ASSIGNMENT, AMENDMENT AND RESTATEMENT OF LEASE AGREEMENT
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This Assignment, Amendment and Restatement of Lease Agreement is made as of
December 31, 2003 by and between ALS FINANCING, INC., ("ALS"), EMERITUS
PROPERTIES XVI, INC. ("EMERITUS XVI") and ALTERRA HEALTHCARE CORPORATION
("Alterra").
W I T N E S S E T H
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WHEREAS, ALS and Alterra are parties to that certain Lease Agreement
(Sterling House of Broadmoor) which commenced as of the date of issuance of a
Personal Care Boarding Home License to Alternative Living Services, Inc., now
known as Alterra Healthcare Corporation (the "Original Lease"), pursuant to
which Alterra leases from ALS that certain assisted living or dementia care
facility commonly known as Sterling House of Broadmoor (the "Leased Premises").
WHEREAS, simultaneously herewith ALS is conveying its fee interest in the
Leased Premises to Emeritus XVI pursuant to that certain Conveyance and
Operations Transfer Agreement of even date herewith among the parties hereto
(the "Conveyance and Operations Transfer Agreement");
WHEREAS, in connection with the transaction which is the subject of the
Conveyance and Operations Transfer Agreement (the "Conveyance Transaction"),
Emeritus XVI is assuming the obligations of ALS under certain of the documents
evidencing a loan in the original principal amount of $25,000,000 (the "Loan")
in favor of LaSalle Bank National Association, formerly known as LaSalle
National Bank, as Trustee for GMAC Commercial Mortgage Pass Through
Certificates, Series 1998-C2 (the "Lender");
WHEREAS, Alterra has been required by the terms of the Original Lease to
operate the Leased Premises in compliance with the terms of the Loan and the
documents executed by Landlord in connection therewith or as security therefore
(the "Loan Documents");
WHEREAS, Emeritus XVI was unable to secure a license to operate the Leased
Premises from the State of Colorado prior to the closing of the Conveyance
Transaction but in order to avoid a delay in the consummation of the Conveyance
Transaction , Emeritus XVI agreed to acquire title to the Leased Premises
subject to the leasehold rights and obligations of Alterra under the Original
Lease, as hereby amended and restated;
WHEREAS, in order to effect the foregoing agreement of Emeritus XVI, ALS
has agreed to assign to Emeritus XVI all of its right, title and interest in
and to the Original Lease; and
WHEREAS, Emeritus XVI and Alterra desire to amend and restate the Original
Lease in its entirety as herein provided;
NOW, THEREFORE, for and in consideration of the foregoing, the sum of Ten
and No/100 Dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
I. ASSIGNMENT
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ALS hereby assigns, transfers and conveys to Emeritus XVI, and Emeritus XVI
hereby takes and assumes from ALS, all of ALS's right, title and interest in and
to the Original Lease, free and clear of all liens and encumbrances except for
the Permitted Liens (as defined in the Conveyance and Operations Transfer
Agreement).
II. AMENDMENT AND RESTATEMENT OF ORIGINAL LEASE
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Emeritus XVI (hereinafter referred to as "Landlord") and Alterra
(hereinafter referred to as "Tenant") agree that the Original Lease is hereby
amended and restated in its entirety as follows (as so amended and restated, the
"Lease"):
1. LEASE. Landlord hereby rents and leases to Tenant, and Tenant hereby
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rents and leases from Landlord, the Leased Premises, upon and subject to the
terms and conditions set forth below.
2. TERM. The term of this Lease and Tenant's obligation to pay rent
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hereunder shall commence on at 12:01 AM on January 1, 2004 (the "Commencement
Date") and shall, unless sooner terminated as herein provided, expire on the
earlier of (i) the date of issuance of a Personal Care Boarding Home license to
Landlord or (ii) January 31, 2004, provided that such date may be extended for
any period that Landlord is diligently and in good faith pursuing issuance of a
Personal Care Boarding Home license for itself or its designee, but in no event
later than March 31, 2004 (the "Term"). Upon a termination of this Lease,
Tenant shall transfer operational and financial responsibility for the Leased
Premises to Landlord or its designee in accordance with the terms of the
Conveyance and Operations Transfer Agreement.
3. RENT; LATE CHARGES.
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During the Term, Tenant shall pay to Landlord as rent ("Rent"), all net
cash flow (calculated using the methodology of the calculation set forth in
Exhibit B hereto) from the Leased Premises after payment to Tenant of an
operations fee equal to 7% of Resident Service Fee Revenues (determined as shown
in Exhibit B) from the Leased Premises. The Rent for each month shall be paid
to Landlord when available, but in no event later than the twentieth day of the
following month, such that, for example, the Rent for the month of January 2004
shall be paid to Landlord when available, but no later than February 20, 2004.
In consideration for Landlord's agreement to accept the net cash flow as the
Rent due hereunder, Tenant agrees that it shall operate the Facility at all
times during the Term in a manner consistent with its past practices as the same
may be modified from time to time during the Term with the consent of Landlord.
4. FIRE, LIABILITY AND EXTENDED COVERAGE INSURANCE BY TENANT. Tenant shall
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maintain in effect professional liability and worker's compensation insurance
for the Leased Premises as in effect on December 31, 2003. Such policy or
policies shall name Landlord as an additional insured thereunder. Landlord
shall maintain in effect, comprehensive liability insurance coverage, casualty
and other policies of insurance (other than professional liability and worker's
compensation insurance) covering the Leased Premises in such amounts and of such
types and with the carriers described in Exhibit ___ hereto. Such policy
or policies will name Tenant as additional insured thereunder. Each of Landlord
and Tenant shall deliver to the other certificates of insurance evidencing such
coverage prior to the commencement of this Lease and thereafter at least thirty
(30) days prior to the expiration thereof.
5. TAXES. Landlord shall pay directly to the taxing authority or to
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Landlord's Mortgagee (and if required by Landlord's Mortgagee, estimated
payments in advance) all taxes on the Leased Premises for any tax period
included in each lease year or portions thereof (on a prorated basis) during the
Term of this Lease.
As used herein, the term "taxes" shall mean all real estate taxes,
assessments, and other governmental impositions or charges of every kind,
including all costs and fees (including legal fees and appraisal fees) incurred
by Landlord in contesting same or in negotiating with the appropriate
governmental authorities regarding same but specifically excluding Tenant's
income or gross receipt taxes and any taxes due with respect to Tenant's
operations at the Leased Property including any employment related taxes. If at
any time during the term of this Lease, the present method of taxation shall be
changed so that in lieu of the whole or any part of any taxes, assessments,
levies or charges levied, assessed or imposed on real estate and the
improvements thereon there shall be levied, assessed or imposed on Landlord a
capital levy or other tax directly on rents received or a franchise tax
assessment, levy or charge measured by or based, in whole or in part, upon such
rents for the present or any future building or buildings on the Property, then
all such taxes, assessments, levies or charges, or the part thereof so measured
or based on such rents, shall be deemed to be included within the term "taxes"
for the purposes hereof.
6. UTILITY SERVICES AND TRASH COLLECTION. Tenant shall pay from revenues
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from the Leased Premises or from funds provided by Landlord pursuant to Section
7(e) hereof (i) all costs of utility services throughout the term of this Lease,
including but not limited to, all charges for gas, water, sanitary sewer,
telephone, electricity, cable and any other services used in the Leased Premises
and (ii) all charges for trash collection service or other sanitary services
rendered to the Leased Premises or used by Tenant in connection therewith.
7. PURPOSE AND USE.
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(a) The Leased Premises are leased for the purpose of, and shall be
used by Tenant only for the operation of an assisted living facility with 37
units and for no other use or purpose. The Leased Premises shall not be used
for any illegal purposes nor in any manner creating a nuisance or trespass nor
in any manner which shall result in the cancellation of insurance for the Leased
Premises or in any increase in the rates for any such insurance. Tenant shall
comply in all material respects with all governmental laws, ordinances and
regulations applicable to the use of the Leased Premises, and shall promptly
comply with all governmental orders and directives for the correction,
prevention and abatement of any violation of any applicable law in, upon, or
connected with the Leased Premises, all from revenues from the Leased Premises
or from funds provided by Landlord pursuant to Section 7(e) hereof with respect
to the maintenance of the Leased Premises and at the sole expense of Tenant with
respect to operation of the Leased Premises. Tenant will not permit the Leased
Premises to be used for any purpose which would jeopardize the applicable
licensure category or render the insurance thereon void or increase the
insurance premiums payable with respect thereto.
(b) Tenant hereby agrees that as a material inducement to Landlord entering
into this Lease, Tenant covenants that Tenant shall not cause or permit any
"hazardous substance" (as hereinafter defined) to be placed, held, located or
disposed of in, on or at the Leased Premises or any part thereof and neither the
Leased Premises nor any part thereof shall ever be used by Tenant as a dump site
or a storage site (whether permanent or temporary) for any hazardous substances
during the Term of this Lease.
(c) Tenant hereby agrees to indemnify Landlord and Landlord's Mortgagee and
hold Landlord and Landlord's Mortgagee harmless from and again any and all
losses, liabilities, including strict liability, damages, injuries, expenses,
including reasonable attorney; fees, cost of any settlement or judgment and
claims of any and every kind whatsoever paid, incurred or suffered by, or
asserted against Landlord or Landlord's Mortgagee by any person or entity or
governmental agency for, with respect to, or as a direct or indirect result of,
the presence on or under or the escape, seepage, leakage, spillage, discharge,
emission, discharging or releasing from the Leased Premises of any hazardous
substance, including without limitation, any losses, liabilities, including
strict liability, damages, injuries, expenses, including reasonable attorneys
fees, cost of any settlement or judgment or claims asserted or arising under the
Comprehensive Environmental Response, Compensation and Liability Act, any so
called federal, state or local "super funds" or "super lien" laws or other
statute, ordinance, code, rule, regulation , order or decree regulating relating
to or imposing liability, including strict liability, or standard of conduct
covering any hazardous substance; provided, however, the foregoing indemnity is
limited (i) to matter arising solely from Tenant's violation of the covenant
contain in Section 7(b) and (ii) to the extent the same can be satisfied from
the revenues of the Leased Property.
(d) For purposes of this lease, hazardous substances shall mean and include
those elements or compounds which are contained in the list of hazardous
substances adopted by the United States Environmental Protection Agency (the
"EPA") or the list of toxic pollutants designated by Congress or the EPS or
which are defined as hazardous, toxic, pollutant, infectious or radioactive by
any other federal , state or local statute, law, ordinance, code, rule,
regulation, order or decree regulating, regulating to, or imposing liability or
standards of conduct concerning, any hazardous, toxic or dangerous waste,
substance or material, as now or at anytime hereafter in effect.
(e) In the event at any time during the Term the revenues of the Facility
are not sufficient to cover the costs incurred or anticipated to be incurred by
Tenant in connection with the operation and maintenance thereof, Tenant shall
have the right to request that Landlord provide Tenant with the funds necessary
to cover such expenses (a "Funding Request"). Each Funding Request shall be in
writing and shall set forth in reasonable detail the amount and purpose of the
funds requested. Landlord shall have a period of ten (10) days to review and
respond to any Funding Request; provided, however, Landlord's failure to provide
the funds included in a Funding Request within such ten (10) day period shall be
deemed to be an election by Landlord not to provide such funds.
8. ACCEPTANCE OF PREMISES. Tenant acknowledges and agrees that it has been
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operating the Leased Premises under the terms of the Original Lease and
accordingly that Tenant is fully aware of the physical condition of the Leased
Premises and accepts the Leased Premises (including all buildings, improvements,
equipment and systems situated therein) "AS IS" in their present condition,
as fully suitable for the purposes for which the same are leased by Landlord to
Tenant.
9. INDEMNIFICATION. Tenant hereby agrees to indemnify and hold Landlord
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harmless from any and all claims, damages, action, causes of action, loss,
liabilities or expenses (including reasonable attorneys fees) arising out of (a)
Tenant's use or occupancy of the Leased Premises, (b) any and all claims arising
from any breach or default in the performance of any obligation of Tenant
hereunder or (c) any act, omission or negligence or Tenant, its agents,
employees, invitees and others claiming by, through or under Tenant; provided,
however, that Tenant's liability under this Section 9 shall be limited to
amounts payable from the revenues of the Leased Premises.
10. MAINTENANCE BY TENANT. Tenant, from revenues from the Leased Premises
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or from the funds provided by Landlord pursuant to Section 7(e), shall maintain
in good repair and condition the Leased Premises, normal wear and tear excepted.
In furtherance and not in limitation of the foregoing, Tenant shall maintain in
good repair and condition thereof any and all portions of the HVAC systems
located inside and outside the Leased Premises. Should Tenant neglect to
perform any of its obligations as set forth hereinabove, at all times throughout
the term of the Lease, Landlord shall have the right (but not the obligation) to
cause any such obligation to be accomplished, and all costs incurred in
connection therewith shall be paid by Landlord.
11. ALTERATIONS; CAPITAL EXPENDITURES. Tenant shall not make any
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alterations, additions or improvements to the Leased Premises without the prior
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written consent of Landlord, except that Landlord's prior consent shall not be
required for any capital expenditure of less than $5,000 and for which Tenant
determines there are sufficient Facility revenues to cover the cost thereof.
All alterations, additions or improvements made by Tenant shall be paid for by
Landlord or from revenues from the Leased Premises, shall be performed in a good
workmanlike manner, shall be lien free, and shall become the property of
Landlord at the time of the installation thereof. Tenant acknowledges and
agrees that Landlord has advised Tenant that under the terms of the Loan
Documents, Landlord is required to complete certain repairs or renovations to
the Facility prior to December 31, 2004. Accordingly, in the event the Term of
this Lease extends beyond January 31, 2004, Tenant shall upon request provide
Landlord with access to the Facility in order to enable Landlord to commence
such repairs and renovations.
12. ASSIGNMENT AND SUBLETTING. Tenant shall not convey, pledge, mortgage,
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encumber or assign this Lease or any interest hereunder, sublease the Leased
Premises or any part thereof, or permit the use of the Leased Premises or any
portion thereof by any party other than Tenant, the residents of the Facility
and the parties to the commercial leases, if any, described in Exhibit ___
hereto.
13. DAMAGE BY CASUALTY.
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A. Tenant shall give written notice to Landlord of any damage caused to the
Leased Premises by fire or other casualty as soon as reasonably possible after
learning of such damage.
B. In the event that the Leased Premises shall be damaged or destroyed by
fire or other casualty, then Landlord may elect either to terminate this Lease
as hereinafter provided or to proceed to rebuild and repair the Leased Premises.
If Landlord elects to terminate this Lease, Landlord shall give written notice
of such election to Tenant within three (3) business days after receiving notice
of such casualty. If Landlord does not elect to terminate this Lease, Landlord
shall proceed with reasonable diligence and to the extent insurance proceeds are
available to Landlord to rebuild and repair the Leased Premises as herein
provided.
C. Landlord's obligation to rebuild and repair under this Paragraph 12 shall
in all event be limited to restoring the Leased Premises to substantially the
same condition which existed prior to the casualty and shall be further limited
to the extent of the insurance proceeds available to Landlord for such
restoration.
D. The Rent due from Tenant to Landlord shall not be abated during any such
period of repair or restoration.
14. CONDEMNATION.
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A. Total Taking. If, at any time during the term of this Lease, title to
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the entire Leased Premises should become vested in a public or quasi-public
authority by virtue of the exercise of expropriation, appropriation,
condemnation or other power in the nature of eminent domain, or by voluntary
transfer from the owner of the Leased Premises under threat of such a taking,
then this Lease shall terminate as of the time of such vesting of title, after
which neither party shall be further obligated to the other except for
occurrences antedating such taking. The same results shall follow if less than
the entire Leased Premises shall be thus taken, or transferred in lieu of such a
taking, but only if it would be commercially impractical for Tenant
reasonably to conduct the permitted use therein.
B. Partial Taking. Should there be such a partial taking or transfer in
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lieu thereof, but not to such an extent as to make such continued occupancy and
operation by Tenant commercially impractical, then this Lease shall continue on
all of its same terms and conditions.
C. Right to Proceeds. In the event of any such taking or transfer, whether
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of the entire Leased Premises, or a portion thereof, it is expressly agreed and
understood that all sums awarded, allowed or received in connection therewith
shall belong to Landlord, and any rights otherwise vested in Tenant are hereby
assigned to Landlord, and Tenant shall have no interest in or claim to any such
sums or any portion thereof, whether the same be for the taking of the property
or for damages, or otherwise.
15. RE-ENTRY DURING TERM. Landlord, its agents, officers or assigns, and
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Landlord's Mortgagee, shall have the right to enter the Leased Premises, upon
reasonable prior notice and during normal working hours, other than during
emergencies in which case no notice shall be required and such entry may occur
at any time deemed necessary by Landlord, throughout the Term of the Lease for
the following purposes: (A) inspecting the general condition and state of repair
of the Leased Premises; (B) showing the Leased Premises to any prospective
purchaser; (C) taking any emergency action which Landlord deems necessary to
protect the Leased Premises; (D) inspecting the Leased Premises as required by
governmental agencies or insurance companies; or (E) for any other reasonable
purposes.
16. DISPLAY PRIOR TO TERMINATION. Landlord, its officers, agents or
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assigns, shall have the right to erect on or about the Leased Premises a
customary sign advertising the Property for lease or for sale; and shall
likewise have the right to enter the Leased Premises upon reasonable prior
notice during normal working hours for the purpose of showing the Leased
Premises to prospective lessees.
17. DEFAULTS BY TENANT: LANDLORD'S ALTERNATIVES.
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A. In the event of any failure of Tenant to pay any rental due hereunder
within five (5) days after the same shall be due, or any failure of Tenant to
perform any of the other terms, conditions, obligations or covenants to be
observed or performed by Tenant pursuant to this Lease, within three (3) days
following written notice to Tenant of its failure to do so, or in the event
Tenant shall become bankrupt or insolvent or file or have filed against it any
debtor or bankruptcy proceeding pursuant to any statute, either of the United
States or of any state, or for the reorganization or for the appointment of a
receiver or trustee of all or a portion of its property, or if Tenant makes an
assignment for the benefit of creditors, or petitions for or enters into a plan
of arrangement, or if Tenant shall abandon the Leased Premises or suffer this
Lease to be seized or otherwise taken under any writ of execution, then, in
addition to any other rights or remedies it may have, Landlord shall have the
option to exercise any one or more of the following remedies, it being agreed
that pursuit of any remedy provided in this Lease shall not preclude pursuit of
any other remedy or remedies herein provided or provided by law, and that any of
such remedies may be pursued regardless of whether or not the default
continues to exist and whether or not Landlord accepts or has accepted rent
subsequent to the occurrence of such default:
(1) Terminate this Lease by three days prior written notice to Tenant, in
which event Tenant shall thereupon surrender possession of the Leased Premises
to Landlord and Landlord may re-enter and repossess the Leased Premises; and, in
connection therewith, Landlord may use such force as may be necessary,
without being guilty of trespass, forcible entry, detainer or other tort.
(2) With or without terminating this Lease, and upon three days prior
written notice to Tenant, Landlord, at its option, may enter upon the Leased
Premises, change the locks, and attempt to re-let the Leased Premises, without
advertisement, by private negotiations and for any term and rental rate which
Landlord in its sole discretion determines.
(3) Pursue any and all other rights and remedies available under the
Conveyance and Operations Transfer Agreement.
B. In the event of the termination of this Lease or of Tenant's right to
possession of the Leased Premises pursuant to this Section 16, Tenant shall
transfer operational and financial responsibility for the Leased Premises to
Landlord or its designee in accordance with the provisions of the Conveyance and
Operations Transfer Agreement.
18. NOTICE. Any notice, demand, request or other act which shall be
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required or permitted under this Lease must be in writing and shall be deemed to
have been furnished when delivered by hand, facsimile, overnight mail or
deposited, postage prepaid in the U.S. Mail, certified or registered, return
receipt requested, and addressed to the address set forth below and shall be
deemed given upon the actual receipt or refusal of receipt thereof:
LANDLORD: Emeritus Properties XVI, Inc.
c/o Emeritus Corporation
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxxx, Director of Real Estate
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
TENANT: Alterra Healthcare Corporation
00000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx XX 00000
Attn: Xxxxxxx Xxxxx, Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such other address as either Landlord or Tenant shall have designated by
written notice to the other party.
19. TITLES. Notations or titles appearing in this instrument are provided
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merely for ease of reference, and the parties hereto expressly acknowledge and
agree that such notations and titles do not constitute a part of this Lease,
have no legal effect whatsoever in determining the rights or obligations of the
parties, and shall have no bearing upon the meaning or interpretation of this
agreement or any portion of it.
20. NON-WAIVER. The failure by Landlord, whether once or more, to act upon
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a specific breach of any term, covenant or condition herein contained shall not
be deemed to be a waiver of such term, covenant, or condition nor of any
subsequent breach of the same or any other term, covenant or condition herein
contained. Any subsequent acceptance of rent hereunder by Landlord shall not be
deemed to be a waiver of any preceding breach by Tenant of any term, covenant or
condition of this Lease other than the failure of Tenant timely to pay the
particular rental so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such rent. No covenant, term or
condition of this Lease shall be deemed to have been waived by Landlord unless
such waiver shall be specifically expressed in writing by Landlord.
21. SEVERABILITY: ENTIRE AGREEMENT.
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A. If any term, covenant or condition of this Lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term,
covenant, or condition to persons or circumstances other than those which or to
which such may be held invalid or unenforceable, shall not be affected thereby,
and each term, covenant or condition of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
B. Except for any exhibits, attachments, plats, or other documents as may be
affixed hereto, made a part hereof, and properly identified herewith and
except as amended by the Subordination and Attornment Agreement dated July 30,
1998, which has been assumed by Landlord pursuant to the terms of a Loan
Assumption Agreement of even date herewith among Landlord, Tenant, ALS and
Lender, this Lease constitutes the entire contract between the parties, and
shall not be otherwise affected by any other purported undertaking whether
written or oral.
22. TIME OF ESSENCE. Time is of the essence of this Lease.
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23. TERMINATION OF LEASE. Landlord may terminate this Lease on three (3)
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business days' prior written notice to Tenant. Tenant may terminate this Lease
upon any failure of Landlord to fund a Funding Request pursuant to Section 7(e)
hereof.
24. ATTORNMENT: SUBORDINATION.
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A. Tenant accepts this Lease subject and subordinate to any Ground Lease,
Mortgage, Deed of Trust, Deed to Secure Debt or any other hypothecation or
security now or hereafter placed upon the Leased Premises (any such instrument
hereinafter called a "Mortgage") and to any and all advances made on the
security thereof and to all renewals, modifications, consolidations,
replacements and extensions thereof. If any holder of a Mortgage (herein
"Landlord's Mortgagee") shall elect to have this Lease prior to the lien of its
Mortgage, and shall give written notice thereof to Tenant, this Lease shall be
deemed prior to such Mortgage, whether this Lease is dated prior or subsequent
to the date of said Mortgage, or the date of recording thereof.
B. Although the provisions of this Section 28 shall be self-operative,
Tenant agrees, upon request of Landlord or Landlord's Mortgagee, to execute any
documents required to effectuate any attornment, subordination or to make this
Lease prior to the lien of any Mortgage. Tenant's failure to execute such
documents within ten (10) days after written demand shall constitute a material
default by Tenant hereunder, or, at Landlord's option, Landlord shall execute
such documents on behalf of Tenant as Tenant's attorney-in-fact.
C. Tenant does hereby make, constitute and irrevocably appoint Landlord as
Tenant's attorney-in-fact and in Tenant's name, place and stead, to execute such
documents in accordance with this Section 28, such power of attorney being
coupled with an interest.
D. If by reason of a default under the Mortgage upon the Leased Premises,
the interest of Landlord in the Leased Premises is terminated, the Tenant will
attorn to Landlord's Mortgagee at Landlord's Mortgagee's sole option (or to any
person or entity to which the Leased Premises is conveyed by such holder) and
will recognize such holder, person or entity as Tenant's landlord under this
Lease. Tenant further waives the provision of any statute or rule of law now or
hereafter in effect which may give or purport to give Tenant any right of
election to terminate this Lease or to surrender possession of the Leased
Premises in the event any proceeding is brought by Landlord's Mortgagee to
terminate the interest of the Landlord in the Leased Premises, and agrees that
this Lease shall not be affected in any way whatsoever by such proceeding.
25. LENDER'S RIGHT TO CURE DEFAULT. If the Landlord defaults under this
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Lease, Tenant, before taking advantage of any rights or remedies granted to
Tenant or by law, shall notify in writing, certified mail, return receipt
requested, any Landlord's Mortgagee which holds a Mortgage and who has requested
Tenant so to do and given Tenant its mailing address and Tenant shall allow
Landlord's Mortgagee, at Landlord's Mortgagee's sole option, ten (10) days
following receipt of such notice (plus any additional time that may be
reasonably necessary) within which to cure such default. The time given to
Landlord's Mortgagee to cure Landlord's default shall not run concurrently with
any time granted to Landlord to cure such default, but shall run from the later
of Landlord's Mortgagee's receipt of notice from Tenant of Landlord's default or
the expiration of the time period, if any, given to Landlord to cure such
default. Landlord's Mortgagee may, but shall not be obligated to, cure such
default, and Tenant shall accept any such cure by Landlord's Mortgagee.
26. COUNTERPARTS. This Agreement may be executed in one or more
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counterparts and all such counterparts taken together shall constitute a single
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original agreement.
27. HOLDING OVER. If Tenant remains in possession of the Leased Premises
after expiration of the Term with Landlord's acquiescence and without any
express agreement of the parties, Tenant shall be a tenant from month to month
at a rental rate equal to double the then current rental rate subject to
Landlord's right to terminate said tenancy upon thirty (30) days written notice;
and there shall be no renewal of this Lease by operation of law.
28. RIGHTS CUMULATIVE. All rights, powers and privileges conferred
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hereunder upon the parties hereto shall be cumulative but not restrictive to
those given by law.
29. GOVERNING LAW. The laws of the State in which the Leased Premises are
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located shall govern the interpretation, validity, performance and enforcement
of this Lease.
30. TENANT REPRESENTATION. If Tenant signs as an entity, each person
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executing this Lease on behalf of Tenant does hereby covenant and warrant that
Tenant is a duly authorized and existing entity, that Tenant has and is
qualified to do business in the State in which the Leased Premises is located
and that the entity has full right and authority to enter into this Lease and
that each person signing on behalf of such entity is authorized to do so.
31. RIGHT TO TRANSFER. Nothing herein shall in any way prohibit or restrict
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Landlord from conveying all or a portion of its right, title and interest in the
Leased Premises and to this Lease to a third party or to an affiliate of
Landlord. Upon any transfer of Landlord's interest in the Leased Premises and
in this Lease to a third party or affiliate of Landlord, such transferee shall
become "Landlord" hereunder and the transferor Landlord shall have no further
obligations hereunder.
11
IN WITNESS WHEREOF, the parties herein have hereunto set their hands and
seals, the day and year first above written.
ALS FINANCING, INC.
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
EMERITUS PROPERTIES XVI, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Director of Real Estate Finance
ALTERRA HEALTHCARE CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: President
