Property"):
(a) that certain tract, piece and parcel of land, as more
particularly described in the applicable Lease (the "Land");
(b) all buildings, structures, Fixtures 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 and all Capital Additions other than
Tenant's Capital Additions (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,
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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
greatest 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 Improve ments, 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"); and
(f) all existing leases of space (including any security deposits
held by Tenant pursuant thereto) in the Leased Improvements to
tenants thereof.
2.2 Condition of Leased Property.
Tenant acknowledges receipt and delivery of possession of the
applicable Leased Property and Tenant accepts such Leased Property in "as is"
condition, subject to the rights of parties in possession, the existing state of
title, including all covenants, conditions, restrictions, easements and other
matters of record, all applicable Legal Requirements, the lien of financing
instruments, mortgages and deeds of trust, and such other matters which would be
disclosed by an inspection of such Leased Property and the record title thereto
or by an accurate survey thereof. TENANT REPRESENTS THAT IT HAS INSPECTED SUCH
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 APPLICABLE LEASED
PROPERTY. LANDLORD MAKES NO WARRANTY OR REPRESENTATION EXPRESS OR IMPLIED, IN
RESPECT OF THE APPLICABLE 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
extent permitted by law, however, Landlord hereby assigns to Tenant all of
Landlord's rights to proceed against any predecessor in title for breaches of
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warranties or representations or for latent defects in the applicable Leased
Property. Landlord shall fully cooperate with Tenant in the prosecution of any
such claims, in Landlord's or Tenant's name of 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 the applicable Lease (the "Fixed Term") shall be
for a fixed term as set forth in such Lease.
2.4 Extended Terms.
Provided that no Default shall have occurred and be continuing, and the
applicable Lease and each other Lease shall be in full force and effect (other
than Leases that have been terminated in accordance with the provisions hereof,
or by the mutual agreement of Landlord and Tenant, other than after an Event of
Default), Tenant shall have the right to extend the Term as set forth in the
applicable Lease and below (the "Extended Term(s)"); provided, however, Tenant's
right to extend is subject to Tenant exercising such right simultaneously with
respect to all, and not less than all, of the Collective Leased Properties that
are then subject to a Lease.
Each Extended Term for the applicable Lease shall commence on the day
succeeding the expiration of the Fixed Term or the preceding Extended Term
therefor, as the case may be. All of the terms, covenants and provisions of such
Lease shall apply to each such Extended Term, except that the Minimum Rent for
each such Extended Term shall be as set forth in Section 3.1.1(e) (subject to
adjustment as provided in Section 3.1.1) with respect thereto. If Tenant shall
elect to exercise any of the aforesaid extensions, it shall do so by giving
Landlord Notice thereof not later than twelve (12) months prior to the
expiration of the then current term of such Lease (Fixed or Extended, as
applicable), it agreed that time is of the essence with respect to the giving of
such Notice. Tenant may not exercise its option for more than one Extended Term
at a time. If Tenant shall fail to give any such Notice, the applicable Lease
shall automatically terminate at the end of the term then in effect, and Tenant
shall have no further option to extend the Term of the applicable Lease. If
Tenant shall give such Notice, the extension of the applicable Lease 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.
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ARTICLE 3
RENT
3.1 Rent.
Tenant shall pay to Landlord, in lawful money of the United States of
America which shall be legal tender for the payment of public and private debts,
at Landlord's address set forth above or at such other place or to such other
Person as Landlord from time to time may designate in a Notice to Tenant,
without offset, abatement, demand or deduction, Minimum Rent, Additional Rent
and Additional Charges, during the Term, as hereinafter provided. All payments
to Landlord shall be made by certified check, wire transfer of immediately
available funds or by other means acceptable to Landlord in its sole discretion.
3.1.1 Minimum Rent:
(a) During Fixed Term. The annual sum set forth in the applicable Lease
(subject to adjustment as provided herein) payable in advance in equal,
consecutive monthly installments as set forth in such Lease, on the first day of
each calendar month of the Fixed Term; provided, however, that the first monthly
payment of Minimum Rent shall be payable on the Commencement Date and that the
first and last monthly payments of Minimum Rent shall be prorated as to any
partial month.
(b) Adjustments of Minimum Rent Following Disbursements under
Renovation Funding Agreement. Effective on the date of each disbursement to pay
or the cost of any renovations at the applicable Leased Property pursuant to the
terms of the Renovation Funding Agreement, the Minimum Rent under the Lease for
such Leased Property shall be adjusted, effective on the date of such
disbursement, to an annual sum equal to the product of (i) the sum of the
Adjusted Purchase Price for such Leased Property (giving effect to the making of
such disbursement) and (ii) (1) if such disbursement occurs prior to the first
anniversary of the Com mencement Date, Thirteen and Twenty-Five Hundredths
percent (13.25%), (2) if such disbursement occurs on or after the first
anniversary of the Commencement Date but prior to the second anniversary of the
Commencement Date, Thirteen and Fifty Hundredths percent (13.50%), or (3) if
such disbursement occurs on or after the second anniversary of the Commencement
Date, Thirteen and Seventy-Five Hundredths percent (13.75%). If any such
disbursement is made during any calendar month on other than the first day of
such calendar month, Tenant shall pay to Landlord on the first day of the
following calendar month (in addition to the amount of Minimum Rent payable with
respect to such month, as adjusted pursuant to this paragraph (b)) the amount by
which minimum Rent for such Leased Property for the preceding month, as adjusted
for such disbursement, exceeded the amount of Minimum
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Rent for such Leased Property payable by Tenant for such preceding month without
giving effect to such adjustment.
(c) Adjustments of Minimum Rent at the First and Second Anniversaries
of the Commencement Date. During the Fixed Term of the applicable Lease, on each
of the first and second anniversaries of the Commencement Date therefor, the
Minimum Rent under such Lease shall be increased by an amount equal to 0.25% of
the Adjusted Purchase Price of the applicable Leased Property.
(d) Adjustments of Minimum Rent Connection with the Release and
Re-Pledging of Pledged Shares under the HRP Shares Pledge Agreement.
Notwithstanding anything herein to the contrary, each monthly installment of
Minimum Rent payable following the date of the release of fifty percent (50%) of
the Pledged Shares under and as defined in the HRP Shares Pledge Agreement
pursuant to and in accordance with the provisions of the HRP Shares Pledge
Agreement, shall be increased by Five Thousand Dollars ($5,000) (such amount,
the "Increased Minimum Rent") over the aggregate amount of Minimum Rent that
would xxxx been payable for all of the Collective Leased Properties without
giving effect to this paragraph (d) (allocated on a pro rata basis among the
Collective Leased Properties based upon their respective Adjusted Purchase
Prices). If, following the release of such Pledged Shares, Landlord becomes
entitled under the HRP Shares Pledge Agreement to request that the released
shares (or cash collateral) be re-pledged (or pledged) under the ERP Shares
Pledge Agreement, and Tenant thereafter re-pledges such shares (or pledges such
cash collateral) in accordance with the provisions thereof, Tenant shall not be
required to pay the Increased Minimum Rent as to any installment of Minimum Rent
coming due after the date of the re-pledge of such shares (or the pledge of such
cash collateral) until such time, if any, that Landlord is required to release
such pledged Shares (or cash collateral) pursuant to the terms of the HRP Shares
Pledge Agreement.
(e) Computation of Minimum Rent for each Extended Term. The Minimum
Rent payable with respect to the Extended Term(s) for the applicable Lease shall
equal an annual sum (determined at the commencement of each Extended Term for
such Lease and subject to adjustment an set forth herein) equal to the greatest
of (a) the Minimum Rent payable for the immediately preceding twelve (12) months
for such Lease (without giving effect to any adjustment pursuant to paragraph
(d) above), (b) the product of (i) the Adjusted Purchase Price for the
applicable Leased Property, and (ii) a percentage equal to 525 basis points
above the yield (calculated on the basis of a monthly equivalent yield) on
5-year United States Treasury securities at the close of the Business Day which
immediately precedes the commencement of the Extended Term for which the Minimum
Rent is being calculated, or (c) the Fair Market Rental for such Lease, payable
in advance in equal, consecutive monthly installments on the first day of each
calendar month of each Extended Term. The computation of the yield referenced in
the preceding sentence shall be made using the
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information shown for such date quoted in The Wall Street Journal published on
the following day. If there is no such quotation, the next preceding day for
which there is a quotation shall be used. If The Wall Street Journal shall not
be available, Landlord shall choose the quotation from another recognized
source.
(f) Mid-Term Adjustments of Minimum Rent. During the Term of the
applicable Lease, on the 5th, 15th, 25th and 35th anniversary of the
Commencement Date therefor, the Minimum Rent under such Lease shall be adjusted
to the annual sum equal to the greater of (a) the Minimum Rent under such Lease
for the immediately preceding twelve (12) months (without giving effect to any
adjustment pursuant to paragraph (d) above) or (b) the product of (i) the sum of
the Adjusted Purchase Price for the applicable Leased Property, and (ii) a
percentage equal to 525 basis points above the yield (calculated on the basis of
a monthly equivalent yield) on 5-year United States Treasury securities at the
close of the Business Day immediately preceding such anniversary. The
computation of the yield referenced in the preceding sentence shall be made
using the information shown for such date quoted in The Wall Street Journal
published on the following day. If there is no such quotation, the next
preceding day for which there is a quotation shall be used. If The Wall Street
Journal shall not be available, Landlord shall choose the quotation from another
recognized source.
(g) Credits Against Minimum Rent. (i) Renovation Escrow Agreement. The
average daily amount, if any, on deposit under the Renovation Escrow Agreement
shall bear interest at a rate of eight percent (8%) per annum, calculated on the
basis of a 365-day year which interest shall be credited by Landlord against
payments of Minimum Rent.
(ii) Excess Condemnation and Casualty Proceeds. Landlord shall
credit the amount or any Award or the proceeds of any insurance
received by Landlord in connection with a partial Condemnation or a
partial casualty involving the applicable Leased Property as described
in Section 11.2 or 10.2.2, and not applied by Landlord to the
restoration of the app-applicable Leased Property affected by such
partial Condemnation or partial casualty as provided therein, to the
payment of Minimum Rent payable with respect to such Leased Property.
(iii) Notice. Landlord shall calculate the amount of such
credits days after the end of each calendar month, shall Notify Tenant
of such amount as soon as reasonably practicable after such
calculation, and shall reduce the amount of the installment of Minimum
Rent next due after the date of such Notice by the amount of such
credits.
(iv) HRP Shares Pledge Agreement. The dividends paid under the
HRP Shares Pledge Agreement shall be applied to installments of Minimum
Rent and/or to the other obligations hereunder and under the other
Transaction Documents as provided therein.
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3.1.2 Additional Rent:
(a) Amount. For each Fiscal Year during the Term, commencing with the
Fiscal Year ending December 31, 1992, Tenant shall pay an amount ("Additional
Rent") with respect to the applicable Leased Property equal to the greater of:
(i) (1) five percent (5%) of Excess Net Patient Revenues for
such Leased Property for such Fiscal Year if no Additional Rent
Adjustment Date shall have occurred during such Fiscal Year, or
(2) if an Additional Rent Adjustment Date shall have occurred
during such Fiscal Year, the sum of (a) the Five Percent Additional
Rent for such Leased Property for such Fiscal Year plus (b) two and
one-half percent (2.5%) of the Excess Net Patient Revenues for such
Leased Property in respect of the period from such Additional Rent
Adjustment Date through the end of such Fiscal Year; or
(ii) Additional Rent payable for such Leased Property for the
immediately preceding Fiscal Year.
(b) Quarterly Installments. Installments of Additional Rent for the
applicable Leased Property for any Fiscal Year shall be calculated and paid
quarterly in arrears as follows:
(1) For each quarter of such Fiscal Year ending on or prior to the
Additional Rent Adjustment Date, if any, occurring in such
Fiscal Year, Tenant shall pay an amount equal to the excess of
(a) the greater of (x) the Relevant Percentage for such
quarter of the Additional Rent for such Leased Property
payable for the immediately preceding Fiscal Year or (y) five
percent (5%) of the sum of the Excess Net Patient Revenues for
such Leased Property for such quarter of such Fiscal Year and
for any previous quarter(s) of such Fiscal Year, over (b) the
sum of the installments of Additional Rent paid for such
Leased Property for any previous quarter(s) in such Fiscal
Year; and
(2) For any quarter of such Fiscal Year ending after an Additional
Rent Adjustment Date occurring in such Fiscal Year, Tenant
shall pay an amount equal to the excess of (a) the greater of
(x) the Relevant Percentage for such quarter of the Additional
Rent for such Leased Property payable for the immediately
preceding Fiscal Year or (y) an amount equal the sum of (i)
the Five Percent Additional Rent for such Leased Property for
such Fiscal Year plus (ii) two and one-half percent (2.5%) of
the sum of the Excess Net Patient Revenues for such Leased
Property for any quarters or portion thereof from such
Additional Rent Adjustment Date through the end of such
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quarter of such Fiscal Year, over (b) the sum of the
installments of Additional Rent-paid-for such Leased Property
for any previous quarter(s) in such Fiscal Year.
Installments of Additional Rent for the applicable Leased Property due
with respect to a partial quarter in any Fiscal Year shall be the excess of (1)
the greater of (a) the product of (x) a fraction of which the numerator is the
number of days in such Fiscal Year, and the denominator is 360, multiplied by
(y) the Additional Rent for such Leased Property payable for the immediately
preceding Fiscal Year, or (b) the sum of (x) five percent (5%) of all Excess Net
Patient Revenues for such Leased Property through the end of such partial
quarter or, if an Additional Rent Adjust ment Date has occurred during such
Fiscal Year, through such Additional Rent Adjustment Date, plus (y) if an
Additional Rent Adjustment Date has occurred during such Fiscal Year, two and
one-half percent (2.5%) of all Excess Net Patient Revenues for such Leased
Property from such Additional Rent Adjustment Date through the end of such
partial quarter, over (2) the Additional Rent paid for such Leased Property for
any previous quarters in such Fiscal Year.
(b) Date of Payment of Additional Rent. Tenant shall deliver to
Landlord an Officer's Certificate setting forth the calculation of Additional
Rent due and payable for the applicable Leased Property for each quarter of any
Fiscal Year. Each quarterly payment of Additional Rent for the applicable Leased
Property is due and payable and shall be delivered to Landlord, together with
such Officer's Certificate, within forty-five (45) days after the end of each
quarter of any Fiscal Year (or, in the case of the final quarter in any Fiscal
Year, eighty (80) days thereafter), commencing with the quarter ending March 31,
1992, during the Fixed Term and the Extended Terms.
(c) Reconciliation of Additional Rent. In addition, on or before March
31 of each year, commencing with March 31, 1992, Tenant shall deliver to
Landlord certified audits of Tenant's financial operations for the preceding
Fiscal Year, together with a certificate from Ernst & Young, or other certified
public accountants reasonably acceptable to Landlord (the "Accountants"), in
form acceptable to Landlord, setting forth the Net Patient Revenues for the
applicable Leased Property for such preceding Fiscal Year, and such other
matters as Landlord may from time to time reasonably request.
If the annual Additional Rent for the applicable Leased Property for
said preceding Fiscal Year as shown in the year-end certificate is less than the
amount previously paid with respect thereto by Tenant, Landlord shall grant
Tenant a credit against Additional Rent for such Leased Property next coming due
in the amount of such difference, together with interest thereon at the Base
Rate, which interest shall accrue from the close of such preceding Fiscal Year
until the date that such credit is made such a credit cannot be made because the
Term of the applicable
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Lease has expired before the credit can be effected, Landlord will pay, by check
the amount of such difference to Tenant, together with interest thereon at the
then applicable Base Rate, which interest shall accrue from the close of such
preceding Fiscal Year until the date that such check is drawn.
If the annual Additional Rent for the applicable Leased Property for
said preceding Fiscal Year as shown in the year-end certificate exceeds the
amount previously paid with respect thereto by Tenant, Tenant shall pay such
excess to Landlord at such time as the certificate is delivered, together with
interest at the Base Rate, which interest shall accrue from the close of such
preceding Fiscal Year until the date that such certificate 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.
(d) Confirmation of Additional Rent. Tenant shall utilize, or cause to
be utilized, an accounting system for the applicable Leased Property (which
shall be the same as that used for all the Collective Leased Properties) in
accordance with its usual and customary practices and in accordance with
generally accepted accounting principles consistently applied, which will
accurately record all Net Patient Revenues, and shall employ independent
accountants reasonably acceptable to Landlord, and Tenant shall retain, for at
least five (5) years after the expiration of each Fiscal Year, reasonably
adequate records conforming to such accounting system showing all Net Patient
Revenues for such Fiscal Year. Landlord, at its own expense except as provided
hereinbelow, shall have the right from time to time by its accountants or
representatives to audit the information set forth in the Officer's Certificate
referred to in subparagraph (b) above or the year-end 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) subject to any prohibitions or limitations on disclosure of
any such data under applicable law or regulations, including without limitation
any duly enacted "Patients' Xxxx of Rights" or similar legislation, including
such limitations as may be necessary to preserve the confidentiality of the
facility-patient relationship and the physician-patient privileges 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
determined or compromised with Landlord, Tenant shall forthwith pay to Landlord
the amount of the deficiency, as finally agreed or determined, together with
interest at the Test Rate, or if no such Test Rate exists, then at the Overdue
Rate from the date when said payment should have been made to the date of
payment thereof; provided, however, that as to any audit that is commenced more
than two (2) years after the date Net Patient Revenues for any Fiscal Year are
reported by Tenant to Landlord, the deficiency, if any, with respect to such Net
Patient Revenues shall bear interest as permitted herein only from the date such
determination of deficiency is made unless such
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deficiency is the result of gross negligence or willful misconduct on the part
of Tenant. If any such audit discloses that the Net Patient Revenues actually
received by Tenant for any Fiscal Year exceed those reported by Tenant by more
than three percent (3%), Tenant shall pay the reasonable cost of such audit and
examina tion. if any such audit discloses that Tenant paid more Additional Rent
for any Fiscal Year than was due hereunder, and either Landlord agrees with the
result of such audit or the matter is otherwise determined or compromised,
Landlord shall grant Tenant a credit against Additional Rent next coming due in
the amount of such difference, as finally agreed or determined. if such a credit
cannot be made because the Term of the applicable Lease has expired before the
credit can be effected, Landlord will pay, by check, the amount of such
difference to Tenant.
Any proprietary information obtained by Landlord pursuant to the
provisions of the applicable Lease shall be treated as confidential, except that
such information may be used, subject to appropriate confidentiality safeguards,
in any litigation between the parties and except further that Landlord may
disclose such information to its prospective lenders. The obligations of Tenant
contained in this Section 3.1.2 shall survive the expiration or earlier
termination of the applicable Lease.
3.1.3 Additional Charges.
In addition to the Minimum Rent and Additional Rent payable with
respect to the applicable Leased Property, Tenant shall pay and discharge 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 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 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 all tax returns 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
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Imposition as may be required by governmental authorities. If any refund Shall
be due from any taxing authority in respect of any imposition paid by Tenant,
the same shall be paid over to or retained by Tenant so no Default shall have
occurred and be continuing. 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 applicable Leased Property as may be necessary to
prepare any required returns and reports. In the event governmental authorities
classify any property covered by the applicable Lease as personal property,
Tenant shall file 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, 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. If the provisions of any Facility
Mortgage require deposits on account of Impositions to be made with such
Facility Mortgagee, provided the Facility Mortgagee has not elected to waive
such provision, Tenant shall either pay Landlord the monthly amounts required at
the time and place that payments of Minimum Rent are required and Landlord shall
transfer such amounts to such Facility Mortgagee or, pursuant to written
direction by Landlord, Tenant shall make such deposits directly with such
Facility Mortgagee.
Landlord shall give prompt Notice to Tenant of all Impositions payable
by Tenant hereunder of which Landlord at any time has knowledge, provided,
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 the
applicable Leased Property during the Term.
(c) Insurance Premiums. Tenant shall pay or cause to be paid,
as Additional Charges, all premiums for the insurance coverage required to be
maintained pursuant to Article 9 hereof.
(d) Other Charges. Tenant shall pay or cause to be paid, as
Additional Charges, all other amounts, liabilities and obligations which Tenant
assumes or agrees to pay under the ap plicable Lease, including, without
limitation, all agreements to indemnify Landlord under Sections 4.4 and 9.7.
(e) Reimbursement for Additional Charges. If Tenant pays or
causes to be paid property taxes or similar Additional Charges attributable to
periods after the end of the Term, whether
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upon expiration or sooner termination of the applicable Lease (other than
termination following an Event of Default) and Tenant has not exercised its
right to purchase the applicable Leased Property as provided herein, Tenant may,
within sixty (60) days of the end of the Term, provide written 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 the Lease.
3.2 Late Payment of Rent.
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 on its due date, Tenant shall pay Landlord, on
demand, as Additional Charges, 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. To the extent that
Tenant pays any Additional Charges directly to Landlord pursuant to any
requirement of the applicable Lease, Tenant shall be relieved of its obligation
to pay such Additional Charges to the entity to which they would otherwise be
due.
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 may be 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 the applicable Lease 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 the applicable
Lease shall yield to Landlord the full amount of the installments or amounts of
Rent throughout the Term, subject to any other provisions of the applicable
Lease or this Master Lease Document which expressly provide for adjustment or
abatement of Rent or other charges. Without limiting the foregoing, if rent
under any ground lease for the applicable Leased Property shall be calculated by
reference to Rent payable under the applicable Lease or revenues attributable to
the Facility located at such Leased Property, the amount of Rent payable under
the applicable Lease shall automatically be increased so that Landlord receives,
net of any amounts payable under such ground lease (including any additional
amounts payable under the ground lease as the result of such automatic
increase), an amount equal to the amount Landlord would have received had there
been no requirement that rent be paid under such ground lease.
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3.4 No Termination, Abatement, Etc.
Except as otherwise specifically provided in the applicable Lease or in
this Master Lease Document, Tenant, to the extent permitted by law, shall remain
bound by the applicable Lease in accordance with its terms and shall neither
take any action without the consent of Landlord to modify, surrender or
terminate the same, nor seek, nor 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 applicable 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 applicable
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 or breach of any
warranty by Landlord under the applicable Lease 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. Tenant hereby waives all rights arising from
any occurrence whatsoever, which may now or hereafter be conferred upon it by
law, to (a) modify, surrender or terminate the applicable Lease or quit or
surrender the applicable Leased Property or any portion thereof, or (b) 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, except as
otherwise specifically provided in the applicable Lease or in this Master Lease
Document. 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 the
applicable Lease or by termination of the applicable Lease other than by reason
of an Event of Default.
ARTICLE 4
USE OF THE APPLICABLE LEASED PROPERTY
4.1 Permitted Use.
4.1.1 Primary Intended Use.
Tenant shall, at all times during the Term, and at any other time
Tenant shall be in possession of the Leased Property, continuously use or cause
to be used the applicable Leased Property as a licensed nursing home and for
such other uses as may be necessary or incidental thereto (such use, such Leased
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Property's "Primary Intended Use"). Tenant shall not use the ap plicable Leased
Property or any portion thereof for any other use without the prior written
consent of Landlord (which consent shall not be unreasonably withheld or
delayed). No use shall be made or permitted to be made of the applicable Leased
Property and no acts shall be done thereon which will cause the cancellation of
any insurance policy covering such Leased Property or any part thereof (unless
another adequate policy is available), nor shall Tenant sell or otherwise
provide to residents or patients therein, or permit to be kept, used or sold in
or about such Leased 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, comply with all of the requirements pertaining to the
applicable Leased Property or other improvements of any insurance board,
association, organization or company necessary for the maintenance of insurance,
as herein provided, covering such Leased Property and Tenant's Personal
Property, including, without limitation, the Insurance Requirements.
4.1.2 Necessary Approvals.
Tenant shall proceed with all due diligence and exercise best efforts
to obtain and maintain all approvals necessary to use and operate, for its
Primary intended Use, the applicable Leased Property and the Facility located at
such Leased Property under applicable local, state and federal law, and without
limiting the foregoing, shall use its best efforts to maintain appropriate
certifications for reimbursement and licensure.
4.1.3 Continuous Operation, Etc.
Tenant shall use its best efforts to operate continuously the
applicable Leased Property as a provider of health care services in accordance
with its Primary Intended Use. Tenant will not take or omit to take any action,
the taking or omission of which may materially impair the value or the
usefulness of such Leased Property or any part thereof for its Primary Intended
Use.
4.1.4 Lawful Use, Etc.
Tenant shall not use or suffer or permit the use of the applicable
Leased Property and Tenant's Personal Property for any unlawful purpose. Tenant
shall not commit or suffer to be committed any waste on the applicable Leased
Property, or in the Facility located on the applicable Leased Property located
thereon, nor shall Tenant cause or permit any nuisance thereon or therein.
Tenant shall neither suffer nor permit the applicable Leased Property or any
portion thereof, including any Capital Addition, or Tenant's Personal Property,
to be used in such a manner as (i) might reasonably tend to impair Landlord's
(or Tenant's, as the case may be) title thereto or to any portion thereof, or
(ii) may reasonably make possible a claim or claims for adverse usage or
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adverse possession by the public, as such, or of implied dedication of the
applicable Leased Property or any portion thereof.
4.2 Compliance with Legal and Insurance Requirements, Etc.
Subject to the provisions of Article 8 hereof, Tenant,,at its sole
expense, shall promptly (i) comply with all material Legal Requirements and
Insurance Requirements in respect of the use, operation, maintenance, repair,
alteration and restoration of the applicable Leased Property, and (ii) procure,
maintain and comply with all appropriate licenses, certificates of need,
permits, provider agreements and other authorizations and agreements required
for any use of the applicable Leased Property and Tenant's Personal Property
then being made, and for the proper erection, installation, operation and
maintenance of the applicable Leased Property or any part thereof, including,
without limitation, any Capital Additions.
4.3 Compliance with Medicaid and Medicare Requirements.
Tenant shall, at its sole cost and expense, make whatever improvements
(capital or ordinary) as are required to conform the applicable Leased Property
to such standards as may, from time to time, be required by Federal Medicare
(Title 18) or Medicaid (Title 19) skilled and/or intermediate care nursing
programs, if applicable, or any other applicable programs or legislation, or
capital improvements required by any other governmental agency having
jurisdiction over such Leased Property as a condition of the continued operation
of such Leased Property for its Primary Intended Use.
4.4 Environmental Matters.
Tenant shall not store, spill upon, dispose of or transfer to or from
the applicable Leased Property any hazardous waste, contaminants, oil,
radioactive or other material (including, without limitation, medical or
infectious waste), the removal of which is required or the maintenance of which
is prohibited or penalized by any applicable federal, state or local statutes,
laws, ordinances, rules or regulations (collectively "Hazardous Substances"),
except that Tenant may store, transfer and dispose of Hazardous Substances in
compliance with all applicable statutes, laws, ordinances, rules and
regulations. Tenant shall maintain the applicable Leased Property at all times
free of any Hazardous Substance (except in compliance with all statutes, laws,
ordinances, rules and regulations). Tenant shall, as to the applicable Leased
Property, promptly: (a) notify Landlord in writing of any material change in the
nature or extent of such Hazardous Substances maintained, (b) transmit to
Landlord copies of any citations, orders, notices or other material governmental
communications received with respect thereto, (c) observe and comply with any
and all statutes, laws, ordinances, rules and regulations, licensing
requirements or conditions 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
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use or maintenance or requiring the removal, treatment, containment or other
disposition thereof, and (d) pay or otherwise dispose of any fine, charge or
Imposition related thereto, unless Tenant shall contest the same in the right to
use and the value of such Leased Property is not materially and adversely
affected thereby. Tenant shall, upon demand, pay to Landlord, as an Additional
Charge, any cost, expense, loss or damage incurred by Landlord and growing out
of a failure of Tenant strictly to observe and perform the foregoing
requirements, (including, without limitation, reasonable attorneys' fees), which
amounts shall bear interest from the date incurred until paid at the overdue
Rate.
Tenant shall protect, indemnify and hold harmless Landlord and each
Facility Mortgagee from and-against all liabilities, obligations, claims,
damages, penalties, costs and expenses (including, without limitation,
reasonable attorney's fees and expenses) imposed upon, incurred by or asserted
against any of them by reason of any failure by Tenant or any Person claiming
under Tenant to perform or comply with any of the terms of this Section 4.4. The
provisions of this Section 4.4 shall survive the expiration or sooner
termination of the applicable Lease.
ARTICLE 5
MAINTENANCE AND REPAIRS
5.1 Maintenance and Repair.
5.1.1 Tenant's Obligations.
Tenant shall, at its sole cost and expense, keep the
applicable 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 use, any prior
use, the elements or the age of such Leased Property or Tenant's
Personal Property, or any portion thereof), and, shall promptly make
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), provided, Tenant shall be permitted
to prosecute claims against Landlord's predecessors in title for breach
of any representation or warranty made to or on behalf of Landlord, or
for any latent defects in such Leased Property. All repairs shall be
made in good, workmanlike and first-class manner, in accordance with
all applicable federal, state and local statutes, ordinances, by-laws,
codes, rules and regulations relating to any such work. Tenant will not
take or omit to take any action, the taking or omission of which would
materially impair the value or the
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usefulness of the applicable Leased Property or any part thereof for
its Primary Intended Use. Tenant's obligations under this Section 5.1.1
as to the applicable Leased Property shall be limited, in the event of
any casualty or Condemnation involving such Leased Property, as set
forth in Sections 10.2.1 and 11.1.
5.1.2 Landlord's Obligations.
Landlord shall not, under any circumstances, be required to
build or rebuild any improvement on the applicable Leased Property, or
to make any repairs, replacements, alterations, restorations or
renewals of any nature or description to the applicable Leased
Property, whether ordinary or extraordinary, structural or
nonstructural, foreseen or unforeseen, or to make any expenditure
whatsoever with respect thereto, in connection with the applicable
Lease, or to maintain the applicable Leased Property in any way, except
as specifically provided herein. Tenant hereby waives, to the extent
permitted by law, the right to make repairs at the expense of Landlord
pursuant to any law in effect at the time of the execution of the
applicable Lease 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.
5.1.3 Nonresponsibility of Landlord.
Nothing contained in the applicable Lease and no action or
inaction by Landlord shall be construed as (i) constituting the consent
or request of Landlord, expressed or implied, to any contractor,
sub-contractor, laborer, materialman or vendor to or for the
performance of any labor or services or the furnishing of any materials
or other property for the construction, alteration, addition, repair or
demolition of or to the applicable Leased Property or any part thereof,
or (ii) giving Tenant any right, power or permission to contract for or
permit the performance of any labor or services or the furnishing of
any materials or other property in such fashion as would permit the
making of any claim against Landlord in respect thereof or to make any
agreement that may create, or in any way be the basis for any right,
title, interest, lien, claim or other encumbrance upon the estate of
Landlord in the applicable Leased Property, or any portion thereof.
5.2 Tenant's Personal Property.
Tenant may (and shall as provided hereinbelow), at its expense,
install, affix or assemble or place on any parcels of the Land or in any of the
Leased Improvements, any items of Tenant's Personal Property, and Tenant may,
subject to the conditions set forth below, remove the same at any time, provided
that no Default has occurred and is continuing. Tenant shall provide and
maintain during the entire Term all such Tenant's Personal Property as
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shall be necessary in order to operate the Facility located at the Leased
Property in compliance with all licensure and certification requirements, in
compliance with applicable Legal Requirements and Insurance Requirements and
otherwise in accordance with customary practice in the industry for the Primary
Intended Use. All of Tenant's Personal Property not removed by Tenant on or
prior to the expiration or earlier termination of the applicable Lease of the
applicable Leased Property where such Tenant's Personal Property is located
shall be considered abandoned by Tenant and may be appropriated, sold, destroyed
or otherwise disposed of by Landlord without the necessity of first giving
notice thereof to Tenant, without any payment to Tenant and without any
obligation to account therefor. Tenant shall, at its expense, restore such
Leased Property to the condition required by Section 5.3, including repair of
all damage to such Leased Property caused by the removal of Tenant's Personal
Property, whether effected by Tenant or Landlord.
5.3 Yield Up.
Upon the expiration or sooner termination of the applicable Lease
(unless the applicable Leased Property is transferred to Tenant as provided
herein), Tenant shall vacate and surrender the applicable Leased Property to
Landlord in the condition in which such Leased Property was on the Commencement
Date, except as repaired, rebuilt, restored, altered or added to as permitted or
required by the provisions of such Lease, ordinary wear and tear excepted (and
casualty damage and condemnation, in the event that the applicable Lease is
terminated following a casualty or total condemnation in accordance with Article
10 or Article 11).
In addition, upon the expiration or earlier termination of the
applicable Lease unless the applicable Leased Property or total condemnation is
transferred to Tenant as provided herein, Tenant shall, at Landlord's sole cost
and expense, use all reasonable efforts to transfer to and cooperate with
Landlord or Landlord's nominee in connection with the processing of all ap
plications 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 operation of the Facility located on
such Leased Property. If requested by Landlord, Tenant will continue to manage
such Facility after the expiration of the Term and for as long thereafter as is
necessary to obtain all necessary licenses, operating permits and other
governmental authorizations, on such reasonable terms (which shall include an
agreement to reimburse Tenant for its reasonable out-of-pocket costs and
expenses, and reasonable administrative costs) as Landlord shall request.
5.4 Encroachments, Restrictions, Etc.
If any of the Leased Improvements on the applicable Leased Property
shall, at any time, encroach upon any property, street or right-of-way adjacent
to such Leased Property, or shall violate
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the agreements or conditions contained in any lawful restrictive covenant or
other agreement affecting such Leased Property, or any part thereof, or shall
impair the rights of others under any easement or right-of-way to which such
Leased Property is subject, upon the request of Landlord (but only as to any
encroachment, violation or impairment that is not a Permitted Encumbrance) or of
any Person affected by any such encroachment, violation or impairment, Tenant
shall, at its sole cost and expense, subject to its right to contest the
existence of any encroachment, violation or impairment in accordance with the
provisions of Article 8, either (a) obtain valid and effective waivers or
settlements of all claims, liabilities and damages resulting from each such
encroachment, violation or impairment, whether the same shall affect Landlord or
Tenant, or (b) make such changes in the Leased Improvements and take such other
actions, as are reasonably practicable to remove such encroachment, and to end
such violation or impairment, including, if necessary, the alteration of any of
the Leased Improvements and, in any event, take all such actions as may be
necessary in order to ensure the continued operation of the Leased improvements
for the Primary Intended Use substantially in the manner and to the extent the
Leased Improvements were operated prior to the assertion of such violation,
impairment or encroachment. Any such alteration shall be made in conformity with
the applicable requirements of this Article 5. Tenant's obligations under this
Section 5.4 shall be in addition to and shall in no way discharge or diminish
any obligation of any insurer under any policy of title or other insurance.
5.5 Landlord to Grant Easements, Etc.
Landlord will, from time to time, so long as no Default shall have
occurred and be continuing, at the request of Tenant with respect to the
applicable Leased Property and at Tenant's sole cost and expense, (a) grant
easements and other rights in the nature of easements with respect to such
Leased Property to third parties, (b) release existing easements or other rights
in the nature of easements which are for the benefit of such Leased Property,
(c) dedicate or transfer unimproved portions of such Leased Property for road,
highway or other public purposes, (d) execute petitions to have such Leased
Property annexed to any municipal corporation or utility district, (e) execute
amendments to any covenants and restrictions affecting such Leased Property and
(f) execute and deliver to any Person any instrument appropriate to confirm or
effect such grants, release, dedications, transfers, petitions and amendments
(to the extent of its interests in such Leased Property); provided that Landlord
shall have determined that such grant, release, dedication, transfer, petition
or amendment is not detrimental to the operation of such Leased Property for its
Primary Intended Use and does not materially reduce the value of such Leased
Property, and that Landlord shall have received an Officer's Certificate
confirming such certification, and such additional information as Landlord may
reasonably request.
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ARTICLE 6
CAPITAL ADDITIONS, ETC.
6.1 Construction of Capital Additions to the Leased Property.
Provided no Default shall have occurred and be continuing, Tenant shall
have the right, upon and subject to the terms and conditions set forth below, to
construct or install Capital Addi tions on the applicable Leased Property.
Tenant's right to construct or install Capital Additions on the applicable
Leased Property shall be subject to obtaining Landlord's prior written consent
(which consent shall not be unreasonably withheld or delayed) provided that no
consent shall be required for any Capital Addition financed under the Renovation
Funding Agreement, or the Renovation Escrow Agreement or for any other Capital
Addition so long as (i) the Capital Additions Costs for such Capital Addition
are less than $250,000, (ii) such construction or instal lation would not
adversely affect or violate any Legal Requirement or Insurance Requirement
applicable to the applicable Leased Property and (iii) Landlord shall have
received a certificate from a Responsible officer certifying as to the
satisfaction of the conditions set out in clauses (i) and (ii) above. If
Landlord's consent is required, such consent shall not be deemed to be
unreasonably withheld if such Capital Addition will significantly alter the
character or purpose or materially detract from the value or operating
efficiency or the revenue-producing capability of such Leased Property, or
adversely affect the ability of Tenant to comply with the applicable Lease.
Prior to commencing construction of any Capital Addition (other than a Capital
Addition financed under the Renovation Funding Agreement), Tenant shall submit
to Landlord, in writing, a proposal setting forth, in reasonable detail any
proposed Capital Addition and shall provide to Landlord, such plans and
specifications, permits, licenses, contracts and other information concerning
the proposed Capital Addition as Landlord may reasonably request. Without
limiting the generality of the foregoing, such proposal shall indicate the
approximate projected cost of constructing such Capital Addition, the use or
uses to which it will be put and a good faith estimate of the change, if any, in
the Net Patient Revenues that Tenant anticipates will result from such Capital
Addition. No Capital Addition shall be made which would tie in or connect any
Leased Improvement on the applicable Leased Property with any other improvements
on property adjacent to such Leased Property (and not part of the Land)
including, without limitation, tie-ins of buildings or other structures or
utilities. Tenant shall not finance the cost of any construction of any Capital
Addition without the prior written consent of Landlord. Any Capital Additions
(including Tenant's Capital Additions) shall, upon the expiration or sooner
termination of the applicable Lease for such Leased Property, pass to and become
the property of Landlord, free and clear of all encumbrances other than
Permitted Encumbrances but
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subject to Landlord's obligation to compensate Tenant for Tenant's Capital
Additions as provided below.
6.2 Capital Additions Financed or Paid For by Tenant.
6.2.1 Financing of Capital Additions.
Provided that Tenant has obtained the prior written consent of Landlord
in each instance, Tenant may arrange for financing for Capital Additions from
third party lenders, provided, however that the terms and conditions of any such
financing shall be subject to the prior approval of Landlord; and (ii) if
Landlord consents to the grant thereof, which consent may be withheld in the
sole discretion of Landlord, any security interests in any property of Tenant,
including without limitation the applicable Leased Property, shall be expressly
and fully subordinated to the applicable Lease and to the interest of Landlord
in the applicable Leased Property and to the rights of any Facility Mortgagee.
6.2.2 Amendments to Lease.
If, pursuant to the provisions of this Lease, Tenant either pays for or
arranges financing (to the extent permitted in Section 6.2.1) to pay for the
costs of construction or installation of any Capital Addition including
disbursements under the Renovation Escrow Agreement ("Tenant's Capital
Addition") (but excluding, in any event, any Capital Addition financed by or
through Landlord including, without limitation, all Capital Additions paid for
or financed through disbursements under the Renovation Funding Agreement), this
Lease shall be and hereby is amended to provide as follows:
(a) Upon completion of any such Tenant's Capital Addition, Net
Patient Revenues attributable to such Tenant's Capital Addition shall
be excluded from Net Patient Revenues of the applicable Leased Property
for purposes of calculating Additional Rent. The Net Patient Revenues
attributable to any such Tenant's Capital Addition shall be deemed to
be an amount (the "Added Value Percentage") which bears the same
proportion to the total Net Patient Revenues from the entire Leased
Property (including all Capital Additions) as the Fair market Added
Value of such Capital Addition bears to the Fair Market Value of the
entire Leased Property (including all Capital Additions) immediately
after completion of such Tenant's Capital Addition. The Added Value
Percentage for any Tenant's Capital Additions shall remain in effect
until any subsequent Capital Addition is completed, at which time the
Added Value Percentage will again be determined as provided above.
(b) There shall be no adjustment in the Minimum Rent by reason
of any such Tenant's Capital Addition.
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(c) Upon the expiration or earlier termination of this Lease
(but if this Lease is terminated by reason of an Event of Default, only
after Landlord is fully compensated for all damages resulting
therefrom), Landlord shall compensate Tenant for all Tenant's Capital
Additions in any of the following ways determined in Landlord's sole
discretion:
(i) By purchasing such Tenant's Capital Additions from
Tenant for cash in the amount of the then Fair Market
Added Value of such Tenant's Capital Additions; or
(ii) By purchasing such Tenant's Capital Additions from
Tenant by delivering to Tenant Landlord's purchase
money promissory note in the amount of the Fair
Market Added Value, which note shall be on then
commercially reasonable terms and shall be secured by
a mortgage on the Leased Property and such Tenant's
Capital Additions subject to all existing mortgages
and encumbrances on the Leased Property and such
Tenant's Capital Additions at the time of such
purchase; or
(iii) By assigning to Tenant the right to receive an amount
equal to the Added Value Percentage (determined as of
the date of the expiration or earlier termination of
this Lease) of all rent and other consideration
receivable by Landlord under any re-letting or other
disposition of the Leased Property and such Tenant's
Capital Additions, after deducting from such rent all
costs and expenses incurred by Landlord in connection
with such reletting or other disposition of the
Leased Property and such Tenant's Capital Additions
and all costs and expenses of operating and
maintaining the Leased Property and such Tenant's
Capital Additions during the term of any such new
lease which are not borne by the tenant thereunder,
with the provisions of this Section 6.2.2 to remain
in effect until the sale or other final-disposition
of the Leased Property and such Tenant's Capital
Additions, at which time the Fair Market Added Value
of such Tenant's Capital Addition shall be
immediately due and payable, such obligation to be
secured by a mortgage on the Leased Property and such
Tenant's Capital Additions, subject to all existing
mortgages and encumbrances on the Leased Property at
the time of such purchase and assignment; or
(iv) By making such other arrangement regarding such
compensation as shall be mutually acceptable to
Landlord and Tenant.
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6.3 Non-Capital Additions.
Tenant shall have the right, at Tenant's sole cost and expense to make
additions, modifications or improvements to the applicable Leased Property which
are not Capital Additions ("Non-Capital Additions") from time to time as Tenant,
in its discretion, may deem desirable for the Primary Intended Use, provided
that such action will not materially alter the character or purpose or
materially detract from the value, operating efficiency or revenue producing
capability of such Leased Property, or adversely affect the ability of Tenant to
comply with the provisions of the applicable Lease, and, without limiting the
foregoing will not adversely affect or violate any Legal Requirement or
Insurance Requirement applicable to the applicable Leased Property. All such
Non-Capital Additions shall, upon expiration or earlier-termination of the
applicable Lease for such Leased Property, pass to and become the property of
Landlord, free and clear of all encumbrances, other than Permitted Encumbrances.
6.4 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, at its expense, any lien,
encumbrance, attachment, title retention agree ment or claim upon the applicable
Leased Property 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, (c) liens for those
taxes of Landlord which Tenant is not required to pay hereunder, (d) subleases
permitted by Article 17, (e) liens for Impositions or for sums resulting from
noncompliance with Legal Requirements so long as (i) the same are not yet
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, and (g) any Facility Mortgages or
other liens which are the responsibility of Landlord pursuant to the provisions
of Article 22.
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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 the applicable Lease, Tenant hereby grants unto Landlord a
security interest in and an express contractual lien upon the Tenant's Personal
Property (except motor vehicles), and all ledger sheets, files, records,
documents and instruments (including, without limitation, computer programs,
tapes and related electronic data processing) relating to the operation of the
Facility located at the applicable Leased Property (the "Records") and all
proceeds therefrom; and such Tenant's Personal Property shall not be removed
from the applicable Leased Property at any time when a Default has occurred and
is continuing.
Upon Landlord's Landlord' request, Tenant shall execute and deliver to
Landlord a financing statement in form sufficient to perfect the security
interest of Landlord in Tenant's Personal Property and in accordance with the
provisions of the State. 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, lien, attachment, levy,
encumbrance, charge or claim (collectively "Claims") as to the applicable 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 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 such Leased Property or
any interest therein or result in or reasonably be expected to result in a lien
attaching to such Leased Property, (c) no part of the applicable 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. Upon Landlord's request, Tenant shall either
(i) provide a bond or other assurance reasonably satisfactory to Landlord that
all Claims which may be assessed against the applicable Leased Property,
together with all interest and penalties thereon will be paid, or (ii) deposit
within the
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time otherwise required for payment with a bank or trust company, as trustees as
security for the payment of such Claims, an amount sufficient to pay the same,
together with interest and penalties in connection therewith and all Claims
which may be assessed against or become a Claim on the applicable Leased
Property, or any part thereof, in connection with any such contest. Tenant shall
furnish Landlord and any Facility Mortgagee with reasonable evidence of such
deposit within five (5) days after request therefor. Landlord agrees to join in
any such proceedings if required legally to prosecute such contest; provided,
Landlord shall not thereby be subjected to any liability therefor (including,
without limitation, for the payment of any costs or expenses in connection
therewith). Tenant shall be entitled to any refund of any Claims and such
charges and penalties or interest thereon which have been paid by Tenant or paid
by Landlord and for which Landlord has been fully reimbursed by Tenant. If
Tenant shall fail (x) to pay any Claims when finally determined, (y) to provide
security therefor as provided in this Article 8, or (z) to prosecute any such
contest diligently and in good faith, Landlord may, upon reasonable notice to
Tenant (which notice may be oral and shall not be required if Landlord shall
determine 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.
Tenant shall at all times during the Term and at any other time Tenant
shall be in possession of the applicable Leased Property, keep the applicable
Leased Property and all property located in or on the applicable Leased
Property, including Tenant's Personal Property, insured against the risks and in
the amounts (unless Landlord shall agree in writing that Tenant may maintain
insurance in lesser amounts) as follows:
(a) Loss or damage by fire, vandalism and malicious mischief,
extended coverage perils, earthquake and all physical loss perils
insurance, including but not limited to sprinkler leakage, in an amount
equal to not less than one hundred percent (100%) of the then full
Replacement Cost thereof (as defined in Section 9.2 below) with the
usual extended coverage endorsements;
(b) Loss or damage by explosion of steam boilers, pressure
vessels or other similar apparatus, now or hereafter installed in the
Facility located at the Leased Property, in such amounts as may be
reasonably required by Landlord or any Facility Mortgage from time to
time;
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(c) Business interruption and loss of rental under a rental
value insurance policy covering risk of loss during the lesser of the
first twelve (12) months of reconstruction or the actual reconstruction
period necessitated by the occurrence of any of the hazards described
in subparagraphs (a) and (b) above, in such amounts as may be customary
for comparable properties in the area and in an amount sufficient to
prevent Landlord or Tenant from becoming a co-insurer;
(d) Claims for personal injury or property damage under a
policy of comprehensive general accident and public liability insurance
(in the broadest form available, including, without limitation, broad
form contractual liability, independent contractor's hazard and
completed operations coverage), in an amount not less than Five Million
Dollars ($5,000,000) per occurrence in respect of bodily injury and
death and One Million Dollars ($1,000,000) in respect of property
damage;
(e) Claims arising out of malpractice in an amount not less
than Five Million Dollars ($5,000,000) for each person and for each
occurrence;
(f) Flood (when the applicable Leased Property is located in
whole or in part within an area identified as an area having special
flood hazards and in which flood insurance has been made available
under the National Flood insurance Act of 1968, as amended, or the
Flood Disaster Protection Act of 1973, as amended (or any successor
acts thereto)) and such other hazards and in such amounts as may be
customary for comparable properties in the area;
(g) worker's compensation insurance coverage for all persons
employed by Tenant on the applicable Leased Property with statutory
limits and otherwise with limits of and provisions in accordance with
the requirements of applicable local, State and federal law, and
employer's liability insurance in such amounts as Landlord and any
Facility Mortgagee shall reasonably require; and
(h) Such additional insurance as may be reasonably required,
from time to time, by Landlord or any Facility Mortgagee.
9.2 Replacement Cost.
"Replacement Cost" as used herein, shall mean the actual replacement
cost of the property requiring replacement from time to time, including an
increased cost of construction endorsement, less exclusions provided in the
standard form of fire insurance policy. In the event either party believes that
the then full replacement cost less such exclusions has increased or decreased
at any time during the Term, such party, at its own cost, shall have the right
to have such full replacement cost redetermined by
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an accredited appraiser approved by the other, which approval shall not be
unreasonably withheld or delayed. The party desiring to have the full
replacement cost so redetermined shall forthwith, on receipt of such
determination by such appraiser, give written notice thereof to the other. The
determination of such appraiser shall be final and binding on the parties
hereto, and Tenant shall forthwith conform the amount of the insurance carried
to the amount so determined by the appraiser.
9.3 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
the State) with respect to any property loss which is covered by insurance then
being carried by Landlord or Tenant, respectively, the party carrying such
insurance and suffering said loss releases the other of and from any and all
claims with respect to such loss; and they further agree that their respective
insurance companies 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.
9.4 Form Satisfactory, Etc.
All insurance policies and endorsements required pursuant to this
Article 9 shall be fully paid for, nonassessable and contain such provisions and
expiration dates and be in such form and amounts and issued by insurance
carriers authorized to do business in the State in which the applicable Leased
Property is located, having a general policy holder's rating of A or A+ in
Best's latest rating guide and as otherwise shall be approved by Landlord.
Without limiting the foregoing, such policies shall include no deductible
(unless agreed to in advance by Landlord) and shall name Landlord and any
Facility Mortgagee as additional insured, as their interests may appear. All
losses shall be payable to Landlord, any Facility Mortgagee or Tenant as
provided in Article 10. Any loss adjustment in excess of $50,000.00 shall
require the written consent of Landlord, Tenant, and each Facility Mortgagee.
Tenant shall pay all insurance premiums, and deliver policies or certificates
thereof to Landlord prior to their effective date (and, with respect to any
renewal policy, ten (10) days prior to the expiration of the existing policy),
and in the event Tenant shall fail either to effect such insurance as herein
required, to pay the premiums therefor, or to deliver such policies or
certificates to Landlord or any Facility Mortgagee at the times required,
Landlord shall have the right, but not the obligation, to effect 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 the date repaid.
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All such policies shall provide Landlord (and any Facility Mortgagee, if
required by the same) thirty (30) days' prior written notice of any
modification, expiration or cancellation of such policy.
9.5 Blanket Policy.
Notwithstanding anything to the contrary contained in this Article 9,
Tenant's obligation to maintain the insurance herein required may be brought
within the coverage of a so-called blanket policy or policies of insurance
carried and maintained by Tenant; provided, that (a) the coverage thereby
afforded will not be reduced or diminished from that which would exist under a
separate policy meeting all other requirements of the applicable Lease, and (b)
the requirements of this Article 9 are otherwise satisfied. Without limiting the
foregoing the amounts of insurance that are required to be maintained pursuant
to Section 9.1 shall be on a Facility by Facility basis, and shall not be
subject to an aggregate limit.
9.6 No Separate Insurance.
Tenant shall not 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 insured, and the loss is payable
under such insurance in the same manner as losses are payable under the
applicable Lease. 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.
9.7 Indemnification of Landlord.
Tenant shall indemnify and hold harmless Landlord 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: (a) any accident, injury to or death of
persons or loss of or damage to property occurring on or about the applicable
Leased Property or adjoining sidewalks, including, without limitation, any
claims of malpractice, (b) any past, present or future user misuse, non-use,
condition, management, maintenance or repair by Tenant or anyone claiming under
Tenant of the applicable Leased 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 related to the applicable
Leased Property or Tenant's Personal Property or such use, misuse, non-use,
condition, management, maintenance, or repair thereof including,
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failure to perform obligations (other than Condemnation proceedings) to which
Landlord is made a party, (c) any Impositions (which are the obligations of
Tenant to pay pursuant to the applicable provisions of the applicable Lease),
and (d) any failure on the part of Tenant or anyone claiming under Tenant to
perform or comply with any of the terms of the applicable Lease. Notwithstanding
the foregoing Tenant shall not be required to indemnify Landlord against any
liabilities, obligations, claims, damages, penalties, causes of action, or costs
that arise from events occurring after Landlord, or anyone claiming by, through
or under Landlord (other than Tenant or anyone claiming by, through or under
Tenant) shall take actual possession of the applicable Leased Property or
directly result from the gross negligence or willful misconduct of Landlord.
Tenant shall pay all amounts payable under this Section 9.8 within ten (10) days
after demand therefor, and if not timely paid, such amounts shall bear interest
at the overdue rate from the date of determination to the date of payment.
Tenant, at its expense, shall contest, resist and defend any such claim, action
or proceeding asserted or instituted against Landlord or may compromise or
otherwise dispose of the same, with Landlord's prior written consent (which
consent may not be unreasonably withheld or delayed). The obligation of Tenant
under this Section 9.8 shall survive the termination of the applicable Lease.
ARTICLE 10
CASUALTY
10.1 Insurance Proceeds.
All proceeds in excess of $10,000.00 payable by reason of any loss or
damage to the applicable Leased Property, or any portion thereof, and insured
under any policy of insurance required by Article 9 shall be paid to Landlord
(subject to the provisions of Section 10.2). If Tenant is required to
reconstruct or repair such Leased 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 Leased Property necessitated by such damage or
destruction, subject to the provisions of Section 10.2.4. Any excess proceeds of
insurance remaining after the completion of the restoration shall be paid to
Landlord. In the event that Section 10.2.1 below is applicable, the insurance
proceeds shall be retained by the party entitled thereto pursuant to Section
10.2.1. All salvage resulting from any risk covered by insurance shall belong to
Landlord, except any salvage related to Tenant's Capital Additions and Tenant's
Personal Property shall belong to Tenant.
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10.2 Damage or Destruction.
10.2.1 Damage or Destruction of Leased Property.
If, during the Term, the applicable Leased Property shall be
either (a) totally or partially destroyed and the Facility located
thereon is thereby rendered Unsuitable for Its Primary Intended Use or
(b) totally destroyed, but the Facility located thereon is not thereby
rendered Unsuitable for its Primary Intended Use, Tenant shall, at
Tenant's option, exercisable by Notice to Landlord within thirty (30)
days after the date of such damage or destruction, either irrevocably
offer (i) to purchase such Leased Property (and the proceeds of any
insurance payable as a result of such damage) from Landlord for a
purchase price equal to the greater of (x)the Adjusted Purchase Price
of such Leased Property or (y) the Fair Market Value Purchase Price of
such Leased Property immediately prior to such damage or destruction or
(ii) to substitute a new property for the applicable Leased Property in
accordance with the provisions of Article 16 hereof. If Tenant shall
fail to give such Notice, Tenant shall be deemed to have elected the
option provided in clause (i) above; provided that in the case of total
destruction of the Facility as described in clause (b), Tenant shall be
deemed to have elected to restore the Facility as provided in Section
10.2.4. In the event Landlord does not accept Tenant's offer to
purchase the applicable Leased Property or substitute another property
for the applicable Leased Property within thirty (30) days after
receipt of Tenant's Notice of election, the applicable Lease with
respect to the applicable Leased Property shall terminate without
further liability hereunder and Landlord shall be entitled to retain
the insurance proceeds payable on account of such damage. In the event
Tenant purchases such Leased Property as provided in this Section
10.2.1, the insurance proceeds payable on account of such damage shall
be paid to Tenant.
10.2.2 Partial Damage or Destruction.
If, during the Term, the applicable Leased Property shall be
totally or partially destroyed but the Facility located thereon is not
thereby rendered Unsuitable for Its Primacy Intended Use (provided
Tenant has not elected to purchase such Leased Property or to
substitute a property for such Leased Property as permitted under
Section 10.2.1), Tenant shall 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
Leased Property exceeds the amount of insurance proceeds received by
Landlord pursuant to Article 9, upon the demand of Landlord, Tenant
shall contribute any excess
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amounts needed to restore such Leased Property. Such difference shall
be paid by Tenant to Landlord and held by Landlord, together with any
other insurance proceeds, for application to the cost of repair and
restoration.
10.2.4 Disbursement of Proceeds.
In the event Tenant is required to restore the applicable
Leased Property pursuant to this Section 10.2, Tenant will, at its sole
cost and expense, commence promptly and continue diligently to perform
the repair and restoration of such Leased Property (hereinafter called
the "Work"), or shall cause the same to be done, so as to restore such
Leased Property in full compliance with all Legal Requirements and so
that such Leased Property shall be at least equal in value and general
utility to its and general utility value immediately prior to such
damage or destruction. Subject to the terms hereof, Landlord shall
advance the insurance proceeds (and the amounts paid to it pursuant to
Section 10.2.3) to Tenant regularly during the repair and restoration
period so as to permit payment for the cost of any such restoration and
repair. Landlord may, at its option, condition advancement of said
insurance proceeds and other amounts on (i) the absence of any Default,
(ii) its approval of plans and specifications of an architect
satisfactory to Landlord (which approval shall not be unreasonably
withheld or delayed), (iii) general contractors' estimates, (iv)
architect's certificates, (v) conditional lien waivers of general
contractors, (vi) evidence of approval by all governmental authorities
and other regulatory bodies whose approval is required and (vii) 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 satisfaction of any applicable
requirements of any Facility Mortgage, and the release of such proceeds
by the applicable Facility Mortgagee to Landlord.
10.2.5 Termination of Applicable Lease.
If Landlord accepts Tenant's offer to purchase the applicable
Leased Property or to substitute a new property in place of the
applicable Leased Property, as provided herein, the applicable Lease
shall terminate as to the applicable Leased Property upon payment of
the purchase price therefor or substitution of the new property, and
Landlord shall remit to Tenant all insurance proceeds pertaining to the
applicable Leased Property then held by Landlord.
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 the applicable Leased Property
occurs during the last eighteen (18) months of the then
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applicable Term (whether Fixed or Extended) of the applicable Lease, if
Tenant has irrevocably waived, in writing, its right to extend the Term
and to purchase the Collective Leased Properties as provided herein,
and if such damage or destruction cannot reasonably be expected to be
fully repaired and restored prior to the sixth month prior to the end
of the then applicable Term, then Tenant shall have the right to
terminate the applicable Lease on thirty (30) days prior Notice to
Landlord by giving Notice thereof to Landlord within sixty (60) days
after the date of such damage or destruction.
10.4 Tenant's Property.
All insurance proceeds payable by reason of any loss of or damage to
any of Tenant's Personal Property or Tenant's Capital Additions shall be paid to
Tenant and, to the extent necessary to repair or replace Tenant's Capital
Additions or Tenant's Personal Property in accordance with Section 10.2.1,
Tenant shall hold such proceeds in trust to pay the cost of repairing or
replacing damaged Tenant's Personal Property or Tenant's Capital Additions.
10.5 Restoration of Tenant's Property.
If Tenant is required to restore the applicable Leased Property as
hereinabove provided, Tenant, shall either (a) restore all alterations and
improvements made by Tenant, Tenant's Personal Property and all Tenant's Capital
Additions, or (b) replace such alterations and improvements, Tenant's Personal
Property, and/or Tenant's Capital Additions with improvements or items of the
same or better quality and utility in the operation of such Leased Property.
10.6 Abatement of Rent.
The applicable Lease shall remain in full force and effect and Tenant's
obligation to make all payments of Rent (including, without limitation,
Additional Rent) and to pay all other charges as and when required under such
Lease shall remain unabated during the Term notwithstanding any damage involving
the applicable Leased Property (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 Ten ant hereunder); provided,
however, that effective upon the purchase of such Leased Property or termination
of such Lease pursuant to and in accordance with Section 10.2, such Lease shall
terminate except with respect to the obligations and liabilities of Tenant
thereunder, actual or contingent, that arose prior to such termination. The
provisions of this Article 10 shall be considered an express agreement governing
any cause of damage or destruction to the applicable Leased Property and, to the
maximum extent permitted by law, no local or State statute, laws, rules,
regulation or ordinance in effect during the Term which provide for such a
contingency shall have any application in such case.
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10.7 Termination of Rights of First Refusal and Option to Purchase.
Any termination of the applicable Lease pursuant to this Article 10
shall cause any rights of first refusal and options to purchase granted to
Tenant under the applicable Lease with respect to such Leased Property to be
terminated and to be without further force or effect.
10.8 Waiver.
Tenant hereby waives any statutory rights of termination which may
arise by reason of any damage or destruction of the applicable Leased Property
which Landlord is obligated to restore or may restore under any of the
provisions of the applicable Lease.
ARTICLE 11
CONDEMNATION
11.1 Total Condemnation, Etc.
If either (i) the whole of the applicable Leased Property shall be
taken by Condemnation or (ii) a Condemnation of less than the whole of such
Leased Property renders such Leased Property Unsuitable for Its Primary Intended
Use, the Rent for such Leased Property shall xxxxx in its entirety on the Date
of Taking and Tenant and Landlord shall seek the Award for their interests in
such Leased Property as provided in Section 11.5. If the Award received by
Landlord for Landlord's interest if such Leased Property is less than the
greater of (x) the Adjusted Purchase Price or (y) the Fair Market Value Purchase
Price of such Leased Property immediately prior to such Condemnation, Tenant
shall contribute and pay to Landlord the lesser of (1) the amount of Tenant's
Award or (2) such shortfall; provided, however, that notwithstanding the
foregoing, if the sum of the Awards received by Landlord and Tenant with respect
to such Condemnation are less than the Adjusted Purchase Price of such Leased
Property, Tenant shall pay the amount of such difference to Landlord, whether or
not such amount exceeds Tenant's Award.
11.2 Partial Condemnation.
In the event of a Condemnation of less than the whole of the applicable
Leased Property such that such Leased Property is still suitable for its Primary
Intended Use, Tenant will, at its sole cost and expense, commence promptly and
continue diligently to restore the untaken portion of the Leased Improvements on
such Leased Property 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 the Leased Improvements
existing immediately prior to such Condemnation, in full compliance with, all
Legal Requirements. Subject to the terms hereof, Landlord shall contribute to
the cost
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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 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 said Award and other amounts on (i) the absence
of any Default, (ii) its approval of plans and specifications of an architect
satisfactory to Landlord (which approval shall not be unreasonably withheld or
delayed), (iii) general contractors' estimates, (iv) architect's certificates,
(v) conditional lien waivers of general contractors, (vi) evidence of approval
by all governmental authorities and other regulatory bodies whose approval is
required and (vii) such other certificates as Landlord may, from time to time,
reasonably require. Landlord's obligation under this Section 11.2 to disburse
the Award shall be subject to (1) the collection thereof by Landlord and (2) the
satisfaction of any applicable requirements of any Facility Mortgage, and the
release of such Award by the applicable Facility Mortgagee. If the cost of the
restoration of the applicable Leased Property exceeds that part of the Award
necessary to complete such restoration, together with severance and other
damages awarded for the taken Leased Improvements, Tenant shall contribute upon
the demand of Landlord any excess amounts needed to restore such Leased
Property. Such difference shall be paid by Tenant to Landlord and held by
Landlord, together with such part of the Award and such severance and other
damages, for application to the cost of restoration.
11.3 Abatement of Rent.
Other than as specifically provided in this Master Lease Document, the
applicable Lease shall remain in full force and effect and Tenant's obligation
to make all payments of Rent (includ ing, without limitation, Additional Rent)
and to pay all other charges as and when required under such Lease shall remain
unabated during the Term notwithstanding any Condemnation involving the
applicable Leased Property; provided, however, that effective upon the purchase
of such Leased Property or the termination of the Lease pursuant to and in
accordance with Section 11.1, such Lease shall terminate except with respect to
the obligations and liabilities of Tenant thereunder, actual or contingent, that
arose prior to such termination. The provisions of this Article 11 shall be
considered an express agreement governing any Condemnation involving the
applicable Leased Property and, to the maximum extent permitted by law, no local
or State statute, laws, rules regulation or ordinance in effect during the Term
which provide for such a contingency shall have any application in such case.
11.4 Temporary Condemnation.
In the event of any temporary Condemnation of all or any part of the
applicable Leased Property or Tenant's interest under the applicable Lease of
such Leased Property, the applicable Lease shall continue in full force and
effect, and Tenant shall continue
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to pay, in the manner and on the terms therein specified, the full amount of the
Rent. Tenant shall continue to perform and observe all of the other terms and
conditions hereof on the part of the Tenant to be performed and observed. 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, upon the termination of any such period of temporary
Condemnation, at its sole cost and expenses restore such Leased Property to the
condition that existed immediately prior to such Condemnation, in full
compliance with all 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 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, Tenant's Capital Additions, loss of business during the remainder of
the Term, the taking of Tenant's Personal Property, or Tenant's removal and
relocation expenses shall be the sole property of and payable to Tenant (subject
to the provisions of Section 11.2 hereof). In any Condemnation proceedings,
Landlord and Tenant shall each seek its own Award in conformity herewith, at its
own expense.
11.6 Termination of Rights of First Refusal and Option to Purchase.
Any termination of the applicable Lease pursuant to this Article 11
shall cause any rights of first refusal and options to purchase granted to
Tenant under the applicable Lease to be terminated and to be without further
force or effect.
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" under the applicable Lease:
(a) an Event of Default (as defined therein) shall occur and
be continuing under any Transaction Document (other than the applicable
Lease); or
(b) Tenant shall fail to make any payment of the Rent or any
other sum (including, but not limited to, payment of the purchase price
for any of the Collective Leased Properties which Tenant shall be
obligated or elects to purchase
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pursuant to the terms of this Master Lease Document or any Lease)
payable hereunder for more than ten (10) days after the date when due;
or
(c) Tenant shall default in the due observance or performance
of any of the terms, covenants or agreements contained herein to be
performed or observed by it relating to other than the payment of money
and not otherwise referred to in this Section 12.1, and such default
shall remain unremedied for ten (10) days after written notice thereof
from Landlord, 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 such
default within ten (10) days after written 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 fifty (50) days) as may be necessary
to cure such default with all due diligence, provided, further,
however, that the period within which Tenant must commence-e such cure
or complete such cure shall be extended by the number of days during
which there shall exist any Unavoidable Delay; or
(d) Tenant shall default in due performance or observance of
any term, covenant or agreement on its part to be performed or observed
pursuant to Section 7.1 or 9.1; or
(e) any Guarantor shall default in due performance or
observance of any term, covenant or agreement on its part to be
performed or observed pursuant to any Guaranty; or
(f) any of the Transaction Documents shall cease for any
reason to be in full force and effect (other than as specifically
provided therein, or released as provided therein), or Tenant or any
Guarantor shall so assert in writing; or
(g) the occurrence of a default or breach of condition
continuing beyond the expiration of any applicable grace period under
the terms of any other agreement, document or instrument (including,
without limitation, all leases and loan documents) evidencing any
indebtedness, covenant, liability, obligation or undertaking due to, or
made for the benefit of, Landlord and/or any of its Affiliates by (i)
Tenant, (ii) any Affiliate of Tenant, (iii) any Guarantor, or (iv) any
entity owned, legally or beneficially, by Tenant or any Guarantor,
whether such indebtedness, covenants, liabilities, obligations or
undertakings are direct or indirect, absolute or contingent, liquidated
or unliquidated, due or to become due, joint, several or joint and
several, primary or secondary, now existing or hereafter arising; or
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(h) any obligation of Tenant or any Guarantor, or of any
subsidiary of either, in respect of any indebtedness for borrowed money
or for the deferred purchase price of any material property or services
(including, without limitation, indebtedness under the TW Note, but
excluding (1) trade accounts payable in the ordinary course of business
on customary trade terms and (2) indebtedness or obligations under the
Transaction Documents) (hereinafter, "Indebtedness for Borrowed Money")
or any guaranty relating thereto shall be declared to be or shall
become due and payable prior to the stated maturity thereof, or such
Indebtedness for Borrowed Money shall not be paid as and when the same
becomes due and payable, or there shall occur and be continuing any
default under any instrument, agreement or evidence of indebtedness
relating to any such indebtedness for Borrowed Money the effect of
which is to permit the holder or holders of such instrument, agreement
or evidence of indebtedness, or a trustee, agent or other
representative on behalf of such holder or holders, to cause such
Indebtedness for Borrowed money to become due prior to its stated
maturity; or
(i) there shall occur a final unappealable determination by
applicable state authorities of the revocation of any licenses, permits
or approvals required for the lawful operation of the Facility located
on the applicable Leased Property in accordance with its Primary
Intended Use or the loss of any license under any other circumstances
under which Tenant is required to cease its operation of such Facility
in accordance with its Primary Intended Use as currently operated, and
Tenant shall not, within thirty (30) days thereafter, have commenced
appropriate procedures for the substitution of a new property therefor
in accordance with the provisions of Article 16 hereof, or, if Tenant
shall have commenced such procedures, the substitution of such new
property shall not have occurred within ninety (90) days of such
determination or loss; or
(j) any material representation or warranty made by or on
behalf of Tenant or any Guarantor under or in connection with the
applicable Lease or any of the other Transaction Documents, or in any
document, certificate or agreement delivered pursuant to the terms of
such Lease or any of the other Transaction Documents, shall prove to
have been false or misleading in any material respect on the day when
made or deemed made; or
(k) Tenant, AKS or AMSHC shall be generally not paying its
debts as they become due, or Tenant or any Guarantor, or any subsidiary
thereof, shall make a general assignment for the benefit of creditors;
or
(l) any petition shall be filed by or against Tenant or any
Guarantor or any subsidiary of either under the Federal bankruptcy
laws, or any other proceeding shall be instituted
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by or against Tenant or such Guarantor or subsidiary seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation,
reorganization, arrangement, adjustment or composition of it or its
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 such Guarantor or subsidiary, or
for any substantial part of the property of Tenant or such Guarantor or
subsidiary, and such proceeding is not dismissed within ninety (90)
days after institution thereof, or Tenant or such Guarantor or
subsidiary shall take any action to authorize or effect any of the
actions set forth above in this paragraph (l); or
(m) Tenant or any Guarantor or any subsidiary of either shall
cause or institute any proceeding for its dissolution or termination;
or
(n) Tenant shall voluntarily cease operations on the
applicable Leased Property for a period in excess of thirty (30)
consecutive days, except as a result of damage, destruction or partial
or complete condemnation, and Tenant shall not within thirty (30) days
thereafter, have commenced appropriate procedures for the substitution
of a new property therefor in accordance with the provisions of Article
16 hereof, or, if Tenant shall have commenced such procedures, the
substitution of such new property shall not have occurred within ninety
(90) days of the cessation of such operations; or
(o) a default shall occur under any mortgage which is secured
by Tenant's leasehold interest in the applicable Lease or the mortgagee
under any such mortgage accelerates the indebtedness secured thereby or
commences a foreclosure action in connection with said mortgage;
then, and in any such event, Landlord, by a vote of a majority of the
Independent Trustees, may terminate the applicable Lease by giving Notice of
such termination, and upon the expiration of the time, if any, fixed in such
Notice, the Term shall terminate and all rights of Tenant under the applicable
Lease shall cease. Landlord shall have all rights at law and in equity available
to Landlord as a result of Tenant's breach of the applicable Lease.
Upon the occurrence of an Event of Default, Landlord may, in addition
to any other remedies provided herein, enter upon the applicable Leased Property
or any portion thereof and take possession of any and all of Tenant's Personal
Property and the Records (subject to any prohibitions or limitations to
disclosure of any such data as described in Section 3.1.2(d)) on the applicable
Leased Property, without liability for trespass or conversion (Tenant hereby
waiving any right to notice or hearing prior to
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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 such Personal Property 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 in the manner prescribed in the applicable Lease at
least five (5) days before the day 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 indebted ness 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 Ad ditional Rent, upon demand.
12.2 Remedies.
Neither (a) the termination of the applicable Lease pursuant to Section
12.1, (b) the repossession of the applicable Leased Property or any portion
thereof, (c) the failure of Landlord, notwithstanding reasonable good faith
efforts, to relet the applicable Leased Property or any portion thereof, nor (d)
the relenting of all or any portion thereof, 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 applicable Leased Property to and including the date of such termination.
Thereafter, Tenant, until the end of what would have been the Term of the
applicable Lease in the absence of such termination, and whether or not the
applicable Leased Property or any portion thereof shall have been re-let, shall
be liable to Landlord for, and shall pay to Landlord, as current damages, the
Rent 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
relenting of the applicable Leased Property, after deducting all expenses in
connection with such re-letting, including, without limitation, all repossession
costs, brokerage commissions, legal expenses, attorneys' fees, advertising,
expenses of employees, alteration costs and expenses of preparation for such
relenting. Tenant shall pay such current damages to Landlord monthly on the days
on which the Minimum Rent would have been payable hereunder if the applicable
Lease had not been terminated. Additional Rent for the purposes of this Section
12.2 shall be a sum equal to the annual amount of the Additional Rent for the
Fiscal Year immediately preceding the Fiscal Year in which the termination,
re-entry or repossession takes place. If, however, such termination, re-entry or
repossession occurs during the first full Fiscal Year after the Commencement
Date, the Additional Rent for such Leased Property shall be determined based on
the assumption that Additional Rent for such Leased Property would have
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continued to accrue at the same rate that it had for the period prior to such
termination, re-entry or repossession determination.
At any time after such termination, whether or not Landlord shall have
collected any such current damages, as liquidated final damages and in lieu of
all such current damages beyond the date of such termination, at Landlord's
election, Tenant shall pay to Landlord either (a) an amount equal to 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 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 the applicable Lease if the same remained in
effect, over the Fair Market Rental for the same period, or (b) an amount equal
to the lesser of (i) the Rent and other charges that would have been payable for
the balance of the Term had it not been terminated, or (ii) the aggregate of the
Minimum Rent, Additional Rent, Additional Charges and other charges accrued in
the twelve (12) months ended next prior to such termination (without reduction
for any free rent or other concession or abatement). In the event the applicable
Lease is so terminated prior the expiration of the first full year of the Term,
the liquidated damages which Landlord may elect to recover pursuant to clause
(b) (ii) of this paragraph shall be calculated as if such termination had
occurred on the first anniversary of the Commencement Date. Nothing contained in
the applicable Lease 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 applicable
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 applicable Leased
Property or any portion thereof as Landlord, in its sole judgment, considers it
advisable and necessary for the purpose of reletting the applicable Leased
Property; and the making of such alterations, 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 failure to relet
the applicable Leased Property, or, in the event that the applicable Leased
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Property is relent for failure to collect the rent under such reletting. To the
fullest 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 applicable Leased Property, by reason of the violation by
Tenant of any of the covenants and conditions of the applicable Lease.
12.3 TENANT'S WAIVER.
IF THE APPLICABLE LEASE IS TERMINATED PURSUANT TO SECTION 12.1 OR 12.2
HEREOF, TENANT WAIVES, TO THE EXTENT PERMITTED BY LAW, (A) ANY RIGHT TO A TRIAL
BY JURY IN THE EVENT OF SUMMARY PROCEEDINGS TO ENFORCE THE REMEDIES SET FORTE IN
THIS ARTICLE 12, AND (B) 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 the
applicable Lease during the existence or continuance of any Event of Default
(and any payment made to Landlord rather than Tenant due to the existence of an
Event of Default) shall be applied to Tenant's obligations under the applicable
Lease and under the other Transaction Documents in such order as Landlord may
determine or as may be prescribed by the laws of the State.
12.5 Failure to Conduct Business.
For the purpose of determining rental loss damages for Additional Rent,
in the event Tenant shall fail to conduct its business at the applicable Leased
Property for the Primary Intended Use, exact damages or the amount of Additional
Rent being unascertainable, the Additional Rent for such Leased Property shall
be deemed to be equal to the annual amount of the Additional Rent for the Fiscal
Year immediately preceding the Fiscal Year in which such determination takes
place. If, however, such determination occurs during the first full Fiscal Year
after the Commencement Dater the Additional Rent for such Leased Property shall
be determined based on the assumption that Additional Rent for such Leased
Property would have continued to accrue at the same rate that it had for the
period prior to such determination.
12.6 Landlord's Right to Cure Tenant's Default.
If an Event of Default shall have occurred and be continuing, Landlord,
after Notice to Tenant (provided that no such notice shall 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
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extent permitted by law, enter upon the applicable Leased Property or an portion
thereof for such purpose and take all such action thereon as, in Landlord's
opinion, may be necessary or appropriate therefor, including the management of
the Facility located on the applicable Leased Property by Landlord or its
designee (which may include, without limitation, Greenery Managers, Inc.), and
Tenant hereby irrevocably appoints, in the event of such election by Landlord,
Landlord or its designee as manager of the Facility located on the applicable
Leased Property and its attorney in fact for such purpose, irrevocably and
coupled with an interest, in the name, place and stead of Tenant. 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.
12.7 Trade Names.
If the applicable Lease relating to a Facility is terminated for any
reason, Tenant shall not thereafter use a Facility Trade Name in the same market
in which such Facility is located in con nection with any business that competes
with such Facility.
ARTICLE 13
HOLDING OVER
Any holding over by Tenant after the expiration of the Term shall be
treated as a daily tenancy at sufferance at a rate equal to 1-1/2 times the
Minimum Rent and the Additional Rent then in effect plus Additional Charges and
other charges herein provided (prorated on a daily basis). Tenant shall also pay
to Landlord all damages (other than consequential damages) sustained by reason
of any such holding over. Otherwise, such holding over shall be on the terms and
conditions set forth in the applicable Lease, 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 the
applicable Lease.
ARTICLE 14
LANDLORD'S DEFAULT
If Landlord shall default in the performance or observance of any of
its covenants or obligations set forth in the applicable Lease, and 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
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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 from the date Landlord receives
Tenant's invoice, at a rate equal to the lesser of the Overdue Rate or the
maximum rate allowed by law. Tenant shall have no right to terminate the
applicable Lease 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 written 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 the dispute within ten (10) days after Landlord's notice of dispute,
either may submit the matter for resolution to a court of competent
jurisdiction.
ARTICLE 15
PURCHASE OF LEASED PROPERTY
In the event Tenant shall purchase the applicable Leased Property from
Landlord pursuant to the terms of the applicable Lease, Landlord shall, upon
receipt from Tenant of the applicable purchase price, together with full payment
of any unpaid Rent and other charges due and payable with respect to any period
ending on or before the date of the purchase, and so long as no Default shall
have occurred and be continuing at such time (or, solely in the case of the
purchase of the Collective Leased Properties pursuant to Section 21.4, so long
as no Default involving the nonpayment of Rent shall have occurred and be
continuing), deliver to Tenant a title insurance policy, together with an
appropriate deed or other instruments, conveying the entire interest of Landlord
in and to such Leased Property to Tenant, free and clear of all encumbrances
created through the act or omission of Landlord other than (i) those liens, if
any, which Tenant has agreed in writing to accept and take title subject to, and
(ii) encumbrances imposed on such Leased Property under Section 5.5 hereof. The
difference between the applicable purchase price and the total cost of
discharging the encumbrances described in clause (i) above shall be paid in cash
to Landlord or as Landlord may direct, in federal or other immediately available
funds. Other than as specifically provided above, such Leased Property shall be
conveyed to Tenant on an "as is" basis, and in its then physical condition. The
closing of any such sale shall be subject to all terms and conditions with
respect thereto set forth in the applicable Lease and in the other Transaction
Documents, and shall,
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unless waived by Tenant, be contingent upon and subject to Tenant's obtaining
all required governmental consents and approvals for such transfer. All expenses
of such conveyance, including, without limitation, all transfer and sales taxes,
documentary fees, the fees and expenses of counsel to Landlord and the cost of
any title examination or title insurance, shall be paid by Tenant.
ARTICLE 16
SUBSTITUTION OF PROPERTY FOR THE LEASED PROPERTY
16.1 Tenant's Substitution Option.
If (a) in the good faith judgment of Tenant, the Leased Property shall
become Unsuitable for Its Primary Intended Use, and no Default shall have
occurred and then be continuing, or (b) Tenant shall have voluntarily ceased
operations on the applicable Leased Property or there shall have occurred a
final unappealable determination by an applicable State authority of the
revocation of any license, permit or approval required for the lawful operation
of the Facility located on the applicable Leased Property in accordance with
Primary Intended Use or the loss of any license under any other circumstances
under which Tenant is required to cease its operation of such Facility in
accordance with its Primary Intended Use, and no Event of Default shall have.
occurred and then be continuing, Tenant shall have the right, subject to the
conditions set forth in this Article 16, upon not less than thirty (30) days,
and not more than ninety (90) days, prior Notice to Landlord, to substitute one
or more properties (collectively, "Substitute Properties" or individually,
"Substitute Property") on the date specified in such Notice (the "Substitution
Date"); provided, however, if Tenant is required by court order or
administrative action to divest or otherwise dispose of the applicable Leased
Property in less than thirty (30) days and Tenant shall have given Landlord
prior Notice of the filing of such court or administrative action and kept
Landlord reasonably apprised of the status thereof, the time period shall be
shortened appropriately to meet the reasonable needs of Tenant, but in no event
less than ten (10) Business Days after the receipt by Landlord of such Notice.
Such Notice shall (i) be in the form of an Officer's Certificate, setting forth
in reasonable detail the reason(s) for the substitution and the proposed
Substitution Date, and (ii) designate not less than two properties (or groups of
properties), each of which properties (or groups of properties) shall provide
Landlord with a yield (i.e., annual return on its equity in such property)
substantially equivalent to Landlord's yield from the applicable Leased Property
at the time of such proposed substitution (or in the case of substitution
because of damage or destruction, the yield immediately prior to such damage or
destruction) and as reasonably projected over the remaining Term of the
applicable Lease, as determined by a majority of the Independent Trustees of
Landlord and a majority of the Trustees of Landlord.
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16.2 Landlord's Substitution Option.
If Tenant shall have voluntarily or involuntarily discontinued use of
the applicable Leased Property for its business operations for a period in
excess of one year, Landlord shall have the right, exercisable by thirty (30)
days prior written notice to Tenant, to require Tenant to substitute a
Substitute Property (in which event, Tenant shall comply with subparagraph
16.l(ii) within thirty (30) days thereafter).
16.3 Substitution Procedures.
(a) If either Landlord or Tenant shall initiate a substitution pursuant
to Section 16.1 or 16.2 above, Landlord shall have a period of thirty (30) days
within which to review the designated properties and such additional information
as may be requested by Landlord and either accept or reject the Substitute
Properties so presented, unless Tenant is required by a court order or
administrative action to divest or otherwise dispose of the Leased Property
within a shorter time period, in which case the time period shall be shortened
appropriately to meet the reasonable needs of Tenant, but in no event shall such
period be less than ten (10) Business Days after Landlord's actual receipt of
Tenant's notice (subject to further extension for any period of time in which
Landlord is not timely provided with the information provided for in this
Section 16.3 and Section 16.4 below). Landlord and Tenant shall use good faith
efforts to agree on a Substitute Property.
(b) Tenant's right (and obligation) to offer to substitute a property
as set forth in this Article is subject to (i) satisfaction of the conditions
set forth in Section 16.4 below, (ii) determination by a majority of the
Trustees and a majority of the Independent Trustees of Landlord, that the
Substitute Property shall provide Landlord with a yield substantially equivalent
to Landlord's yield from the Leased Property immediately before such
substitution or such damage or destruction, as the case may be, and as projected
over the remainder of the Term, and (iii) the delivery of an opinion of counsel
for Landlord confirming that (w) the substitution of the Substitute Property for
the Leased Property will qualify as an exchange solely of property of a like
kind under Section 1031 of the Code, in which, generally, except for "boot", no
gain or loss will be recognized by Landlord, (x) the substitution will not
result in ordinary recapture income to Landlord pursuant to Code Section
1250(d)(4) or any other Code provision, (y) the substitution will result in
income, if any, to the Landlord of a type described in Code Section 856(c)(2) or
(3) and will not result in income of the types described in Code Section
856(c)(4) or result in the tax imposed under Code Section 857(b)(6), and (z) the
substitution, together with all other substitutions made or requested by Tenant
or an Affiliate pursuant to any other lease with Landlord or other transfers of
the Leased Property or properties leased under other such leases, during the
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relevant time period, will not jeopardize the qualification of Landlord as a
real estate investment trust under Code Sections 856-860.
(c) In the event that the then Fair Market Value of the Substitute
Property or group of Substitute Properties minus the encumbrances assumed by
Landlord, or as to which the Landlord will take the Substitute Property or group
of Substitute Properties subject, as of the Substitution Date is greater than
the then Fair Market Value Purchase p rice of the Leased Property minus the
encumbrances assumed by Tenant, or as to which the Tenant will take the Leased
Property subject, as of the Substitution Date (or in the case of damage or
destruction, the Fair Market Value Purchase Price immediately prior to such
damage or destruction), Landlord shall pay to Tenant an amount equal to the
difference, subject to the limitation set forth below; in the event that such
value of the Substitute Property or group of Substitute Properties is less than
such value of the Leased Property, Tenant shall pay to Landlord an amount equal
to the difference, subject to the limitation set forth below, provided, however,
neither Landlord nor Tenant shall be obligated to consummate such substitution
if such party would be required to make a payment (the "Cash Adjustment") to the
other in excess of an amount equal to fifteen percent (15%) of the Fair Market
Value of the Leased Property. Without limiting the effect of the preceding
sentence, in the event that, on the Substitution Date, Landlord is obligated to
pay a Cash Adjustment to Tenant and Landlord, by a vote of a majority of the
Independent Trustees, shall elect not to make such payment in cash, Landlord
shall provide Tenant with (and Tenant shall accept) a purchase money note and
mortgage or deed of trust, on then commercially reasonable terms.
(d) The Rent for such Substitute Property shall, in all respects,
provide Landlord with a yield (i.e., annual return on its equity in such
property) substantially equivalent to Landlord's yield from the Leased Property
at the time of such substitution (or in the case of substitution because of
damage or destruction the yield immediately prior to such damage or destruction)
and as reasonably projected over the remaining Term, taking into account the
Cash Adjustment paid or received by Landlord and any other relevant factors, as
determined by a majority of the Independent Trustees and a majority of the
Trustees.
(e) The Adjusted Purchase Price of the Substitute Property shall be an
amount equal to the Adjusted Purchase Price of the Leased Property (i) increased
by any Cash Adjustment paid by Landlord pursuant to paragraph (d) above, or (ii)
decreased by any Cash Adjustment paid by Tenant pursuant to paragraph (c) above.
16.4 Conditions to Substitution.
On the Substitution Date, the Substitute Property shall become the
Leased Property hereunder, upon delivery by Tenant to Landlord of the following:
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(a) An Officer's Certificate, and, with respect to the matters
described in (ii), (iii) and (iv) below, an opinion of counsel to
Tenant acceptable to Landlord, certifying that (i) the Substitute
Property has been accepted by Tenant for all purposes of the applicable
Lease and there has been no material damage to the improvements located
thereon, nor is any condemnation or eminent domain proceeding pending
with respect thereto; (ii) all appropriate permits, licenses and
certificates (including, but not limited to, a permanent, unconditional
certificate of occupancy and all certificates of need, licenses and
provider agreements) which are necessary to permit the use of the
Substitute Property in accordance with the provisions of the applicable
Lease have been obtained and are in full force and effect; (iii) under
applicable zoning and use laws, ordinances, rules and regulations, the
Substitute Property may be used for the purposes contemplated by the
applicable Lease and all necessary subdivision approvals, if any, have
been obtained; (iv) there are no mechanics' or materialmen's liens
outstanding or threatened to the knowledge of Tenant against the
Substitute Property arising out of or in connection with the
construction of the improvements thereon, other than those being
contested by Tenant pursuant to Article 8 hereof; (v) no Default
exists, and no defense, offset of claim exists with respect to any sums
payable by Tenant hereunder; and (vi) any exceptions to Landlord's
title to the Substitute Property do not materially interfere with the
intended use of the Substitute Property by Tenant;
(b) A deed with limited warranties or assignment of a
leasehold estate with limited warranties (as applicable) conveying to
Landlord title to the Substitute Property free and clear of any liens
or encumbrances, except those approved by Landlord;
(c) an amendment duly executed, acknowledged and delivered by
Tenant, in form and substance satisfactory to Landlord, amending the
applicable Lease to (i) correct the legal description of the Land, (ii)
establish the Adjusted Purchase Price and Minimum Rent of the
Substitute Property and (iii) make such other changes herein as may be
necessary or appropriate under the circumstances;
(d) counterparts of a standard owner's or lessee's (as
applicable) policy of title insurance covering the Substitute Property
(or a valid, binding, unconditional commitment therefor), dated as of
the Substitution Date, in current form and including mechanics' and
materialmen's lien coverage, issued to Landlord by a title insurance
company and in the form reasonably satisfactory to Landlord. Such
policy shall (i) insure (x) Landlord's fee title or leasehold estate to
the Substitute Property, subject to no liens or encumbrances
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except those approved by Landlord and (y) that any restrictions
affecting the Substitute Property have not been violated; (ii) be in an
amount at least equal to the Fair Market Value of the Substitute
Property; and (iii) contain such affirmative coverage endorsements as
Landlord shall reasonably request;
(e) certificates of insurance with respect to the Substitute
Property fulfilling the requirements of Article 9;
(f) current appraisals or other evidence satisfactory to
Landlord, in its sole discretion as to the then current Fair Market
Values and the projected residual values of such Substitute Property
and the applicable Leased Property;
(g) all available revenue data relating to the Substitute
Property for the period from the date of opening for business of the
Facility on such Substitute Property to the date of Tenant's most
recent Fiscal Year end, or for the most recent three (3) years,
whichever is less;
(h) written confirmation from any guarantor of Tenant's
obligations under the applicable Lease; and
(i) such other certificates, documents, opinions of counsel
and other instruments as may be reasonably required by Landlord.
16.5 Conveyance to Tenant.
On the Substitution Date, Landlord shall convey the Leased Property to
Tenant in accordance with the provisions of Article 15 hereof (except as to
payment of any expenses in connection therewith which shall be governed by
Section 16.6 below) upon conveyance to Landlord of the Substitute Property, as
appropriate.
16.6 Expenses.
Tenant shall pay or cause to be paid, on demand, all reasonable costs
and expenses paid or incurred by Landlord in connection with the substitution
and conveyance of the Leased Property and Substitute Property, including, but
not limited to, (a) reasonable fees and expenses of counsel, (b) all printing
expenses, (c) the amount of filing, registration and recording taxes and fees,
(d) the cost of preparing and recording, if appropriate, a release of the Leased
Property from the lien of any mortgage, (e) brokers' fees and commissions, (f)
documentary stamp and transfer taxes, (g) title insurance charges and premiums,
and (h) escrow fees.
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ARTICLE 17
SUBLETTING AND ASSIGNMENT
17.1 Subletting and Assignment.
Except as provided in Section 17.3 below, Tenant shall not, without the
prior written consent of a majority of the Independent Trustees and a majority
of the Trustees, assign, mortgage, pledge, hypothecate, encumber or otherwise
transfer the applicable Lease or sublease (which term shall be deemed to include
the granting of concessions and licenses and the like) all or any part of the
applicable Leased Property or suffer or permit the applicable Lease or the
leasehold estate created hereby or thereby or any other rights arising under the
applicable Lease 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 occupancy of the applicable Leased
Property by anyone other than Tenant, or the applicable Leased Property to be
offered or advertised for assignment or subletting except as hereinafter
provided. For purposes of this Section 17.1, an assignment of the applicable
Lease shall be deemed to Include any change in control of Tenant or any
transaction pursuant to which Tenant is merged or consolidated with another
entity or pursuant to which all or substantially all of Tenant's assets are
transferred to any other entity, as if such change in control or transaction
were an assignment of the applicable Lease. Changes in control of Tenant shall
include, without limitation, transfers (by one or more transfers) of the stock
or partnership or beneficial interests or other evidences of ownership of Tenant
or the issuance of additional stock or partnership or beneficial interests or
other indicia of ownership in Tenant which cause a change in the control of
Tenant.
If the applicable Lease is assigned or if the applicable Leased
Property or any part thereof are sublet (or occupied by anybody other than
Tenant and its employees) Landlord, after an Event of Default occurs and is
continuing, may collect the rents from such assignee subtenant or occupant, as
the case may be, and apply the not 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 17.1, the acceptance by Landlord of such
assignee, subtenant 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 the applicable Lease.
No subletting or assignment shall in any way impair the continuing
primary liability of Tenant 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 17.1. No assignment, subletting or
occupancy shall affect the Primary Intended Use. Any subletting, assignment or
other
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transfer of Tenants interest in the applicable Lease in contravention of this
Section 17.1 shall be voidable at Landlord's option.
17.2 Required Sublease Provisions.
Any sublease of all or any portion of the applicable Leased Property
shall provide (a) that it is subject and subordinate to the applicable Lease and
to the matters to which the applicable Lease and such Lease is or shall be
subject or subordinate; (b) that in the event of termination of such Lease or
reentry or dispossession of Tenant by Landlord under such Lease, Landlord may,
at its option, 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 the applicable Lease, if such 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 such
Leased Property or any 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 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 allotment, (vii) be responsible for any monies owing by
Tenant to the credit of such subtenant, or (viii) be required to remove any
Person occupying such Leased Property or any part thereof; and (c) in the event
the sublessee receives a written Notice from Landlord or the Facility mortgagee,
if any, stating that an Event of Default has occurred and is continuing, the
sublessee shall thereafter be obligated to pay all rentals accruing under said
sublease directly to the party giving such Notice or as such party may direct.
All rentals received from the sublessee by Landlord or the Facility Mortgagee,
if any, as the case may be, shall be credited against the amounts owing by
Tenant under the applicable Lease; 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 sublessee or assignee, as the case may be, in form and substance
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 the applicable Lease 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
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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 17.2 shall not be deemed a waiver of the
provisions set forth in the first paragraph of Section 17.1.
17.3 Permitted Sublease.
Notwithstanding the foregoing, but subject to the provisions of Section
17.4 below and any other express conditions or limitations set forth herein,
Tenant may, in each instance after Notice to Landlord, sublease space at the
applicable Leased Property for laundry, commissary or child care purposes in
furtherance of the Primary Intended Use, so long as such sublease would not
reduce the number of licensed beds at the applicable Facility, would not violate
or affect any Legal Requirement, Insurance Requirement, and Tenant has provided
such additional insurance coverage applicable to the activities to be conducted
in such subleased space as is acceptable to Landlord in its discretion.
17.4 Sublease Limitation.
Anything contained in this Lease to the contrary notwithstanding,
Tenant shall not sublet the applicable Leased Property on any basis such that
the rental to be paid by the sublessee thereunder would be based, in whole or in
part, on either (a) the income or profits derived by the business ' activities
of the sublessee, or (b) any other formula such that any portion of the 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.
ARTICLE 18
ESTOPPEL CERTIFICATES
At any time and from time to time, upon not less than ten (10) days
prior Notice by Landlord, Tenant shall furnish to Landlord an Officer's
Certificate certifying that the applicable Lease is unmodified and in full force
and effect (or that the applicable Lease is in full force and effect as modified
and setting forth the modifications), the date to which the Rent has been paid,
that Tenant is not in default in the performance or observance of any of the
terms of the applicable Lease and that no event exists which with the giving of
notice, lapse of time, or both, would constitute a Default or an Event of
Default, or if a Default or an Event of Default shall exist, specifying in
reasonable detail such Default or an Event of Default, and the steps being taken
to remedy the same, and such additional information as Landlord may reasonably
request. Any such certificate furnished
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pursuant to this Section may be relied upon by Landlord and any prospective
purchaser or mortgagee of the applicable Leased Property.
ARTICLE 19
LANDLORD'S RIGHT TO INSPECT
Tenant shall permit Landlord and its authorized representatives to
inspect the applicable Leased Property during usual business hours upon not less
than three (3) Business Days notice, and to make such repairs as Landlord is
permitted or required to make pursuant to the terms of the applicable Lease;
provided that any inspection or repair by Landlord or its representatives will
not unreasonably interfere with Tenant's use and operation of applicable Leased
Property.
ARTICLE 20
APPRAISAL
20.1 Appraisal Procedure.
In the event that it becomes necessary to determine the Fair Market
Value or Fair Market Rental of any property for any purpose of the applicable
Lease, and the parties cannot agree amongst themselves on such Fair Market Value
or Fair Market Rental, Tenant may request that Landlord select, or Landlord may
on its own initiative select, a Qualified Appraiser (as hereinafter defined). If
Tenant does not accept the Fair Market Value or Fair Market Rental, as the case
may be, of such property as of the relevant date as determined by such Qualified
Appraiser, Tenant may, within ten (10) days after receiving the report of such
Qualified Appraiser, by written notice to Landlord, appoint a Second Qualified
Appraiser. If Tenant does not so appoint a Second Qualified Appraiser within
such ten (10) day period, Tenant shall be deemed to have accepted the Fair
Market Value or Fair Market Rental determined by the first Qualified Appraiser.
The two appraisers so designated shall meet within ten (10) days after the
second appraiser as designated, and, if within ten (10) days after the second
appraiser is designated, the two appraisers do not agree upon the Fair Market
Value or Fair Market Rental, as the case may be, of any property as of the
relevant date, the two appraisers shall designate a third Qualified Appraiser,
within ten (10) days thereafter. In the event that the two appraisers are unable
to agree upon the appointment of a third Qualified Appraiser within such ten
(10) day period, either Landlord or Tenant, on behalf of both, may then request
appointment of such appraiser the then president of the American Arbitration
Association. In the event of a failure, refusal or inability of any appraiser to
a new appraiser shall be appointed in his stead, which appointment shall
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be made in the same manner as hereinabove provided for the appointment of such
appraiser so failing, refusing or being unable to act. in the event that all
appraisers cannot agree upon such value ten (10) days as aforesaid, each
appraiser shall submit his appraisal of such value to the other two appraisers
in writing, and such value shall be determined by calculating the average of the
two numerically closest (or, if the values are equidistant, all three) values
determined by the three appraisers.
"Qualified Appraiser" shall mean any disinterested person who is a
member in good standing of the American Institute of Real Estate Appraisers or
the American Society of Real Estate Counselors (or the successor to either of
such organizations) and who has had not less than ten (10) years experience in
appraising and valuing, commercial buildings in the State.
The costs (other than Landlord's counsel fees) of such appraisal shall
be borne by Tenant. Upon determining such value, the appraisers shall promptly
notify Landlord and Tenant in writing of such determination. If any party shall
fail to appear at the hearings appointed by the appraisers, the appraisers may
act in the absence of such party.
The determination of the board of appraisers (or the single qualified
Additional Appraiser, as appropriate) made in accordance with the foregoing
provisions shall be final and binding upon the parties, such determination may
be entered as an award in arbitration in a court of competent jurisdiction, and
judgment thereon may be entered.
20.2 Landlord's Right to Appraisal.
Landlord shall have the right, exercisable at any time during the Term,
to appoint a Qualified Appraiser (which may include, without limitation,
Valuation Counselors, Inc.) to perform a complete appraisal of the applicable
Leased Property (such appraisal may, if Landlord requests, include complete
valuations of such Leased Property based upon (i) the "Cost Approach", (ii) the
"Market Approach" and (iii) the "Income Approach"), which appraisal shall met
all requirements of any state or Federal bank regulatory authority that Landlord
considers relevant. The costs of such appraisal shall be borne by Tenant and
shall be included as part of the Additional Charges. Such right may not be
exercised more than once during the Term.
ARTICLE 21
RIGHTS OF FIRST REFUSAL; OPTION TO PURCHASE
21.1 First Refusal to Purchase.
Provided, (a) no Default has occurred and is continuing, (b) the Leases
for each of the Collective Leased Properties shall be
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in full force and effect (other than Leases that have been terminated in
accordance with the provisions hereof (other than after the occurrence of an
Event of Default, and (c) other than as expressly permitted by Article 16,
Tenant shall not have assigned the Leases any of the Collective Leased
Properties or subleased all or any portion of the Collective Leased Properties,
during the Term and for sixty (60) days after the expiration of the Term Tenant
shall have a right of first refusal option to purchase the applicable Leased
Property (subject to Section 22.1) upon the same price, terms and conditions as
Landlord shall propose to sell such Leased Property, or upon the same price,
terms and conditions of any written offer from a third party to purchase such
Leased Property which Landlord intends to accept (or has accepted subject to
Tenant's right of first refusal herein provided). If during the Term and for
sixty (60) days after the expiration of the Term, Landlord reaches such
agreement with a third party or proposes to offer the applicable Leased Property
for sale, Landlord shall promptly give Notice to Tenant of the purchase price
and all other material terms and conditions of such agreement or proposed sale
and Tenant shall have sixty (60) days thereafter to exercise Tenant's right of
first refusal to purchase by written notice to Landlord thereof. Failure of
Tenant to respond within such 60-day period shall be deemed a waiver of Tenant's
right to purchase such Leased Property pursuant to this Article 21. If Tenant
exercises its right of first refusal, the sale to Tenant shall be consummated
upon the same terms and conditions as contained in such agreement or Landlord's
notice of the proposed sale (including all terms' certain in such agreement or
notice relating to any security deposit or fee, and the date of closing). Such
sale to Tenant shall be made in accordance with the provisions of Article 15, to
the extent not inconsistent herewith, no later than the closing date (or, if no
closing date is specified in such agreement or notice, the date that such offer
terminates) specified in such agreement or notice. If Tenant shall not exercise
its option to purchase within the time period and in the manner above provided,
Landlord shall be free to sell such Leased Property to any third party at a
price and upon terms substantially similar to and in any event no less favorable
to Landlord than those offered to Tenant. Tenant shall be entitled to exercise
its right of first refusal as provided in Section 21.1 as to any subsequent or
proposed sale during the Term.
Tenant's right of first refusal shall be applicable to all sales or
promised sales of any parts of the applicable Leased Property and the price at
which Tenant may so purchase such parts shall be the lesser of (a) the proposed
sale price of the parts or (b) the then Fair Market Value Purchase Price of the
parts of the applicable Leased Property.
21.2 First Refusal to Lease.
Provided (a) this Lease shall not have been terminated in connection
with an Event of Default, and (b) other than as expressly permitted by Article
17 hereof, Tenant shall not have
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assigned this Lease or subleased all or any portion of the Leased Property,
Tenant shall have a first refusal option to lease the Leased Property for a
period of sixty (60) days after the expiration of the Term, upon the same terms
and conditions as Landlord shall proposes to lease the Leased Property or upon
the same terms and conditions of any offer from any third party which Landlord
intends to accept (or has accepted subject to Tenant's right of first refusal
herein provided). If, at any time prior to the expiration of such sixty (60) day
period, Landlord reaches such agreement with a third party or proposes to lease
the Leased Property to a third party, Landlord shall promptly notify Tenant of
the rental rates and all other material terms of such agreement or proposal and
Tenant shall have five (5) days after receipt of such notice within which time
to exercise its option. Landlord and Tenant shall enter into a new lease of the
Leased Property, in form reasonably satisfactory to both Landlord and Tenant, as
soon as practicable after the date of receipt by Landlord of Tenant's election
to exercise such option. Failure of Tenant to give such notice to Landlord
within such five (5) day period or to enter into such new lease within fifteen
(15) days after exercise of such option shall be deemed a waiver of Tenant's
rights pursuant to this Section 21.2.
21.3 Landlord's Option to Purchase the Tenant's Personal Property;
Transfer of Licenses.
Effective on not less than fifteen (15) days' prior notice given at any
time within sixty (60) days prior to expiration of the Term (or such shorter
period as shall be appropriate if the applicable Lease is terminated prior to
its expiration date), Landlord shall have the option to purchase all (but not
less than all) of Tenant's Personal Property (except motor vehicles), if any, at
the expiration or termination of the applicable Lease, for an amount equal to
the then fair market value thereof (determined in accordance with the appraisal
procedures set forth in Article 20), subject to, and with appropriate price
adjustments for, all equipment leases, conditional sale contracts, security
interests and other encumbrances to which such Tenant's Personal Property is
subject. Tenant's Personal Property will be conveyed to Landlord on an
"s-is"basis, in its then current condition and state of repair. Tenant shall
provide Landlord with warranties of title, reflecting no encumbrances as to
which adjustments to the purchase price thereof, as required by the previous
sentence, have not been made. Failure of Landlord to notify Tenant of the
election of its option the purchase Tenant's Personal Property by the fifteenth
day prior to the termination of the applicable Lease shall be deemed to
constitute a waiver of Landlord's right to purchase Tenant's Personal Property
at the applicable Leased Property. Upon the expiration or sooner termination of
the applicable Lease, or upon management of the Facility located on the
applicable Leased Property by the Landlord or its designee, Tenant shall use all
reasonable efforts to transfer and assign to Landlord or its designee, or assist
Landlord or its designee in obtaining, any
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contracts, licenses, and certificates required for the then operation of such
Facility.
21.4 Tenant's Option to Purchase the Collective Leased Properties.
Provided (a) no Default involving the nonpayment of Rent shall have
occurred and be continuing, (b) the Leases for each of the Collective Leased
Properties shall be in full force and effect (other than Leases that have been
terminated in accordance with the provisions hereof, other than after the
occurrence of an Event of Default), and (c) other than as expressly permitted by
Article 17, Tenant shall not have assigned the Leases for any of the Collective
Leased Properties or subleased all or any portion of the Collective Leased
Properties, Tenant shall have the option, exercisable on not less than twelve
(12) months prior Notice to Landlord, to purchase all, but not less than all,
the Collective Leased Properties (other than those Collective Leased Properties
whose Leases have been terminated in accordance with the provisions of Article
10 or Article 11) upon the expiration of the Fixed Term or any Extended Term,
each for a purchase price equal to the sum of the greater of (i) ninety percent
(90%) of the Fair Market Value Purchase Price of such Collective Leased Property
as of the expiration of the Fixed Term or Extended Term, as the case may be, or
(ii)(1) if such option is exercised at the end of the Fixed Term, one hundred
twenty percent (120%) of the Adjusted Purchase Price of such Collective Leased
Property, (2) if such option is exercised at the end of the first Extended Term,
one hundred fifty percent (150%) of such Adjusted Purchase Price, (3) if such
option is exercised at the end of the second Extended Term, two hundred percent
(200%) of such Adjusted Purchase Price or (4) if such option is exercised at the
end of the third Extended Term, three hundred percent (300%) of such Adjusted
Purchase Price. Such purchase by Tenant shall be made in ac cordance with the
provisions of Article 15.
ARTICLE 22
FACILITY MORTGAGES
22.1 Landlord may Grant Liens.
Without the consent of Tenant, Landlord may, subject to the terms and
conditions set forth in this Section 22.1, from time to time, directly or
indirectly, create or otherwise cause to exist any lien, encumbrance or title
retention agreement ("Encumbrance") upon the applicable
Leased Property, or any portion thereof or interest therein, whether to secure
any borrowing or other means of financing or refinancing. Any such Encumbrance
shall include the right to prepay (whether or not subject to a prepayment
penalty) and shall provide (subject to Section 22.2 below) that it is subject to
the rights of Tenant under the applicable Lease, including the rights of Tenant
to acquire such Leased Property
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pursuant to the applicable provisions of the applicable Lease (except Tenant's
right of first refusal to purchase such Leased Property shall not apply upon
foreclosure or transfer in lieu thereof, provided, that any such purchaser or
transferee (a) shall take title subject to Tenant's rights to acquire such
Leased Property pursuant to the applicable Lease, (b) shall agree to give Tenant
the same notice, if any, given to Landlord of any default or acceleration of any
obligation with respect to such Encumbrance, and (c) shall agree to permit
Tenant to appear by its representative and bid at any sale in foreclosure made
with respect to any such Encumbrance).
22.2 Subordination of Lease.
Subject to Section 22.1 above and the last paragraph of this Section
22.2, the applicable Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate to any ground or master lease, and all renewals,
extensions, modifications and replacements thereof, and to all mortgages and
deeds of trust, which may now or hereafter affect the applicable Leased Property
or any improvements thereon and/or any of such leases, whether or not such
mortgages or deeds of trust shall also cover other lands and/or buildings and/or
leases, to each and every advance made or hereafter to be made under such
mortgages and deeds of trust, and to all renewals, modifications, replacements
and extensions of such leases and such mortgages and deeds of trust and all
consolidations of such mortgages and deeds of trust. This Section shall be
self-operative and no further instrument of subordination shall be required. in
confirmation of such subordination, Tenant shall promptly execute, acknowledge
and deliver any instrument that Landlord, the lessor under any such lease or the
holder of any such mortgage or the trustee or beneficiary of any deed of trust
or any of their respective successors in interest may reasonably request to
evidence such subordination. Any lease to which the applicable Lease is, at the
time referred to, subject and subordinate is herein called "Superior Lease" and
the lessor of a Superior Lease or its successor in interest at the time referred
to, is herein called "Superior Landlord" and any mortgage or deed of trust to
which the applicable Lease is, at the time referred to, subject and subordinate,
is herein called "Superior Mortgage" and the holder, trustee or beneficiary of a
Superior mortgage is herein called "Superior Mortgagee".
If any Superior Landlord or Superior Mortgagee or the nominee or
designee of any Superior Landlord or Superior Mortgagee shall succeed to the
rights of Landlord under the applicable Lease, whether through possession or
foreclosure action or delivery of a new lease or deed, or otherwise, then at the
request of such party so succeeding to Landlord's rights (herein called
"Successor Landlord") and upon such Successor Landlord's written agreement to
accept Tenant's attornment, Tenant shall attorn to and recognize such Successor
Landlord as Tenant's landlord under the applicable Lease, and shall promptly
execute and deliver any instrument that such Successor Landlord may reasonably
request to evidence such
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attornment. Upon such attornment, the applicable Lease 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 the
applicable Lease, except that the Successor Landlord (unless formerly the
landlord under the applicable Lease or its nominee or designee) shall not be (a)
liable in any way to Tenant for any act or omission, neglect or default on the
part of Landlord under the applicable Lease, (b) responsible for any monies
owing by or on deposit with Landlord to the credit of Tenant, (c) subject to any
counterclaim or set off which theretofore accrued to Tenant against Landlord,
(d) bound by any modification of the applicable Lease subsequent to such
Superior Lease or Mortgage, or by any previous prepayment of Minimum Rent or
Additional Rent for more than one (1) month, which was not approved in writing
by the Superior Landlord or the Superior Mortgagee thereto, (e) liable to the
Tenant beyond the Successor Landlord's interest in the applicable Leased
Property and the rents, income, receipts, revenues, issues and profits issuing
from such Leased Property, (f) responsible for the performance of any work to be
done by the Landlord under the applicable Lease to render the applicable Leased
Property ready for occupancy by Tenant, or (g) required to remove any Person
occupying the applicable Leased Property or any part thereof, except if such
person claims by, through or under the Successor Landlord. Tenant agrees at any
time and from time to time to execute a suitable instrument in confirmation of
Tenant's agreement to attorn, as aforesaid.
Tenant's obligation to subordinate the applicable Lease and Tenant's
rights hereunder to any Superior Mortgage or Superior Lease and to attorn to any
Successor Landlord, shall be conditioned upon Landlord obtaining from any
Superior Mortgagee or Superior Landlord, an agreement which shall be executed by
Tenant and such Superior Mortgagee or Superior Landlord which shall provide in
substance that so long as no Event of Default exists as would entitle Landlord
or any such Superior Mortgagee or Superior Landlord to terminate the applicable
Lease or would cause, without any further action of Landlord or such Superior
Mortgagee or Superior Landlord, the termination of the applicable Lease or would
entitle Landlord or such Superior Mortgagee or Superior Landlord to dispossess
Tenant, the applicable Lease shall not be terminated nor shall Tenant's use,
possession or enjoyment of the applicable Leased Property, in accordance with
the terms and provisions of the applicable Lease, be interfered with, nor shall
the leasehold estate granted by the applicable Lease be affected in any other
manner, in any foreclosure or any action or proceeding instituted under or in
connection with such Superior Mortgage or Superior Lease, or in the event such
Superior Mortgagee or Superior Landlord takes possession of the applicable
Leased Property pursuant to any provisions of such Superior Mortgage or Superior
Lease, unless Landlord or such Superior Mortgagee or Superior Landlord would
have had such right of termination pursuant to the applicable Lease. Such
agreement shall be in form
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customarily used by the holder of any such Superior Mortgage or Superior Lease.
22.3 Notice to Mortgagee and Ground Landlord.
Subsequent to the receipt by Tenant of notice from any Person that it
is a Facility Mortgagee, or that it is the ground lessor under a lease with
Landlord, as ground lessee, which includes the applicable Leased Property as
part of the demised premises, no notice from Tenant to Landlord as to the
applicable Leased Property shall be effective unless and until a copy of the
same is given to such Facility Mortgagee or ground lessor and the curing of any
of Landlord's defaults by such Facility Mortgagee or ground lessor shall be
treated as performance by Landlord.
ARTICLE 23
MISCELLANEOUS
23.1 No Waiver.
No failure by Landlord 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 extent permitted by law, no waiver of any breach shall
affect or alter the applicable Lease, which shall continue in full force and
effect with respect to any other then existing or subsequent breach.
23.2 Remedies Cumulative.
To the extent permitted by law, each legal, equitable or contractual
right, power and remedy of Landlord, now or hereafter provided either in the
applicable Lease or by statute or otherwise, shall be cumulative and concurrent
and shall be in addition to every other right, power and remedy and the exercise
or beginning of the exercise by Landlord of any one or more of such rights,
powers and remedies shall not preclude the simultaneous or subsequent exercise
by Landlord of any or all of such other rights powers and remedies.
23.3 Acceptance of Surrender.
No surrender to Landlord of the applicable Lease or of the applicable
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.
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23.4 No Merger of Title.
It is expressly acknowledged to be the intent of the parties that there
shall be no merger of the applicable Lease or of the leasehold estate created
hereby by reason of the fact that the same Person may acquire, own or hold,
directly or indirectly (a) the applicable Lease or the leasehold estate created
hereby or any interest in the applicable Lease or such leasehold estate and (b)
the fee estate or ground landlord's interest in the applicable Leased Property.
23.5 Conveyance by Landlord.
If Landlord or any successor owner of the applicable Leased Property
shall convey such Leased Property in accordance with the terms hereof other than
as security for a debt, and the grantee or transferee of such 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 the applicable Lease arising or
accruing from and after the date of such conveyance or other transfer as to such
Leased Property and all such future liabilities and obligations shall thereupon
be binding upon the new owner.
23.6 Quiet Enjoyment.
So long as Tenant shall pay the Rent as the same becomes due and shall
substantially comply with all of the terms of the applicable Lease and perform
its obligations hereunder and thereunder, Tenant shall peaceably and quietly
have, hold and enjoy the applicable Leased Property for the Term hereof, free of
any claim or other action by Landlord or anyone claiming by, through or under
Landlord, but subject to (i) any Encumbrance permitted under Article 22, or
otherwise permitted to be created by Landlord hereunder, (ii) all liens and
encumbrances of record as of the date hereof, (iii) liens as to obligations of
Landlord that are either not yet due or which are being contested in good faith
and by proper proceedings, and (iv) liens that have been consented to in writing
by Tenant. Except as otherwise provided in the applicable Lease, no failure by
Landlord to comply with the foregoing covenant shall give Tenant any right to
cancel or terminate the applicable Lease or xxxxx, reduce or make a deduction
from or offset against the Rent or any other sum payable under the applicable
Lease, or to fail to perform any other obligation of Tenant hereunder.
23.7 NON-LIABILITY OF TRUSTEES.
THE DECLARATION OF TRUST ESTABLISHING LANDLORD, DATED OCTOBER 9, 1986,
A COPY OF WHICH, TOGETHER WITH ALL ACCOUNTANTS THERETO
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(THE "DECLARATION"), IS DULY FILED WITH THE DEPARTMENT OF AS SESSMENTS AND
TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME: "HEALTH AND
REHABILITATION 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.
23.8 Landlord's Consent of Trustees.
Where provision is made in the applicable Lease for Landlord's consent
and Landlord shall fail or refuse to give such consent, Tenant shall not be
entitled to any damages for any with holding by Landlord of its consent, it
being intended that Tenant's sole remedy shall be an action for specific
performance or injunction, and that such remedy shall be available only in those
cases where Landlord has expressly agreed in writing not to unreasonably
withhold its consent.
23.9 Memorandum of Lease.
Neither Landlord nor Tenant shall record the applicable Lease or this
Master Lease Document. However, Landlord and Tenant shall promptly, upon the
request of either, enter into a short form memorandum of the applicable Lease,
in form suitable for recording under the laws of the State in which reference to
the applicable Lease and the Master Lease Document, and all options contained
herein, shall be made. Tenant shall pay all costs and expenses of recording such
memorandum.
23.10 Notices.
Any notice, request, demand, statement or consent ("Notice") desired or
required to be given hereunder shall be in writing-and shall be delivered by
hand, sent by certified mail, return receipt requested, sent by a nationally
recognized commercial overnight delivery service with provisions for a receipt,
postage or delivery charges prepaid, or sent by facsimile transmission, and
shall be deemed given (i) when actually delivered, if delivered by hand, (ii)
upon receipt, if sent by certified mail, (iii) the next Business Day after being
placed in the possession of an overnight delivery service, if sent by an
overnight delivery service or (iv) if sent by facsimile transmission, when
electronic indication of receipt is received, and shall be addressed as follows:
If to Tenant: AMS Properties, Inc.
000 Xxxx Xxx Xxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
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With a copy to: Xxxxxxx & Xxxxx
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
If to Landlord: Health and Rehabilitation Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: President
In each case
with copies to: Xxxxxxxx & Worcester
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
or at such other place as any party hereto may from time to time hereafter
designate to the other in writing. Any Notice given to Tenant from Landlord
shall not imply that such Notice or any further or similar Notice was or is
required.
23.11 Incorporation by Reference.
All of the representations, warranties and covenants of Tenant
contained in the Acquisition Agreement and in each of the other Transaction
Documents to which Tenant is a party are hereby incorporated by reference
herein.
23.12 Construction.
Anything contained in the applicable Lease to the contrary
notwithstanding, (i) all claims against, and liabilities of, Tenant or Landlord
arising prior to any date of termination of the applicable Lease shall survive
such termination and (ii) neither party hereto shall be liable for any
consequential damages suffered by the other party as the result of a breach by
such party of its obligations owed to the other party. If any term or provision
of the applicable Lease or any application thereof shall be invalid or
unenforceable, the remainder of the applicable Lease and any other application
of such term or provisions shall not be affected thereby. If any late charges or
any interest rate provided for in any provision of this Lease are based upon a
rate in excess of the maximum rate permitted by applicable law, the parties
agree that such charges shall be fixed at the maximum permissible rate. Neither
the applicable Lease 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 the applicable Lease 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 Master Lease Document or
the applicable Lease to be performed by Tenant shall be construed as an
independent covenant and condition. Time is of the essence with respect to the
exercise of any
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rights of Tenant under this Master Lease Document and the applicable Lease.
Except as otherwise set forth in this Master Lease Document, any obligations of
Tenant (including without limitation, any monetary, repair and indemnification
obligations) shall survive the expiration or sooner termination of the
applicable Lease. The headings in the applicable Lease are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
23.13 GOVERNING LAW.
THE APPLICABLE LEASE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE.
IN WITNESS WHEREOF, the parties have executed this Master Lease
Document as a sealed instrument as of the date first above written.
LANDLORD:
HEALTH AND REHABILITATION
PROPERTIES TRUST, a Maryland real estate
investment trust
By: /s/ Xxxxx X. Xxxxxxxx
Its: Treasurer
TENANT:
AMS PROPERTIES, INC.
By: /s/
Its: President
SCHEDULE I TO MASTER LEASE DOCUMENT,
GENERAL TERMS AND CONDITIONS
1. An acquisition agreement, dated as of the date hereof (the
"Closing Date") among AMS Holding Co. ("AMSHC"), American Medical
Services, Inc. ("AMS"), AMS Properties, Inc. ("AMS Properties"),
HostMasters, Inc. ("HMI") and Health and of IMP of ) Rehabilitation
Properties Trust ( as the same may be amended, modified or supplemented
from time to time.
AMSHC Documents
2. A guaranty, dated as of the Closing Date, from AMSHC in
favor of HRP pursuant to which all obligations of AMS Properties are
guaranteed, as the same may be amended, modified or supplemented from
time to time;
3. A pledge agreement, dated as of the Closing Date, from
AMSHC to HRP and consented to by AMS, as the same may be amended,
modified or supplemented from time to time, pursuant to which all
shares of capital stock of AMS (the "AMS Shares") shall be pledged to
HRP, together with certificates relating to the AMS Shares and stock
powers relating to such shares;
4. A security agreement, dated as of the Closing Date, from
AMSHC to HRP granting HRP a security interest in all now owned and
hereafter acquired tangible personal property and all accounts
receivable, contract rights and general intangibles of AMSEC, as the
same may be amended, modified or supplemented from time to time;
5. A collateral assignment of contracts and permits, dated as
of the Closing Date, from AMSHC to HRP assigning to HRP all contracts
and permits of AMSHC, as the same may be amended, modified or
supplemented from time to time; and
6. A subordination agreement, dated as of the Closing Date,
among AMSHC as subordinate creditor, AMS Properties as debtor, and ERP
as senior creditor, as the same may be amended, modified or
supplemented from time to time.
AMS Documents
7. A guaranty, dated as of the Closing Date, from AMS in favor
of HRP pursuant to which all obligations of AMS Properties under the
Transaction Documents are guaranteed, as the same may be amended,
modified or supplemented from time to time;
-2-
8. A pledge agreement, dated as of the Closing Date, from AMS
to HRP and consented to by AMS Properties, as the same may be amended,
modified or supplemented from time to timer pursuant to which all
shares of capital stock of AMS Properties shall be pledged to HRP,
together with certificates relating to the AMS Properties shares and
stock powers relating to such shares;
9. A pledge agreement, dated as of the Closing Date, from AMS
to HRP and consented to by AMS Greentree Inc., a Wisconsin corporation
and a wholly-owned subsidiary of AMS ("AMS Greentree"), as the same may
be amended, modified or supplemented from time to time, pursuant to
which all shares of the capital stock of AMS Greentree will be pledged
to HRP, together with certificates relating to the shares of AMS
Greentree and stock powers relating to such shares;
10. A pledge agreement, dated as of the Closing Date, from AMS
to HRP and consented to by AMS Leisure, Inc., a Wisconsin corporation
and a wholly-owned subsidiary of AMS ("AMS Leisure"), as the same may
be amended, modified or supplemented-from time to time, pursuant to
which all shares of the capital stock of AMS Leisure will be pledged to
RRP, together with certificates relating to the shares of AMS Leisure
and stock powers relating to such shares;
11. A pledge agreement, dated as of the Closing Date from AMS
to HRP and consented to by AMS Rehab, Inc., a Delaware corporation and
a wholly-owned subsidiary of AMS ("AMS Rehab"), as the same may be
amended, modified or supplemented from time to time, pursuant to which
all shares of the capital stock of AMS Rehab will be pledged to HRP,
together with certificates relating to the shares of AMS Rehab and
stock powers relating to such shares;
12. A pledge agreement, dated as of the Closing Date, from AMS
to HRP and consented to by American-Cal Medical Services, Inc., a
California corporation and a wholly owned subsidiary of AMS ("Am-Cal"),
as the same may be amended, modified or supplement-x-x-x-from time to
time, pursuant to which all shares of the capital stock of Am-Cal will
be pledged to HRP, together with certificates relating to the shares of
Am Cal and stock powers relating to such shares;
13. A pledge agreement, dated as of the Closing Date, from AMS
to HRP and consented to by American-Cal Medical Services, No. 1, Inc.,
a California corporation and a wholly owned subsidiary of AMS ("Am-Cal
No. 1"), as the same may be amended, modified or supplemented from time
to time, pursuant to which all shares of the capital stock of Am-Cal
No. I will be pledged to HRP, together with certificates relating to
the shares of Am-Cal No. 1 and stock powers relating to such shares;
-3-
14. Leasehold mortgages, each dated as of the Closing Date,
between AMS as mortgagor and HRP as mortgagee with respect to each of
the following leased properties of AMS:
a. Camellia Health Care Center located at Aurora,
Colorado; and
b. Valley Manor Health Care Center located at Aurora,
Colorado;
15. A leasehold mortgage, dated as of the Closing Date,
between AMS and AMS Greentree as mortgagors and HRP as mortgagee with
respect to the leased property of AMS and AMS Greentree known as AMS
Greentree Health Care Center located at Glendale, Wisconsin ("AMS
Greentree Facility"), as the same may be amended, from time to time;
16. A security agreement, dated as of the Closing Date, from
AMS to HRP granting HRP a security interest in all now owned and
hereafter acquired tangible personal property and all accounts
receivable, contract rights and general intangibles of AMS, as the same
may be amended, modified or supplemented from time to time;
17. A collateral assignment of contracts and permits, dated as
of the Closing Date, from AMS to HRP assigning to HRP all contracts and
permits of AMS, as the same may be amended, modified or supplemented
from time to time; and
18. A subordination agreement, dated as of the Closing Date,
among AMS as subordinate creditor, AMS Properties as debtor and HRP as
senior creditor, as the same may be amended, modified or supplemented
from time to time.
AMS Properties Documents
19. The Promissory Note, dated as of the Closing Date, from
AMS Properties to the order of HRP, as the same may be amended,
modified or supplemented from time to time;
20. The ERP Shares Pledge Agreement, dated as of the closing
Date, from AMS Properties to ERP, as the same may be amended, modified
or supplemented from time to time;
21. The Voting Trust Agreement, dated as of the Closing Date,
from AKS Properties to HRPT Advisors, Inc., as voting trustee, as the
same may be amended, modified or supplemented from time to time;
22. The mortgages or deeds of trust (the "Mortgages"), each
dated as of the Closing Date, by AMS Properties as
-4-
mortgagor in favor of HRP as mortgagee or to a trustee for the benefit
of with respect to each property of AMS Properties described in
Exhibits F-1 through F-2 (the "Mortgaged Property"), as the same may be
amended, modified of supplemented from time to time;
23. A security agreement, dated as of the Closing Date, from
AMS Properties to HRP granting HRP a security interest in all now owned
and hereafter acquired tangible personal property and all accounts
receivable, contract rights and general intangibles of AMS Properties,
as the same may be amended, modified or supplemented from time to time;
24. A collateral assignment of contracts and permits, dated as
of the Closing Date, from AMS Properties to HRP assigning to HRP all
contracts and permits relating to any licensed nursing home, retirement
center, congregate living facility, pharmacy or other facility offering
related health care products or services being operated or proposed to
be operated (collectively, the "Facilities"), as the same may be
amended, modified or supplemented from time to time;
25. A renovation funding agreement , dated as of the Closing
Date, between AMS Properties and HRP pursuant to which AMS Properties
shall agree to cause certain renovations, repairs and improvements to
the Collective Lease Properties, as the same may be amended, modified
or supplemented from time to time;
26. A renovation escrow agreement, dated as of the Closing
Date, between AMS Properties and HRP pursuant to which HRP shall agree
to hold the certain proceeds from the sale by AMS Properties of the
Mortgaged Property for the purposes of making certain renovations,
repairs and improvements to the Collective Lease Properties as provided
therein, as the same may be amended, modified or supplemented from time
to time;
27. A Memorandum of option and Right of First Refusal, and as
of the Closing Date, between AMS Properties and HRP, pursuant to which
AMS Properties shall grant HRP an option to purchase the Pacific Crest
Health Care Center, located at Gresham, Oregon ("Pacific Crest"), as
the same may be amended, modified or supplemented from time to time;
28. A Memorandum of Option and Right of First Refusal, dated
as of the Closing Date, between AMS Properties and HRP, pursuant to
which AMS Properties shall grant HRP an option to purchase the
Northwest Health Care Center, located at Milwaukee, Wisconsin
("Northwest"), as the same may be amended, modified or supplemented
from time to time;
29. A Memorandum of option and Right of First Refusal, dated
as of the Closing Date, between AMS Properties and HRP,
-5-
pursuant to which AMS Properties shall grant HRP an Option to purchase
the River Hills East Health Care Center, located at Milwaukee,
Wisconsin ("River Hills East"), as the same may be amended, modified or
supplemented from time to time;
30. A Memorandum of Option and Right of First Refusal, dated
as of the Closing Date, between AMS Properties and HRP, pursuant to
which AMS Properties shall grant HRP an option to purchase the River
Hills West Health Care Center, located at Pewaukee, Wisconsin ("River
Hills West"), as the same may be amended, modified or supplemented from
time to time; and
31. A Memorandum of Option and Right of First Refusal, dated
as of the Closing Date, between AMS Properties and HRP, pursuant to
which AMS Properties shall grant HRP an option to purchase the
Lakefront Health Care Center, located at Mequon, Wisconsin
("Lakefront"), as the same may be amended, modified or supplemented
from time to time.
HMI Documents
32. A guaranty, dated as of the Closing Date, from
Hostmasters, Inc., a California corporation in favor of HRP pursuant to
which all obligations of AMS Properties are guaranteed, as the same may
be amended, modified or supplemented from time to time;
33. A pledge agreement dated as of the Closing Date, from HMI
to HRP and consented to by AMSHC, pursuant to which all shares of the
capital stock of AMSHC shall be pledged to HRP, together with
certificates relating to such shares and stock powers relating thereto,
as the same may be amended, modified or supplemented from time to time;
34. Leasehold mortgages, each dated as of the Closing Date,
between HMI as mortgagor and HRP as mortgagee with respect to each of
the following leased properties of HMI:
a. Cambridge Care Center located in Petaluma,
California;
b. Redwood Christian Convalescent Hospital located in
Napa, California;
c. Vale Care Center located in San Xxxxx, California;
d. Brighton Convalescent Center located in Pasadena,
California;
e. Pineridge Care Center located in Sylmar,
California; and
-6-
f. Desert Valley Rehab Medical Center located in
Phoenix, Arizona;
35. A security agreement, dated as of the Closing Date, from
HMI to HRP granting HRP a security interest in all now owned or
hereafter acquired tangible personal property and all accounts
receivable, contract rights and general intangibles of HMI, as the same
may be amended, modified or supplemented from time to time;
36. A collateral assignment of contracts and permits, dated as
of the Closing Date, from HMI to HRP assigning to HRP all contracts and
permits of EMI, as the same may be amended, modified or supplemented
from time to time; and
37. A subordination agreement, dated as of the Closing Date,
among HMI as subordinate creditor, AMS Properties as debtor and HRP as
senior creditor, as the same may be amended, modified or supplemented
from time to time.
HMICC Documents
38. A guaranty, dated as of the Closing Date, from HMI
Convalescent Care, Inc., a California corporation and a wholly-owned
subsidiary of HMI ("HMICC") in favor of HRP pursuant to which all
obligations of AMS Properties under the Transaction Documents are
guaranteed, as the same may be amended, modified or supplemented from
time to time;
39. Leasehold mortgages each dated as of the Closing Date
between HMICC as mortgagor and HRP as mortgagee with respect to each of
the following leased properties of HMICC:
a. Pacific Care Convalescent Hospital located in
Oakland, California; and
b. Fruitvale Care Convalescent Hospital located in
Oakland, California;
40. A security agreement, dated as of the Closing Date from
SHICC to MTP granting HRP a security interest in all now owned or
hereafter acquired tangible personal property and all accounts
receivable, contract rights and general intangibles of E24ICC, as the
same may be amended, modified or supplemented from time to time;
41. A collateral assignment of contracts and permits, dated as
of the Closing Date from HMICC to HRP assigning to HRP all contracts
and permits of HMICC, as the same may be amended, modified or
supplemented from time to time; and
42. A subordination agreement dated as of the Closing Date
among HMICC as subordinate creditor, AMS Properties as
-7-
debtor and HRP as senior creditor, as the same may be amended, modified
or supplemented from time to time.
AMS Greentree Documents
43. A guaranty, dated as of the Closing Date, from AMS
Guarantee in favor of HRP pursuant to which all obligations of AMS
Properties under the Acquisition Agreement, Agreement to Lease,
Mortgage Loan Agreement, Lease, Promissory Note, Security Documents and
each of the other documents, instruments, and agreements delivered
pursuant thereto (the "Transaction Documents") are guaranteed, as the
same may be amended, or supplemented from time to time;
44. A leasehold mortgage, dated as of the Closing Date,
between AMS and AMS Greentree as mortgagors and HRP as mortgagee with
respect to the AMS Greentree Facility, as the same may be amended,
modified or supplemented from time to time;
45. A security agreement, dated as of the Closing Date, from
AMS Greentree to HRP granting HRP a security interest in all now owned
or hereafter acquired tangible personal property and all accounts
receivable, contract rights and general intangibles of AMS Greentree,
as the same may be amended, modified or supplemented from time to time;
46. A collateral assignment of contracts and permits, dated as
of the Closing Date, from AMS Greentree to HRP assigning to HRP all
contracts and permits owned by AMS Greentree, as the same may be
amended, modified or supplemented from time to time; and
47. A subordination agreement, dated as of the Closing Date,
among AMS Greentree as subordinate creditor, AMS Properties as debtor
and HRP as senior creditor, as the same may be amended, modified or
supplemented from time to time.
AMS Leisure Documents
48. A guaranty, dated as of the Closing Date, from AMS Leisure
in favor of HRP pursuant to which all obligations of AMS Properties
under the Transaction Documents are guaranteed, as the same may be
amended, modified or supplemented from time to time;
49. A security agreement, dated as of the Closing Date, from
AMS Leisure to HRP granting HRP a security interest in all now owned or
hereafter acquired tangible personal property and all accounts
receivable, contract rights and general intangibles of AMS Leisure, as
the same may be amended, modified or supplemented from time to time;
-8-
50. A collateral assignment of contracts and permits, dated as
of the Closing Date, from AMS Leisure to HRP assigning to HRP all
contracts and permits owned by AMS Leisure as the same may be amended,
modified or supplemented from time to time; and
51. A subordination agreement, dated as of the Closing Date,
among AMS Leisure as subordinate creditor, AMS Properties as debtor and
HRP as senior creditor, as the same may be amended, modified and
supplemented from time to time.
AMS Rehab Documents
52. A guaranty, dated as of the Closing Date, from AMS Rehab
in favor of HRP pursuant to which all obligations of AMS Properties
under the Transaction Documents are guaranteed, as the same may be
amended, modified or supplemented from time to time;
53. A leasehold mortgage, dated as of the Closing Date,
between AMS-Rehab as mortgagor and HRP as mortgagee with respect to the
leased property of AMS-Rehab known as Saline (Rehab) Health Care
Center, and located at Ann Arbor, Michigan, as the same may be amended,
modified or supplemented from time to time;
54. A security agreement, dated as of the Closing Date, from
AMS Rehab to HRP granting HRP a security interest in all now owned or
hereafter acquired tangible personal property and all accounts
receivable, contract rights and general intangibles of AMS Rehab, as
the same may be amended, modified or supplemented from time to time;
55. A collateral assignment of contracts and permits, dated as
of the Closing Date, from AMS Rehab to HRP assigning to HRP all
contracts and permits owned by AMS Rehab, as the same may be amended,
modified or supplemented from time to time; and
56. A subordination agreement, dated as of the Closing Date,
among AMS Rehab as subordinate creditor, AMS Properties as debtor and
HRP as senior creditor, as the same may be amended, modified or
supplemented from time to time.
Am-Cal Documents.
57. A guaranty, dated as of the Closing Date, from Am-Cal in
favor of HRP pursuant to which all obligations of AMS Properties under
the Transaction Documents are guaranteed, as the same may be amended,
modified or supplemented from time to time;
-9-
58. Leasehold mortgages, each dated as of the Closing Date,
between Am-Cal as mortgagor and HRP as mortgagee with respect to each
of the following !eased properties of Am-Cal:
a. Inglewood Health Care Center located at Los
Angeles, California; and
b. Santa Xxxxxx Health Care Center located at Los
Angeles, California;
59. A security agreement, dated as of the Closing Date from
AM-Cal to HRP granting HRP a security interest in all now owned or
hereafter acquired tangible personal property and all accounts
receivable, contract rights and general intangibles of Am-Cal, as the
same may be amended, modified or supplemented from time to time;
60. A collateral assignment of contracts and permits, dated as
of the Closing Date, from Am-Cal to ERP assigning to HRP all contracts
and permits owned by Am-Cal, as the same may be amended, modified or
supplemented from time to time; and
61. A subordination agreement, dated as of the Closing Date,
among Am-Cal as subordinate creditor, AMS Properties as debtor and HRP
as senior creditor, as the same may be amended, modified or
supplemented from time to time.
Am-Cal No. 1 Documents
62. A guaranty, dated as of the Closing Date, from Am-Cal No.
1 in favor of HRP, as the same may be amended, modified or supplemented
from time to time, pursuant to which all obligations of AMS Properties
under the Transaction Documents are guaranteed;
63. Leasehold mortgages, each dated as of the Closing Date,
between Am-Cal No. I as mortgagor and HRP as mortgagee with respect to
each of the following leased properties of Am-Cal No. 1:
a. Newport Villa Health Care Center located at
Newport Beach, California; and
b. Newport Villa West Health Care Center located at
Newport Beach, California;
64. A security agreement, dated as of the Closing Date, from
Am-Cal No. I to HRP granting HRP a security interest in all now owned
or hereafter acquired tangible personal property and all accounts
receivable, contract rights and
-10-
general intangibles of Am-Cal No. 1, as the same may be amended to
modified or supplemented from time to time;
65. A collateral assignment of contracts and permits, dated as
of the Closing Date, from Am-Cal No. I to HRP assigning to HRP all
contracts and permits owned by Am-Cal No. 1, as the same may be
amended, modified or supplemented from time to time; and
66. A subordination agreement, dated as of the Closing Date,
among Am-Cal No. 1 as subordinate creditor, AMS Properties as debtor
and HRP as senior creditor, as the same may be amended, modified or
supplemented from time to time.
Exhibit A-1 to Master
Lease Document, General
Terms and Conditions
Facility Name State Offered Services
------------- ----- ----------------
Flagship CA Skilled Care
Golden Hill CA Skilled Care
Lancaster CA Skilled Care
Pacific Gardens CA Skilled Care
Palm Springs, Health Care CA Skilled care
Tarzana CA Skilled Care
Thousand Oaks CA Skilled Care
Van Nuys CA Skilled Care
Ceders Health Care CO Skilled & Intermediate Care
Cherrelyn Manor CO Skilled a Intermediate Care
Friendship Manor IC Skilled & Intermediate Care
Greentree Health Care WI Skilled Care
Park Manor WI Skilled Care
Pine Manor WI Skilled Care
Sunny Hill Health Care WI Skilled Care
The Virginia WI Skilled care
Woodland WI Skilled Care
EXHIBIT A-2
Collective Leased Properties
EXHIBIT A-2-1
Lots 14, 15, 16, 17, 18, 19, and 20, Block 1, in Casper, Xxxxxxxx and Xxxx'x
Subdivision of a part of the Northwest 1/4 of Section 15. Town 7 North, Range 00
Xxxx Xxxx xx Xxxxxxxxx, Xxxxxx xx Xxxxxxxxx, Xxxxx of Wisconsin.
Tax Key No. 316-0013-100-4
Address: 0000 Xxxx Xxxx Xxxxx
EXHIBIT A-2-2
Lot Five (5), Block Five (5), First Addition to Xxxxxxxx Heights, in the City of
Madison, Dane County, Wisconsin.
TAX ROLL PARCEL NUMBER - 60-0709-324-0318-5
EXHIBIT A-2-3
THE SOUTH HALF OF THE EAST HALF OF SOUTHEAST QUARTER OF NORTHEAST QUARTER OF
SOUTHEAST QUARTER OF SECTION 14, TOWNSHIP 4 SOUTH, RANGE 4 EAST, SAN BERNARDINO
MERIDIAN, IN THE CITY OF PALM SPRINGS, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA,
ACCORDING TO THE OFFICIAL PLAT THEREOF, ALSO KNOWN AS THE SOUTH HALF OF BLOCK
241, AS SHOWN ON XXXX' MAP OF AGUA CALIENTE RESERVATION SUBDIVISION OF SECTION
14, DATED NOVEMBER, 1948, ON FILE WITH THE BUREAU OF INDIAN AFFAIRS.
SUPPLEMENTAL PLATS OF SAID LAND BASED UPON THE ABOVE SURVEY WERE ACCEPTED FOR
THE DIRECTOR, BUREAU OF LAND MANAGEMENT, ON APRIL 21, 1955, JULY 5, 1955, JUNE
27, 1956, AND MAY 27, 1958, AND WERE FILED IN THE DISTRICT LAND OFFICE ON MAY 6,
1966, SEPTEMBER 16, 1955, OCTOBER 22, 1956 AND JULY 21, 1958, RESPECTIVELY.
DESCRIPTION
That portion of the Northwest quarter of Section 33, Township 2 North, Range 19
West, Rancho El Conejo, in the City of Thousand Oaks, County of Ventura, State
of California, according to the map thereof recorded in Book 1, Page 746, Deeds,
described as follows:
Beginning at a point on the Easterly line of said Northwest quarter of Section
33, distant along said Easterly line South 336.20 feet from the Northeasterly
corner of said Northwest quarter of Section 33; thence continuing along said
Easterly line,
1st: South 305.40 feet; thence,
2nd: South 72(degree) 06' 52" West 252.19 feet to the intersection with a line
which is parallel with and distant Westerly 240 feet, measured at right angles,
from said Easterly line: thence along said parallel line.
3rd: North 382.86 feet to the intersection with a line which bears West,
measured at right angles to said Easterly line, from said point of beginning:
thence along said right angle line,
4th: East 240 feet to the point of beginning.
EXCEPT 50% of all oil, gas, petroleum and other hydrocarbon substances and
minerals lying and being 500 feet or more below the surface of said land, with
no right to enter upon the surface or subsurface or said land above the depth of
500 feet for the development of said substances as reserved by Xxxx Xxxxxxxx
Xxxxxxxx and Xxxx X. Xxxxxxxx, in deed recorded November 20, 1959 as Document
No. 42723 in Book 1799, Page 264, Official Records.
EXHIBIT A-2-5
3. The land referred to in this report is situated in the State of California,
County of LOS ANGELES and is described as follows:
PARCELS A AND B OF PARCEL MAP L.A. NO. 1624, IN THE CITY OF LOS ANGELES,
COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 19,
PAGE 63 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY.
EXCEPT THEREFROM THAT PORTION CONTAINED THAT CERTAIN IRREVOCABLE
OFFER TO DEDICATE, RECORDED JUNE 2, 1969, AS INSTRUMENT NO. 3392.
That portion of Xxx 000 xx Xxxxx 0 xx Xxxxxx'x Subdivision, in the City of
Newport Beach, County of Orange, State of California, as per Map recorded in
Book 1, Page 88 of Miscellaneous Maps, in the office of the County Recorder of
said County, described as follows:
Beginning at the Northeast corner of Tract No. 5854, as per map recorded in Book
213, Page 38 and 39 of Miscellaneous Maps in the Office of the County Recorder
of said County; thence South 50(degree) 00' 00" East, 406.61 feet to the
Southeast corner of last said Tract, being on the Northwesterly line of Newport
Boulevard, as described int he Deed recorded in Book 2538, Page 66, Official
Records; thence North 25(degree) 02' 39" East, 168.72 feet along said
Northwesterly line to the Southwesterly line of the land described in the Deed
to Lesser Industrial Properties, Ltd., recorded September 30, 1958 in Book 4430,
Page 409, Official Records; thence North 49(degree) 59' 15" West, 363.07 feet to
the centerline of Flagship Road, as described in the Deed to the City of Newport
Beach, recorded June 27, 1962 in Book 6159, Page 464, Official Records; thence
South 40(degree) 00' 00" West 163.08 feet to the point of beginning.
Said land is shown on a Map filed in Book 79, Page 7 of Record of Surveys, in
the office of the County Recorder of said County.
EXHIBIT A-2-7
3. The land referred to in this report is situated in the State of California,
county of San Diego and is described as follows:
Xxx Xx. 0 xx XXXXXX XXXX, XXXX XX.0, in the City of San Diego, County of San
Diego, State of California, according to Map thereof No. 6188, filed in the
Office to the County Recorder of San Diego County on September 6, 1968.
PARCEL 1:
THE NORTH 430 FEET OF THE EAST HALF OF THE WEST HALF OF THE NORTHEAST QUARTER OF
THE NORTHWEST QUARTER OF SECTION 21, TOWNSHIP 7 NORTH, RANGE 12 WEST, SAN
BERNARDINO MERIDIAN, IN THE CITY OF LANCASTER, COUNTY OF LOS ANGELES, STATE OF
CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND.
EXCEPT THEREFROM THE EAST 150 FEET THEREOF, ALSO EXCEPT THE EAST 7.40 FEET OF
THAT PORTION OF THE REMAINDER OF SAID LAND LYING SOUTHERLY OF THE SOUTH LINE OF
THE NORTH 370 FEET OF THE EAST HALF OF WEST HALF OF NORTHEAST QUARTER OF THE
NORTHWEST QUARTER OF SAID SECTION 21.
PARCEL 2:
AN EASEMENT FOR ROAD PURPOSES OVER THE EAST 30 FEET OF THE WEST HALF OF THE WEST
HALF OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 21, TOWNSHIP 7
NORTH, RANGE 12 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF LANCASTER, COUNTY
OF LOS ANGELES, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT OF THE
SURVEY OF SAID LAND ON FILE IN THE BUREAU OF LAND MANAGEMENT APPROVED BY THE
SURVEYOR GENERAL ON JUNE 19, 1856.
PARCEL 3:
THE SOUTH 119 FEET OF THE NORTH 549 FEET OF THE EAST HALF OF THE WEST HALF OF
THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 21, TOWNSHIP 7 NORTH,
RANGE 12 WEST, SAN BERNARDINO MERIDIAN, IN THE CITY OF LANCASTER, COUNTY OF LOS
ANGELES, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND.
EXCEPT THEREFROM THE EAST 150.00 FEET OF SAID LAND.
ALSO EXCEPT THEREFROM THE EAST 7.40 FEET OF THAT PORTION OF THE REMAINDER OF
SAID LAND LYING SOUTHERLY OF THE SOUTH LINE OF THE NORTH 370 FEET OF THE EAST
HALF CP THE WEST HALF OF THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF
SECTION 2: TOWNSHIP 7 NORTH, RANGE 12 WEST, SAN BERNARDINO MERIDIAN.
EXHIBIT A-2-9
The land referred to is situated int he State of California, County of
Fresno and is described as follows:
PARCEL 1:
City of Fresno:
Parcel A of Parcel Map No. 86-47, according to the map thereof recorded July 13,
1987, in Book 46, Page 65, of Parcel Maps, Fresno County Records.
PARCEL 2:
Parcel B of Parcel Map 76-60, according to the map thereof recorded in Book 23,
page 44, of Parcel Maps.
EXHIBIT X-0-00
XXXXX XXXXXXXX XX XXXX 00, 72, 95 THROUGH 98 INCLUSIVE, OF TRACT NO. 5692, IN
THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP
RECORDED IN BOOK 60 PAGES 72 AND 73 IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, DESCRIBED IN THE DEED TO THE STATE OF CALIFORNIA, RECORDED IN BOOK 49997
PAGE 151, IN BOOK 48700 PAGE 58, IN BOOK 50480 PAGE 138, IN BOOK 49139 PAGE 87,
IN BOOK 49688 PAGE 162, IN BOOK 444459 PAGE 449, IN BOOK 44815 PAGE 286, IN BOOK
44306 PAGE 398 AND IN BOOK 44216 PAGE 139, ALL OF OFFICIAL RECORDS IN SAID
OFFICE, DESCRIBED AS A WHOLE AS FOLLOWS:
BEGINNING AT THE NORTHEASTERLY CORNER OF THAT CERTAIN PARCEL OF LAND, DESCRIBED
IN SAID DEED RECORDED IN BOOK 50480 PAGE 138 OF SAID OFFICIAL RECORDS; THENCE
ALONG THE NORTHERLY LINE AND ITS WESTERLY PROLONGATION OF SAID CERTAIN PARCEL OF
LAND, NORTH 89 DEGREES 38 MINUTES 10 SECONDS WEST 195.03 FEET TO THE WESTERLY
LINE OF SAID XXX 00, XXXXXX XXXXX XXXX XXXXXXXX XXXX XXXXX 00 DEGREES 01 MINUTES
50 SECONDS WEST 233.52 FEET; THENCE SOUTH 78 DEGREES 44 MINUTES 46 SECONDS EAST
267.08 FEET, THENCE SOUTH 69 DEGREES 24 MINUTES 26 SECONDS EAST 80.55 FEET;
THENCE SOUTH 66 DEGREES 06 MINUTES 06 SECONDS EAST 35.07 FEET, THENCE NORTH 00
DEGREES 01 MINUTES 50 SECONDS EAST 48.09 FEET TO THE MOST EASTERLY CORNER OF
THAT CERTAIN PARCEL OF LAND DESCRIBED IN SAID DEED RECORDED IN BOOK 49997 PAGE
151 OF SAID OFFICIAL RECORDS; THENCE NORTHERLY ALONG THE EASTERLY LINE OF SAID
LAST MENTIONS CERTAIN PARCEL OF LAND AND NORTHWESTERLY ALONG THE NORTHERLY LINE
OF THAT CERTAIN PARCEL OF LAND DESCRIBED IN SAID DEED RECORDED IN BOOK 48700
PAGE 58 OF SAID OFFICIAL RECORDS, TO THE POINT OF BEGINNING.
EXCEPT FROM THAT PORTION OF LOT 71 LYING WITHIN THE EAST 50 FEET THEREOF, ALL
MINERALS, OIL PETROLEUM, KINDRED SUBSTANCES AND NATURAL GAS UNDER AND IN SAID
LAND, AS RESERVED BY XXXXX X. XXXXXXXX AND XXXXXXX X. XXXXXXXX, HUSBAND AND
WIFE, IN DEED RECORDED AUGUST 17, 1948 AS INSTRUMENT NO. 452.
ALSO EXCEPT FROM THAT PORTION OF LOT 71 LYING WITHIN THE EAST 50 FEET THEREOF,
INTEREST IN AND TO THE OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS,
NATURAL GAS RIGHTS AND OTHER HYDROCARBONS, BY WHATSOEVER NAME KNOWN, THAT MAY BE
WITHIN OR UNDER SAID LAND WITHOUT, HOWEVER, THE RIGHT EVER TO DRILL, DIG OR MINE
THROUGH THE SURFACE OF SAID LAND THEREFOR, OR OTHERWISE DEVELOP SAME IN SUCH
MANNER AS TO ENDANGER THE SAFETY OF ANY HIGHWAY THAT MAY BE CONSTRUCTED ON THE
LAND HEREIN DESCRIBED, AS RESERVED BY FAYETT X. XXXXXX AND XXXXXXXX X. XXXXXX,
HUSBAND AND WIFE, IN DEED RECORDED JUNE 15, 1954 AS INSTRUMENT NO. 2309.
ALSO EXCEPT FROM THAT PORTION WITHIN LOT 95 ALL MINERALS, COAL, OILS, PETROLEUM
AND KINDRED SUBSTANCES AND NATURAL GAS, UNDER AND IN SAID LAND, AS RESERVED BY
XXXXX X. XXXXXXX AND XXXXXXXX X. XXXXXXX, HIS WIFE, IN DEED RECORDED MAY 26,
195? AS INSTRUMENT NO. 319.
ALSO EXCEPT FROM LOT 95 ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL
GAS, NATURAL GAS RIGHTS AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN THAT BE
WITHIN OR UNDER THE PARCEL OF LAND HEREINABOVE DESCRIBED TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND REMOVE
THE SAME FROM SAID LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO WHIPSTOCK OR
DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE HEREINABOVE DESCRIBED
OIL OR GAS XXXXX, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF
LAND HEREINABOVE DESCRIBED, AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY
DRILLED XXXXX, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR
THEREOF AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN, REPAIR, DEEPEN AND OPERATE
XXXXX OR MINES, WITHOUT, HOWEVER, THE RIGHT TO DRILL, MINE, EXPLORE AND OPERATE
THROUGH THE SURFACE OR THE UPPER 100 FEET OF THE SUBSURFACE OF THE LAND
HEREINABOVE DESCRIBED OTHERWISE IN SUCH MANNER AS TO ENDANGER THE SAFETY OF ANY
HIGHWAY THAT MAY BE CONSTRUCTED ON SAID LANDS, AS RESERVED BY XXXXX X. XXXXXXX
AND XXXXXXXX X. XXXXXXX, HIS WIFE, IN DEED RECORDED JANUARY 10, 1956 AS
INSTRUMENT NO. 1934.
ALSO EXCEPT FROM THE SOUTH ONE-HALF OF LOTS 97 AND 98 ONE-HALF OF ALL MINERALS,
OIL, COAL, NATURAL GAS AND KINDRED SUBSTANCES IN OR UNDER SAID LAND, AS RESERVED
BY XXXXX X. XXXXXXXXX, IN DEED RECORDED MARCH 5, 1946 IN BOOK 22810 PAGE 446 OF
OFFICIAL RECORDS IN SAID OFFICE.
ALSO EXCEPT FROM A PORTION OF THE SOUTH ONE-HALF OF LOTS 97 AND 98, THE PRESENT
INTEREST IN AND TO THE OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS,
NATURAL GAS RIGHTS AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN THAT MAY BE
WITHIN OR UNDER THE PARCEL OF LAND HEREINABOVE DESCRIBED, TOGETHER WITH THE
PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND
REMOVING THE SAME FROM SAID LAND OR ANY OTHER LAND, INCLUDING THE RIGHTS TO
WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LAND, INCLUDING THE RIGHT TO
WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE
HEREINABOVE DESCRIBED, OIL OR GAS XXXXX, TUNNELS AND SHAFTS INTO, THROUGH OR
ACROSS THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED XXXXX, TUNNELS AND SHAFTS UNDER AND BENEATH
OR BEYOND THE EXTERIOR LIMITS THEREOF AND TO REDRILL, RETUNNEL, EQUIP.,
MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH XXXXX OR MINES, WITHOUT HOWEVER,
THE RIGHT TO DRILL, MINE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER
100 FEET OF THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED, OR OTHERWISE IN
SUCH MANNER AS TO ENDANGER THE SAFETY OF ANY HIGHWAY THAT MAY BE CONSTRUCTED ON
SAID LANDS, AS RESERVED BY XXXXXX XXXXXXX AND XXXXXXXXX XXXXXXX, HUSBAND AND
WIFE, INDEED RECORDED OCTOBER 4, 1955 AS INSTRUMENT NO. 3568.
ALSO EXCEPT FROM A PORTION OF THE SOUTH ONE-HALF OF LOTS 97 AND 98, THE PRESENT
INTEREST OF THE GRANTOR IN AND TO THE OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS,
NATURAL GAS, NATURAL GAS RIGHTS AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN
THAT MAY WITHIN OR UNDER THE PARCEL OF LAND HEREINABOVE DESCRIBED, TOGETHER WITH
THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING THEREFOR AND
REMOVING THE SAME FROM SAID LAND OR ANY OTHER LAND, INCLUDING THE RIGHT TO
WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE
HEREINABOVE DESCRIBED, OIL OR GAS XXXXX, TUNNELS AND SHAFTS INTO, THROUGH, OR
ACROSS THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED AND TO BOTTOM SUCH
WHIPSTOCKED OR DIRECTIONALLY DRILLED XXXXX, TUNNELS AND SHAFTS UNDER AND BENEATH
OR BEYOND THE EXTERIOR LIMITS THEREOF AND TO REDRILL, RETUNNEL, EQUIP, MAINTAIN,
REPAIR, DEEPEN AND OPERATE ANY SUCH XXXXX OR MINES, WITHOUT HOWEVER, THE RIGHT
TO DRILL, MINE, EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER 100 FEET OF
THE SUBSURFACE OR THE LAND HEREINABOVE DESCRIBED, OR OTHERWISE IN SUCH MANNER AS
TO ENDANGER THE SAFETY OF ANY HIGHWAY THAT MAY BE CONSTRUCTED ON SAID LANDS, AS
RESERVED BY XXXXXX X. XXXXXXXX AND XXXXX XXXXXXXX, HUSBAND AND WIFE, XXXX X.
XXXXX AND XXXXXXX X. XXXXX, HUSBAND AND WIFE, XXXXXXX X. XXXXXXXXXX AND XXXXXXX
X. XXXXXXXXXX, HUSBAND AND WIFE, DEED RECORDED DECEMBER 2, 1955 AS INSTRUMENT
NO. 1720.
EXHIBIT A-2-11
Lots 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21. Block 2, and the West 1/2 of
vacated Waukesha Avenue adjoining on the East; and the South 30 feet of Xxx 0,
xxx xx Xxxx 0, 0, 0, 00, 00 and 12. Block 3 and the East 1/2 of vacated Waukesha
Avenue adjoining Xxxx 0, 0, 0, 00, 00, xxx 00. Xxxxx 3 on the West and all of
vacated Xxxx Street adjoining Lots 13 and 21, Block 2 on the South, all in
Elevated Home Addition to Waukesha, a Subdivision of part of the South 1/2 of
Xxxxxxx 00, Xxxx 0 Xxxxx, Xxxxx 00 Xxxx, Xxxx of Waukesha County of Waukesha,
State of Wisconsin.
Tax Key Nos. 1004.080 and 1004.083
ADDRESS: 0000 Xxxxxxxx Xxxxxx
EXHIBIT A-2-12
A parcel of land located in part of the Southeast 1/4 of the Southeast 1/4 of
Section 14; Township 25 North, Range 14 East, City of Clintonville, Waupaca
County, Wisconsin, more fully described as follows: Commencing at the Southeast
corner of the Southeast 1/4 of said Section 14; thence xxx Xxxx along the South
line of said Southeast 1/4 60.00 feet; thence North 00 degrees 07 minutes 40
seconds West parallel with the East line of said Southeast 1/4, 33.2 feet to its
intersection with the North right-of-way line of Xxxxxxx Street as presently
laid out and the point of beginning; thence North 89 degrees; 44 minutes 22
seconds West along the North right-of-way line of Green Tree Road as presently
laid out, 600.01 feet to its intersection with the West line of lands as
described in Volume 568 of Records, page 692 Waupaca County Records; thence
North 00 degrees 07 minutes 40 seconds West along the West line of said
described lands and parallel with the East line of said Southeast 1/4 354.00
feet to the Northwest corner of said described lands; thence due East along the
North line of said described lands and parallel with the South line of said
Southeast 600.00 feet to its intersection with the West right-of-way line of
Xxxxxxx Street (said line being 60.00 feet West of as measured as right angles
from the East line of said Southeast 1/4); thence South 00 degrees 07 minutes 40
seconds East along said West right-of-way line and parallel with the East line
of said Southeast 1/4 356.73 feet to the point of beginning.
(Tax Key No. 30-14-44-2)
EXHIBIT A-2-13
Parcel 1:
That part of the Southwest 1/4 of Section 28, Town 7 North, Range 20 East, in
town of Brookfield, County of Waukesha, State of Wisconsin, which is bounded and
described as follows: Commencing at a point in the West line of said 1/4
Section, which is 394.15 feet of the Northwest corner of said 1/4 Section;
running thence South along the West of said 1/4 Section, 808.05 feet to a point
in the center line of West Bluemound thence North 84(degree) 00' 00" East along
said centerline, 333.37 feet to a point; thence North and parallel to the West
line of said 1/4 Section 768.58 feet; thence North 12' 00" and parallel to the
North line of said 1/4 Section, 331.58 feet to the place of beginning.
TOGETHER WITH the sanitary sewer easement reserved unto the grantor in Warranty
Deed recorded as No. 774101. ALSO TOGETHER WITH the easements set forth in
Easement Agreement dated April 5, 197? and recorded April 28, 1978 on Reel 296,
Image 399 as Document No. 1044758. EXCEPTING THEREFROM that part thereof
conveyed by X.X. Theurmann, widower, to Waukesha County dated October 24, 1946
and recorded December 7, 1946 in Volume 426 Deeds on Page 540 as Document No.
296109.
ALSO EXCEPTING THEREFROM the West 45.00 feet dedicated to the City of Brookfield
by Quit Claim Deed recorded on April 18, 1963 in Volume 945 of Deeds on Page 147
as Document No. 585198.
Parcel 2:
Parcel 3 of Certified Survey Map recorded November 30, 1970 in Volume 8 of
Certificates Survey maps on Pages 331, 332 and 333 as Document No. 774250, being
a part of the N.W. 1/4 of the S.W. 1/4 of Section 28, T7N, R20E, city of
Brookfield, County of Waukesha State of Wisconsin.
Tax Key No. 1119.998
ADDRESS: 00000 X. Xxxxxxxxx Xxxx
EXHIBIT A-2-14
LOTS 1 THROUGH 14, LOTS 35 THROUGH 48, BLOCK 7, AND XXXX 00 XXX 00, XXXXX 00,
XXXXXXXXX, XXXXXXXX WITH THAT PART OF VACATED XXXXXX STREET LYING BETWEEN BLOCKS
7 AND 26, EDGEWATER ACCORDING TO THE PLAT RECORDED MAY 13, 1989 IN PLAT BOOK 1
AT PAGE 00, XXXXXX XX XXXXXXXXX, XXXXX XX XXXXXXXX.
EXHIBIT X-0-00
XXX XXXXX 00 XXXX XX XXX XXXX XXXX OF TRACT 47, EXCEPT THE EAST 2? FEET THEREOF.
ALSO XXX XXXX XXXX XX XXXXX 00, EXCEPT THE EAST 25 FEET THEREOF, INTERURBAN
ADDITION, TOGETHER WITH THE EAST 25 FEET OF VACATED SOUTH FOX STREET. AND ALSO
THOSE PORTIONS OF THE WEST 25 FEET OF VACATED SOUTH FOX STREET AS DESCRIBED IN
BOOK 2308 AT PAGES 000 XXX 000, XXXXXX XX XXXXXXXX, XXXXX OF COLORADO.
EXHIBIT A-2-16
The portion of the fractional Northwest 1/4 of the Northeast 1/4 and the
fractional Northeast 1/4 of the Xxxxxxxxx 0/0 xx Xxxxxxx 0, Xxxxxxxx 00, Xxxxx,
Xxxxx 15 East, in the Village of Embarrass, Waupaca County, Wisconsin, bounded
and described as follows: Commencing at the intersection of the North Line of
the said Section 4, with the East line of County Trunk Highway "Y"; thence South
33 degrees 49 minutes West, 383.75 feet thence South 32 degrees 35 minutes West,
521.57 feet; thence South 76 degrees 00 minutes 36 seconds East, 212.80 feet;
thence South 06 degrees 35 minutes 41 seconds West, 101.46 feet; thence South 45
degrees 18 minutes 40 seconds East, 88.06 feet; thence South 47 degrees 55
minutes 50 seconds West, 134.98 feet; thence South 73 degrees 19 minutes 37
seconds East, 27 feet more or less to the thread of Xxxxxxxx Creek and the place
of beginning; thence North 73 degrees 19 minutes 37 seconds West. Retracing the
last described line 27 feet more or less; thence North 47 degrees 55 minutes 50
seconds East, 134.98 feet; thence North 45 degrees 18 minutes 40 seconds West,
88.06 feet; thence North 06 degrees 35 minutes 41 seconds East, 101.46 feet;
thence North 76 degrees 00 minutes 36 seconds West, 212.80 feet; thence North 32
degrees 35 minutes 00 seconds East, 242.20 feet; thence South 81 degrees 15
minutes East. 190.00 feet; thence North 88 degrees 15 minutes East, 31.73 feet;
thence North 32 degrees 35 minutes East, 182.55 feet; thence North 33 degrees 49
minutes East, 113.48 feet; thence North 89 degrees 04 minutes 00 seconds East,
851 feet more or less to the thread of a drainage ditch leading to Xxxxxxxx
Creek; thence Southeasterly along the said drainage ditch thread to its
intersection with the thread of Xxxxxxxx Creek; thence Westerly along the thread
of Xxxxxxxx Creek to the Place of beginning; EXCEPT that parcel of land
described in Warranty Deed recorded in Volume 478 of Records on page 291 as
Document No. 356324, Waupaca County Registry.
(Tax Key No. 24-0 4-21-11)
EXHIBIT A-2-17
LEGAL DESCRIPTION
Lots 8 and 9 in Xxxxxx Xxxxx'x Second Subdivision to the City of Nashville,
Illinois, being a part of the West One-Half of the West One-Half of the
Southeast Quarter of the Northeast Quarter of Section 23, Township 2 South,
Range 3 West of the Third Principal Meridian, and a tract of land in the
Northeast Quarter of Section 23 bounded by a line commencing at the Southwest
corner of Lot 9 in Xxxxx'x Section Subdivision to the City of Nashville,
Illinois, running thence West 175 feet, thence North 179 feet, thence East 175
feet to the Northwest corner of Lot 8 in said Subdivision, thence South 179 feet
to the corner of Lot 8 in said Subdivision, thence south 179 feet to the place
of beginning.
A part of the Northeast Quarter of Section 23, Township 2 south, Range 3 West of
the Third Principal Meridian bounded by a line commencing as an iron pin set for
the southwest corner of Lot 10 in Xxxxxx Xxxxx'x Second Subdivision to the City
of Nashville, Illinois, as shown by Plat thereof, recorded in Plat Book B, page
83, in the Recorder's Office of Washington County, Illinois, running thence West
30 feet, thence North 533 feet, thence East 30 feet to the Northwest corner of
said Lot 10, thence South along the West line of said Lot 10, 533 feet to the
place of beginning.
Lots 5 and 10 in Xxxxxx Xxxxx'x Second Subdivision to the City of Nashville,
Illinois, as shown by Plat thereof dated September 13, 1963, and recorded in
Plat Book B, page 83, in the Recorder's Office of Washington County, Illinois.
Outlot A and Lots 1 and 2 of Brink and Xxxxx First Addition to the City of
Nashville, Illinois, being a part of the Northeast Quarter of Section 23,
Township 2 South, Range 3 West of the Third Principal Meridian.
ALL SITUATED IN WASHINGTON COUNTY, ILLINOIS
EXHIBIT B
Form of Lease
LEASE
THIS LEASE is made as of December 28, 1990 between HEALTH AND
REHABILITATION PROPERTIES TRUST (known in Wisconsin as "Health and
Rehabilitation Properties REIT"), a Maryland real estate investment Trust
("Landlord"), having its principal office at 000 Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx and AMS PROPERTIES, INC. a Delaware corporation, ("Tenant") having
its principal office 000 Xxxx xxx Xxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000,
with reference to the following facts:
A. Landlord, Tenant, American Medical Services, Inc. ("AMS"), which
owns beneficially and of record all of the capital stock of Tenant, and AMS
Holding Co. ("AMSHC"), which owns benenfically and of record all of the capital
stock of AMS, and HostMasters, Inc., which owns beneficially and of record all
of the capital stock of AMSHC have entered into an Acquisition Agreement,
Agreement to Lease and Mortgage Loan Agreement dated as of even date herewith,
pursuant to which, among other things, Landlord agreed to acquire from AMS and
simultaneously to lease to Tenant certain parcels of real property and
improvements (the "Collective Lease Properties") each for use and operation as a
licensed nursing home.
B. The transaction contemplated in the foregoing recital provides that
each Collective Leased Property will be leased pursuant to a Lease which shall
incorporate a Master Lease Document dated as of December 28, 1990 between
Landlord and Tenant (as the same may be amended, modified or supplemented from
time to time, the "Master Lease").
C. The Leased Property identified in Paragraph 3 below (the "Leased
Property") is one of the Collective Leased Properties.
In consideration of the foregoing, the parties agree:
1. Purchase Price. The Purchase Price paid by Landlord to Tenant for
the Leased Property was the sum of _______ Dollars ($_____).
2. Incorporation of Master Lease. The Master Lease is hereby
incorporated herein in its entirety as though each and every part thereof were
set forth in full herein.
3. Description of Leased Property. The Leased Property is that property
located at the following street address:
[Name of Facility]
__________________
__________________
The Land referred to in the Master Lease is more particularly described
in Schedule A hereto.
4. Fixed Term. The Fixed Term of this Lease is ten (10) years,
commencing on December 28, 1990 (the "Commencement Date"), and ending on
December 28, 2000.
5. Extended Terms. Subject to the provisions of Section 2.4 of the
Master Lease, Tenant is hereby granted the right to renew the Lease for three
(3) 10-year consecutive optional renewal terms for a maximum term if all such
options are exercised of thirty (30) years after the expiration of the Fixed
Term.
6. Rental. The initial Minimum Rent payable during the Fixed Term
pursuant to Section 3.1.1.(a) of the Master Lease is the annual sum of _________
Dollars ($____) payable in equal monthly installment of ________ Dollars
($_______). The minimum Rent for the Extended Terms shall be at the rental
provided for in Section 3.1.1(e) of the Master Lease. During the Term, Minimum
Rent shall be subject to adjustment as provided in Sections 3.1.1(b) through
3.1.1(d) and 3.1.1(f) of the Master Lease. Landlord will credit against
installments of Minimum Rent the amounts determined in accordance with Section
3.1.1(g) of the Master Lease. Tenant shall also pay Additional Rent pursuant to
Section 3.1.2 of the Master Lease.
7. NONLIABILITY OF TRUSTEES. THE DECLARATION OF TRUST ESTABLISHING
LANDLORD, DATED OCTOBER 9, 1986, A COPY OF WHICH TOGETHER WITH ALL AMENDMENTS
THERETO (THE "DECLARATION"), IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS
AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME "HEALTH AND
REHABILITATION PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION
COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, 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.
IN WITNESS WHEREOF, the parties have executed this Lease by their duly
authorized officers as of the date first above written.
LANDLORD:
HEALTH AND REHABILITATION
PROPERTIES TRUST, a Maryland
real estate investment trust
By:
Name:
Title:
TENANT: AMS PROPERTIES, INC.
a Delaware corporation
By:
Name:
Title:
