EXHIBIT 10.53
GROUND LEASE
This Lease is made and executed on July 15, 1993, by and between the West
Jersey Health System, a non-profit corporation organized and existing pursuant
to the laws of the State of New Jersey having its principal office located at
0000 Xxxxxxxx Xxx., Xxxxxx, XX, hereinafter referred to as "Lessor" and West
Jersey/Mediplex Rehabilitation Limited Partnership, a New Jersey limited
partnership having a principal office at 00 Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000.
SECTION ONE
DEMISE, DESCRIPTION AND USE OF PREMISES
A. Demise: Lessor hereby leases to Lessee the real property owned by
Lessor and located in Evesham Township, Burlington County, New Jersey and being
a portion of Xxx 0X xxx 0X-0, Xxxxx 00 (Xxxxxxx Xxxxxxxx Xxx Xxx) as shown
outlined in red and coded "Leased Premises" upon the plan annexed hereto as
Exhibit A. The term "premises" when used in this lease shall mean the area
defined by Exhibit A outlined in red and coded and labelled "Leased Premises",
together with any improvements now or hereafter constructed thereon. The term
"West Jersey Hospital premises" when used in this lease shall mean the area
adjacent to and surrounding the premises, the perimeter of which is outlined in
black on Exhibit A and is described on Schedule C, which area is retained by
Lessor.
As appurtenant to the premises, Lessor hereby grants Lessee the
right, during the term of this Lease, to use all of the roadways, driveways,
sidewalks, parking areas (as more particularly set forth in Section 34 hereof),
easements, and land which form a part of or are appurtenant to the West Jersey
Hospital premises, for the installation, provision and maintenance of utilities
and for access to and egress from the premises as and to the extent necessary
or desirable to allow Lessee the full use and enjoyment of the premises and for
all other purposes as roads and ways are now or hereafter commonly used in
Evesham Township.
B. Use: The premises shall be used by Lessee for the construction and
subsequent operation of a seventy-bed (more or less) rehabilitation hospital
together with parking and other appurtenant site improvements and other uses
ancillary to a rehabilitation hospital as may now or hereafter be customary
(herein sometimes collectively, the "Project") or for any other
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health care purpose authorized by a Certificate of Need heretofore or hereafter
issued by the Department of Health of the State of New Jersey to Lessee or any
other lawful use subject to the restrictions hereinafter provided. As long as
Lessee uses and operates a rehabilitation hospital it shall maintain
accreditation with the Committee on Accreditation of Rehabilitation Facilities,
a successor organization, or by any similar body which accredits rehabilitation
hospitals.
SECTION TWO
TERM
A. Immediately following execution of this lease and the satisfaction of
the conditions precedent stated in Section Three paragraphs (B) and (C), Lessor
shall grant reasonable access to the premises and the Lessor's hospital premises
to Lessee for the purpose of accomplishing necessary site work, engineering and
related studies, appraisals, etc. in order to enable Lessee to process Lessee's
application(s) for site plan, zoning, building permits, and other required
governmental approvals and for mortgage financing related to the construction by
Lessee of the rehabilitation hospital and other improvements described in
Section One (B) hereof.
B. Upon receipt of all necessary approvals and permits required in order
that Lessee may commence construction as aforesaid, Lessee shall be granted
possession of the premises and access to, over and under the Lessor's hospital
premises in order to proceed with construction.
C. The initial term of this Lease shall be thirty-five (35) years plus the
Construction Period (as defined hereafter), and shall commence on the date of
execution of this Lease ("Commencement Date"). The period beginning on the
Commencement Date and ending upon the first day of the first month after the
later to occur of (i) receipt by Lessee of a final certificate of occupancy for
all portions of the Project, or (ii) receipt by Lessee of a license for the
operation of the Project as a 70-bed comprehensive rehabilitation hospital from
the New Jersey Department of Health is called the "Construction Period". In any
event, the Construction Period shall end no later than the date the Project is
first operated for the public as a rehabilitation hospital. The "Occupancy Date"
shall be the last day of the Construction Period. The initial term of this Lease
shall end on the last day of the 420th successive month after the Occupancy
Date. The first payment of rent shall be due on the Occupancy Date.
D. Provided the Lessee is not at the time of exercise in
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default under the terms of this Lease, continuing beyond any applicable notice
and cure period, Lessee is hereby granted the option to renew this Lease for an
additional term of thirty-five years to follow immediately the initial term
described in the preceding paragraph. Lessee shall give Lessor written notice at
least one year prior to the expiration of the initial term hereof of the
exercise by Lessee of the option granted by this paragraph. Failure to give such
notice in timely fashion shall render such option null and void. In the event
that Lessee elects to exercise such renewal option all terms of this Lease
except those relating to the amount of rent to be paid which shall be as stated
in Section Four shall remain the same.
E. Until the expiration or sooner termination of this lease, title to any
building, structure, fixtures, equipment or other improvements erected or
installed upon the premises by Lessee shall remain in Lessee. Lessee and not
Lessor shall be entitled to all depreciation or other tax deductions to be taken
upon such buildings, structures, fixtures, equipment and improvements.
F. Upon the expiration or sooner termination of this lease, title to all
buildings, structures, fixtures and equipment (except for Lessee's moveable
equipment) erected, constructed, installed or located upon the premises shall
vest in Lessor and shall be free and clear of all liens, claims and encumbrances
except for items shown on Exhibit "B" attached hereto and easements, agreements
and other matters now or hereafter consented to by Lessor, but not including any
liens or obligations created as security for any indebtedness of Lessee. Lessee
shall execute all necessary documents in order to transfer such title to Lessor
and to satisfy any and all such liens, claims and encumbrances. During the term
of this Lease, Lessor's interest in the buildings, structures, fixtures and
equipment erected, constructed, installed or located upon the premises shall be
subject and subordinate to the rights and remedies of any and all construction
and permanent lenders making leasehold mortgage loans (or loans secured by a
collateral assignment of this Lease) to Lessee from time to time (collectively,
"Lenders".)
SECTION THREE
PERMITS/FINANCING ISSUES
A. Anything herein to the contrary notwithstanding this Lease and all
obligations, rights and privileges conferred herein are expressly contingent
upon the following all of which must be fully satisfied in Lessee's judgment or
expressly waived by Lessee within the stated time periods: 1) satisfactory
mortgage commitment for 85% of the Project costs as approved by the New
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Jersey Department of Health) for the rehabilitation facility received by Lessee
at no more than 12% per annum interest amortized over a period of not less than
fifteen (15) years, said commitment shall be received and communicated to Lessor
not more than ninety (90) days after all permits and approvals herein stated
have been granted; and 2) satisfactory soil boring and environmental tests
received by Lessee and communicated to the Lessor one-hundred and eighty (180)
days subsequent to the date this Lease is fully executed to the effect that the
real estate herein leased is free of hazardous or toxic material or waste and
will support and permit the construction of the rehabilitation facility, 3) all
zoning, site plans and other necessary permits and approvals for the
construction and operation of the rehabilitation facility, including without
limitation, permits, approvals and agreements for the provision of adequate
public water and sewer and for storm water runoff and drainage shall be received
and communicated to Lessor not more than three-hundred and twenty (320) days
subsequent to the date of this Lease; and 4) a certificate of occupancy for the
Project and licensure thereof by the New Jersey Department of Health being
issued; and 5) Lessee's leasehold title to the premises being good and
marketable, free and clear of all encumbrances, liens and other objections not
acceptable to Lessee, and insurable as such at regular rates by a title
insurance company selected by Lessee as of the Commencement Date and as of the
Occupancy Date. In the event Lessee does not satisfy any of the conditions
precedent and the Lease is terminated, Lessee agrees to restore the premises to
its original condition and shall indemnify Lessor against any liability, harm or
loss arising from Lessee's activities at the premises. If this Lease is
terminated, the Lessee agrees to furnish Lessor with all surveys, plans,
drawings, studies, etc.
X. Xxxxxx shall use its best efforts to obtain a satisfactory
non-disturbance agreement for the premises between Lessee and United Jersey
Bank, as Master Trustee under the Mortgage referred to in EXHIBIT "B." Prior to
commencing construction upon the premises, Lessee shall furnish to Lessor a
construction completion bond or bonds in the aggregate amount of the total cost
of construction and in a form reasonably satisfactory to Lessor and counsel for
Lessor.
C. Anything herein to the contrary notwithstanding, this Lease is
expressly contingent upon Lessor receiving either a satisfactory opinion of
Lessor's counsel or private letter revenue ruling by the IRS that the Lease and
the performance of the Lease shall in no way affect Lessor's tax exempt status
or tax-exempt financing of Lessor not more than sixty (60) days subsequent to
the execution of this Lease.
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SECTION FOUR
RENT/DEPOSIT
A. The total rent for the initial thirty-five year term of this Lease
shall be Three-Million-One-Hundred-Fifty Thousand Dollars ($3,150,000) payable
in monthly installments without deduction or offset, as set forth in Schedule I
appended hereto. The first payment shall be made on the date described in
Paragraph C of Section Two hereof and shall continue on the first day of each
succeeding month during the initial term. If Lessee exercises the renewal option
granted by paragraph D of Section Two hereof rent to be paid during the renewal
period shall continue to be paid in monthly installments but shall be adjusted
upward or downward compounded each year in relation to increases or decreases in
the "Consumer Price Index for Urban Wage Earners and Clerical Workers
Philadelphia-New Jersey" published by the U.S. Department of Commerce ("CPI") in
the following manner. (In the event such index is no longer in effect the
parties shall upon mutual agreement substitute a comparable index.) Annual rent
for the first year of the renewal term shall be an amount determined by
multiplying the rent for the last year of the initial term (specified in
Schedule I) by a fraction the numerator of which is the CPI for the last month
of the initial term and the denominator of which is the CPI for the same month
of the immediately preceding year. The product of such computation shall be paid
in monthly installments. The rent to be paid during each succeeding year of the
renewal term shall be determined in the same manner; that is, by applying the
annual CPI increase or decrease to the preceding year's total rent in order to
arrive at the amount of rent to be paid in the then current year. Because there
may be delays in the publishing of the CPI figures, monthly rent payable for the
preceding year shall remain effective until an appropriate computation of
revised rent can be made. Any increase or decrease remaining unpaid or overpaid
shall be added to or deducted from the next monthly installment.
SECTION FIVE
ASSIGNMENT/SUBLETTING
RESTRICTIVE COVENANT
A. Lessee may not assign, sublet or transfer this Lease, nor may any
interest herein be transferred (including the transfer of the stock or any
ownership interest in Lessee) without the prior written consent of Lessor which
consent shall be granted within sixty (60) days after its being requested unless
the proposed assignment, sublease or transfer would jeopardize in any manner the
tax exempt status of the West Jersey Health System or its Revenue Bonds;
furthermore, Lessor shall be entitled to obtain as a condition of its consent
reasonable assurances that the use by the assignee, sublessee or transferee
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shall continue to be a use permitted under this Lease and the operator shall not
be in competition with Lessor's Marlton acute care inpatient hospital on the
premises (it being acknowledged by Lessor that the use of the premises by such
assignee as a rehabilitation hospital as permitted under this lease shall be
deemed acceptable to Lessor). Any assignment, subletting or transfer without
Lessor's consent shall be void, and shall, at the option of Lessor, constitute
an event of default under the terms of this Lease. Neither this Lease nor
Leasehold estate of Lessee nor any interest of Lessee hereunder in the premises
or any buildings or improvements thereon shall be subject to involuntary
assignment, transfer, or sale, or to assignment, transfer or sale by operation
of law in any manner whatsoever, and any such attempted involuntary assignment,
transfer or sale shall be void and of no effect and shall, at the option of
Lessor constitute an event of default under the terms of this Lease, provided,
however, that neither the death nor disability of Lessee or any partner or
shareholder of Lessee shall cause this Lease to be terminated, it being intended
that the interest of the deceased or disabled person shall be transferable to
such person's heirs, administrators, successors and assigns subject only to the
conditions of Lessor's consent as set forth above.
B. Except for transactions involving Lessee's Secured Financing, if Lessee
at any time during the term of this Lease desires in a single transaction either
to:
(i) Assign substantially all of its interest in this Lease; or
(ii) Sublease substantially all of the premises for substantially
all of the remaining term of this Lease,
then prior to offering such an assignment or sublease to any third party, Lessee
shall notify Lessor in writing, which notice shall state the terms and
conditions under which Lessee plans to offer such an assignment or sublease to
any third party. The notice shall also grant to Lessor the right to accept such
offer on those same terms and conditions. Lessor shall have a period of thirty
(30) days from the submission of such notice to either accept or reject the
offer. The failure of Lessor to accept such offer by written notice to Lessee
within such thirty (30) day period shall be deemed a rejection. After any such
rejection, Lessee shall have a period of six (6) months thereafter to assign
this Lease or sublease the premises on terms and conditions which are no less
favorable than those which were offered to Lessor. Any such assignment or
sublease during the six (6) month period shall be free and clear of any right
and interest of the Lessor except for the requirement that Lessee comply with
the approval process set forth in subparagraph A above. In the event that Lessee
shall fail to assign substantially all of its interest in this Lease or sublease
substantially all of the premises for substantially all of the remaining terra
of this Lease during such
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six (6) month period, or shall elect to offer more favorable terms and
conditions than those submitted to the Lessor, Lessee shall be obligated to
again submit an offer to the Lessor for thirty (30) days consideration prior to
consummating any such transaction with a third party. The requirements of this
subparagraph B shall in no event apply to any partial assignment by Lessee of
its interest in this Lease, nor shall they apply to a sublease of a portion of
the premises, nor shall they apply to the exercise of any rights or remedies by
the holder of any collateral assignment, mortgage or security interest related
to this Lease granted in connection with any of Lessee's secured financing.
C. During the term of this Lease, Lessee or any assignee, affiliate
transferee or successor agrees not to operate an acute care inpatient hospital
upon the Lessee's premises. Furthermore, certain of Lessee's services shall be
limited as follows:
(i) X-rays to be performed within the Lessee's premises shall be
limited to bone and chest area X-rays.
(ii) Laboratory services to be performed within the Lessee's
premises shall be limited to routine services such as blood counts and
urinalysis.
(iii) Drug and alcohol rehabilitation within the Lessee's premises
shall be limited to treatment which is ancillary to physical rehabilitation and
restoration and shall not be offered as a primary treatment.
(iv) No respite care shall be provided within the Lessee's premises.
D. During the term of this Lease neither Lessor nor any assignee,
affiliate, lessee, sublessee, transferee or successor shall perform inpatient or
outpatient physical rehabilitation or restoration services within the West
Jersey Hospital premises including without limitation the proposed medical
office building except as follows:
(i) Physical therapy may be provided on an inpatient basis within
the existing acute care hospital as ancillary to the providing of acute care
services but shall not be offered as a primary treatment.
(ii) Physical therapy may be .provided on an outpatient basis within
the existing acute care hospital to patients following their discharge from the
Hospital as ancillary to the providing of acute care services for which such
patient was previously an inpatient but shall not be offered as a primary
treatment.
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(iii) Physical therapy or occupational therapy or speech therapy may
only be performed directly by a physician or by their qualified technicians or
employees working with them within such physician's office in the proposed
medical office building on the West Jersey Hospital premises but only such
therapy as is incidental to such physician's practice. Moreover, no space in the
proposed medical office building shall have as its primary use the performance
of physical therapy, physical rehabilitation or restoration services.
Anything in this Article V to the contrary notwithstanding it is expressly
agreed and permitted by the parties hereto that nothing shall be construed to
limit Lessor or Lessee from contracting with others to provide customary and
permitted services ordinarily provided by the parties under any managed care
network or other health care integrated delivery system, if such services are
performed at a location other than the Lessee's premises or the West Jersey
Hospital premises.
SECTION SIX
TAXES AND ASSESSMENTS
As additional rent hereunder, Lessee shall pay and discharge as they
become due, promptly and before delinquency, all taxes, assessments, rents,
charges, license fees, municipal liens, levies, excises or imports, whether
general or special, or ordinary or extraordinary, of every name, nature or kind,
which may be levied, assessed, charged, or imposed, or which may become a lien
or charge on or against the land hereby demised, or any part thereof, the
leasehold of Lessee herein, the premises described herein, any building or
buildings, or any other improvements now or hereafter thereon during the term of
this Lease. Notwithstanding the foregoing, Lessee's obligations for taxes
hereunder shall commence on the "Commencement Date" and shall be limited to real
estate taxes and assessments in the nature of real estate taxes, and shall
specifically exclude any income, franchise or similar taxes payable by Lessor.
SECTION SEVEN
CONSTRUCTION OF NEW BUILDING
A. Prior to submission for building permits Lessee shall, at Lessee's sole
expense, prepare plans and specifications for the building of a rehabilitation
hospital to be erected on the premises. Such plans and specifications shall be
submitted to Lessor for Lessor's written approval to make certain that the
construction of the new building does not: 1) materially and adversely affect
the structural integrity of Lessor's Marlton Facility on the West Jersey
Hospital premises (herein sometimes referred to as the "Marlton Facility") or;
2) substantially and unreasonably disrupt or interfere with the Marlton Facility
and
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patients on the campus of the Marlton Facility; 3) materially and adversely
affect the sewer, water and other utilities of the Marlton Facility; and 4)
result in a building which is aesthetically inconsistent with the architecture
and construction already existing at the West Jersey Hospital premises. Lessor
shall not unreasonably withhold such approval. In the event of disapproval,
Lessor shall give to Lessee an itemized statement of reasons therefor within
thirty (30) days of Lessee's submission of plans and specifications to Lessor.
In the event that Lessor fails to provide such itemized statement of reasons for
disapproval to Lessee in writing within forty-five (45) days of such submission
by Lessee, the Lessor shall be deemed to have approved such plans and
specifications. Upon any such disapproval of the plans and specifications for
the Project by Lessor, Lessee shall have the option to terminate this Lease
without further liability for rent or any other charges, by notice to Lessor
given within sixty (60) days after receipt of such statement of disapproval by
Lessee. In addition, after the initial approval of the plans and specifications,
Lessee shall have the right to make reasonable changes to the plans and
specifications by change order during the construction process without the
consent of Lessor. Any changes required by any governmental agency shall be
deemed reasonable and acceptable to Lessor.
Lessee hereby covenants and agrees that once all permits are granted and
all conditions precedent as stated in Section Three above have been satisfied
that Lessee will prosecute construction diligently and with all due speed.
B. Lessee shall have the right to make such alterations, improvements and
changes to any building which may from time to time be on the premises as Lessee
may deem necessary, or to replace any such building with a new one of at least
equal value, provided that the alterations, improvements and changes shall not
cause the value of the building to be diminished, are aesthetically consistent
with existing architecture, and the structural integrity of the building or the
Marlton facility is not materially adversely affected or disrupted by any such
alterations, improvements, or changes, and provided that in the event of any
substantial or material alterations, improvements or changes, Lessor be first
notified.
SECTION EIGHT
REPAIRS, MAINTENANCE, IMPROVEMENTS AND DESTRUCTION
A. Except as elsewhere provided in this Lease, Lessee shall, throughout
the term of this Lease, at-its own cost, and without any expense to Lessor,
keep and maintain the premises, including all buildings and improvements of
every kind which may be a part thereof, and all appurtenances thereto, including
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sidewalks, driveways, parking lots, etc. on the premises, in good, sanitary and
neat order and repair, and except as specifically provided herein or elsewhere
in this Lease, and except if such repair, restoration or rehabilitation results
from a matter for which Lessee is entitled to indemnification by Lessor under
Section 11.B. of this Lease, restore and rehabilitate any improvements of any
kind which may be destroyed by fire, casualty or any other cause whatsoever.
Lessee shall also comply with and abide by all federal, state, county, municipal
and other governmental statutes, ordinances, laws and regulations affecting the
demised premises, the improvements thereon or any activity or condition on or in
such premises.
B. Except as elsewhere provided in this Lease, Lessor shall, throughout
the term of this Lease, at its own cost, and without any expense to Lessee, keep
and maintain the West Jersey Hospital premises, including all buildings and
improvements of every kind which may be a part thereof and all improvements
thereto including sidewalks, driveways, parking lots, etc. in good, sanitary and
neat order and repair and except as specifically provided for herein or
elsewhere in this Lease and except if such repair, restoration or rehabilitation
results from a matter for which Lessor is entitled to indemnification by Lessee
under Section 11.A. of this Lease, restore and rehabilitate any improvements of
any kind which may be destroyed by fire, casualty or any other cause whatsoever.
Lessor shall also comply with and abide with all federal, state, county,
municipal and other governmental statutes, ordinances, laws and regulations
affecting the West Jersey Hospital premises, the improvements thereon or any
activity or condition on or in such premises.
C. The damage, destruction, or partial destruction of any building or
other improvement which is a part of the premises shall not release Lessee from
any obligation hereunder and in the event of damage to or destruction of any
such building or improvement, except as provided herein or elsewhere in this
Lease, Lessee shall at its own expense promptly rebuild, repair and restore the
same to a condition as good or better than that which existed prior to such
damage or destruction. Without limiting the obligations of Lessee, it is agreed
that the proceeds of any insurance covering such damage or destruction shall be
made available to Lessee for such repair or replacement.
D. Notwithstanding anything contained in this Section Eight or elsewhere
in this Lease to the contrary, Lessee's obligation to repair or restore the
premises following a fire or other casualty shall be subject in all cases to the
release of sufficient insurance proceeds by the Lenders.
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E. Notwithstanding anything contained to the contrary in this section
Eight or elsewhere in this Lease, in the event that such damage, destruction or
partial destruction shall occur within the last two (2) years of the then
current term of the Lease, Lessee shall not be obligated to rebuild, restore or
repair as aforesaid and this Lease shall terminate sixty (60) days after such
damage or destruction, unless Lessee notifies Lessor of its intent to rebuild,
restore or repair.
F. The damage, destruction or partial destruction of any building or other
improvement which is a part of the west Jersey Hospital premises shall not
release Lessor from any obligation hereunder and in the event of damage to or
destruction of any such building or improvement, Lessor shall at its own
expense, promptly rebuild, repair and restore the same to a condition as good or
better than that which existed prior to damage or destruction. Without
eliminating the obligations of Lessor, it is agreed that the proceeds of any
insurance covering such damage or destruction shall be made available to Lessor
for such repair of replacement.
SECTION NINE
UTILITIES
Without limitation, Lessee shall fully and promptly pay for all water,
sewer, gas, heat, light, power, telephone service and all other public utilities
of every kind furnished to the premises throughout the term hereof, and all
other costs and expenses of every kind whatsoever of or in connection with the
use, operation and maintenance of the premises and all activities conducted
thereon and Lessor shall have no responsibility of any kind for any thereof.
Utilities for the new building will if separately metered and any charge for
sewer service will if possible be separately metered and any charge for sewer
service will, if possible, be separately billed to Lessee and not prorated. It
is understood and agreed that Lessor is not responsible for the adequacy or the
availability of any utilities and will have no liability for interruptions in
service to the Lessee.
SECTION TEN
LIENS
A. Lessee shall keep all of the premises and every part thereof and all
buildings and other improvements at any time located thereon free and clear of
any and all mechanics', materialmen's, and other liens for or arising out of or
in connection with work or labor done, services performed, or materials or
appliances used or furnished for or in connection with any operations of Lessee,
any alteration, improvement, or repairs or additions which Lessee may make or
permit or cause to be made, or any work or construction, by, for, or permitted
by
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Lessee on or about the premises, or any obligations of any kind incurred by
Lessee, and at all times promptly and fully pay and discharge any and all claims
on which any such lien may or could be based, and indemnify Lessor and all of
the premises and all buildings and improvements thereon against all such liens
and claims of liens and suits or other proceedings pertaining thereto. This
shall not preclude Lessee from granting a security interest in any of its
equipment in or upon the leased premises and shall not preclude the granting of
a collateral assignment or mortgage of Lessee's leasehold interest as part of a
Lessee's Secured Financing. Lessor shall execute any reasonably required waivers
of interest with respect to fixtures and equipment required by Lessee's Lenders.
B. If Lessee desires to contest any such lien, it shall notify Lessor of
its intention to do so within thirty (30) days after the filing of such lien. In
such case, and provided that Lessee shall on demand protect Lessor by a good and
sufficient surety bond against any such lien and any cost, liability, or damage
arising out of such contest, Lessee shall not be in default hereunder until
sixty (60) days after the final determination of the validity thereof, within
which time Lessee shall satisfy and discharge such lien to the extent held
valid; but the satisfaction and discharge of any such lien shall not, in any
case, be delayed until execution is had on any judgment rendered thereon, and
such delay shall be a default of Lessee hereunder. In the event of any such
contest, Lessee shall indemnify, defend, and hold harmless Lessor against all
loss, expense, (including reasonable attorney's fees) and damage resulting
therefrom.
SECTION ELEVEN
INDEMNIFICATION OF LESSOR AND LESSEE
A. Lessor shall not be liable for any loss, injury, death, or damage to
persons or property which at any time may be suffered or sustained by Lessee or
by any person whosoever may at any time be using or occupying or visiting the
premises or be in, on, or about the same, whether such loss, injury, death, or
damage shall be caused by or in any way result from or arise out of any act,
omission, or negligence of Lessee or of any occupant, subtenant, visitor, or
user of any portion of the premises, or shall result from or be caused by any
other matter or thing whether of the same kind as or of a different kind than
the matters or things above set forth, and Lessee shall defend and indemnify
Lessor against all claims, liability, loss, or damage whatsoever on account of
any such loss, injury, death, or damage. Lessee hereby waives all claims against
Lessor for damages to the building and improvements that are now on or
hereafter placed or built on the premises and to the property of Lessee in, on,
or
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about the premises, and for injuries to persons or property in or about the
premises, from any cause arising at any time. The two preceding sentences shall
not apply to loss, injury, death, or damage arising by reason of the negligence
or misconduct of Lessor, its agents, or employees.
B. Lessee shall not be liable for any loss, injury, death or damage to
persons or property which at any time may be suffered or sustained by Lessor or
by any person whosoever may at any time be using or occupying or visiting the
West Jersey Hospital premises or be in, on, or about the same, whether such
loss, injury, death or damage shall be caused by or in any way result from or
arise out of any act, omission, or negligence of Lessor or of any occupant,
sub-tenant, visitor or user of any portion of the West Jersey Hospital premises,
or shall result from or be caused by any other matter or thing whether of the
same kind as or of a different kind than the matters or things above set forth,
and Lessor shall defend and indemnify Lessee against all claims, liability, loss
or damage whatsoever on account of any such laws, injury, death or damage.
Lessor hereby waives all claims against Lessee for damages to the buildings and
improvements that are now on or hereafter placed on the West Jersey Hospital
premises and to the property of Lessor in, on, or about the West Jersey Hospital
premises, and for injuries to persons or property in or about the West Jersey
Hospital premises, from any cause arising at any time. The two preceding
sentences shall not apply to loss, injury, death or damage arising by reason of
the negligence or misconduct of Lessee, its agents or employees.
SECTION TWELVE
ATTORNEYS' FEES
If any action at law or in equity shall be brought to recover any rent
under this Lease, or for or on account of any breach of, or to enforce or
interpret any of the covenants, terms, or conditions of this Lease, or for the
recovery of the possession of the demised premises, the prevailing party shall
be entitled to recover from the other party as part of the prevailing party's
costs reasonable attorneys' fee, the amount of which shall be fixed by the court
and shall be made a part of any judgment or decree rendered.
SECTION-THIRTEEN
REDELIVERY OF PREMISES
Lessee shall pay the rent and all other sums required to be paid by
Lessee hereunder in the amounts, at the times, and in the manner herein
provided, and shall keep and perform all the terms and conditions hereof on its
part to be kept and performed, and,
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at the expiration or sooner termination of this Lease, peaceably and quietly
quit and surrender to Lessor the premises in good order and condition subject to
the other provisions of this Lease.
SECTION FOURTEEN
REMEDIES CUMULATIVE
All remedies hereinbefore and hereafter conferred on Lessor shall be
deemed cumulative and no one exclusive of the other, or of any other remedy
conferred by law, subject, however, to the notice and cure provisions
hereinafter set forth.
SECTION FIFTEEN
INSURANCE
A. Lessee shall, at all times during the term of this Lease and during
occupancy and construction of the facility, and at Lessee's sole expense, keep
the premises and all improvements which are now or hereafter a part of the
premises insured against loss or damage by fire and the extended coverage
hazards for the full replacement value of the premises with loss payable to
Lessor, Lessee and the Lessee's Lenders as their interests may appear. Lessor
shall, at all times during the term of this Lease and at Lessor's sole expense,
keep the West Jersey Hospital premises and all improvements which are now or
hereafter a part of the West Jersey Hospital premises insured against loss or
damage by fire and extended coverage hazards for the full replacement value of
the West Jersey Hospital premises.
B. Lessee and Lessor shall each maintain in effect throughout the term of
this Lease, and during occupancy and construction of the facility, personal
injury liability insurance covering the premises and the West Jersey Hospital
premises respectively and their appurtenances and the sidewalks, parking lots
fronting thereon in the amount of 1 million/3 million aggregate for injury to or
death of any person. Such insurance shall specifically insure Lessee against all
liability assumed by it hereunder, as well as liability imposed by law, and
shall insure both Lessor and Lessee but shall be so endorsed as to create the
same liability on the part of the insurer as though separate policies had been
written for Lessor and Lessee.
C. All of the policies of insurance referred to in this section shall be
written in form reasonably satisfactory to Lessor and Lessee and by insurance
companies reasonably satisfactory to Lessor and Lessee. Lessor consents to
Lessee providing the required Insurance under blanket and umbrella policies
covering other properties of Lessee or its affiliates to
14
the extent such are adequate to cover the insurance obligations of Lessee under
this Lease. Each party shall pay all of the premiums for its policies and
deliver such policies, or certificates thereof, to the other and in the event of
the failure of Lessee or Lessor, either to effect such insurance in the names
herein called for or to pay the premiums therefor or to deliver such policies,
or certificates thereof, to the other, the other shall be entitled, but shall
have no obligation, to effect such insurance and pay the premiums therefor,
which premiums shall be repayable to the party exercising such right immediately
and failure by Lessee to repay the same shall carry with it the same consequence
as failure to pay any installment of rental. Each insurer mentioned in this
section shall agree, (if obtainable on commercially reasonable terms) by
endorsement on the policy or policies issued by it, or by independent instrument
furnished to Lessor and Lessee that it will give to Lessor and Lessee thirty
(30) days' written notice before the policy or policies in question shall be
altered or canceled. Lessor and Lessee agree that they will not unreasonably
withhold their approval as to the form or to the insurance companies selected by
the other.
D. In the event that either party shall at any time deem the limits of the
personal injury or property damage public liability insurance then carried to be
either excessive or insufficient, the parties shall endeavor to agree on the
proper and commercially reasonable limits for such insurance then to be carried
and such insurance shall thereafter be carried with the limits thus agreed on
until further change pursuant to the provisions of this section; but, if the
parties shall be unable to agree thereon, the proper and commercially reasonable
limits for such insurance then to be carried shall be determined by an impartial
third person selected by the parties, or should they be unable to agree on a
selection, by an impartial third person chosen by the New Jersey American
Arbitration Association or their successors on application by either party made
after sixty (60) days' written notice to the other party of the time and place
of such application, and the decision of such impartial third person as to the
proper and commercially reasonable limits, for such insurance then to be carried
shall be binding on the parties and such insurance shall be carried with the
limits as thus determined until such limits shall again be changed pursuant to
the provisions of this section. The expenses of such determination shall be
borne equally by the parties.
E. To the extent that any loss or damage to any building, structure or
other tangible property, or resulting loss of income, or losses under workmen's
compensation laws and benefits, are adequately covered by insurance, neither
Lessor nor Lessee shall be liable to the other or to any insurance company
insuring the other party (by way of subrogation or otherwise) , even though such
loss or damage might have been occasioned by the negligence
15
of such party, its agents or employees; provided, however, that if by reason of
the foregoing waiver, either party shall be unable to obtain any such insurance,
then the foregoing waiver shall be deemed not to have been made by such party.
SECTION SIXTEEN
PROHIBITION OF INVOLUNTARY ASSIGNMENT; EFFECT OF
BANKRUPTCY OR INSOLVENCY
A. Except as provided in Section Five of this Lease, neither this Lease
nor the leasehold estate of Lessee nor any interest of Lessee hereunder in the
premises or in the building or improvements thereon shall be subject to
involuntary assignment, transfer, or sale, or to assignment, transfer, or sale
by operation of law in any manner whatsoever (except through statutory merger or
consolidation, or devise, or intestate succession) and any such attempt at
involuntary assignment, transfer, or sale shall be void and of no effect. An
assignment, transfer or sale of the Lessee's interest in this Lease following a
default under Lessee's leasehold mortgage or collateral assignment to any of the
Lessee's Lenders, shall not constitute a default under this Lease or be subject
to the prohibition set forth in this Section Sixteen (A).
B. Without limiting the generality of the provisions of the preceding
Paragraph of this section, Lessee agrees that in the event any proceedings under
the Bankruptcy Act or any amendment thereto be commenced by or against Lessee,
and, if against Lessee, such proceedings shall not be dismissed before either an
adjudication in bankruptcy or the confirmation of a composition, arrangement, or
plan or reorganization, or in the event Lessee is adjudged insolvent or makes an
assignment for the benefit of its creditors, or if a receiver is appointed in
any proceeding or action to which Lessee is a party, with authority to take
possession or control of the premises or the business conducted thereon by
Lessee, and such receiver is not discharged within a period of thirty (30) days
after his appointment or such longer period as may be reasonably necessary
provided that Lessee is diligently and in good faith attempting to discharge
same any such event or any involuntary assignment prohibited by the provisions
of the preceding Paragraph of this section shall be deemed to constitute a
breach of this Lease by Lessee and shall, at the election of Lessor, but not
otherwise, without notice or entry or other action of Lessor terminate this
Lease and also all rights of Lessee under this Lease and in and to the premises
and also all rights of any and all persons claiming under Lessee.
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SECTION SEVENTEEN
NOTICE
All notices required to be given under this Lease shall be sent by
certified or registered mail or by a nationally recognized overnight courier
service to the addresses below or at such other addresses as subsequently
provided by the parties. Notices shall be deemed effective upon dispatch.
To Lessor: To Lessee:
West Jersey Health System Xxxxxxx X. Xxxxxx, Xx., M.D.
0000 Xxxxxxxx Xxx. 264 North Radnor
Camden, N.J. 00000 Xxxxxxx Xxxx
Attn: Office of the President Xxxxxx, XX 00000
and
The Mediplex Group, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
ATTENTION: President and
General Counsel
SECTION EIGHTEEN
DEFAULT
In the event of an occurrence of any event of default as described in
Section Nineteen hereof or of any breach of this Lease by Lessee and expiration
of all applicable cure periods as set forth in Section Nineteen, Lessor in
addition to the other rights or remedies it may have, shall have the immediate
right of re-entry and may remove all persons and property from the premises;
such property may be removed and stored in a public warehouse or elsewhere at
the cost of, and for the account of Lessee. Should Lessor elect to re-enter, as
herein provided, or should it take possession pursuant to legal proceedings or
pursuant to any notice provided for by law, Lessor may either terminate this
lease or it may from time to time, without terminating this lease, re-let the
demised premises or any part thereof for such term or terms (which may be for a
term extending beyond the term of this lease) and at such rental or rentals and
on such other terms and conditions as Lessor in the sole discretion of Lessor
may deem advisable with the right to make reasonable alterations which are
consistent with the then use of the facility and repairs to the demised
premises. On each such re-letting (a) Lessee shall be immediately liable to pay
to Lessor, in addition to any indebtedness other than rent due hereunder, the
reasonable expenses of such re-letting and of such alterations and repairs,
incurred by Lessor, and the amount, if
17
any, by which the rent reserved in this Lease for the period of such re-letting
(up to but not beyond the term of this Lease) exceeds the amount agreed to be
paid as rent for the premises for such period on such re-letting; or (b) at the
option of Lessor, rents received by such Lessor from such re-letting shall be
applied, first, to the payment of any indebtedness, other than rent due
hereunder from Lessee to Lessor; second, to the payment of any expenses of such
re-letting and of such alterations and repairs; third, to the payment of rent
due and unpaid hereunder, and the residue, if any, shall be held by Lessor and
applied in payment of future rent as the same may become due and payable
hereunder. If Lessee has been credited with any rent to be received by such
re-letting under option (a) hereof, and such rent shall not be promptly paid to
Lessor by the new tenant, or if such rentals received from such re-letting under
option (b) hereof during any month is less than that to be paid during that
month by Lessee hereunder, Lessee shall pay any such deficiency to Lessor. Such
deficiency shall be calculated and paid monthly. No such re-entry or taking
possession of the demised premises by Lessor shall be construed as an election
on the part of Lessor to terminate this Lease unless a written notice of such
intention is given to Lessee or unless the termination thereof is decreed by a
court of competent jurisdiction. Notwithstanding any such re-letting without
termination, Lessor may at any time thereafter elect to terminate this Lease for
such previous breach. Should Lessor at any time terminate this Lease for any
breach, in addition to any other remedy it may have, Lessor may recover from
Lessee all damages incurred by reason of such breach, including the cost of
recovering the premises, and including the worth (at present value using a
discount rate of 10%) at the time of such termination of the excess, if any, of
the amount of rent and charges equivalent to rent reserved in this Lease for the
remainder of the stated term over the then reasonable rental value of the
premises for the remainder of the stated term, all of which amount shall be
immediately due and payable from Lessee to Lessor.
SECTION NINETEEN
EVENTS OF DEFAULT
The occurrence of any of the following shall constitute a material default
and breach of this Lease by Lessee:
A. A failure by Lessee to pay, when due, any installment of rent hereunder
or any such other sum herein required to be paid by Lessee where such failure
continues for fifteen (15) days after written notice thereof from Lessor to
Lessee;
B. A failure by Lessee to observe and perform any other provisions or
covenants of this Lease to be observed or performed by Lessee, where such
failure continues for thirty (30) days
18
after written notice thereof from Lessor to Lessee; provided, however, that if
the nature of the default is such that the same cannot reasonably be cured
within such 30-day period, Lessee shall not be deemed to be in default if Lessee
shall, within such period, commence such cure and thereafter diligently
prosecute the same to completion;
C. The filing of a petition by or against Lessee for adjudication as a
bankrupt or insolvent or for its reorganization or for the appointment pursuant
to any local, state or federal bankruptcy or insolvency law of a receiver or
trustee of Lessee's property; or an assignment by Lessee for the benefit of
creditors; or the taking possession of the property of Lessee by any local,
state or federal governmental office or agency or court-appointed official for
the dissolution or liquidation of Lessee or for the operating, either
temporarily or permanently, of Lessee's business; provided, however, that if any
such action is commenced against Lessee without Lessee's consent, the same shall
not constitute a default if Lessor or Lessee causes the same to be dismissed
within thirty (30) days after the filing of same or such longer period as may be
reasonably necessary provided that Lessee is diligently and in good faith
attempting to dismiss same.
SECTION TWENTY
LESSOR'S RIGHT TO PERFORM
In the event that Lessee by failing or neglecting to do or perform any act
or thing herein provided by it to be done or performed, shall be in default
hereunder beyond any applicable cure period, then, Lessor may, but shall not be
required to, do or perform or cause to be done or performed such act or thing
(entering on the premises for such purposes, if Lessor shall so elect), and
Lessor shall not be held liable or in any way responsible for any loss,
inconvenience, annoyance, or damage resulting to Lessee on account thereof, and
Lessee shall repay to Lessor on demand the entire expense thereof, including
compensation to the agents and employees of Lessor. Any act or thing done by
Lessor pursuant to the provisions of this section shall not be or be construed
as a waiver of any such default by Lessee, or as a waiver of any covenant,
term, or condition herein contained or the performance thereof, or of any other
right or remedy of Lessor, hereunder or otherwise. All amounts payable by
Lessee to Lessor under any of the provisions of this lease, if not paid when
the same become due as in this lease provided, shall bear interest from the date
they become due until paid at the rate of the then annual prime rate of the
Chase Manhattan Bank, N.A., compounded annually. Lessor's right to perform any
act or thing under this Section Twenty shall only arise after Lessor has given
notice to Lessee and an opportunity to cure pursuant to Section Nineteen.
19
SECTION TWENTY-ONE
EFFECT OF EMINENT DOMAIN
A. In the event the entire premises shall be appropriated or taken under
the power of eminent domain by any public or quasi-public authority, this Lease
shall terminate and expire as of the date of such taking, and Lessee and Lessor
shall thereupon be released from any liability thereafter accruing hereunder.
B. In the event a portion of the premises shall be so appropriated or
taken and the remainder of the premises shall not be suitable for the use then
being made of the premises by Lessee, Lessee shall have the right to terminate
this lease as of the date of such taking on giving to Lessor written notice of
such termination within sixty (60) days after Lessor has notified Lessee in
writing that the premises has been so appropriated or taken.
C. In the event of such partial taking and Lessee does not so terminate
this Lease, then this Lease shall continue in full force and effect as to the
part not taken, and the rental to be paid by Lessee during the remainder of the
term, shall be equitably abated and any such determination shall not affect or
change the times at which Lessor may require an adjustment in rent under the
terms of this Lease.
D. In the event of the total or partial taking of the premises by eminent
domain, then in any such condemnation proceedings Lessor and Lessee shall be
free to make claim against the condemning or taking authority for the amount of
any damage done to them, respectively, as a result thereof.
E. In the event of any appropriation or taking under the power of eminent
domain and notwithstanding anything to the contrary contained herein or
elsewhere in this Lease, the buildings, improvements and equipment on the
premises shall be treated solely as property of Lessee, and all proceeds payable
therefore shall be allocated and paid solely to Lessee.
SECTION TWENTY-TWO
SURRENDER OF LEASE
The voluntary or other surrender of this Lease by Lessee, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of
Lessor, terminate all or any existing subleases or subtenancies, or may, at the
option of Lessor, operate as an assignment to it of any or all such subleases
or subtenancies.
20
SECTION TWENTY-THREE
DISPOSITION OF IMPROVEMENTS ON TERMINATION OF LEASE
On termination of this Lease for any cause, Lessor shall become the owner
of the building(s) improvements on the demised premises (except as provided in
Section 21.E. of this Lease) and Lessee agrees to execute any and all documents
to effectuate such ownership as more fully set forth in Section Two (F) of this
Lease. At the end of the term, title to all buildings, structures, fixtures and
equipment (except for Lessee's movable equipment), erected, constructed,
installed or located upon the premises shall vest in Lessor.
SECTION TWENTY-FOUR
WAIVER
The waiver by Lessor or Lessee of, or the failure of Lessor or Lessee to
take action with respect to any breach of any term, covenant, or condition
herein contained shall not be deemed to be a waiver of such term, covenant or
condition, or subsequent breach of the same, or any other term, covenant, or
condition therein contained. The subsequent acceptance of rent hereunder by
Lessor shall not be deemed to be a waiver of any preceding breach by Lessee of
any term, covenant, or condition of this Lease, other than the failure of Lessee
to pay the particular rental so accepted, regardless of Lessor's knowledge of
such preceding breach at the time of acceptance of such rent.
SECTION TWENTY-FIVE
PARTIES BOUND
The covenants and conditions herein contained shall, subject to the
provisions as to assignment, transfer, and subletting, apply to and bind the
heirs, successors, executors, administrators, and assigns of all of the parties
hereto; and all of the parties hereto shall be jointly and severally liable
hereunder.
SECTION TWENTY-SIX
TIME OF THE ESSENCE
Time is of the essence of this Lease, and of each and every covenant,
term, condition, and provision hereof.
21
SECTION TWENTY-SEVEN
SECTION CAPTIONS
The captions appearing under the section number designations of this Lease
are for convenience only and are not a part of this lease and do not in any way
limit or amplify the terms and provisions of this Lease.
SECTION TWENTY-EIGHT
WARRANTIES OF TITLE AND QUIET POSSESSION
Lessor covenants that Lessor is seized of the premises in fee simple and
has full right to make this Lease and that Lessee shall have quiet and peaceable
possession of the premises during the term hereof.
SECTION TWENTY-NINE
WASTE AND NUISANCE PROHIBITED
During the term of this Lease, Lessee shall comply with all applicable
laws affecting the Lessee's use of the premises, the breach of which might
result in any penalty on Lessor or forfeiture of Lessor's title to the premises.
Lessee shall not commit, or suffer to be committed, any waste on the premises,
or any nuisance.
SECTION THIRTY
ABANDONMENT OF PREMISES
Lessee shall not vacate or abandon the premises at any time during the
term hereof, except due to fire, reasons due to temporary repair, casualty or
other reasons beyond Lessee's reasonable control. If Lessee shall abandon,
vacate or surrender the premises, except as set forth in the preceding sentence,
or be dispossessed by process of law, or otherwise, any personal property
belonging to Lessee and left on the premises shall be deemed to be abandoned, at
the option of Lessor.
SECTION THIRTY-ONE
LESSOR'S RIGHT OF ENTRY
Lessee shall permit Lessor and the agents and employees of Lessor after
reasonable notice to enter into and upon the premises at all reasonable times
and always subject to the rights of patients in the facility for the purpose of
inspecting the same, or for the purpose of posting, notices of
non-responsibility for alterations, additions, or repairs, without any rebate of
rent and without any liability to Lessee for any loss of occupation or quiet
enjoyment of the premises thereby occasioned.
22
SECTION THIRTY-TWO
RECORDING
Lessor and Lessee shall be entitled to file and maintain a memorandum of
this Lease with the appropriate state or county real estate recording offices
which memorandum shall provide that the obligations of the Lessor and Lessee
hereunder shall run with the land and shall bind all future owners, lessees,
mortgagees and successors in title to the premises and the West Jersey Hospital
premises.
SECTION THIRTY-THREE
ENCUMBRANCE OF LESSEE'S LEASEHOLD INTEREST
A. Lessee may encumber by mortgage or deed of trust, or other proper
instrument, its leasehold interest and estate in the demised premises, together
with all buildings and improvements placed by Lessee thereon, as security for
any indebtedness of Lessee. Lessee's mortgage shall, however, always be subject
and subordinate to the terms of this Lease.
B. If Lessee shall encumber its leasehold interest and estate in the
demised premises and if Lessee or the holder of the indebtedness secured by
such encumbrance shall give notice to Lessor of the existence thereof and the
address of such holder, then Lessor will mail or deliver to such holder, at such
address, a duplicate copy of all notices in writing which Lessor may, from time
to time, give to or serve on Lessee under and pursuant to the terms and
provisions hereof; such copies shall be mailed or delivered to such holder, at,
or as near as possible to the same time such notices are given to or served on
Lessee. Such holder may, at its option, at any time before the rights of Lessee
shall be terminated as provided herein, pay any of the rents due hereunder, or
pay any taxes and assessments, or do any other act or thing required of Lessee
by the terms hereof, or do any act or thing that may be necessary and proper to
be done in the observance of the covenants and conditions hereof, or to prevent
the termination hereof; all payments so made, and all things so done and
performed by such holder shall be as effective to prevent a foreclosure of the
rights of Lessee thereunder as the same would have been if done and performed by
Lessee.
C. Notwithstanding anything to the contrary contained in this Lease, upon
any default by Lessee under this Lease, Lessor shall give simultaneous notice
of such default to each Lender who has given notice to Lessor pursuant to
Subsection (B) above, and each such Lender shall have the right to cure such
default at any time within sixty (60) days after receipt of such notice, which
cure shall fully reinstate the Lease. Upon a default by Lessee
23
under any loan agreement with any Lender, any Lender shall have the right to
foreclose on its leasehold mortgage or collateral assignment and either assume
Lessee's obligations under this Lease, or assign the Lessee's interest in this
Lease to a new lessee which shall be bound by the terms and conditions of this
Lease. Lessor agrees to modify this Lease as may be reasonably requested by any
Lender providing financing for Lessee provided that such modifications do not
materially alter the fundamental obligations of Lessor and Lessee hereunder.
SECTION THIRTY-FOUR
PARKING AND SIGNAGE
INGRESS AND EGRESS
A. Those portions of the premises depicted upon Exhibit "A" as "Rehab
Hospital Parking Area" and containing a total of one hundred and eleven (111)
parking spaces shall be used only for the parking of motor vehicles and shall be
reserved for exclusive use by Lessee and its employees, patients, visitors,
staff doctors and other invitees ("Lessee Users"). Lessee shall be entitled to
prohibit unauthorized vehicles from parking in the Rehab Hospital Parking Area
through appropriate signage, striping, and temporary barricades. Lessee shall
not install, nor permit the installation of, any fences, gates, walls, permanent
barricades, curb bumpers or other like structures for the purpose of delineating
the Rehab Hospital Parking Area or excluding vehicles therefrom.
B. In addition to the Rehab Hospital Parking Area shown on Exhibit "A" ,
Lessee Users shall be entitled to park in such other public parking areas as may
now or in the future be located within the West Jersey Hospital premises. Such
additional parking shall be in a common with Lessor, its employees, patients,
visitors, staff doctors, tenants of other buildings located upon the West Jersey
Hospital premises, and other invitees and therefore shall not be exclusive.
Notwithstanding the foregoing, Lessee acknowledges and agrees that the existing
"Doctor's Parking Lot" which is delineated by permanent curbing and gates,
designated areas for "Emergency Room Parking" and the "Existing Employee Parking
Area" to the rear of Lessor's existing hospital building which is delineated by
tamporary barricades (both of which areas are shown on Exhibit "A") are for the
exclusive use of Lessor's employees and that such areas are for the exclusive
use of Lessor.
C. At any time after the end of the first five years of the term of this
Lease, Lessee shall have the right to notify Lessor that an additional one
hundred thirteen (113) parking spaces shall be identified and set aside for the
exclusive use of Lessee Users anywhere on the campus site. Within ninety (90)
days after the giving or receipt of such notice, Lessor shall
24
designate and make available for the exclusive use of Lessee Users such
additional one hundred thirteen (113) spaces at a location within the West
Jersey Hospital premises. The selection and location of such spaces shall be
determined within Lessor's sole discretion. All such spaces shall be contiguous
to one another but need not necessarily be adjacent to the one hundred eleven
(111) spaces described in paragraph A of this section. Upon such designation by
Lessor the additional one hundred thirteen (113) spaces shall become part of the
premises subject to this Lease as additional Rehab Hospital Parking Area. Lessee
shall be entitled to prohibit unauthorized vehicles from parking in such
additional area in the same manner and subject to the same restrictions as
specified in paragraph A of this section for the original one hundred eleven
(111) parking spaces. Notwithstanding the foregoing provisions of this
paragraph, Lessee may only exercise the right of designation granted to Lessee
upon demonstrating that the common parking area (described in paragraph B of
this article) has become inadequate for Lessee's purposes. Such inadequacy shall
be presumed upon a showing that the aforesaid common parking area is
substantially full during any fifteen (15) days of any calendar month.
X. Xxxxxx shall, at Lessor's expense, be responsible for the maintenance,
repair, landscaping, illumination, security, cleaning, snow and ice removal and
all other services relating to all parking areas located within the West Jersey
Hospital premises and the Rehab Hospital Parking Area. Lessee shall reimburse
Lessor for Lessee's pro-rata share of the aforesaid expense. Lessee's share
shall be determined by multiplying the total cost to Lessor of all parking area
expenses by a fraction having as its numerator the number one hundred and eleven
(111) [and after the addition of the one hundred thirteen (113) , two hundred
twenty-four (224)], and having as its denominator the total number of parking
spaces located within the West Jersey Hospital premises and the Rehab Hospital
Parking Area combined. Lessor shall submit bills with appropriate back-up to
Lessee for Lessee's share of the total parking area expenses on a periodic basis
but no more frequently than monthly and such bills shall be paid by Lessee
within thirty (30) days after their submission.
E. Lessee shall be entitled at its own cost and expense to erect exterior
signage on the premises and the West Jersey Hospital premises, identifying
Lessee's rehabilitation facility. The location, design and appearance of all
such signs shall be subject to the written approval of Lessor which shall be
obtained by Lessee prior to their erection. Lessor's approval shall not be
unreasonably withheld or delayed and Lessor's failure to deny approval within
sixty (60) days after its being requested shall be deemed to be an approval.
Lessee shall comply with all governmental requirements in connection with the
installation of any such signage and Lessee shall be solely responsible for all
maintenance and repairs in connection with such signage.
25
F. Lessee and Lessor shall each provide to the other reasonable access,
ingress and egress for pedestrian and vehicular traffic, over and across those
portions of the premises and the West Jersey Hospital premises respectively as
are suitable for such access including those portions which from time to time
may contain sidewalks, driveways and internal roads. Lessor and Lessee shall
each be entitled to make such changes to its sidewalks, driveways and internal
roads from time to time as each may determine provided, however, that each shall
at all times provide to the other reasonable access in order to enable the other
to operate its property in the manner contemplated by this Lease including the
construction of the improvements described herein. It is contemplated that the
rehabilitation hospital facility and the acute care hospital and proposed
medical office building on the West Jersey Hospital premises shall be
interconnected with each other. Lessor and Lessee shall cooperate with each
other in the construction of the Project and operation of their respective
facilities and will provide the other, including the owner of the Medical Office
Building, with the necessary legal rights to ensure the free flow of pedestrian
traffic between facilities and the maintenance and repair of common party walls
and other common appurtenances. Without limiting the generality of the
foregoing, Lessor hereby grants Lessee the right to use in common with Lessor,
for all purposes: i) the stairwell located in the northwest corner of the West
Jersey Hospital as a means of ingress to and egress from the rehabilitation
hospital, as and to the extent necessary to comply with applicable law, and ii)
the area designated on Exhibit "A" as the obstacle course on which area Lessee
may erect, install, and maintain improvements and equipment suitable thereto
(Lessee shall maintain liability insurance covering the obstacle course in
accordance with the requirement of Section 15 of this Lease.)
G. In the event that the holder of a mortgage or other lien or any party
claiming thereunder succeeds to the interest of the Lessor under this Lease or
as owner of the fee of the West Jersey Hospital premises by virtue of
foreclosure or other legal process against the Lessor or all or a portion of the
West Jersey Hospital premises and such successor is not required to or does not
agree to recognize all of Lessee's rights to use the West Jersey Hospital
premises as set forth in Section I, this Section 34 or elsewhere in this Lease
(collectively the "WJH Rights"), then Lessee shall be entitled to make the
continuation by such successor of any right to use any portion" of the premises
as set forth in this Lease conditional upon the execution and delivery by such
successor of a recordable instrument in form and substance reasonably
satisfactory to Lessee by which such, successor, for itself and its successors
and assigns, irrevocably recognizes and agrees not to disturb the continued
exercise and use of the WJH Rights by Lessee and its successors and assigns.
26
SECTION THIRTY-FIVE
TITLE
Lessor hereby represents and warrants to Lessee that Lessor has and will
maintain throughout the term of this Lease good and marketable title to the
premises free and clear of all liens and encumbrances except as follows:
A. The conditions, restrictions and limitations, if any, now appearing of
record and listed on Exhibit "B" attached hereto and made a part hereof;
B. Easements of roads and rights of public service companies as Lessor may
in the future grant provided that the same shall not materially conflict or
interfere with the rights of the Lessee under this Lease; and
C. Zoning regulations and ordinances now existing or which may hereafter
exist by reason of any legal authority during the term of this Lease.
D. The lien of any refinancing obtained by Lessor in the future provided
that the holder thereof enters into a non- disturbance agreement acceptable in
form to Lessee and its Lenders.
SECTION THIRTY-SIX
NET RENT
Unless expressly provided in this Lease, the Lessee is responsible for all
charges, rents or fees associated with the ownership, possession, construction
and operation of the premises.
SECTION THIRTY-SEVEN
ESTOPPEL CERTIFICATES
Lessor and Lessee mutually agree, upon prior written notice, to execute
estoppel certificates in content and form reasonably satisfactory to the
requesting party.
SECTION THIRTY-EIGHT
ENVIRONMENTAL
Lessor and Lessee mutually agree to comply with all environmental laws
and, to remediate any spills, leaks, discharges or releases of hazardous or
toxic substances or wastes
27
occurring upon their respective premises. Lessee further represents and agrees
that it will not install any underground storage tanks at the premises and will,
to the extent applicable comply with the provisions of the Environmental
Clean-up Responsibility Act and other environmental laws. Lessor represents and
warrants to Lessee that Lessor has no knowledge of the presence on the premises
or the West Jersey Hospital premises of any hazardous substances, hazardous
wastes, solid wastes or other substances, the presence of which would create an
obligation for remediation or reporting under any federal, state or local law,
regulation or ordinance.
SECTION THIRTY-NINE
ASSISTANCE DURING CONSTRUCTION PERIOD
All at the Lessee's sole expense, the Lessor agrees that, within five (5)
days after receipt of written request from Lessee, Lessor will take all
reasonably requested actions and join in any and all applications for permits,
licenses or other authorizations required by any governmental or other body
claiming jurisdiction in connection with any work which the Lessee may do
hereunder, and will also join in any grants for easements for electric,
telephone, gas, water, sewer and such other public utilities and facilities as
may be reasonably necessary in the operation of the premises or of any
improvements that may be erected thereon.
SECTION FORTY
LENDER'S CONSENT
This Lease shall not be further modified without the consent of the
Lenders holding leasehold mortgages or collateral assignments of this Lease at
the time.
SECTION FORTY-ONE
SHARED EXPENSES
Lessor acknowledges that many of the improvements required to be made by
Lessee in connection with the Project will inure to the benefit of Lessor,
including without limitation, in connection with Lessor's proposed construction
of a medical office building on the West Jersey Hospital premises. Therefore,
Lessor and Lessee hereby agree that all costs and expenses incurred for outside
consultants, including without limitation, attorneys' (which will be shared
equally), architectural and engineering fees in connection with obtaining
required permits and approvals for the Project (including without limitation,
obtaining sewer permits and approvals for the Project) shall be shared as
follows: 60% by Lessor and 40% by Lessee; provided, however, that the costs of
obtaining amendments for all existing
28
zoning approvals for the Project which are required as a result of the increase
in the size of the rehabilitation hospital from 60 to 70 beds, shall be borne
entirely by Lessee.
In WITNESS WHEREOF, the parties intending to be legally bound have
executed this lease on the day and year first above written.
West Jersey/Mediplex Rehabilitation
Limited Partnership
By: Mediplex of New Jersey, Inc. ,
as general partner but not
individually
7/15/93 By: /s/ Xxxxxxx X. Xxxx
------- ------------------------------
Date
West Jersey Health System
7/15/93 By: /s/ Xxxxx X. Xxxxx
------- ------------------------------
Date Xxxxx X. Xxxxx President
7/15/93 By: /s/ Xxxxx X. Xxxxxxx
------- -------------------------------
Date Xxxxx X. Xxxxxxx, Xx. Esq.
Immediate Past Chairman
29
EXHIBIT "B"
1. Easement as contained in Deed Book 1846 page 432.
2. Easement as contained in Deed Book 1846 page 437.
3. Easement as contained in Deed Book 2177 page 181.
4. Mortgage by West Jersey Health System, a not-for-profit-corporation to
United Jersey Bank, Hackensack, New Jersey, dated October 22, 1992,
recorded October 23, 1992, in Mortgage Book 4737, page 168 to secure the
sum of $91,395,000,00. (Provided, however, that this Mortgage does not
cover or include the premises but does cover portions of the West Jersey
Hospital premises and, therefore, affects some of the land and buildings
in which Lessee has the WJH Rights.)
31
SCHEDULE I
WEST JERSEY HEALTH SYSTEM
GROUND LEASE
RENTAL SCHEDULE
YEAR 1 $65,000
YEAR 2 $65,000
YEAR 3 $65,000
YEAR 4 $65,000
YEAR 5 $65,000
YEAR 6 $94,167
YEAR 7 $94,167
YEAR 8 $94,167
YEAR 9 $94,167
YEAR 10 $94,167
YEAR 11 $94,167
YEAR 12 $94,167
YEAR 13 $94,167
YEAR 14 $94,167
YEAR 15 $94,167
YEAR 16 $94,167
YEAR 17 $94,167
YEAR 18 $94,167
YEAR 19 $94,167
YEAR 20 $94,167
YEAR 21 $94,167
YEAR 22 $94,167
YEAR 23 $94,167
YEAR 24 $94,167
YEAR 25 $94,167
YEAR 26 $94,167
YEAR 27 $94,167
YEAR 28 $94,167
YEAR 29 $94,167
YEAR 30 $94,167
YEAR 31 $94,167
YEAR 32 $94,167
YEAR 33 $54,167
YEAR 34 $94,167
YEAR 35 $94,167
32
First American Title Insurance Company
Commitment No. 00-0000-00
SCHEDULE C
All that certain lot, piece or porcol of land, with the buildings and
improvements thereon errected, situate lying and being in the Township of
Evesham County of Burlington and State of New Jersey:
TRACT I
BEGINNING at a point in the Northeasterly line of Xxxxxx Road (49.5
feet wide), said point being South 75 degrees 39 minutes 29 seconds East,
measured along said Northeasterly line of Xxxxxx Road 320.00 feet from the
Easterly line of the sight corner of Xxx Xxxxxx Xxxxx Xxxxxxx Xxxxx #00
(formerly S-41); thence
(1) along lands n/f Garden State Community Medical Center formerly G. &
V. Realty Company, North 13 degrees 20 minutes 30 seconds East, 726.00 feet
to a point; thence
(2) parallel with Xxxxxx Xxxx, Xxxxx 00 degrees 39 minutes 29 seconds
East, 720.00 feet to a point in the line of lands formerly Xxxxxx Xxxx, now
or formerly G. & V. Realty Company; thence
(3) along same, South 13 degrees 20 minutes 31 seconds West, 726.00
feet to a point in the aforesaid Northeasterly line of Xxxxxx Road; thence
(4) along same, North 76 degrees 39 minutes 29 seconds West, 720.00
feet to the place of beginning.
TRACT II
BEGINNING at a point in the line of land n/f Garden State Community
Medical Center, formerly G. & V. Realty Co. corner to other lands of American
Medicorp Dev. Co., said point being the following two (2) courses from the
intersection of the Northeasterly line of Hornar Road (49.5 feet wide) with
the Easterly line of the sight corner of N.O.S.H. Route 73,
(A) along the Northeasterly line of Xxxxxx Road, South 75 degrees 39
minutes 29 seconds East 320.00 feet to a point; thence
(B) along the division line between lands n/f Garden State Community
Medical Center and other lands of American Medicorp Dev. Co. North 13 degrees
20 minutes 31 seconds East 726.00 feet to said place of beginning extending
therefrom; thence
(1) along said lands of Garden State Community Medical center North 13
degrees 20 minutes 31 seconds East, 114.77 feet to a point in the line of
lands of Evesham Township Board of Education; thence
(2) along said Board of Education, North 54 degrees 39 minutes 01
seconds East, 767.24 feet to a point; thence
Commitment No. 00-0000-00
SCHEDULE C
(Continued)
(3) along same South 64 degrees 35 minutes 18 seconds East 329.32 feet
to a point in the line of lands n/f G. & V. Realty Co.; thence
(4) along said lands n/f G. & V. Realty Co., South 48 degrees 44
minutes 20 seconds West 187.32 feet to a point; thence
(5) along same South 13 degrees 20 minutes 31 seconds West, 469.54 feet
to a point corner to other lands of American Medicorp Dev. Co.; thence
(6) along said other lands of American Medicorp Dev. Co. North 76
degrees 39 minutes 29 seconds West, 720.00 feet to the place of beginning.
BEING known as Xxx 0X, Xxxxx 26 on the Tax Map of the Township of
Evesham.
[FLOOR PLAN]
