Exhibit 10.1.2
MASTER LEASE AGREEMENT
BY
VENTAS REALTY, LIMITED PARTNERSHIP,
AS LANDLORD
AND
THI OF OHIO AT CHARDON, LLC, THI OF OHIO AT GREENBRIAR NORTH, LLC, TRANS
HEALTHCARE OF OHIO, INC., THI OF OHIO ALFS AT THE COMMONS, LLC, THI OF MARYLAND
AT SOUTH RIVER, LLC, MILLENNIUM HEALTH AND REHABILITATION CENTER OF FORESTVILLE,
LLC, AND MILLENNIUM HEALTH AND REHABILITATION CENTER OF ELLICOTT CITY, LLC
AS TENANT
DATED AS OF NOVEMBER 1, 2002
TABLE OF CONTENTS
1. Leased Property; Term....................................................2
1.1 Leased Property..................................................2
1.2 Term.............................................................3
1.3 Exercise of Renewal Options......................................3
2. Definitions..............................................................4
3. Rent....................................................................19
3.1 Fixed Rent......................................................19
3.2 Additional Rent.................................................21
3.3 Escrow Deposits.................................................22
3.4 Security Deposit................................................24
3.5 Survival........................................................26
3.6 Net Lease.......................................................26
3.7 Lease Guaranty..................................................27
4. Impositions.............................................................27
4.1 Payment of Impositions..........................................27
4.2 Notice of Impositions...........................................27
4.3 Adjustment of Impositions.......................................28
5. No Termination, Abatement, etc..........................................28
6. Premises; Tenant's Personal Property....................................28
6.1 Ownership of the Premises.......................................28
6.2 Tenant's Personal Property......................................29
7. Condition and Use of Each Leased Property...............................29
7.1 Condition of Each Leased Property...............................29
7.2 Use of Each Leased Property.....................................29
7.3 Security Agreement..............................................30
7.4 Granting of Easements, etc......................................31
8. Negative and Affirmative Covenants of Tenant............................31
8.1 Negative Covenants..............................................31
8.2 Affirmative Covenants...........................................35
8.3 Authorization Non-Compliance....................................38
9. Maintenance of Facilities...............................................38
9.1 Maintenance and Repair..........................................38
9.2 Encroachments...................................................39
10. Tenant's Representations and Warranties.................................40
10.1 Organization and Good Standing..................................40
10.2 Power and Authority.............................................40
10.3 Enforceability..................................................40
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10.4 Consents........................................................40
10.5 No Violation....................................................40
10.6 Reports and Statements..........................................40
10.7 No Default......................................................41
10.8 Adverse Matters.................................................41
10.9 Certification...................................................41
10.10 Transition Permits..............................................41
10.11 Facility Provider Agreements....................................41
10.12 No Reimbursement Audits or Appeals..............................42
10.13 No Recoupments Efforts..........................................42
10.14 Professional Liability Reserves.................................42
10.15 Primary Intended Use............................................42
10.16 Compliance with Laws............................................42
10.17 Ownership of Authorizations.....................................42
10.18 Third Party Payor Programs......................................43
11. Alterations.............................................................43
11.1 Alterations.....................................................43
11.2 Construction Requirements for all Alterations...................43
11.3 Capital Expenditures Accounts...................................45
12. Liens...................................................................46
13. Permitted Contests......................................................47
14. Insurance...............................................................47
14.1 General Insurance Requirements..................................47
14.2 Policies; Certificates..........................................50
14.3 Blanket Policies................................................50
14.4 Additional Insured..............................................50
14.5 Policy Requirements.............................................51
14.6 Evidence of Compliance..........................................51
14.7 Foreclosure; Transfer...........................................51
14.8 Insurance Company...............................................51
15. Damage and Destruction..................................................52
15.1 Notice of Casualty..............................................52
15.2 Substantial Destruction.........................................52
15.3 Partial Destruction.............................................52
15.4 Restoration.....................................................53
15.5 Disbursement of Insurance Proceeds..............................54
15.6 Insufficient Proceeds/Risk of Loss..............................54
15.7 Excess Proceeds.................................................54
15.8 Landlord's Inspection...........................................54
16. Condemnation............................................................55
16.1 Parties' Rights and Obligations.................................55
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16.2 Total Taking....................................................55
16.3 Partial Taking..................................................55
16.4 Restoration.....................................................55
16.5 Award-Distribution..............................................55
16.6 Temporary Taking................................................56
16.7 Facility Mortgagee..............................................56
17. Default.................................................................56
17.1 Events of Default...............................................56
17.2 Existence and Continuation......................................60
17.3 Remedy Election.................................................60
17.4 Certain Remedies................................................60
17.5 Damages.........................................................61
17.6 Waiver..........................................................62
17.7 Application of Funds............................................62
17.8 Nature of Remedies..............................................62
17.9 Deletion of Properties..........................................62
18. Landlord's Right to Cure Tenant's Default...............................63
19. Holding Over............................................................64
20. Subordination...........................................................64
20.1 Subordination...................................................64
20.2 Attornment......................................................64
20.3 Mortgagee Cure Rights...........................................65
20.4 Modifications...................................................65
21. Property Collateral.....................................................65
21.1 Landlord's Security Interest....................................65
21.2 Accounts Receivable Financing...................................66
22. Risk of Loss............................................................67
23. Indemnification.........................................................67
24. Assignment; Sublease....................................................68
24.1 Prohibition.....................................................68
24.2 Change of Control of Trans......................................68
24.3 Permitted Assignments and Subleases.............................69
24.4 Rights of Landlord..............................................69
25. Financial Statements and Reporting......................................70
25.1 Maintenance of Books and Records................................70
25.2 Annual Financial Statements.....................................70
25.3 Quarterly Financial Information.................................70
25.4 Certification of Compliance with Financial Covenants............71
25.5 Reports of Material Adverse Events..............................71
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25.6 Report of Compliance with Authorizations........................72
25.7 Weekly and Monthly Cash Flow and Census Reports.................72
25.8 Quarterly Deficiency Reports....................................72
25.9 Reduction in Licensed Beds......................................72
25.10 Notices from Governmental Authorities...........................72
25.11 Medicare and Medicaid Filings...................................72
25.12 Medicare and Medicaid Deficiency Reports........................73
25.13 Annual Budgets..................................................73
25.14 Financial Statements of Guarantor...............................73
25.15 Estoppel Certification..........................................73
25.16 SEC Reports.....................................................75
25.17 Supplemental Information........................................75
25.18 Weekly and Monthly Cash Flow and Census Information.............75
25.19 Quarterly Meetings; Facility Level Meetings and Reviews.........75
25.20 Authorizations..................................................76
25.21 Format..........................................................76
26. Landlord's Right to Inspect.............................................76
27. No Waiver...............................................................76
28. Single Lease............................................................76
29. Acceptance of Surrender.................................................77
30. No Merger of Title......................................................77
31. Conveyance by Landlord..................................................77
32. Quiet Enjoyment.........................................................78
33. Notices.................................................................78
34. Appraisals..............................................................79
34.1 Appraisals......................................................79
34.2 Appointment of Appraisers.......................................79
34.3 Qualifications of Appraisers....................................80
34.4 Binding Nature..................................................80
34.5 Costs...........................................................81
35. General REIT Provisions.................................................81
36. Landlord's Option to Purchase the Tenant's Personal Property............81
37. Compliance With Environmental Laws......................................82
37.1 Hazardous Substances............................................82
37.2 Remediation; Notification.......................................82
37.3 Indemnity.......................................................83
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37.4 Environmental Inspection........................................83
37.5 Removal.........................................................83
38. Tenant's Option to Purchase the Leased Property.........................84
39. Operational Transfer....................................................84
39.1 Exercise; Transfer of Authorizations............................84
39.2 Reasonable Assistance...........................................86
39.3 Facility Termination; Limited Extension.........................86
40. Non-Recourse............................................................87
41. Combination of Leases...................................................87
41.1 Section 41 Lease................................................87
41.2 Additional Properties...........................................88
41.3 Combination Lease...............................................89
41.4 Section 41 Date.................................................89
41.5 Additional Actions..............................................89
42. New Lease...............................................................89
42.1 New Lease Terms.................................................89
42.2 Modifications to this Lease.....................................91
42.3 Effective Date..................................................91
42.4 Other Undertakings..............................................91
43. Expansion of Lease......................................................91
44. Restrictive Covenant....................................................91
45. Miscellaneous...........................................................92
45.1 Survival........................................................92
45.2 Maximum Rate....................................................92
45.3 Headings........................................................92
45.4 Integration.....................................................92
45.5 Severability....................................................92
45.6 Subject to Law..................................................92
45.7 Waivers.........................................................92
45.8 Binding Character...............................................92
45.9 Modification....................................................93
45.10 Forbearance.....................................................93
LIST OF SCHEDULES AND EXHIBITS
Schedule 1 - Primary Intended Use
Schedule 2 - Tenant's Proportionate Shares
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Schedule 3.1.1 - Wiring Instructions
Schedule 7.3 - Authorization Collateral
Schedule 17.1.12 - Licensed Beds
Exhibit A - Addresses of the Leased Properties
Exhibit A-1 through A-6 - Legal Descriptions to the Land
Exhibit B - Intentionally Omitted
Exhibit B-1 - Guarantor
Exhibit C - Base Year Operating Income
Exhibit D - The Option
Exhibit E - Restrictive Covenant
Exhibit F - Form SNDA
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MASTER LEASE AGREEMENT
This MASTER LEASE AGREEMENT (together with all exhibits and schedules
attached hereto, and as it may be modified, amended, renewed, supplemented,
extended, or replaced by the parties hereto from time to time, this "Lease") is
made and entered into as of November 1, 2002, between VENTAS REALTY, LIMITED
PARTNERSHIP, a Delaware limited partnership (together with its successors and
assigns, "Landlord"), and each of the entities identified on Schedule 1 attached
hereto and made a part hereof, as the same may be modified from time to time
pursuant to Section 17, Section 41 or Section 43 of this Lease (together with
their permitted successors and assigns, collectively, "Tenant").
RECITALS:
WHEREAS, Landlord owns the parcels of real property and all improvements
located thereon and all appurtenances thereto, described by the common addresses
set forth on Exhibit A attached hereto and made a part hereof and legally
described in Exhibits "A-1" to "A-6" attached hereto; and
WHEREAS, each Tenant shall lease and operate the applicable Facility (as
hereinafter defined) allocated to such Tenant on Schedule 1 attached hereto and
made a part hereof; and
WHEREAS, Landlord desires to lease the Premises (as hereinafter defined) to
Tenant, and Tenant desires to lease the Premises from Landlord; and
WHEREAS, the parties desire to enter into this Lease to set forth their
rights and obligations relating to the Premises; and
WHEREAS, Landlord acquired the Premises pursuant to that certain Purchase
and Sale Agreement between Landlord and Trans Healthcare of Ohio, Inc., dated
November 1, 2002 (the "P&S Agreement"); and
WHEREAS, simultaneously with the execution and delivery of this Lease,
Trans Healthcare, Inc. and its affiliates and subsidiaries identified on Exhibit
B-1 attached hereto and made a part hereof (collectively, "Guarantor") have
unconditionally guaranteed the obligations of Tenant under this Lease for the
benefit of Landlord pursuant to that certain Guaranty (the "Lease Guaranty")
dated as of an event date herewith; and
WHEREAS, simultaneously with the execution and delivery of this Lease,
Landlord, has made: (i) a loan to certain Affiliates of Tenant (collectively,
"Borrower") in the original principal amount of $55,000,000 (the "Primary
Loan"); and (ii) a mezzanine loan to Borrower in the original principal amount
of $22,000,000 (the "Mezzanine Loan," together with the Primary Loan, the "Loan
Transaction") provided that pursuant to the terms of that certain Cooperation
Agreement between Borrower and Landlord, the principal amounts of the Primary
Loan and the Mezzanine Loan may be resized in accordance with the terms of such
Cooperation Agreement; and
WHEREAS, Guarantor has, on a joint and several basis, unconditionally
guaranteed the obligations of Borrower pursuant to the Loan Transaction (the
"Loan Guaranty"); and
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WHEREAS, the obligations of Guarantor with respect to the Loan Guaranty are
included in the Lease Guaranty.
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
agreements set forth herein, and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree that, by entering into this Lease, Landlord leases and demises the
Premises to Tenant, and Tenant takes and hires the Premises from Landlord, for
the Term (as hereinafter defined), upon the terms and conditions of this Lease.
1. Leased Property; Term.
1.1 Leased Property. Effective as of November 1, 2002, upon and
subject to the terms and conditions hereinafter set forth, Landlord hereby
leases to Tenant, and Tenant hereby leases from Landlord, all of the following:
1.1.1 Land. The tracts, pieces and parcels of land more
particularly described in Exhibits "A-1" through "A-6" attached hereto together
with all rights, easements and interests appurtenant thereto, including, but not
limited to, any streets or other public ways adjacent to such tracts, pieces and
parcels of land, and any water or mineral rights with respect to such tracts,
pieces and parcels of land owned by Landlord (collectively, the "Land"; each
parcel of Land described in such Exhibits "A-1" through "A-6", as amended from
time to time, and together with such appurtenances and rights with respect to
such parcel, being referred to herein as a "Leased Land").
1.1.2 Leased Improvements. All buildings (including, but not
limited to, the facilities described by the common addresses set forth on
Exhibit A attached hereto and made a part hereof), structures, Fixtures (as
hereinafter defined) and other improvements of every kind, including, but not
limited to, alleyways and connecting tunnels, sidewalks, utility pipes, conduits
and lines (on-site and off-site), parking areas and roadways appurtenant to such
buildings and structures situated upon the Land as of the date hereof and
Capital Alterations upon the Land (collectively, the "Leased Improvements"); and
(a) Intangible Property. The interest, if any, of Landlord in and to any of
the following intangible property owned by Landlord in connection with the Land
and the Improvements (collectively, the "Intangibles"): (i) the identity or
business of the Facilities as a going concern, including without limitation, any
names or trade names by which the Facilities or any part thereof may be known,
and all registrations for such names, if any, excluding, however, the names
Millennium, Trans Healthcare, THI or derivations thereof; (ii) to the extent
assignable or transferable, the interest, if any, of Landlord in and to each and
every bond, guaranty and warranty concerning the Leased Improvements, including,
without limitation, any roofing, air conditioning, heating, elevator and other
bond, guaranty and warranty relating to the construction, maintenance or
replacement of the Leased Improvements or any portion thereof; and (iii) the
interest, if any, of Landlord in and to all Authorizations to the extent the
same can be assigned or transferred in accordance with applicable law; provided,
however, that the foregoing shall not include any CON issued to or held by
Landlord which shall only be licensed to Tenant on a temporary basis, which
license shall be revocable at any time by Landlord. If the law of any
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State in which a Facility is located requires that a CON for the applicable
Facility be issued to the applicable Tenant, such CON shall remain the property
and possession of Landlord held, in trust, for the benefit of Landlord by Tenant
pursuant to the revocable license herein contained and any Tenant shall take
such actions as are necessary or desirable to convey such CON to Landlord as and
when required by Landlord.
SUBJECT, HOWEVER, to the Permitted Encumbrances (as hereinafter defined).
Notwithstanding anything contained herein to the contrary, each Tenant
shall be jointly and severally liable for the obligations, agreements,
undertakings and other liabilities of each other Tenant hereunder; provided,
however, that, without limitation of the joint and several nature of the
obligations of each Tenant hereunder, the possessory and leasehold rights
conveyed to each Tenant shall be limited and confined to the applicable Facility
identified as being leased and operated by such Tenant on Schedule 1 attached
hereto and made a part hereof and the Leased Property on which such Facility is
located.
1.2 Term. Landlord hereby leases the Premises to Tenant for an initial
term (the "Initial Term") of ten (10) years commencing as of November 1, 2002
and expiring at midnight on October 31, 2012 (the "Initial Expiration Date").
Subject to the terms of Section 1.3 below, Tenant shall have two (2) options
(each a "Renewal Option") to extend the Initial Term of this Lease for five (5)
years each (collectively, the "Extended Terms" and, each, individually, an
"Extended Term"). Landlord shall also have the limited right to extend the
Initial Term or any Extended Term to facilitate the Operational Transfer as to
one or more Leased Properties, as more particularly described and discussed in
Section 38 below or pursuant to Section 39 (each, a "Landlord Extension"). The
Initial Term, together with any Extended Term timely and properly exercised by
Tenant hereunder and any Landlord Extension are herein collectively referred to
as the "Term"; the Initial Expiration Date as extended by any such Renewal
Options or Landlord Extensions, is herein referred to as the "Expiration Date".
1.3 Exercise of Renewal Options. Tenant may exercise a Renewal Option
with respect to all, but not less than all, of the Premises by providing written
notice to Landlord of each such renewal (a "Renewal Notice") at least one (1)
year but not more than eighteen (18) months prior to the expiration of the
Initial Term or the first Extended Term, as applicable, on the express condition
that, at the time Tenant gives a Renewal Notice as set forth above and at the
commencement of the applicable Extended Term, no Event of Default shall have
occurred and be continuing under this Lease. During each Extended Term, all of
the terms and conditions of this Lease shall continue in full force and effect,
except that the Fixed Rent for the initial Lease Year of any Extended Term shall
be the greater of: (a) then current Fixed Rent in effect at the expiration of
the Initial Term or the first Extended Term, as applicable, increased and
adjusted upwards pursuant to the formula contained in Section 3.1.2 hereof; or
(b) Fair Market Rental. The Fixed Rent payable by Tenant to Landlord for any
subsequent Lease Year during an Extended Term shall escalate pursuant to, and in
accordance with, Section 3.1.2 hereof. Within ninety (90) days after receipt by
Landlord from Tenant of a Renewal Notice, the Fair Market Rental of each Leased
Property shall be determined pursuant to the appraisal procedure described in
Section 34 below.
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2. Definitions. For all purposes of this Lease, except as otherwise
expressly provided or unless the context otherwise requires, (i) the terms
defined in this Section have the meanings assigned to them in this Section and
include the plural as well as the singular, (ii) all accounting terms not
otherwise defined herein have the meanings assigned to them in accordance with
generally accepted accounting principles consistently applied at the time
applicable, (iii) all references in this Lease to designated "Sections",
"Subsections" and other subdivisions are to the designated Sections, Subsections
and other subdivisions of this Lease and (iv) the words "herein", "hereof" and
"hereunder" and other words of similar import refer to this Lease as a whole and
not to any particular Section, Subsection or other subdivision:
"Actuarial Correspondence" shall mean any and all correspondence, analysis,
reports, studies or other information to or from any Tenant or any Guarantor or
their respective insurance carriers, reinsurance providers, accountants, or from
any Governmental Authorities or any Third Party Payor Program providers
concerning such Tenant's malpractice or professional liability insurance or its
reserves for expenses relating to malpractice or professional liability claims.
"Actuarial Reports" shall mean any and all written reports, studies,
analyses or reviews prepared by or behalf of any Tenant or any Guarantor or
their respective insurance providers or carriers, whether quarterly or
otherwise, concerning any Tenant's malpractice or professional liability
insurance or such Tenant's reserves for expenses relating to malpractice or
professional liability claims.
"Additional Property" shall have the meaning set forth in Section 41.
"Additional Rent" shall have the meaning set forth in Section 3.2.
"Adjusted Base Year Operating Income" shall mean the Base Year Operating
Income adjusted to reflect the removal or deletion of any Leased Property from
this Lease.
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including, but not limited to, all partners,
directors, officers and members of such Person), controlled by or under direct
or indirect common control with any such Person. A Person shall be deemed to
control a corporation, a partnership, a trust, or a limited liability company if
such Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such Person, through the ownership
of voting securities, partnership interests or other equity interests.
"Alterations" shall have the meaning set forth in Section 11.1.
"Allocated Base Year Operating Income" shall mean, for any Leased Property,
the Base Year Operating Income for the applicable Leased Property set forth on
Exhibit C attached hereto and made a part hereof.
"Annual Capital Expenditure Budget" shall have the meaning set forth in
Section 11.3.2.
"AR Financing" shall have the meaning set forth in Section 21.2.
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"Assigned Authorizations" shall have the meaning set forth in Section
39.1.2.
"Assigned Contracts" shall have the meaning set forth in Section 39.1.2.
"Authorizations" shall mean any and all licenses, operating permits,
Provider Agreements, CONs, certificates of exemption, approvals, waivers,
variances and other governmental or "quasi-governmental" authorizations
necessary or advisable for the use of any Facility for its Primary Intended Use
and receipt of reimbursement or other payments under Medicare, Medicaid and any
Third Party Payor Programs.
"Authorization Collateral" shall have the meaning set forth in Section 7.3.
"Award" shall mean all compensation, sums or anything of value awarded,
paid or received in respect of a total or partial Condemnation.
"BLS" shall mean Bureau of Labor Statistics, U.S. Department of Labor or
any successor thereto.
"Base Year Operating Income" shall mean the aggregate Operating Income for
all of the Leased Properties for the period from September 1, 2001 through
August 31, 2002, which Operating Income has been reduced by an amount equal to
any and all so-called "CLIFF" adjustments (increases in Operating Income
resulting from payment adjustments by CMS under the Balanced Budget Refinement
Act of 1999 and the Medicare, Medicaid and SCHIP Benefits Improvement and
Protection Act of 2000). Base Year Operating Income is set forth in Exhibit C
attached hereto and made a part hereof on an aggregate basis and for each Leased
Property. In the event that the number of licensed beds at any Facility is
reduced at any time from and after the date hereof, the Base Year Operating
Income (and the Allocated Base Year Operating Income for the applicable
Facility) shall be reduced proportionally to reflect such reduction in the
number of licensed beds as if such licensed beds had not been part of the
Facility for the period from September 1, 2001 through August 31, 2002
"Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which national banks in the City of New York, New
York are authorized, or obligated, by law or executive order, to close.
"Capital Alterations" shall mean, with respect to any Leased Property: (i)
the addition of one or more new buildings, or (ii) the annexation of one or more
additional structures to any portion of any of the Leased Improvements on such
Leased Property, or (iii) the expansion or contraction of the Leased
Improvements on such Leased Property, or (iv) any alteration or modification
affecting the foundation, floor slab, roof or roof structure, curtain wall,
structural columns, beams or shafts or other structural components of any of the
Leased Improvements on such Leased Property, or (v) any alteration or
modification affecting any of the electrical, plumbing, life safety, heating,
ventilating, air conditioning, elevator, conveyor or other operating systems
serving any of the Leased Improvements on such Leased Property. "Capital
Alterations" shall include, without limitation, (1) the construction of a new
wing or new story on a Leased Property, (2) the repair, replacement,
restoration, remodeling or rebuilding of the existing Leased Improvements on a
Leased Property or any portion thereof, where the purpose and effect of such
work is to provide a functionally new facility needed to provide services not
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previously offered, and (3) any expansion, construction, renovation or
conversion to increase or change the bed capacity of the Facility located on a
Leased Property, to change the purpose for which such beds are utilized or to
improve materially the quality of such Facility.
"Capital Expenditure Account" shall have the meaning set forth in Section
11.3.1.
"Capital Expenditure Deposits" shall have the meaning set forth in Section
11.3.1.
"Capital Expenditure Difference" shall have the meaning set forth in
Section 11.3.1.
"Cash Flow" shall mean the net income of any Tenant arising from the
applicable Facility as reflected on the income statement of Tenant plus (i) the
provision for depreciation and amortization in such income statement; plus (ii)
the provision for management fees in such income statement; plus (iii) the
provision for income taxes in such income statement; plus (iv) the provision for
Fixed Rent payments allocated to such Facility and interest and lease payments,
if any, relating to such Facility in such income statement; minus (v) an imputed
management fee equal to five percent (5%) of gross revenues of such Facility
(net of contractual allowances); and minus (vi) a replacement reserve of $300.00
per licensed bed at such Facility per year (unless such Facility is a hospital,
in which event the replacement reserve amount shall be $500 per licensed bed at
such Facility per year).
"Casualty" shall mean damage to one or more Leased Properties by fire,
flood, windstorm, earthquake, act of God or other casualty.
"Casualty Insurance Proceeds" shall have the meaning set forth in Section
15.2.
"Census Information" shall have the meaning set forth in Section 25.3.
"Change of Control" shall have the meaning set forth in the Lease Guaranty.
"CMS" shall mean the United States Department of Health, Centers for
Medicare and Medicaid Services or any successor agency thereto.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Combination Lease" shall have the meaning set forth in Section 41.
"CON" shall mean a certificate of need or similar permit or approval (not
including conventional building permits) from a Governmental Authority related
to the construction and/or operation of the Facility at any Leased Property for
the use of a specified number of beds in a nursing facility, assisted living
facility and/or rehabilitation hospital, or alteration of any such Facility or
modifications of services provided at a Facility used as a nursing facility,
assisted living facility and/or rehabilitation hospital.
"Condemnation" shall mean, as to any Leased Property, (i) the exercise of
any governmental power on such Leased Property, whether by legal proceedings or
otherwise, by a Condemnor, (ii) a voluntary sale or transfer by Landlord to any
Condemnor, either under threat of condemnation or while legal proceedings for
condemnation are pending and (iii) a taking or
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voluntary conveyance of all or part of such Leased Property, or any interest
therein, or right accruing thereto or use thereof, as the result or in
settlement of any condemnation or other eminent domain proceeding affecting such
Leased Property whether or not the same shall have been actually commenced.
"Condemnor" shall mean any public or quasi-public authority, or private
corporation or individual, having the power of condemnation.
"Conforming Appraisal" shall have the meaning set forth in Section 34.2.
"Consent Expenses" shall have the meaning set forth in Section 3.2.6.
"Cost of Living Index" shall mean the Consumer Price Index for All Urban
Consumers, U.S. City Average (1982-1984 = 100), published by the BLS, or such
other renamed index. If the BLS changes the publication frequency of the Cost of
Living Index so that a Cost of Living Index is not available to make a
cost-of-living adjustment as specified herein, the cost-of-living adjustment
shall be based on the percentage difference between the Cost of Living Index for
the closest preceding month for which a Cost of Living Index is available and
the Cost of Living Index for the comparison month as required by this Lease. If
the BLS changes the base reference period for the Cost of Living Index from
1982-84 = 100, the cost-of-living adjustment shall be determined with the use of
such conversion formula or table as may be published by the BLS. If the BLS
otherwise substantially revises, or ceases publication of, the Cost of Living
Index, then a substitute index for determining cost-of-living adjustments,
issued by the BLS or by a reliable governmental or other nonpartisan
publication, shall be reasonably selected by Landlord and Tenant.
"Covenant Replacement Event" shall have the meaning set forth in the Lease
Guaranty.
"Coverage Ratio" shall mean the ratio of (i) Cash Flow of any Facility for
the applicable period; to (ii) the Fixed Rent payments allocated to such
Facility and all other debt service and lease payments relating to such Facility
for the applicable period.
"CPI Increase" shall mean, for a particular Lease Year, the percentage
increase (rounded to two (2) decimal places), if any, in (i) the Cost of Living
Index published for the month that is two (2) months prior to the commencement
of such Lease Year, over (ii) the Cost of Living Index published for the month
that is two (2) months prior to the commencement of the immediately preceding
Lease Year.
"Date of Taking" means, as to the applicable Leased Property, the date the
Condemnor has the right to possession of such Leased Property, or any portion
thereof, in connection with a Condemnation.
"Deleted Properties" shall mean any Leased Property for which this Lease is
terminated pursuant to Section 15, 16 or 17.2 hereof; provided, however, that
Deleted Properties shall not include any Leased Property removed herefrom
pursuant to Section 42.
"Deletion Notice" shall have the meaning set forth in Section 17.9.
7
"Early Termination Event" shall mean, as to any Leased Property, the
termination of this Lease prior to the stated Expiration Date hereof or the
dispossession of the applicable Tenant as a result of an Event of Default.
"Xxxxxxx Money Deposit" shall have the meaning set forth in Section 38.
"Environmental Costs" shall mean costs of response, removal, remedial
action, containment, cleanup, investigation, design, engineering and
construction, damages for personal injuries and for injury to, destruction of or
loss of property or natural resources, relocation or replacement costs,
penalties, fines, charges or expenses, attorney's fees, expert fees,
consultation fees, and court costs, and all amounts paid in investigating,
defending or settling any of the foregoing, in connection with any Hazardous
Substance.
"Environmental Laws" shall mean any and all laws, order, rules or
regulations pertaining to Hazardous Substances or that otherwise deal with, or
relate to, air or water quality, air emissions, soil, contamination or pollution
or protection of the environment.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Account" shall have the meaning set forth in Section 3.3.2.
"Escrow Commencement Date" shall have the meaning set forth in Section
3.3.1.
"Estoppel Certificate" shall have the meaning set forth in Section 25.15.
"Event of Default" shall have the meaning set forth in Section 17.1.
"Expiration Date" shall have the meaning set forth in Section 1.2.
"Extended Term" shall have the meaning set forth in Section 1.2.
"Facility" shall mean the facility or facilities located on the applicable
Leased Property.
"Facility Mortgage" shall mean any mortgage, deed of trust, or other
security agreement securing any encumbrance placed on the applicable Leased
Property in accordance with the provisions of Section 31.
"Facility Mortgagee" shall mean the holder of any Facility Mortgage.
"Facility Provider Agreements" shall mean Provider Agreements issued to or
held by Tenant pursuant to which the Facilities are licensed, certified,
approved or eligible to receive reimbursement under Medicare, Medicaid or any
Third Party Payor Program.
"Facility Termination" shall have the meaning set forth in Section 39.3.1.
"Fair Market Rental" shall mean, as determined by the appraisal procedures
set forth in Section 34, the amount per annum that an uncompelled, willing
tenant would pay, and an uncompelled, willing landlord would accept, at arm's
length, for leasing of the Premises (or, if
8
applicable, any one or more, but less than all, of the Leased Properties) for
the period of the Term (including, without limitation, any Extended Terms)
remaining from and after the date as of which the Fair Market Rental is being
determined. In addition to such other market factors as may be applicable in
determining the Fair Market Rental, the Fair Market Rental shall be determined
on the basis, and on the assumptions, that: (i) the Fair Market Rental may not
include therein any rent, or method of rent calculation, that would adversely
affect any landlord by virtue of it being a REIT or the ability of any such
landlord to satisfy the requirements for maintaining its status as a REIT, (ii)
Fixed Rent for the applicable Leased Properties will escalate pursuant to the
provisions of Sections 1.3 and 3.1.2 hereof, (iii) all of the Leased Properties
are in material compliance with any and all applicable laws, codes, ordinances
and regulations and other Legal Requirements (and Insurance Requirements) and
have in full force and effect, for the benefit of the aforesaid tenant, the
Facilities and the applicable Leased Properties, any and all necessary or
appropriate material permits, approvals, licenses, Provider Agreements and other
consents comparable to the Authorizations necessary or advisable for use thereof
in accordance with the respective Primary Intended Uses applicable thereto, (iv)
the respective Facilities as to which Fair Market Rental is being determined
have been repaired, maintained and otherwise kept in a condition contemplated
and required by Section 9.1 hereof such that the Leased Properties are in a
first class condition without any deferred maintenance or necessary capital
repairs or replacements, (v) no allowance for, or reduction in, the Fair Market
Rental shall be made on account of the absence of leasing commissions, tenant
improvement allowances and other comparable inducements that may be typically or
often payable to a replacement tenant rather than an existing tenant, and (vi)
the aforesaid tenant shall have available to it, with respect to each Leased
Property as to which the Fair Market Rental is being determined, the Term that
then remains, and such number of Extended Terms as then remain unexercised, with
respect to such Leased Properties under the terms of this Lease.
"Fair Market Value" shall mean the price that a willing buyer not compelled
to buy (but ready, willing and able to operate the applicable Leased Properties
for their Primary Intended Uses) would pay a willing seller not compelled to
sell for the applicable Leased Properties, including all Capital Alterations,
and (i) assuming the same are unencumbered by this Lease but that the buyer has
available and in good standing all of the permits, approvals, licenses, Provider
Agreements and other consents comparable to the Authorizations necessary or
advisable for the use and operation of the applicable Leased Properties for
their respective Primary Intended Uses, (ii) determined in accordance with the
appraisal procedures set forth in Section 34; (iii) not taking into account any
reduction in value resulting from any indebtedness to which such Leased
Properties are subject except as expressly provided herein below; (iv) not
determined based solely on the replacement costs of the applicable Leased
Properties, (v) assuming the Leased Properties are in compliance with any and
all material laws, ordinances, rules and regulations of any Governmental
Authorities (including, but not limited to, all Legal Requirements) and any and
all Insurance Requirements; and (vi) assuming the Leased Properties are in a
first class condition and repair with no deferred maintenance items or capital
repair or replacements required and the Tenant has timely and completely
satisfied its repair, maintenance and replacement obligations hereunder. In
determining such Fair Market Value, the positive or negative effect on the value
of the Leased Properties attributable to the interest rate, amortization
schedule, maturity date, prepayment penalty and other terms and conditions of
any encumbrance that is not removed, or to be removed, at or prior to the
closing of the transaction as to which
9
such Fair Market Value determination is being made shall be taken into account.
Fair Market Value shall be determined as of the projected date of the Option
Closing.
"Fiscal Year" shall mean the twelve (12) month period from January 1 to
December 31.
"First Lease Year" shall mean the period from November 4, 2002 through
October 31, 2003.
"Fixed Rent" shall mean, for the period from November 4, 2002 through the
Expiration Date, rent at an annual rate of Five Million Nine Hundred Sixty-Two
Thousand Five Hundred and No/100 Dollars ($5,962,500), as such amount shall be
increased from time to time during the Term as set forth in Section 1.3 and
Section 3.1.2 or, in the case of any New Lease, as such amount shall be adjusted
pursuant to Section 42.1.1.
"Fixtures" shall mean all permanently affixed equipment, machinery,
elevators, conveyors, fixtures, commercial kitchen equipment, laundry equipment
and other items of real and/or personal property, including, without limitation,
all components thereof, now and hereafter located in, on or used in connection
with, and permanently affixed to or incorporated into the Leased Improvements,
including, without limitation, all furnaces, boilers, heaters, electrical
equipment, heating, plumbing, lighting, ventilating, refrigeration,
incineration, air and water pollution control, waste disposal, air-cooling and
air-conditioning systems and apparatus, sprinkler systems and fire and theft
protection equipment, and built-in oxygen and vacuum systems, all of which, to
the greatest extent permitted by law, are hereby deemed by the parties hereto to
constitute real property, together with all replacements, modifications,
alterations and additions thereto.
"Form SNDA" shall have the meaning set forth in Section 20.1.
"Full Replacement Cost" shall mean the actual replacement cost of the
applicable property including an increased cost of construction endorsement,
without reduction or deduction for depreciation, as determined for any
applicable property by an accredited appraiser approved by Landlord, and at
Tenant's sole cost and expense, hereinafter referred to as "impartial
appraiser", every five years during the Term, and at such other times that
either party believes that the full replacement cost of such property has
increased or decreased. Tenant shall forthwith, on receipt of such determination
by such impartial appraiser, give written notice thereof to Landlord. The
determination of such impartial appraiser shall be final and binding on the
parties hereto.
"GAAP" shall mean generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the accounting profession), or in such
other statements by such entity as may be in general use by significant segments
of the U.S. accounting profession.
"Governmental Authority" shall mean any court, board, agency, licensing
agency, commission, office or authority or any governmental xxxx (xxxxxxx,
xxxxx, xxxxxx, xxxxxxxx, xxxxxxxxx, xxxx or otherwise) whether now or hereafter
in existence, including, without
10
limitation, CMS, the United States Department of Health and Human Services, any
state licensing agency and/or any state Medicaid agency and any
quasi-governmental authorities.
"Hazardous Substances" shall mean and include Hazardous Waste, medical
waste and any hazardous substance defined as such in the Occupational Safety &
Health Act, the Toxic Substances Control Act, or any other federal, state or
local statute, law, ordinance, code, rule, regulation, order or decree
regulating, relating to, or imposing liability or standards of conduct
concerning, any hazardous substance or material, as now or at anytime hereafter
in effect.
"Hazardous Waste" shall mean and include any material that is defined as a
hazardous waste under RCRA as now or at any time hereafter in effect.
"Health Department" shall mean any federal, state or local health
department, licensing agency, governing body or comparable agency.
"Identification Period" shall have the meaning set forth in Section 24.2.
"Impositions" shall mean, for each applicable Leased Property,
collectively, all taxes (including, without limitation, all taxes imposed under
the laws of the State in which the Leased Property is located), as such laws may
be amended from time to time, and all ad valorem, sales and use, single
business, gross receipts, transaction privilege, rent or similar taxes as the
same relate to, or are imposed upon, any rents from the applicable Leased
Property or upon Tenant or its business conducted upon the applicable Leased
Property (but excluding any tax based on the net income or net profit of
Landlord derived from any such rents), assessments (including, without
limitation, all assessments for public improvements or benefits, whether or not
commenced or completed prior to the date hereof and whether or not to be
completed within the Term), water, sewer or other rents and charges, excises,
tax levies, fees (including, without limitation, license, permit, inspection,
authorization and similar fees), and all other governmental charges, in each
case whether general or special, ordinary or extraordinary, or foreseen or
unforeseen, of every character in respect of the applicable Leased Property or
any rents therefrom or the business conducted thereon by Tenant (including all
interest and penalties thereon due to any failure in payment by Tenant), which
at any time prior to (including, without limitation, a "roll-back" of any such
taxes or charges for periods prior to the date hereof), during or in respect of
the Term hereof may be assessed or imposed on or in respect of, or be a lien
upon, (a) Landlord or Landlord's interest in such Leased Property, (b) such
Leased Property or any part thereof or any rent therefrom or any estate, right,
title or interest therein, or (c) any occupancy, operation, use or possession
of, or sales from, or activity conducted on, or in connection with, such Leased
Property or the leasing or use of such Leased Property or any part thereof by
Tenant; provided, however, nothing contained in this Lease shall be construed to
require Tenant to pay any tax based on net income imposed on Landlord or any
other Person.
"Initial Expiration Date" shall have the meaning set forth in Section 1.2.
"Insurance Premiums" shall have the meaning set forth in Section 14.2.
"Insurance Requirements" shall mean all terms of any insurance policy
required by this Lease with respect to the applicable Leased Property(ies) and
all requirements of the issuer of any such policy.
11
"Intangibles" shall have the meaning set forth in Section 1.1.2(a).
"Land" shall have the meaning set forth in Section 1.1.1.
"Landlord Appraiser Notice" shall have the meaning set forth in Section
34.2.
"Landlord's Appraiser" shall have the meaning set forth in Section 34.2.
"Landlord Determination" shall have the meaning set forth in Section 34.1.
"Landlord Indemnified Parties" shall mean Landlord's Affiliates and
Landlord's and its Affiliates' agents, employees, owners, partners, members,
managers, contractors, representatives, consultants, attorneys, auditors,
officers and directors.
"Landlord's Representatives" shall mean Landlord's agents, employees,
contractors, consultants, attorneys, auditors, architects and other
representatives.
"LC Election" shall have the meaning set forth in Section 3.4.2.
"Lease" shall have the meaning set forth in the preamble hereof.
"Lease Guaranty" shall have the meaning set forth in the recitals hereto.
"Lease Year" shall mean the First Lease Year and each twelve (12) month
period of the Term after the First Lease Year.
"Leased Improvements" shall have the meaning set forth in Section 1.1.
"Leased Property" shall mean a parcel of Leased Land, the Leased
Improvements located thereon and the Intangibles and the Easement Rights
associated therewith from time to time leased by Landlord to Tenant hereunder.
"Leased Property Condition Report" shall have the meaning set forth in
Section 9.1.1.
"Legal Requirements" shall mean, as to any Leased Property or Facility, all
federal, state, county, parish, municipal and other governmental statutes, laws,
rules, orders, regulations, guidelines, ordinances, judgments, decrees and
injunctions affecting such Leased Property and/or Tenant's Personal Property or
the maintenance, construction, use, operation or alteration thereof, whether now
or hereafter enacted and in force, including, without limitation, (i)
Authorizations, (ii) building codes and zoning regulations and (iii) any
statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and
injunctions that (x) require repairs, modifications or alterations in or to such
Leased Property, (y) adversely affect the use thereof or (z) regulate the
transport, handling, use, storage or disposal or require the cleanup or other
treatment of any Hazardous Substances.
"Lending Institution" shall mean any insurance company, federally insured
commercial or savings bank, national banking association, savings and loan
association, credit union, employees' welfare, pension or retirement fund or
system, corporate profit sharing or pension
12
trust, college or university, endowment fund, REIT, investment bank, commercial
credit lending corporation, or other institutional lender or financial
enterprise, in each case acting on its own behalf or as agent on behalf of other
Lending Institutions.
"Letter of Credit" shall have the meaning set forth in Section 3.4.2.
"Limited Termination Election" shall have the meaning set forth in Section
17.2.
"Litigation Costs" shall mean all costs reasonably incurred by Landlord or
any Landlord Indemnified Parties in connection with the enforcement of any
provision of this Lease and/or in connection with any third-party claim against
Landlord, any Landlord Indemnified Parties or any Leased Property arising on
account of or in connection with any default or Event of Default hereunder by
Tenant, including, without limitation, costs reasonably incurred by Landlord or
any Landlord Indemnified Parties in investigating, settling and/or prosecuting
claims and for reasonable attorneys' and legal assistant fees and expenses,
court costs and fees and reasonable consultant and witness fees and expenses.
"Loan Guaranty" shall have the meaning set forth in the recitals hereto.
"Loan Documents" shall have the meaning set forth in Section 17.1.20.
"Loan Transaction" shall have the meaning set forth in the recitals hereto.
"Losses" shall mean all claims, demands, expenses, actions, judgments,
damages, penalties, fines, liabilities, losses of every kind and nature, suits,
administrative proceedings, costs and fees, including, without limitation,
reasonable attorneys' and reasonable consultants' fees and expenses, and
Environmental Costs.
"Medicaid" shall mean that certain program of medical assistance, funded
jointly by the federal government and the states for impoverished individuals
who are aged, blind and/or disabled, and for members of families with dependent
children, which program is more fully described in Title XIX of the Social
Security Act (42 U.S.C. (S)(S) 1396 et seq.) and the regulations promulgated
thereunder.
"Medicare" shall mean that certain federal program providing health
insurance for eligible elderly and other individuals, under which physicians,
hospitals, nursing facilities, home health care and other providers are
reimbursed for certain covered services they provide to the beneficiaries of
such program, which program is more fully described in Title XVIII of the Social
Security Act (42 U.S.C. (S)(S) 1395 et seq.) and the regulations promulgated
thereunder.
"Mezzanine Loan" shall have the meaning set forth in the recitals hereto.
"Mezzanine Loan Agreement" shall have the meaning set forth in the Lease
Guaranty.
"Mezz Security" shall have the meaning set forth in Section 3.4.1.
"Minimum Purchase Price" shall have the meaning set forth in Exhibit D
attached hereto and made a part hereof.
13
"Mortgage Loan Agreement" shall have the meaning set forth in the Lease
Guaranty.
"Net Operating Income" shall mean, for any period, the amount by which
Operating Income for such period exceeds Operating Expenses for such period.
"Net Worth" shall mean an amount equal to the total consolidated book value
of the assets of the Tenant or each Tenant, as applicable minus the total
consolidated liabilities of the Tenant or each Tenant, as applicable.
"New Lease" shall have the meaning set forth in Section 42.1.
"Notice" shall mean any note, notice, or report of any suit, proceeding,
investigation, order, consent order, injunction, writ, award, or action related
to or affecting or indicating the treatment, storage, handling, disposal,
generation, spill, release or discharge of any Hazardous Substances in, on,
under, about or affecting any of the Leased Properties or any violation of
Environmental Laws as they apply to any Leased Property.
"Officer's Certificate" shall mean a certificate of Tenant collectively, or
each Tenant, as applicable, signed by the chairman of the board of directors,
the president, the chief operating officer, the chief financial officer, the
general counsel or the general partner or managing member, as applicable, of
each Tenant in the case of a certificate of Tenant collectively, or of such
particular Tenant in the case of a certificate of an individual Tenant.
"Operating Expenses" shall mean, with respect to any or all of the Leased
Properties, and without duplication, all costs and expenses incurred by Tenant
determined on an accrual basis, relating to the operation, maintenance, repair,
use and management of such Leased Property(ies), including, without limitation,
utilities, repairs and maintenance, insurance, Impositions, advertising
expenses, payroll and related taxes, equipment lease payments and actual
management fees, but excluding (i) Fixed Rent, (ii) depreciation, amortization
and other non-cash expenses of the Leased Property(ies); provided, however, that
such costs and expenses shall be subject to reasonable adjustment by Landlord to
normalize such costs and expenses, and (iii) capital expenditures.
"Operating Income" shall mean all revenue derived from the operation of any
or all of the Leased Properties or a Leased Property, as the case may be, by
Tenant from whatever source, determined on an accrual basis, including, but not
limited to, Patient Revenues, but excluding (a) sales, use and occupancy or
other taxes on receipts required to be accounted for by Tenant to any
Governmental Authority, (b) non-recurring revenues as reasonably determined by
Landlord (e.g. proceeds from a sale of assets or refinancing), (c) Casualty
Insurance Proceeds and Awards (other than business interruption or other loss of
income insurance related to business interruption or loss of income for the
Leased Property(ies) in question), and (d) any proceeds from the permitted sale
or refinancing of any Leased Property or recapitalization of the applicable
Tenant(s). In addition, if required by Landlord, income accrued but not paid in
cash during an accounting period shall be adjusted for an allowance for doubtful
accounts in a manner consistent with historical net realizable value.
"Operational Transfer" shall have the meaning set forth in Section 39.1.2.
14
"Operator Reports" shall have the meaning set forth in Section 8.2.3.5.
"Option" shall have the meaning set forth in Section 38.
"Option Closing" shall have the meaning set forth in Section 38.
"Option Exercise Date" shall have the meaning set forth in Section 38.
"Option Purchase Price" shall have the meaning set forth in Section 38.
"Overdue Rate" shall mean on any date, a rate equal to four percent (4%)
per annum above the Prime Rate, but in no event greater than the maximum rate
then permitted under applicable law. Interest at the aforesaid rates shall be
determined for actual days elapsed based upon a 360 day year.
"P&S Agreement" shall have the meaning set forth in the recitals hereto.
"Patient Revenues" shall mean any and all revenue and income derived from a
Facility or the Facilities, as applicable, in the ordinary course of business
from the provision of medical services or therapeutic care (exclusive of patient
deposits).
"Per Bed Allocation" shall have the meaning set forth in Section 11.3.1.
"Permitted Encumbrances" shall mean (a) all easements, covenants,
conditions, restrictions, agreements and other matters with respect to the
Premises that are of record as of the date hereof; (b) all easements, covenants,
conditions, restrictions, agreements and other matters with respect to the
Premises, whether or not of record, of which Tenant has knowledge as of the date
hereof or that are executed by Tenant or approved or consented to by Tenant; (c)
any easements, covenants, conditions, restrictions or utility agreements entered
into by Landlord with respect to a Leased Property after the date hereof; (d)
any agreement required pursuant to any Legal Requirement entered into by
Landlord with respect to a Leased Property after the date hereof; (e) any real
estate taxes, assessments and other governmental levies, fees or charges imposed
with respect to a Leased Property(ies) that are not yet due and payable; (f) any
zoning, building codes and other land use laws regulating the use or occupancy
of any Leased Property(ies); (g) occupancy rights of residents and patients of
the Facilities; and (h) any other matters affecting title to the Premises or any
portion thereof caused by Tenant or its assignees or sublessees or their
respective agents or employees.
"Person" shall mean any individual, sole proprietorship, corporation,
general partnership, limited partnership, limited liability company or
partnership, joint venture, association, joint stock company, bank, trust,
estate, unincorporated organization, Governmental Authority, endowment fund or
other form of entity.
"Plans and Specifications" shall have the meaning set forth in Section
11.2.1.
"Policies" shall have the meaning set forth in Section 14.2.
15
"Portfolio Coverage Ratio" shall mean the ratio of (i) the Cash Flow for
all of the Facilities for the applicable period; to (ii) Fixed Rent and all
other debt service and lease payments relating to such Facilities for the
applicable period.
"Premises" shall mean all of the Land, the Leased Improvements and the
Intangibles from time to time leased hereunder by Landlord to Tenant.
"Prior Period Fixed Rent" shall mean, for any Lease Year, the Fixed Rent
for the immediately preceding Lease Year.
"Prior Period Operating Income" shall mean, for any Lease Year, the
Operating Income for the period commencing two (2) months prior to the
commencement of the preceding Lease Year and expiring two (2) months prior to
the Lease Year for which the Prior Period Operating Income is being determined
generated by Tenant for all of the Leased Properties that are subject to this
Lease during such period. By way of illustration only, if the Prior Period
Operating Income were being determined for the Lease Year commencing as of
November 1, 2005 and expiring October 31, 2006, the Prior Period Operating
Income applicable to such Lease Year would be determined for the period
commencing as of September 1, 2004 and expiring August 31, 2005 on the basis of
the Leased Properties subject to this Lease during such period.
"Primary Intended Use" shall mean, as to each Facility, the type of
healthcare facility corresponding to such Facility on Schedule 1 attached hereto
and made a part hereof.
"Primary Loan" shall have the meaning set forth in the recitals hereto.
"Prime Rate" shall mean, on any date, a rate equal to the annual rate on
such date announced by the Wall Street Journal to be the "prime rate."
"Property Removal Date" shall have the meaning set forth in Section 17.9.
"Property Transfer Date" shall have the meaning set forth in Section 42.1.
"Property Collateral" shall have the meaning set forth in Section 21.1.1.
"Provider Agreements" shall mean any agreements under which healthcare
facilities are eligible to receive payment under Medicare, Medicaid or any Third
Party Payor Program from Governmental Authorities or non-public entities.
"Rating Agencies" shall mean each of S&P, Xxxxx'x and Fitch or any other
nationally recognized statistical rating agency that has been designated by
Landlord.
"RCRA" shall mean the Resource Conservation and Recovery Act and the
Comprehensive Environmental Response, Compensation and Liability act, in either
case as amended from time to time.
"Reimbursement Period" shall have the meaning set forth in Section 39.3.2.
"REIT" shall mean a real estate investment trust.
16
"REIT Requirements" shall have the meaning set forth in Section 35.
"Renewal Option" shall have the meaning set forth in Section 1.2.
"Rent" shall mean collectively, Fixed Rent and Additional Rent.
"Rent Escalation Condition" shall mean, as to any Lease Year, that: the
Prior Period Operating Income determined for such Lease Year equals or exceeds
seventy-five percent (75%) of the Adjusted Base Year Operating Income determined
on the basis of those Leased Properties that are subject to this Lease during
the period for which the Prior Period Operating Income is determined. By way of
illustration only, for purposes of determining whether the Rent Escalation
Condition has been satisfied for the Lease Year commencing as of November 1,
2005 and expiring as of October 31, 2006, the Prior Period Operating Income for
the period commencing as of September 1, 2004 and expiring as of August 31, 2005
would be compared to the Adjusted Base Year Operating Income for such period for
the Leased Properties that are subject to this Lease during such period to
determine whether such Prior Period Operating Income equals or exceeds
seventy-five percent (75%) of the Adjusted Base Year Operating Income for such
period.
"Replacement Operator" shall have the meaning set forth in Section 24.2.
"Reserve Event" shall have the meaning set forth in Section 8.2.3.2.
"Restoration Plans and Specifications" shall have the meaning set forth in
Section 15.4.1.
"Section 41 Date" shall have the meaning set forth in Section 41.
"Section 41 Lease" shall have the meaning set forth in Section 41.
"Security Amount" shall have the meaning set forth in Section 3.4.1.
"Security Deposit" shall have the meaning set forth in Section 3.4.1.
"Service Guarantors" shall have the meaning set forth in the Lease
Guaranty.
"SEC" shall mean the Securities and Exchange Commission or any successor
thereto.
"Successor Operator" shall have the meaning set forth in Section 39.1.2.
"Tax Credit" shall have the meaning set forth in the P&S Agreement.
"Tenant" shall have the meaning set forth in the preamble hereof.
"Tenant Org Docs" shall have the meaning set forth in Section 10.1.
"Tenant Parties" shall mean any Tenant's agents, employees, Affiliates,
invitees, visitors, patients, contractors, subcontractors, physicians,
licensees, officers, directors, representatives and comparable parties.
17
"Tenant's Appraiser" shall have the meaning set forth in Section 34.2.
"Tenant's Personal Property" shall mean all motor vehicles, machinery,
equipment, furniture, furnishings, movable walls or partitions, computers or
trade fixtures or all other personal property, and consumable inventory and
supplies, now owned or hereafter acquired by Tenant and located on the
applicable Leased Property or used in Tenant's business on such Leased Property,
including, without limitation, all modifications, replacements, alterations and
additions to such personal property installed at the expense of Tenant, except
items, if any, included within the definition of Fixtures.
"Tenant's Proportionate Share" shall mean each Tenant's allocable share of
the Rent obligations set forth hereunder, which Tenant's Proportionate Share is
expressed as a percentage and set forth on Schedule 2 attached hereto and made a
part hereof and subject to adjustment as described in Sections 17.9, 41 and 42.
"Term" shall have the meaning set forth in Section 1.2.
"Terminated Lease Properties" shall have the meaning set forth in Section
17.2.
"Third Appraiser" shall have the meaning set forth in Section 34.2.
"Third Party Payor Programs" shall mean any third party payor programs
pursuant to which healthcare facilities qualify for payment or reimbursement for
medical or therapeutic cure or other goods or services rendered, supplied or
administered to any admittee, occupant, resident or patient by or from any
Governmental Authority, bureau, corporation, agency, commercial insurer,
non-public entity, "HMO," "PPO" or any comparable party.
"Transfer Authorization" shall have the meaning set forth in Section
39.1.2.
"Transfer" shall have the meaning set forth in Section 24.1.
"Transfer Criteria" shall have the meaning set forth in Section 24.2.
"Transferred Premises" shall have the meaning set forth in Section 41.
"Trans" shall mean Trans Healthcare, Inc., i.e. the "Parent" as defined in
the Lease Guaranty.
"Transition Authorizations" shall have the meaning set forth in Section
10.10.
"Transition Notice" shall have the meaning set forth in Section 39.1.1.
"Transition Property" shall have the meaning set forth in Section 39.1.1.
"UCC" shall have the meaning set forth in Section 11.3.1.
"Unsuitable For Its Primary Intended Use" shall mean a state or condition
of the Facility(ies) located at the applicable Leased Property such that, by
reason of Casualty or Condemnation, in the reasonable judgment of Landlord, the
Facility(ies) cannot be operated for
18
its (their) primary intended use(s) taking into account, among other relevant
factors, the number of usable beds affected by such Casualty or Condemnation;
provided, however that such Facility(ies) shall not be deemed to be "Unsuitable
For Its Primary Intended Use" if such Facility(ies) can, within eighteen (18)
months after the occurrence of such Casualty or Condemnation, be restored to
substantially the same state and condition as existed immediately prior to such
Casualty or Condemnation.
"Work" shall have the meaning set forth in Section 15.4.1.
3. Rent.
3.1 Fixed Rent.
3.1.1 Rental Payments Tenant shall pay to Landlord, in advance
and without demand, on or prior to the fifteenth (15th) day of each calendar
month during the Term in lawful money of the United States of America, by wire
transfer and pursuant to the wiring instructions attached hereto as Schedule
3.1.1, or at such place or to such person(s), firm(s) or corporation(s) as
Landlord from time to time may designate in writing, Fixed Rent. Landlord may,
by written notice to Tenant at any time and from time to time, elect to require
that Rent (or portions thereof designated by Landlord) that is payable to
Landlord hereunder be paid to a lock box. Fixed Rent (and Additional Rent in
those instances described in Section 3.3 below) shall be paid by Tenant to
Landlord in advance of the fifteenth (15th) day of each calendar month during
the Term in equal, consecutive monthly installments; provided, however, that the
first payment of Fixed Rent (and Additional Rent in those instances described in
Section 3.3 below) shall be payable on November 4, 2002 and prorated for the
period from and including November 4, 2002 through November 14, 2002, and the
last monthly payment of Fixed Rent (and Additional Rent in those instances
described in Section 3.3 below) shall be prorated as to any partial month.
3.1.2 Rental Amounts. Fixed Rent for the First Lease Year shall
be $5,962,500 per annum, payable by Tenant to Landlord in equal monthly
installments of $496,875. Each Tenant's allocable share of Fixed Rent shall be
equal to the product of (i) the Tenant's Proportionate Share for such Tenant set
forth on Schedule 2 attached hereto and made a part thereof; and (ii) the Fixed
Rent due hereunder, as applicable. Notwithstanding anything contained herein to
the contrary, the existence of a Tenant's Proportionate Share and the allocation
of Fixed Rent described in the preceding sentence or elsewhere in this Lease
does not change the joint and several nature of the obligation of each Tenant to
pay Rent hereunder and otherwise perform the duties and obligations of Tenant
hereunder (it being acknowledged that each Tenant shall be jointly and severally
liable for any and all obligations of each other Tenant hereunder, including,
but not limited to, each individual Tenant's obligations to pay Rent).
Commencing upon the second (2nd) Lease Year of the Initial Term, and upon the
commencement of each Lease Year to occur thereafter during the Term (including
during Extended Terms except as noted below with respect to the first Lease Year
in any Extended Term), the Fixed Rent for such Lease Year shall be an amount
equal to the sum of (i) the Prior Period Fixed Rent applicable to such Lease
Year and (ii) the product of (a) the Prior Period Fixed Rent applicable to such
Lease Year and (b) the amount equal to the greater of (x) three percent (3%) or
(y) fifty percent (50%) of the CPI Increase, expressed as a percentage, for such
Lease Year for which
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such calculation is being performed; provided, however, that (i) the Fixed Rent
for the first Lease Year of any Extended Term shall be in the amount determined
and described in Section 1.3 above; and (ii) if the Rent Escalation Condition
has not been satisfied with respect to such Lease Year (i.e. the Prior Period
Operating Income for such Lease Year does not equal or exceed seventy-five
percent (75%) of the Adjusted Base Year Operating Income allocable to the period
for which the Prior Period Operating Income has been determined), the Fixed Rent
for such Lease Year shall be equal to the Prior Period Fixed Rent.
Notwithstanding anything contained herein to the contrary, if the Rent
Escalation Condition fails with respect to any one or more Lease Years, the
Fixed Rent determined for the next Lease Year with respect to which the Rent
Escalation Condition is satisfied shall be determined as if the Rent Escalation
Condition had been satisfied for all previous Lease Years and the Fixed Rent had
been escalated pursuant to, and in accordance with, the terms of this Section
3.1.2 for all prior Lease Years. By way of illustration only, if: (xx) the Rent
Escalation Condition has failed for both the Lease Year commencing as of
November 1, 2006 and expiring as of October 31, 2007 and the Lease Year
commencing as of November 1, 2007 and expiring October 31, 2008; but (yy) the
Rent Escalation Condition is satisfied for the Lease Year commencing as of
November 1, 2008 and expiring as of October 31, 2009, the Fixed Rent for the
Lease Year commencing as of November 1, 2008 and expiring as of October 31, 2009
shall be determined as if the Rent Escalation Condition for the two preceding
Lease Years (and all other Lease Years) had been satisfied such that the Fixed
Rent for the Lease Year commencing as of November 1, 2008 and expiring as of
October 31, 2009 shall include, and be determined on the basis of, the
escalations for all prior Lease Years which would have occurred pursuant to this
Section 3.1.2 had the Rent Escalation Condition for all prior Lease Years been
satisfied.
3.1.3 Fixed Rent Determinations. Except with respect to the first
Lease Year of any Extended Term, promptly after the publication of the Cost of
Living Index for the tenth (10th) month during any Lease Year, Landlord shall
calculate the CPI Increase and the Fixed Rent for the next Lease Year and submit
its determination of Fixed Rent for the next Lease Year for Tenant's review and
approval, which determination shall be deemed approved absent written notice
from Tenant setting forth in reasonable specificity and detail any errors in
such determination by Landlord and within five (5) Business Days after its
submission to Tenant. The determination of Fixed Rent by Landlord shall be
deemed correct and approved by Tenant absent manifest error in its determination
on the part of Landlord. In the event Landlord and Tenant are unable to
determine Fixed Rent for any Lease Year on or prior to the commencement of such
Lease Year, Tenant shall pay Fixed Rent for such Lease Year assuming a three
percent (3%) increase over Prior Period the Fixed Rent applicable to such Lease
Year until the correct Fixed Rent is determined for such Lease Year. If the
Fixed Rent ultimately determined for any such Lease Year exceeds the assumed
amount, Tenant shall pay any deficiency, together with interest thereon, at the
Prime Rate, with the first installment of Fixed Rent owing after such
determination is made. If the Fixed Rent ultimately determined for any such
Lease Year is less than the assumed amount, any excess amounts paid by Tenant on
account of the Fixed Rent for such Lease Year shall be credited against the next
installment of Fixed Rent due and owing hereunder. At either party's written
request, following the determination of Fixed Rent for a particular Lease Year,
both parties shall execute and enter into an amendment to this Lease
memorializing the Fixed Rent payable with respect to such Lease Year promptly,
and in any event within five (5) Business Days, after receipt of such request by
the non-requesting party.
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3.2 Additional Rent. In addition to Fixed Rent payable with respect to
the Premises, Tenant shall pay and discharge as and when due and payable the
following (collectively "Additional Rent") (any costs or expenses paid or
incurred by Landlord on behalf of Tenant that constitute Additional Rent shall
be reimbursed by Tenant to Landlord promptly, and in any event within ten (10)
Business Days, after the presentation by Landlord to Tenant of invoices
therefor):
3.2.1 Impositions. Subject to the escrow provisions contained in
Section 3.3 below, Tenant shall pay all Impositions when due, and regardless of
the period to which they relate, and in any event before any fine, penalty,
interest or cost may be added for non-payment, such payments to be made directly
to the taxing authorities where feasible, and shall, promptly upon request,
furnish to Landlord copies of official receipts or other satisfactory proof
evidencing such payments. If any such Imposition may, at the option of the
taxpayer, lawfully be paid in installments (whether or not interest shall accrue
on the unpaid balance of such Imposition), Tenant may exercise the option to pay
same (and any accrued interest on the unpaid balance of such Imposition) in
installments (provided no such installments shall extend beyond the Term) and,
in such event, shall pay such installments during the Term before any fine,
penalty, premium, further interest or cost may be added thereto.
3.2.2 Utility Charges. Tenant shall pay any and all charges for
electricity, power, gas, oil, water, sanitary and storm sewer, refuse
collection, medical waste disposal and other utilities used or consumed in
connection with each Leased Property during the Term. In the event Landlord is
billed directly by any utility company for any utilities or services supplied to
Tenant during the Term, Landlord shall send Tenant the xxxx and Tenant shall pay
the same before it is due. Landlord shall have no obligation or liability with
respect to any interruption or failure in the supply of any such utilities.
3.2.3 Insurance Premiums. Tenant shall pay all premiums for the
insurance coverage required to be maintained pursuant to Section 14 hereof.
3.2.4 Other Charges. Tenant shall pay all other amounts,
liabilities, obligations, costs and expenses paid or incurred with respect to
the ownership, repair, replacement, restoration, maintenance and operation of
the Premises.
3.2.5 Late Payment of Rent. If any installment of Fixed Rent or
Additional Rent (but only as to those Additional Rent payments that are payable
directly to Landlord or Landlord's agent or assignee) shall not be paid on its
due date, Tenant will pay to Landlord for such overdue installment, on demand,
(i) interest computed at the Overdue Rate on the amount of such installment,
from the due date of such installment to the date of payment thereof and (ii) an
administrative fee of One Thousand Dollars ($1,000.00). In the event of any
failure by Tenant to pay any Additional Rent when due, Tenant shall promptly pay
and discharge, as Additional Rent, every fine, penalty, interest and cost that
may be added for non-payment or late payment of such items. Landlord shall have
all legal, equitable and contractual rights, powers and remedies provided either
in this Lease or by statute or otherwise in the case of non-payment of Rent.
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3.2.6 Consent Expenses. Tenant shall pay, as Additional Rent, on
behalf of Landlord, or reimburse Landlord for, any and all of the costs and
expenses paid or incurred by Landlord, including, without limitation, reasonable
attorneys' fees, in connection with any of the following activities undertaken
by or on behalf of Landlord under this Lease: (i) the review by Landlord or
Landlord's Representatives of any notices, reports or other information required
to be submitted to Landlord by Tenant pursuant to the terms hereof, including,
without limitation, financial statements, Annual Capital Expenditure Budgets,
Officer's Certificates, Estoppel Certificates, Annual Budgets and Operator
Reports; (ii) any inspection performed by Landlord or any of Landlord's
Representatives of one or more Leased Properties pursuant to any inspection
rights granted hereunder; (iii) the exercise by Tenant of the Option, whether or
not the purchase and sale of the Premises is consummated; (iv) the review,
execution, negotiation or delivery of any consent, waiver, estoppel,
subordination agreement or approval requested of Landlord by Tenant hereunder,
including, without limitation, any request for consent to Alterations, any
so-called "landlord's waiver", or the negotiation and approval of the terms of,
and instruments associated with, any AR Financing; (v) the review by Landlord or
Landlord's Representatives of any Plans and Specifications or Restoration Plans
and Specifications; (vi) the review by Landlord or Landlord's Representatives,
of any request by Tenant for any other approval or consent hereunder, or any
waiver of any obligation of Tenant hereunder; (vii) the negotiation by Landlord
or Landlord's Representatives of the terms of instruments requested by Landlord
of Tenant in connection with any Facility Mortgage; (viii) any assistance
provided by Landlord in connection with a permitted contest pursuant to Section
13; (ix) any review by Landlord of invoices, bills, receipts and other documents
required to be reviewed by Landlord, in its reasonable discretion, to monitor
Tenant's compliance with the terms of this Lease in respect of Impositions,
utility charges, insurance premiums or any other provisions hereunder requiring
Tenant to make payments to any third party; (x) the establishment and
maintenance by Landlord or any Facility Mortgagee of any bank or investment
account pursuant to Section 3.3 or 11.3; and (xi) any other negotiation, request
or other activity comparable to any of the foregoing (collectively, such
expenses, "Consent Expenses"). Tenant shall reimburse Landlord for (or pay on
behalf of Landlord) any Consent Expenses promptly, and in any event within
fifteen (15) Business Days, after the presentation by Landlord to Tenant of
invoices therefor.
3.3 Escrow Deposits.
3.3.1 Escrow. Tenant shall, on the first day of the first
calendar month commencing after the date on which the aggregate amount of
Impositions and insurance premiums payable from and after November 4, 2002 is
greater than or equal to the Tax Credit (the "Escrow Commencement Date"), and on
the first day of each calendar month thereafter during the Term, pay to and
deposit with Landlord a sum equal to one twelfth (1/12th) of the Impositions to
be levied, charged, filed, assessed or imposed upon or against the Premises
within one (1) year after the Escrow Commencement Date (or any subsequent twelve
(12) month period) and a sum equal to-one-twelfth (1/12th) of the premiums for
the insurance policies required pursuant to Section 14 hereof that are payable
within one (1) year after said Escrow Commencement Date (or any subsequent
twelve (12) month period). If the amount of the Impositions to be levied,
charged, assessed or imposed or insurance premiums to be paid within the one (1)
year period following the Escrow Commencement Date (or any subsequent twelve
(12) month period) hereunder cannot be determined as of the Escrow Commencement
Date (or
22
the commencement of any subsequent twelve (12) month period), such amount for
the purpose of computing the deposit to be made by Tenant hereunder shall be
estimated by Landlord with an appropriate adjustment to be promptly made between
Landlord and Tenant as soon as such amount becomes determinable. Landlord may,
at its option, from time to time require that any particular deposit be greater
than one-twelfth (1/12th) of the estimated Imposition and/or insurance premium
amount payable within one (1) year after the Escrow Commencement Date (or the
commencement of any subsequent twelve (12) month period), if such additional
deposit is required to provide a sufficient fund from which to make payment of
all Impositions on or before the next due date of any installment thereof, or to
make payment of any required insurance premiums not later than the due date
thereof. Tenant shall deliver to Landlord copies of all notices, demands,
claims, bills and receipts in relation to the Impositions and insurance premiums
promptly upon receipt thereof by Tenant. The actual or estimated amounts on
account of Impositions and insurance premiums shall be adjusted annually.
3.3.2 Landlord's Deposit. On the date hereof, Landlord shall
deposit, in an account (the "Escrow Account") with Lending Institution
satisfactory to Landlord or any Facility Mortgagee, in the sole discretion of
Landlord or such Facility Mortgagee, an amount equal to the Tax Credit. The Tax
Credit and escrow deposits made by Tenant pursuant to this Section 3.3 may be
commingled with other assets of Landlord or such Facility Mortgagee. The Tax
Credit shall be applied by Landlord or such Facility Mortgagee pursuant to the
terms of this Section 3.3, in the same manner and fashion as an escrow deposit
made by Tenant to Landlord pursuant to Section 3.3.3 for purposes of the payment
of Impositions and insurance premiums.
3.3.3 Use of Deposits. Tenant shall pay any and all Impositions
and insurance premiums when due and regardless of whether or not the funds then
held in the Escrow Account are sufficient to reimburse Tenant therefor. The Tax
Credit and the sums deposited by Tenant under this Section 3.3 shall be held by
Landlord or any Facility Mortgagee, and, provided that no Event of Default
exists hereunder, shall be used to reimburse Tenant for any Impositions and/or
insurance premiums, as applicable, paid by Tenant, upon delivery by Tenant to
Landlord or such Facility Mortgagee, as applicable, of documentation evidencing
the payment of such Impositions and/or insurance premiums, which reimbursement
shall be provided within thirty (30) days after the presentation of such
evidence. Any such deposits may be commingled with other assets of Landlord or
such Facility Mortgagee, and shall be deposited in the Escrow Account and
Landlord shall not be liable to Tenant or any other person for any consequent
loss of principal or interest of funds held in the Escrow Account. Furthermore,
Landlord and its Facility Mortgagee shall bear no responsibility for the
financial condition of, nor any act or omission by, the Lending Institution at
which the Escrow Account is located. The interest from such deposits shall be
retained in the Escrow Account to be applied in accordance with the terms of
this Section 3.3. If Tenant fails to pay any Impositions or insurance premiums
when due and owing hereunder to the applicable taxing authority or insurance
carrier, Landlord or any Facility Mortgagee may, but shall not be obligated to,
pay such Impositions or insurance premiums from the funds in the Escrow Account
pursuant to this Section 3.3. Upon the occurrence of any Event of Default,
Landlord or any Facility Mortgagee may apply any funds held in the Escrow
Account to cure such Event of Default or on account any damages suffered or
incurred by Landlord in connection therewith.
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3.3.4 Deficits. Landlord shall have no liability whatsoever to
Tenant if any deposits held by Landlord under this Section 3.3 are not
sufficient to reimburse Tenant for any Imposition or insurance premium paid by
Tenant. Landlord may change its estimate of any Imposition or insurance premium
for any period on the basis of a change in an assessment or tax rate or on the
basis of a prior miscalculation or for any other good faith reason. In such
event, Tenant shall deposit with Landlord the amount in excess of the sums
previously deposited with Landlord for the applicable period within ten (10)
days after written request therefor from Landlord.
3.3.5 Transfers; Refund. In connection with any assignment of the
Landlord's interest under this Lease, the original Landlord named herein and
each successor in interest shall have the right to transfer all amounts
deposited pursuant to the provisions of this Section 3.3 and still in its
possession to such assignee (as the subsequent holder of Landlord's interest in
this Lease) and upon such transfer, the original Landlord named herein or the
applicable successor in interest transferring the deposits shall thereupon be
completely released from all liability with respect to such deposits so
transferred, and Tenant shall look solely to said assignee, as the subsequent
holder of Landlord's interest under this Lease, in reference thereto. As of the
Expiration Date, any sums held by Landlord under this Section 3.3 (exclusive of
interest) shall be: (i) first, applied to any credit owing from Tenant to
Landlord pursuant to Section 4.3 on account of Impositions; and (ii) second,
returned to Tenant, only as and when the conditions of Section 3.4.3 for the
return of the Security Deposit have been met and provided that any and all
Impositions or insurance premiums due and owing hereunder have been paid in
full.
3.4 Security Deposit.
3.4.1 Cash Security Deposit; Application. Unless Landlord has
made the LC Election, Tenant has paid Landlord upon the delivery of this Lease
an amount equal to six (6) months of Fixed Rent (the "Security Amount") as
security (the "Security Deposit") for the full and faithful performance by
Tenant of each and every term, provision, covenant and condition of this Lease.
Upon the occurrence of a Covenant Replacement Event, the Security Amount (and
the Security Deposit) shall be increased by Tenant to an amount equal to two (2)
years of Fixed Rent (determined from time to time as two (2) times the then
applicable annual Fixed Rent), which Security Amount and Security Deposit shall
be held, treated and applied in accordance with this Lease for all relevant
purposes. Landlord may elect, in its sole discretion, to allow all or some
portion of the Security Deposit to act as security for the Mezzanine Loan. Such
unilateral election on the part of Landlord shall be made by written notice from
Landlord to Tenant designating the portion of the Security Deposit that shall
act as security for the Mezzanine Loan. Landlord may at any time, and from time
to time, in its sole discretion, revoke such election or revise the portion of
the Security Deposit that shall act as security for the Mezzanine Loan (the
portion of the Security Deposit from time to time acting as security for the
Mezzanine Loan, the "Mezz Security"). Promptly after any such election on the
part of Landlord, Tenant shall execute such instruments, acknowledgements or
agreements as Lender or Landlord shall reasonably require to govern the
application, use, refund and replenishment of the Mezz Security. Notwithstanding
anything contained herein to the contrary, Landlord shall have no liability or
obligation to return that portion of the Security Deposit that constitutes any
Mezz Security if and to the extent applied with respect to the Mezzanine Loan or
such return is
24
prevented by the terms of any agreement relative thereto. Upon the occurrence of
an Event of Default, Landlord may, but shall not be required to, use, apply or
retain the whole or any part of the Security Deposit (whether by drawing upon
the Letter of Credit, or applying the cash Security Deposit held by it) for the
payment of any Rent in default or for any other sum that Landlord may expend or
be required to expend by reason of Tenant's default, including any damages or
deficiency in the reletting of the Premises, whether such damages or deficiency
accrue before or after summary proceedings or other re-entry by Landlord. Tenant
shall not be entitled to any interest on the Security Deposit and Landlord may
commingle the Security Deposit with its other funds. In case of a sale or
transfer of the Premises by Landlord, or any cessation of Landlord's interest
therein, whether in whole or in part, Landlord may pay over any unapplied part
of the Security Deposit (or, in the case of any such partial transfer or
cessation, such portion as Landlord allocates to such part of the Premises, in
its reasonable discretion) or transfer the Letter of Credit if the LC Election
has been made, with any fees incident to such transfer being paid by Tenant
(which transfer, in the case of any such partial transfer or cessation, shall
require Tenant to cause the Letter Credit to be reissued as separate Letters of
Credit satisfying the requirements of Section 3.4.2 as to the remaining Leased
Properties) to the successor owner of the Premises, and from and after such
payment, Landlord shall be relieved of all liability with respect thereto. The
provisions of the preceding sentence shall apply to every subsequent sale or
transfer of the Premises or any part thereof.
3.4.2 LC Election. At any time, and from time to time, Landlord
may elect (such election, an "LC Election"), in its sole discretion and by
written notice to Tenant, to cause Tenant to post the Security Deposit in the
form of an irrevocable, standby Letter of Credit with a face value of the full
Security Amount (the "Letter of Credit"). Promptly, and in any event within
thirty (30) days after notice of the LC Election, Tenant shall deliver to
Landlord a Letter of Credit satisfying the requirements of this Section 3.4.2 in
the place and stead of the cash Security Deposit, whereupon Landlord shall
return any portion of a cash Security Deposit made by Tenant to Landlord not
previously applied by Landlord. The Letter of Credit shall: (a) be in form and
substance acceptable to Landlord in its sole discretion; (b) name Landlord as
its sole beneficiary; (c) expressly allow Landlord to draw upon it at any time,
or from time to time, in whole or in part, by delivering to the issuer, at an
office of the issuer located in New York, New York, Louisville, Kentucky or
Chicago, Illinois, as set forth on the face of the Letter of Credit, written
notice that Landlord is entitled to draw thereon pursuant to the terms of this
Lease; (d) be issued by an FDIC-insured Lending Institution that is reasonably
satisfactory to Landlord, but shall in all events have a credit rating of "AA"
(or the equivalent) or higher from one of the Rating Agencies; and (e) be
expressly unconditional, irrevocable and fully transferable. The Letter of
Credit (and any renewals or replacements thereof) shall be for a term of not
less than one (1) year. Tenant agrees that it shall from time to time, as
necessary, (i) renew or replace the original and any subsequent Letter of Credit
not less than thirty (30) days prior to its stated expiration date so that it
will remain in full force and effect until the later of sixty (60) days after
the last day of the Term or the date on which Tenant's obligations under this
Lease are satisfied in full or (ii) deliver a cash Security Deposit in the
Security Amount not less than thirty (30) days prior to the stated expiration
date of such Letter of Credit. If Tenant fails to furnish such renewal or
replacement at least 30 days prior to the stated expiration date of the Letter
of Credit, Landlord, or its successor, may immediately draw upon such Letter of
Credit and hold the proceeds thereof as a portion of the Security Deposit
pursuant to the terms of this Lease. Any renewal of or replacement for the
original or any subsequent Letter of Credit shall
25
be in an amount not less than the Security Amount and shall otherwise meet the
requirements for the original Letter of Credit as set forth above.
3.4.3 Increase; Replacement of Security Deposit. Tenant, within
five (5) Business Days after any increase in Fixed Rent hereunder, shall deposit
with Landlord cash in, or increase the face amount of the Letter of Credit by,
the amount necessary to ensure the Security Deposit hereunder continues to be
equal to six (6) months' annual Fixed Rent based upon the increased Fixed Rent
from time to time due hereunder (or two (2) times Fixed Rent in the event a
Covenant Replacement Event has occurred). The Security Deposit (or any portion
thereof) may be applied (or drawn upon from time to time in full or partial
amounts in the case of the Letter of Credit and any renewals or replacements
thereof) by Landlord for purposes of curing any Event of Default or Events of
Default of Tenant hereunder (or as otherwise expressly provided in this Section
3.4), in which event Tenant shall replenish said Security Deposit in full,
within ten (10) days after demand therefor, by paying to Landlord the amount so
applied or drawn, or, in the case of the Letter of Credit, restoring the Letter
of Credit to its full amount. Tenant's failure to timely restore the Security
Deposit as aforesaid shall be an Event of Default. If: (a) no Event of Default
has occurred and is continuing hereunder, (b) either (i) Landlord has not
applied (or drawn upon) the Security Deposit to cure an Event of Default or (ii)
Landlord has applied (or drawn upon) the Security Deposit to cure an Event of
Default and Tenant has replenished or restored the same, and (c) Tenant has
fully performed and satisfied all of its obligations under the Lease (including,
without limitation and as applicable, its obligations relative to an Operational
Transfer), then the Security Deposit, or such applicable portion thereof, shall
be paid or returned to Tenant within sixty (60) days after the expiration or
termination of this Lease and the surrender of the Premises to Landlord in the
condition required hereunder; provided, however, that Landlord may retain an
amount, as it shall reasonably determine, to secure the payment of any Rent, the
amount of which Landlord is then unable to determine finally (and Landlord shall
return any such retained amount to Tenant promptly following the final
determination of such Rent amount and the full payment to Landlord of such
Rent). The Security Deposit shall not be deemed an advance payment of Rent or a
measure of Landlord's damages for any default hereunder by Tenant, nor shall it
be a bar or defense to any action that Landlord may at any time commence against
Tenant.
3.5 Survival. Tenant's obligation to pay any Rent owing hereunder with
respect to any period on or prior to the expiration or termination of this Lease
(including, without limitation, any Extended Terms), as this Lease applies to
any or all of the Premises, shall survive any such expiration or termination.
3.6 Net Lease. The Rent shall be paid absolutely net to Landlord, free
of all Impositions, utility charges, operating expenses, insurance premiums or
any other charge or expense in connection with the Premises, without any rights
of deduction, set-off or abatement, so that this Lease shall yield to Landlord
the full amount of the installments of Fixed Rent, throughout the Term
(including, without limitation, any Extended Terms). This Lease is intended to
be and shall be construed as an absolutely net lease pursuant to which Landlord
shall not, under any circumstances or conditions, whether presently existing or
hereafter arising, and whether foreseen or unforeseen by the parties, be
required to make any payment or expenditure of any kind whatsoever or be under
any other obligation or liability whatsoever, except as expressly set forth
herein. Notwithstanding the provisions of this Section 3.6, Tenant shall retain
26
the right to bring lawsuits against Landlord with respect to alleged defaults by
Landlord of its obligations hereunder or under other agreements to which Tenant
and Landlord are parties.
3.7 Lease Guaranty. On the date hereof, Tenant shall cause to be
delivered to Landlord the Lease Guaranty made by Guarantor guaranteeing all of
Tenant's obligations under this Lease.
4. Impositions.
4.1 Payment of Impositions. Subject to Section 13 relating to
permitted contests, Tenant shall pay all Impositions payable during the Term as
set forth in Section 3.2.1 and for any tax period occurring during the Term,
irrespective of whether the Impositions for such tax period are due and payable
after the Term. Tenant's obligation to pay such Impositions shall be deemed
absolutely fixed upon the date such Impositions become a lien upon the Leased
Property or any part thereof. If any refund shall be due from any taxing
authority in respect of any Imposition paid by Tenant during the Term, the same
shall be paid over to or retained by Tenant but only if no Event of Default
shall have occurred hereunder and be continuing. If an Event of Default shall
exist hereunder, such refund shall be paid over to and retained by Landlord. If
Tenant nevertheless receives such refund, Tenant shall, upon receipt,
immediately pay such refund over to Landlord in full. Any such funds retained by
Landlord due to an Event of Default shall be applied as Landlord shall determine
in its sole discretion. In the event any Governmental Authority classifies any
property covered by this Lease as personal property, Tenant shall file all
personal property tax returns in such jurisdictions where it may legally so
file. Subject to the terms of Section 13, Tenant may, upon notice to Landlord,
at Tenant's option and at Tenant's sole cost and expense, protest, appeal, or
institute tax contests to effect a reduction of real estate or personal property
assessments and Landlord, at Tenant's expense as aforesaid, shall cooperate with
Tenant in such protest, appeal, or other action to the extent required by law
and reasonably requested by Tenant.
4.2 Notice of Impositions. Landlord or Landlord's designee shall use
reasonable efforts to give prompt notice to Tenant of all Impositions payable by
Tenant hereunder of which Landlord at any time has knowledge (which notice shall
be deemed properly given if given pursuant to Section 33 hereof or by an e-mail
notification to Tenant at xxxxxx@xxxxxxx.xxx), and, if Tenant has not otherwise
received notice or become aware of the applicable Impositions, Landlord's
failure to give any such notice shall temporarily suspend Tenant's obligations
hereunder to pay such Impositions only until such time as Tenant receives notice
or otherwise becomes aware of such Impositions; provided, however, that if
Landlord reasonably believes that Tenant is aware of such payable Impositions,
then Landlord shall have no such obligation to notify Tenant thereof. In the
event that Landlord fails to timely notify Tenant of any Impositions payable by
Tenant of which Landlord has knowledge and of which Tenant has not otherwise
received notice or become aware, then Landlord shall pay any fine or late fee
resulting from the late payment of such Impositions, but only to the extent that
such fine or late fee is due to delay in payment caused by such failure by
Landlord to so advise Tenant. Tenant shall deliver to Landlord, not more than
five (5) days prior to the due date of each Imposition, copies of the invoice
for such Imposition, the check delivered for payment thereof and an original
receipt evidencing such payment or other proof of payment satisfactory to
Landlord.
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4.3 Adjustment of Impositions. Any Imposition imposed in respect of
the tax-fiscal period during which the Term terminates or expires shall be
adjusted and prorated between Landlord and Tenant, whether or not such
Imposition is imposed before or after such termination or expiration, and
Tenant's obligation to pay its prorated share thereof shall survive such
termination or expiration.
5. No Termination, Abatement, etc. Tenant, to the extent permitted by law,
shall remain bound by this Lease in accordance with its terms and shall neither
take any action without the consent of Landlord to modify, surrender or
terminate the same, nor seek nor be entitled to any abatement, deduction,
deferment or reduction of Rent, or set-off against the Rent, nor shall the
respective obligations of Landlord and Tenant be otherwise affected by reason of
(a) any damage to, or destruction of, any Leased Property or any portion
thereof, from whatever cause, or any Condemnation of any Leased Property or any
portion thereof (except as otherwise expressly and specifically provided in
Section 15 or Section 16), (b) the interruption or discontinuation of any
service or utility servicing any Leased Property, (c) the lawful or unlawful
prohibition of, or restriction upon, Tenant's use of any Leased Property, or any
portion thereof, the interference with such use by any person, corporation,
partnership or other entity, or eviction by paramount title, (d) any claim that
Tenant has or might have against Landlord or any default or breach of any
warranty by Landlord under this Lease or any other agreement between Landlord
and Tenant, or to which Landlord and Tenant are parties, (e) any bankruptcy,
insolvency, reorganization, composition, readjustment, liquidation, dissolution,
winding up or other proceedings affecting Landlord or any assignee or transferee
of Landlord, (f) revocation, suspension or non-renewal of any license, permit,
approval or other Authorization necessary to operate any Facility, (g) any
withholding, non-payment, reduction or other adverse change respecting any
Facility Provider Agreement, Medicare, Medicaid or other Third Party Payor
Program, (h) any admissions hold under Medicare, Medicaid or any Third Party
Payor Program, or (i) for any other cause whether similar or dissimilar to any
of the foregoing other than a discharge of Tenant from any such obligations as a
matter of law. Tenant hereby specifically waives all rights, arising from any
occurrence whatsoever, which may now or hereafter be conferred upon it by law to
(i) modify, surrender or terminate this Lease or quit or surrender any Leased
Property or any portion thereof, or (ii) entitle Tenant to any abatement,
reduction, suspension or deferment of the Rent or other sums payable by Tenant
hereunder. The obligations of Landlord and Tenant hereunder shall be separate
and independent covenants and agreements and the Rent and all other sums payable
by Tenant hereunder shall continue to be payable in all events unless and to the
extent the obligations to pay the same shall be terminated by termination of
this Lease as to any Leased Property other than by reason of an Event of
Default.
6. Premises; Tenant's Personal Property.
6.1 Ownership of the Premises. Tenant acknowledges that the Premises
are the property of Landlord and that Tenant has only the right to the
possession and use of the Premises upon and subject to the terms and conditions
of this Lease. Notwithstanding anything to the contrary contained in this Lease,
in the case of any easement or other rights that are appurtenant to any Leased
Property, Tenant agrees that Landlord does not make any representation or
warranty relative to Landlord's title thereto or whether such appurtenances are
28
encumbered. Tenant agrees that such appurtenances shall constitute Permitted
Encumbrances, as to which Tenant shall have the obligations set forth in Section
8.2.7 and Section 23.
6.2 Tenant's Personal Property. Tenant may (and shall as provided
herein below), at its sole expense, install, affix or assemble or place on any
parcels of the Land or in any of the Leased Improvements, any items of Tenant's
Personal Property and Tenant shall, subject to the terms of Section 21.1.1 and
the conditions set forth below, and except for any Tenant's Personal Property
that is purchased by Landlord pursuant to Section 36, remove the same upon the
expiration or any prior termination of the Term as it relates to any Leased
Property(ies) upon which the same are located. Tenant shall provide and maintain
during the entire Term all such Tenant's Personal Property as shall be necessary
to maintain the Authorizations in effect and to operate each Facility in
compliance with all licensure and certification requirements, in compliance with
all applicable and material Legal Requirements and Insurance Requirements and
otherwise in accordance with customary practice in the industry for the Primary
Intended Use of each Leased Property. All of Tenant's Personal Property not
removed on or prior to the expiration or earlier termination of this Lease shall
be considered abandoned by Tenant and may be appropriated, sold, destroyed or
otherwise disposed of by Landlord without first giving notice thereof to Tenant
and without any payment to Tenant and without any obligation to account therefor
or otherwise dispose of the same in accordance with applicable law. Pursuant to
the terms of Section 9.1.3, Tenant shall, at its expense, restore the Premises
to the condition required by Section 9.1.3, including, without limitation,
repair of all damage to the Premises caused by the removal of Tenant's Personal
Property, whether effected by Tenant or Landlord.
7. Condition and Use of Each Leased Property.
7.1 Condition of Each Leased Property. Tenant acknowledges receipt and
delivery of possession of each Leased Property and that Tenant has examined and
otherwise has knowledge of the condition of each Leased Property prior to the
execution and delivery of this Lease and has found each Leased Property to be in
good order and repair and satisfactory for its purposes hereunder. Tenant is
leasing each Leased Property "as is" "where is" and Tenant waives any claim or
action against Landlord in respect of the condition of each Leased Property.
LANDLORD MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, IN RESPECT OF
ANY LEASED PROPERTY OR ANY PART THEREOF, EITHER AS TO ITS FITNESS, DESIGN OR
CONDITION FOR ANY PARTICULAR USE OR PURPOSE AS TO THE QUALITY OF THE MATERIAL OR
WORKMANSHIP THEREIN, LATENT OR PATENT, OR OTHERWISE, IT BEING AGREED THAT ALL
SUCH RISKS ARE TO BE BORNE BY TENANT. TENANT ACKNOWLEDGES THAT EACH LEASED
PROPERTY HAS BEEN INSPECTED BY TENANT AND IS SATISFACTORY TO IT.
7.2 Use of Each Leased Property.
7.2.1 Primary Intended Use. During the entire Term, Tenant shall
use each Facility (including, without limitation, the Leased Improvements
thereon) solely for its Primary Intended Use and shall operate each Facility in
a manner consistent with a first class, high quality healthcare facility and
sound reimbursement principles under Medicare, Medicaid and any applicable Third
Party Payor Programs. Tenant shall not use any Leased Property or any portion
thereof for any use other than the Primary Intended Use(s) of the Facility(ies)
located
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thereon without the prior written consent of Landlord, which consent shall not
be unreasonably withheld. No use shall be made or permitted to be made of any
Leased Property, and no acts shall be done, that would cause the cancellation of
any insurance policy covering such Leased Property or any part thereof, nor
shall Tenant sell or otherwise provide to occupants or patients therein, or
permit to be kept, used or sold in or about such Leased Property, any article
that may be prohibited by any Legal Requirements or by the standard form of fire
insurance policies, or any other insurance policies required to be carried
hereunder, or fire underwriters' regulations. The Authorizations for any
Facility shall, to the maximum extent permitted by law, relate and apply
exclusively to such Facility.
7.2.2 Authorizations Appurtenant. Tenant acknowledges and agrees
that, subject to all applicable Legal Requirements, the Authorizations, are
appurtenant to the Facilities to which they apply, both during and following the
termination or expiration of the Term. In jurisdictions where the CONs or any
other Authorizations are issued to a Tenant or its subtenant, as the Facility
operator, Tenant agrees that, in connection with an Operational Transfer, it
shall cooperate with Landlord, in accordance with Section 39.1 hereof, to turn
over all of Tenant's rights in connection with such CONs or other Authorizations
to Landlord or Successor Operator, as applicable. This Section 7.2.2 shall
survive the expiration or earlier termination of this Lease.
7.3 Security Agreement. To the fullest extent permitted by applicable
law, Tenant hereby grants to Landlord a first and best security interest in, and
lien upon, subordinate to no other lien, all Authorizations issued to, leased or
licensed to, or held by, Tenant, including, but not limited to, Tenant's
interest in and rights under all Facility Provider Agreements, with respect to
the Facilities and any CONs issued, leased or licensed to any Tenant
(collectively, "Authorization Collateral") to secure the performance of all of
Tenant's obligations under this Lease, including, but not limited to, its
obligation to engage in, assist with and facilitate any Operational Transfer.
Tenant represents and warrants to Landlord that attached hereto on Schedule 7.3
is a detailed list and description of all of the Authorization Collateral. In
connection with an Event of Default or an Operational Transfer, Landlord shall
have, as to each Leased Property, all the rights and remedies of a secured party
under the laws of the State in which such Leased Property is located with
respect to the Authorization Collateral for the Facility(ies) located on such
Leased Property. Tenant, as debtor, shall (i) execute (if appropriate or
necessary) and deliver to Landlord, as the secured party, upon execution of this
Lease by Tenant, UCC-1 financing statements in proper form, and thereafter, from
time to time, execute and deliver to Landlord such extensions and/or updates of
such financing statements as are required for the purpose of perfecting and
maintaining the priority of the security interest and lien granted to Landlord
herein, (ii) execute such additional security agreements, fixture filings and
other documents as Landlord may reasonably require, and (iii) perform any other
acts reasonably necessary to the perfection of such security interest and lien.
Tenant consents to the filing of such financing statements by Landlord and
agrees that the provisions of this Section 7.3 shall constitute a security
agreement for the purposes contemplated hereby. Notwithstanding anything
contained herein to the contrary, Tenant shall not (under any circumstances)
grant any lien upon, security interest in and to or otherwise pledge, encumber,
hypothecate, transfer or assign, in whole or in part, the Authorization
Collateral to any Person, irrespective of the priority of such security
interest, pledge or hypothecation. The security interest and lien granted by
this
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Section 7.3 shall be in addition to any lien of Landlord that may now or at any
time hereafter be provided by law.
7.4 Granting of Easements, etc. Landlord may, from time to time, with
respect to any Leased Property: (i) grant easements, covenants and restrictions,
and other rights in the nature of easements, covenants and restrictions, (ii)
release existing easements, covenants and restrictions or other rights in the
nature of easements, covenants or restrictions that are for the benefit of the
applicable Leased Property, (iii) dedicate or transfer unimproved portions of
the applicable Leased Property for road, highway or other public purposes, (iv)
execute petitions to have the applicable Leased Property annexed to any
municipal corporation or utility district, (v) execute amendments to any
easements, covenants and restrictions affecting the applicable Leased Property
and (vi) execute and deliver to any person any instrument appropriate to confirm
or effect such grants, releases, dedications and transfers (to the extent of its
interests in the applicable Leased Property) without the necessity of obtaining
Tenant's consent provided that such easement or other instrument is not
materially detrimental to the conduct of the business of Tenant on the
applicable Leased Property. If any easement, covenant, release or comparable
instrument contemplated by this Section 7.4 is materially detrimental to the
conduct of business by the applicable Tenant(s) at a Leased Property, Landlord
shall obtain Tenant's prior written consent to the proposed easement, covenant
or restriction or comparable instrument, which consent shall not be unreasonably
withheld (and which consent shall be deemed given if not expressly denied by
Tenant, in writing, within ten (10) Business Days of Tenant's receipt of such
request).
8. Negative and Affirmative Covenants of Tenant.
8.1 Negative Covenants. Tenant covenants and agrees with Landlord
that:
8.1.1 Due on Sale and Encumbrance; Transfers of Interests.
Without the prior written consent of Landlord, neither any Tenant nor any Person
having a direct or indirect interest, ownership or beneficial interest in any
Tenant or any Guarantor shall sell, convey, mortgage, grant, bargain, encumber,
pledge, assign or otherwise transfer any interest, direct or indirect, in any
Tenant, any Guarantor (except as may otherwise be expressly and specifically
permitted in the Lease Guaranty with respect to Trans and certain Service
Guarantors), any of the Leased Properties or any part thereof, whether
voluntarily or involuntarily.
8.1.2 Liens; Waste. No Tenant shall create, incur, assume or
suffer to exist any lien, charge, encumbrance, easement or restriction on any
portion of any of the Leased Properties except for Permitted Encumbrances. No
Tenant shall commit or suffer to be committed any waste on any Leased Property,
nor shall any Tenant cause or permit any material nuisance thereon.
8.1.3 Issuance of Equity Interests. No Tenant shall issue or
allow to be created any stocks or shares or partnership or membership interests
in any Tenant, or other ownership interests other than the stocks, shares,
partnership or membership interests and other ownership interests that are
outstanding or exist on the date hereof or any security or other instrument that
by its terms is convertible into or exercisable or exchangeable for stock,
shares,
31
partnership or membership interests or other ownership interests in any Tenant
that are outstanding or exist on the date hereof.
8.1.4 Change in Business. No Tenant (exclusive of Trans
Healthcare of Ohio, Inc.) shall cease to be a single-purpose entity existing for
the sole purpose of operating the applicable Leased Property(ies) for its/their
Primary Intended Use(s), or make any material change in the scope or nature of
its business objectives, purposes or operations, or undertake or participate in
activities other than in continuance of its present business. No Tenant shall
amend, modify or alter its Tenant Org Docs in any material respect without
Landlord's prior written consent, which consent may be given or withheld in
Landlord's sole discretion.
8.1.5 Primary Intended Use. No Tenant shall (i) change, consent
to, or otherwise acquiesce in, the change of the Primary Intended Use of any
Facility; or (ii) reduce, or consent to, or otherwise acquiesce in, the
reduction of the number of licensed beds at any Facility without Landlord's
prior written consent, which consent shall not be unreasonably withheld.
8.1.6 Debt Cancellation. No Tenant shall cancel or otherwise
forgive or release any claim or debt owed to any Tenant by any Person, except
for adequate consideration and in the ordinary course of such Tenant's business.
8.1.7 Affiliate Transactions. No Tenant shall enter into, or be a
party to, any transaction with an Affiliate of any Tenant or any of the
partners, members or shareholders of any Tenant except in the ordinary course of
business and on terms that are fully disclosed to Landlord in advance and are no
less favorable to any Tenant or such Affiliate than would be obtained in a
comparable arm's-length transaction with an unrelated third party.
8.1.8 Zoning. No Tenant shall initiate or consent to any zoning
reclassification of any portion of any of the Leased Properties or seek any
variance under any existing zoning ordinance or use (or permit the use of) any
portion of any of the Leased Properties in any manner that could result in such
use becoming a non-conforming use under any zoning ordinance or any other
applicable land use law, rule or regulation, without the prior consent of
Landlord.
8.1.9 Assets; Investing. No Tenant (exclusive of Trans Healthcare
of Ohio, Inc. in accordance with the Lease Guaranty only) shall purchase or own
any property other than property necessary for, or incidental to, the operation
of the applicable Facility(ies) for its/their Primary Intended Use(s). No Tenant
(exclusive of Trans Healthcare of Ohio, Inc. to the extent expressly and
specifically permitted under the Loan Documents and the Lease Guaranty) shall
purchase or otherwise acquire, hold, or invest in securities (whether capital
stock or instruments evidencing indebtedness) of any Person. No Tenant
(exclusive of Trans Healthcare of Ohio, Inc. to the extent expressly and
specifically permitted under the Loan Documents and the Lease Guaranty) shall
make loans or advances to, any Person (other than any Guarantor provided no
Event of Default then exists), except for cash balances temporarily invested in
short-term or money market securities.
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8.1.10 Contracts. No Tenant shall execute or modify any material
contracts or agreements with respect to any Facility except for contracts and
modifications approved by Landlord (which approval shall not be unreasonably
withheld). Contracts made in the ordinary course of business and in an amount
less than $100,000.00 shall not be considered "material" for purposes of this
Section.
8.1.11 Subordination of Payments to Affiliates. After the
occurrence of an Event of Default and until such Event of Default is cured, no
Tenant shall make any payments or distributions (including, without limitation,
salary, bonuses, fees, principal, interest, dividends, liquidating
distributions, management fees, cash flow distributions or lease payments) to
any Guarantor or any Affiliate of any Tenant or any Guarantor, or any
shareholder, member, partner or other equity interest holder of Tenant, any
Guarantor or any Affiliate of any Tenant or Guarantor.
8.1.12 No Joint Assessment. No Tenant shall suffer, permit or
initiate the joint assessment of any Leased Property (i) with any other real
property constituting a tax lot separate from such Leased Property, or (ii) with
any portion of such Leased Property that may be deemed to constitute personal
property, or any other procedure whereby the lien of any taxes that may be
levied against such personal property shall be assessed or levied or charged to
such Leased Property.
8.1.13 Principal Place of Business. No Tenant shall change its
principal place of business without first giving Landlord thirty (30) days prior
notice. No Tenant shall change its jurisdiction of organization or its name
without first obtaining the written consent of Landlord.
8.1.14 ERISA.
8.1.14.1 No Tenant shall engage in any transaction that
would cause any obligation, or action taken or to be taken, hereunder (or the
exercise by Landlord of any of its rights under this Lease) to be a non-exempt
(under a statutory or administrative class exemption) prohibited transaction
under ERISA.
8.1.14.2 Each Tenant shall deliver to Landlord such
certifications or other evidence from time to time throughout the Term, as
requested by Landlord in its sole discretion, that (A) such Tenant is not and
does not maintain an "employee benefit plan" as defined in Section 3(3) of
ERISA, that is subject to Title I of ERISA, or a "governmental plan" within the
meaning of Section 3(3) of ERISA; (B) such Tenant is not subject to state
statutes regulating investments and fiduciary obligations with respect to
governmental plans; and (C) one or more of the following circumstances is true:
(i) equity interests in such Tenant are publicly offered
securities, within the meaning of 29 C.F.R. (S) 2510.3-101(b)(2);
(ii) less than twenty-five percent (25%) of each outstanding
class of equity interests in such Tenant are held by "benefit plan
investors" within the meaning of 29 C.F.R. (S) 2510.3-101(f)(2); or
33
(iii) such Tenant qualifies as an "operating company" or a "real
estate operating company" within the meaning of 29
C.F.R. (S) 2510.3-101(c) or (e).
8.1.15 Other Indebtedness. No Tenant shall create, incur, assume,
or permit to exist any indebtedness other than (i) trade debt incurred in the
ordinary course of Tenant's business (which shall not include so-called
"accounts receivable" financing, which shall be governed by the terms of Section
21.2); or (ii) any AR Financing pursuant to Section 21.2.
8.1.16 Guaranties. Except in connection with the Loan
Transaction, no Tenant shall create, incur, assume, or permit to exist any
guarantee of any loan or other indebtedness except for the endorsement of
negotiable instruments for collection in the ordinary course of business.
8.1.17 Use-Specific Negative Covenants. No Tenant shall:
8.1.17.1 Transfer any Authorizations to any location other
than the Facility operated by such Tenant or as otherwise required by the terms
of this Lease nor pledge any Authorizations as collateral security for any loan
or indebtedness except as required by the terms of this Lease.
8.1.17.2 Rescind, withdraw, revoke, amend, modify,
supplement, or otherwise alter the nature, tenor or scope of (i) any
Authorization for any Facility or (ii) any applicable Facility Provider
Agreement for any Facility.
8.1.17.3 Amend or otherwise change any Facility's authorized
bed capacity and/or the number or type of beds, and/or licensing category or
type and/or the number of beds participating in governmental payment programs
approved by the applicable state licensing agency, CMS or other Governmental
Authority without (x) Landlord's prior written consent, which may be given or
denied in Landlord's sole discretion and, (y) in connection with any temporary
reduction of the number of beds, written evidence from each applicable
Governmental Authority that such reduction is temporary.
8.1.17.4 Replace or transfer all or any part of any
Facility's licensed beds to another site or location, change the type of
licensed beds at any Facility or reduce the number of licensed beds at any
Facility.
8.1.17.5 Apply for approval to (i) move any licensed beds to
another site or location, (ii) change the type of licensed beds at any Facility
or (iii) reduce the number of licensed beds at any Facility.
8.1.17.6 Jeopardize in any manner any Tenant's participation
in Medicare, Medicaid or any Third Party Payor Programs to which any Tenant is
subject at any time during the Term.
8.1.17.7 Pledge any receivables as collateral security for
any loan or indebtedness other than as specifically permitted by the terms of
Section 7.3 of this Lease.
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8.1.17.8 Enter into any patient or resident care agreements
with patients or residents or with any other Persons that deviate in any
material respect from the standard form customarily used by any Tenant at the
applicable Facility.
8.1.17.9 Change the terms of any Facility Provider
Agreement, any Third Party Payor Program or its normal billing payment or
reimbursement policies and procedures with respect thereto (including, without
limitation, the amount and timing of finance charges, fees and write-offs);
provided that a Tenant may enter into changes that do not have a material
adverse effect on (x) the business or financial position or results of
operations of such Tenant, (y) the ability of such Tenant to perform, or of
Landlord to enforce, the terms of this Lease or the value of the Leased
Properties taken as a whole.
8.1.17.10 Assign or transfer any of its interest in any
Authorization or assign, pledge, hypothecate, transfer or remove, or permit any
other person to assign, transfer, pledge, hypothecate or remove, any records
pertaining to any Facility including, without limitation, patient records and
medical and clinical records (except for removal of such patient records as
directed by the patients owning such records).
8.2 Affirmative Covenants. Until all of Tenant's obligations hereunder
have been performed and discharged in full, Tenant covenants and agrees to and
for the benefit of Landlord as follows:
8.2.1 Perform Obligations. Tenant shall perform or cause to be
performed, as and when due, all of its obligations under this Lease, the
Authorizations (including, but not limited to, any Facility Provider
Agreements), any Permitted Encumbrances, any Insurance Requirements and any
material Legal Requirements. Prior to the date hereof, Tenant has taken all
necessary action to obtain all Authorizations (including, but not limited to,
the Facility Provider Agreements) required for the operation of each of the
Facilities for its Primary Intended Use and shall take all necessary action to
maintain such Authorizations (including, but not limited to, the Facility
Provider Agreements) during the Term.
8.2.2 Proceedings to Enjoin or Prevent Construction. If any
proceedings are filed seeking to enjoin or otherwise prevent or declare invalid
or unlawful Tenant's construction, occupancy, maintenance, or operation of any
Facility or any portion thereof for its Primary Intended Use, Tenant will cause
such proceedings to be vigorously contested in good faith, and will, without
limiting the generality of the foregoing, use all reasonable commercial efforts
to bring about a favorable and speedy disposition of all such proceedings and
any other proceedings.
8.2.3 Documents and Information.
8.2.3.1 Furnish Documents. Tenant shall timely deliver to
Landlord such financial statements, reports, certificates and other information
as is required pursuant to the terms of Section 25 hereof, including, but not
limited to, the Census Information and Operator Reports, within the applicable
time periods specified in Section 25.
8.2.3.2 Furnish Information. Tenant shall (i) promptly
supply Landlord with such information concerning its financial condition,
licensing, affairs and
35
property as Landlord may reasonably request from time to time hereafter and in
the format reasonably designated by Landlord; (ii) promptly notify Landlord in
writing of any condition or event that constitutes a breach of any term,
condition, warranty, representation, or provision of this Lease or any other
agreement between Landlord or its Affiliates and Tenant, Guarantor or any of
their Affiliates, and of any adverse change in the financial condition of any
Tenant, Guarantor or any Affiliate of Tenant or Guarantor and of any Event of
Default; (iii) maintain a standard and modern system of accounting; (iv) permit
Landlord or any of Landlord's Representatives to have reasonable access to and
to examine all of its books and records regarding the financial condition of any
or all of the Facilities at any time or times hereafter during business hours
and after two (2) Business Days' prior oral or written notice; and (v) permit
Landlord, at Landlord's expense, to copy and make abstracts from any and all of
said books and records. Tenant shall notify Landlord, in writing and within five
(5) Business Days, if any Tenant is advised, in writing, formally or informally,
by its insurance carrier, reinsurance provider, accountants, actuary, any
Governmental Authority, or any Third Party Payor Program provider of any actual,
pending, threatened or contemplated increase in its reserves for expenses
relating to malpractice or professional liability claims or any material
increase in the premium costs for malpractice or professional liability
insurance (any of the foregoing, a "Reserve Event").
8.2.3.3 Further Assurances and Information. Tenant shall,
upon request of Landlord from time to time, execute, deliver, and furnish such
documents as may be necessary or appropriate to consummate fully the
transactions contemplated under this Lease. Promptly, and in any event, within
ten (10) days after a request from Landlord, Tenant shall provide to Landlord
such additional information regarding Tenant, Tenant's financial condition or
the Facilities as Landlord, or any existing or proposed creditor of Landlord or
Ventas, Inc. (including, without limitation, any existing or proposed Facility
Mortgagee), or any auditor or underwriter of Landlord or Ventas, Inc., may
require from time to time.
8.2.3.4 Material Communications. Tenant shall transmit to
Landlord, within two (2) Business Days after receipt thereof (or immediately
with respect to any correspondence related to an "immediate jeopardy" event),
any Actuarial Correspondence and material communication affecting one or more
Facilities, Tenant, Guarantor, any Affiliate of Tenant or Guarantor, this Lease,
the Legal Requirements, the Insurance Requirements, the Facility Provider
Agreements or the Authorizations, and Tenant shall promptly respond to inquiries
by Landlord with respect to such information. Tenant shall notify Landlord in
writing promptly after Tenant obtains knowledge of any potential, threatened or
existing litigation or proceeding against, or investigation of, any Tenant, any
Guarantor, any affiliate of any Tenant or any Guarantor or any Facility that may
affect the right to operate one or more of the Facilities, any Facility Provider
Agreements, any of the Authorizations, the right to receive regular
reimbursement under Medicare, Medicaid or any other Third Party Payor Program or
Landlord's title to any Facility or Tenant's interest therein.
8.2.3.5 Operator Reporting; Actuarial Reports. Tenant shall
provide Landlord with accurate and complete copies of any and all of the census
information concerning the number of licensed beds occupied by bona fide
residents or patients, all cost reports, surveys, survey deficiency reports,
monthly financial statements and other reports, materials and information
concerning Tenant, the Facilities and each Tenant's business
36
operations and compliance with material laws, ordinances, rules, regulations,
Authorizations and Facility Provider Agreements that are submitted by Tenant to
any Governmental Authorities or any provider pursuant to any Third Party Payor
Program (including any Health Department or CMS), for any of the Facilities (the
"Operator Reports") promptly, and in any event, within three (3) Business Days,
after the submission thereof. Tenant shall provide Landlord with any and all
Actuarial Reports received by, or prepared by or on behalf of, Landlord within
ten (10) Business Days after the receipt or submission thereof by or to any
Tenant. All Operator Reports shall be accurate in all material respects as of
the date of such Operator Reports.
8.2.4 Compliance With Laws. Tenant shall comply with all
Insurance Requirements and all material Legal Requirements, and keep all
Authorizations and Facility Provider Agreements in full force and effect. Except
as otherwise provided in Section 3.3, Tenant shall pay when due all Impositions
of every kind and nature that due and payable by Tenant at any time during the
Term. Tenant shall be solely responsible for compliance with all material Legal
Requirements and Landlord shall have no responsibility for such compliance.
8.2.5 Existence and Change in Ownership. Each Tenant shall
maintain its respective existence throughout the Term. Any change in the
ownership of Tenant, directly or indirectly, in whole or in part, shall require
Landlord's prior written consent. Landlord's consent to a change in ownership
may be given or withheld in Landlord's sole discretion.
8.2.6 Financial Covenants. The following financial covenants
shall be met throughout the term of this Lease:
8.2.6.1 Coverage Ratio. Tenant shall maintain for each
fiscal quarter a Coverage Ratio with respect to each Facility of not less than
1.00 to 1.00.
8.2.6.2 Net Worth. Each Tenant shall maintain for each
fiscal quarter a Net Worth of not less than the net worth on the day of
"closing" minus $500,000. Tenant shall maintain during each fiscal quarter an
aggregate Net Worth of not less than net worth at the date of closing less
$2,000,000.
8.2.6.3 Portfolio Coverage Ratio. Tenant shall maintain for
each fiscal quarter a Portfolio Coverage Ratio of not less than 1.25 to 1.00.
8.2.6.4 Minimum Occupancy. Each Tenant shall maintain a
minimum occupancy rate in the applicable Facility of seventy-five percent (75%)
by patients for which full reimbursement is provided in accordance with the
terms of the applicable Facility Provider Agreements. Tenant shall maintain an
aggregate minimum occupancy rate in all of the Facilities for each quarter of
eighty percent (80%) by patients for which full reimbursement is provided in
accordance with the terms of the applicable Facility Provider Agreements.
8.2.7 Permitted Encumbrances. Tenant shall, at its own cost and
expense, fully observe, perform and comply with all Permitted Encumbrances as
the same apply to or bind Landlord or the Premises. No Tenant shall cause, or
permit its respective Tenant Parties to cause, whether by act or omission, any
breach of, default under or termination of any Permitted Encumbrance applicable
to or binding upon Landlord or the Premises.
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8.3 Authorization Non-Compliance. In the event that Tenant shall
receive a complaint or notice from a private party to any Third Party Payor
Program or Governmental Authority alleging, asserting or suggesting that Tenant
is not in substantial compliance with any Legal Requirement, license, permit,
approval, CON, certification for reimbursement under Medicare or Medicaid
(including any Facility Provider Agreement) or other Authorization, Tenant shall
within two (2) Business Days, send notice to Landlord, whereupon Tenant shall
remedy any condition causing such complaint noncompliance, as applicable,
promptly, and in any case within any cure period allowed therefor by the
applicable agency or authority, in the case of such non-compliance.
9. Maintenance of Facilities.
9.1 Maintenance and Repair.
9.1.1 Facility Repair. Tenant, at its sole expense, shall keep
each Leased Property (and Tenant's Personal Property) in good and safe order and
repair, except for ordinary wear and tear and damage by Casualty and
Condemnation (whether or not the need for such repairs occurs as a result of
Tenant's use, any prior use, the elements or the age of such Leased Property,
Tenant's Personal Property, or any portion thereof). Without limitation of the
foregoing, Tenant shall promptly make all necessary and appropriate repairs and
replacements (capital and otherwise) to each Facility, of every kind and nature,
whether interior or exterior, structural or non-structural, ordinary or
extraordinary, foreseen or unforeseen or arising by reason of a condition
existing prior to the commencement of the Term (concealed or otherwise),
including, but not limited to, any roof repairs or replacements or parking lot
repairs or replacements, such that the Leased Properties are maintained in a
first class operating and structural condition. Tenant shall maintain, repair
and replace each Facility such that no material deferred maintenance items exist
at, in or on any Leased Property at any time and all systems, components, and
elements (structural and otherwise) have a useful life determined in the
exercise of Landlord's reasonable judgment that exceeds the then applicable
Expiration Date by not less than three (3) years (and not less than seven (7)
years as to structural items). Tenant shall have in place service and
maintenance contracts with duly licensed contractors or repair services (which
contractors or repair services shall be acceptable to Landlord in its sole
discretion) providing for regular maintenance and repair of any and all major
systems serving any Leased Property, including, but not limited to, the HVAC
systems, life safety systems, plumbing systems and elevator and conveyor
systems. Landlord may from time to time as to any one or more Leased Properties,
and at Tenant's sole expense (but no more than once every two (2) years at
Tenant's expense), cause an engineer designated by Landlord in its sole
discretion, to inspect one or more Leased Properties and issue a report (a
"Leased Property Condition Report") with respect to the condition of any such
Leased Properties. Tenant shall, at its own cost and expense, make any and all
repairs or replacements recommended by such Leased Property Condition Report
that are required to be performed by this Section 9.1. All repairs shall be made
in a good and workmanlike manner and in accordance with all Legal Requirements
relating to such work. Tenant will not take or omit to take any action the
taking or omission of which might materially impair the value or usefulness of
the applicable Leased Property or any part thereof for its Primary Intended Use.
Landlord shall not under any circumstances be required to repair, replace, build
or rebuild any improvements on any Leased Property, or to make any repairs,
replacements, alterations, restorations or renewals of any nature or description
to any Leased
38
Property, whether ordinary or extraordinary, structural or non-structural,
foreseen or unforeseen, or to make any expenditure whatsoever with respect
thereto, in connection with this Lease, or to maintain any Leased Property in
any way. Tenant hereby waives, to the extent permitted by law, the right to make
repairs at the expense of Landlord pursuant to any law in effect at the time of
the execution of this Lease or thereafter enacted.
9.1.2 Notice of Non-Responsibility. Except as expressly set forth
in this Lease, nothing contained in this Lease and no action or inaction by
Landlord shall be construed as: (i) constituting the consent or request of
Landlord, express or implied, to any contractor, subcontractor, laborer,
materialman or vendor to, or for the performance of, any labor or services or
the furnishing of any materials or other property for the construction,
alteration, addition, repair or demolition of or to any Leased Property or any
part thereof; or (ii) giving Tenant any right, power or permission to contract
for or permit the performance of any labor or services or the furnishing of any
materials or other property in such fashion as would permit the making of any
claim against Landlord in respect thereof or to make any agreement that might
create, or in any way be the basis for, any right, title, interest, lien, claim
or other encumbrance upon the estate of Landlord in any Leased Property, or any
portion thereof. Landlord may post, at Tenant's sole cost, such notices of
non-responsibility upon, or of record against, any Leased Property to prevent
the lien of any contractor, subcontractor, laborer, materialmen or vendor
providing work, services or supplies to Tenant from attaching against the
Premises. Tenant agrees to promptly execute and record any such notice of
non-responsibility at Tenant's sole cost.
9.1.3 Vacation and Surrender. Tenant shall, upon the expiration
or sooner termination of the Term as to any Leased Property, vacate and
surrender the applicable Leased Property to Landlord in a first class condition
consistent with the requirements of Section 9.1.1, except as repaired, rebuilt,
restored, altered or added to as permitted or required by the provisions of this
Lease and except for ordinary wear and tear and damage from Casualty or
Condemnation. Any Leased Property shall be returned to Landlord in a broom clean
condition, free and clear of Tenant's Personal Property (subject to the terms of
Section 21.1.1 and except for Tenant's Personal Property that Landlord elects to
acquire pursuant to Section 36 hereof) but including any and all Alterations,
which shall be and remain the property of Landlord as part of such Leased
Property (except for Alterations that Landlord requests, in writing, that Tenant
remove, which Alterations shall be promptly and completely removed by Tenant).
Tenant shall repair, at Tenant's sole cost, any damage to a Leased Property
resulting from the removal of any Alterations or Tenant's Personal Property
therefrom, whether effected by Tenant or Landlord.
9.2 Encroachments. If any of the Leased Improvements on any Leased
Property shall, at any time, encroach upon any property, street or right-of-way
adjacent to such Leased Property, then, promptly upon the request of Landlord,
Tenant shall, at its expense, subject to its right to contest the existence of
any encroachment and, in such case, in the event of any adverse final
determination, either (i) obtain valid waivers or settlements of all claims,
liabilities and damages resulting from each such encroachment, whether the same
shall affect Landlord or Tenant, or (ii) make such changes in the Leased
Improvements, and take such other actions, as Tenant, in good faith exercise of
its judgment deems reasonably practicable, to remove such encroachment,
including, if necessary, the alteration of any of the Leased Improvements, and
in any event take all such actions as may be necessary in order to be able to
39
continue the operation of the Leased Improvements for the Primary Intended Use
substantially in the manner and to the extent the Leased Improvements were
operated prior to the assertion of such encroachment. Any such alteration shall
be made in conformity with the applicable requirements of Section 11. Tenant's
obligations under this Section 9.2 shall be in addition to and shall in no way
discharge or diminish any obligation of any insurer under any policy of title or
other insurance and Tenant shall not be entitled to a credit for any sums
recovered by Landlord under any such policy of title or other insurance.
10. Tenant's Representations and Warranties. Tenant hereby makes the
following representations and warranties, as of the date hereof, to Landlord and
acknowledges that Landlord is granting the Lease in reliance upon such
representations and warranties. Tenant's representations and warranties shall
survive and, except to the extent otherwise specifically limited, shall continue
in full force and effect until Tenant's obligations hereunder have been
performed in full.
10.1 Organization and Good Standing. Each Tenant other than Trans
Healthcare of Ohio, Inc. is a limited liability company, duly organized, validly
existing and in good standing under the laws of the State of Delaware or
Maryland. Trans Healthcare of Ohio, Inc. is a Delaware corporation, duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Each Tenant is qualified to do business in and is in good standing
under the laws of the State in which the Facility operated by such Tenant is
located. Each Tenant other than Trans Healthcare of Ohio, Inc. is a single
member limited liability company, the sole members of which are identified on
Schedule 1 attached hereto. Tenant has delivered true and complete copies of the
documents, certificates and agreements pursuant to which each Tenant is
organized to do business (the "Tenant Org Docs").
10.2 Power and Authority. Each Tenant has the power and authority to
execute, deliver and perform this Lease and to make itself jointly and severally
liable for the obligations of each of other Tenant. Each Tenant has taken all
requisite action necessary to authorize the execution, delivery and performance
of such Tenant's obligations under this Lease.
10.3 Enforceability. This Lease constitutes a legal, valid, and
binding obligation of each Tenant enforceable in accordance with its terms.
10.4 Consents. The execution, delivery and performance of this Lease
will not require any consent, approval, authorization, order, or declaration of,
or any filing or registration with, any court, any Governmental Authority, or
any other person or entity.
10.5 No Violation. The execution, delivery and performance of this
Lease (i) do not and will not conflict with, and do not and will not result in a
breach of, any Tenant Org Docs; and (ii) do not and will not violate any order,
writ, injunction, decree, statute, rule or regulation applicable to any Tenant
or any of the Facilities.
10.6 Reports and Statements. All reports, statements (financial or
otherwise), certificates and other data furnished by or on behalf of Tenant or
any Guarantor to Landlord in connection with this Lease, and all representations
and warranties made herein or in any certificate or other instrument delivered
in connection herewith, are true and correct in all
40
material respects and do not omit to state any material fact or circumstance
necessary to make the statements contained herein or therein, in light of the
circumstances under which they are made, not misleading as of the date of such
report, statement, certificate or other data.
10.7 No Default. As of the date hereof, (i) there is no existing Event
of Default under this Lease; and (ii) no event has occurred which, with the
giving of notice or the passage of time, or both, would constitute or result in
such an Event of Default.
10.8 Adverse Matters. No Tenant nor any of their respective
representatives, officers, directors, members, contractors, subcontractors,
agents or employees have been disqualified from participating in either the
Medicare or Medicaid programs. Without limitation of the foregoing, no Tenant
nor any of their respective officers, directors, members or managing employees
or other contractors, subcontractors, employees or agents has engaged in any
activities that are prohibited under criminal law, or are cause for civil
penalties or mandatory or permissive exclusion from Medicare, or any other state
health care program. There is no, and there shall continue to be no, threatened,
existing or pending revocation, suspension, termination, probation, restriction,
limitation or nonrenewal affecting any Tenant or any Facility with regard to
participation in Medicare, Medicaid or any Third Party Payor Programs or the
applicable Authorizations to which any Tenant or Facility presently or at any
time hereafter is/are subject.
10.9 Certification. Each Tenant has obtained, or will obtain pursuant
to the terms of the P&S Agreement, within thirty (30) days and one hundred
twenty (120) days with respect to the Facility Provider Agreement for Medicare,
any and all Authorizations necessary or advisable to operate its Facility for
its Primary Intended Use. Each Tenant has obtained, or will obtain pursuant to
the terms of the P&S Agreement within thirty (30) days and one hundred twenty
(120) days with respect to the Facility Provider Agreement for Medicare, all of
the Authorizations, including, but not limited to, the Facility Provider
Agreements, necessary to be, and to continue to be, validly licensed and
Medicare and Medicaid certified to operate its applicable Facility in accordance
with the applicable rules and regulations of the State in which the applicable
Facility is located and federal Governmental Authorities, including, but not
limited to, CMS.
10.10 Transition Permits. As to those Authorizations necessary or
advisable for the operation of each Facility for its Primary Intended Use that
the Tenant operating such Facility has not received as of the date hereof
(contemplated and characterized by the P&S Agreement as Transition Permits),
such Tenant has obtained from the prior owner or operator of the applicable
Facility the right to rely upon, use and employ such consents, approvals,
licenses, permits or permissions from any Governmental Authorities and any
providers under any Third Party Payor Programs (the "Transition Authorizations")
as are necessary or advisable to allow such Tenant to operate the applicable
Facility(ies) until replacement Authorizations are obtained and to receive
regular reimbursement under Medicaid, Medicare, and any other Third Party Payor
Programs until such Tenant receives the Authorizations necessary to replace such
Transition Authorizations.
10.11 Facility Provider Agreements. Each Tenant is (or will be,
pursuant to the terms of the P&S Agreement within thirty (30) days after the
date hereof), and shall continue
41
to be, certified, by and the holder of, valid Facility Provider Agreements with
Medicare and Medicaid, issued by the applicable Health Departments and/or CMS.
10.12 No Reimbursement Audits or Appeals. There are no current,
pending or outstanding reimbursement audits regarding Medicaid, Medicare or
Third Party Payor Programs nor any appeals pending at any Facility that (x) are
not applicable in the ordinary course to skilled nursing facilities, hospitals
or assisted living facilities, as applicable, comparable to the Facilities and
(y) could result in a material adverse effect on the results from operations for
the applicable Facility.
10.13 No Recoupments Efforts. There are no current or pending
recoupment efforts regarding Medicaid, Medicare or Third Party Payor Programs at
(or with respect to) any Facility that (x) are not applicable in the ordinary
course to skilled nursing facilities, hospitals or assisted living facilities,
as applicable, comparable to the Facilities and (y) could result in a material
adverse effect on the results of operations of the applicable Facility. Tenant
is not a participant in any federal program whereby any Governmental Authority
may have the right to recover funds by reason of the advance of federal funds.
10.14 Professional Liability Reserves. For each Facility, the
applicable Tenant has made reserves for expenses relating to malpractice and
professional liability claims that are adequate and complete in the exercise of
commercially reasonable judgment and normal commercial practice, which reserves
have been approved by its independent auditors and its independent actuary.
10.15 Primary Intended Use. Each Facility is being operated for its
Primary Intended Use and contains the number of licensed beds described on
Schedule 1 attached hereto and made a part hereof.
10.16 Compliance with Laws. Each Tenant is in substantial compliance
with all applicable federal, state and local laws, regulations and guidelines
(including any government payment program requirements and disclosure of
ownership and related information requirements), quality and safety standards,
accepted professional standards and principles that apply to professionals
providing services to nursing facilities, assisted living facilities and/or
rehabilitation hospitals, in each case, as applicable, accreditation standards,
and requirements of the applicable state licensing agency, CMS and all other
Governmental Authorities including, without limitation, those requirements
relating to the physical structure and environment of each Leased Property,
licensing, quality and adequacy of medical care, distribution of
pharmaceuticals, rate setting, equipment, personnel, operating policies,
additions to facilities and services and fee splitting. No Tenant has committed
any act which may give any Governmental Authority the right to cause Tenant to
lose any applicable Authorizations.
10.17 Ownership of Authorizations. The Authorizations, including
without limitation, each CON:
(i) are not and have not been, transferred to any location other
than the Leased Property to which such Authorizations relate;
42
(ii) are not and have not been, pledged as collateral security
for any loan or indebtedness other than pursuant to the terms of this
Lease; and
(iii) are held free from restrictions or known conflicts that
would materially impair the use or operation of each Facility for its
Primary Intended Use, and are not provisional, probationary or restricted
in any way.
10.18 Third Party Payor Programs. There is no threatened or pending
revocation, suspension, termination, probation, restriction, limitation, fine,
civil monetary penalty, recoupment or non-renewal affecting any Tenant or any
Leased Property in respect of any Third Party Payor Programs to which Tenant or
any Facility presently is subject. All Medicaid, Medicare, and private insurance
cost reports and financial reports submitted by any Tenant have been and will be
materially accurate and complete and have not been and will not be misleading in
any material respects. No cost reports or financial reports for any Leased
Property remain "open" or unsettled.
11. Alterations.
11.1 Alterations. Without the prior written consent of Landlord, which
consent may be given or withheld in Landlord's sole discretion, Tenant shall not
(x) make any Capital Alterations on or to any Leased Property, (y) enlarge or
reduce the size of any Facility and/or (z) make any Capital Alterations or other
Alterations that would tie in or connect with any improvements on property
adjacent to the Land. Tenant may, without Landlord's prior written consent, make
any alterations, additions, or improvements (collectively, with the alterations
described in items (x) - (z) of the preceding sentence, "Alterations") to any
Leased Property if such Alterations are not of the type described in either
clause (x), (y) or (z) above, so long as in each case: (i) the same do not (A)
decrease the value of the Leased Property, (B) affect the exterior appearance of
the Leased Property, or (C) affect the structural components of the Leased
Property or the main electrical, mechanical, plumbing or ventilating and air
conditioning systems for any Facility, (ii) the same are consistent in terms of
style, quality and workmanship to the original Leased Property and Fixtures,
(iii) the same are constructed and performed in accordance with the provisions
of Section 11.2 below and (iv) the cost thereof does not exceed, in the
aggregate, $200,000.00 for any consecutive twelve (12) month period with respect
to any single Facility. Except for those limited Alterations that expressly do
not require Landlord's consent pursuant to the preceding sentence, all
Alterations shall be subject to Landlord's prior written consent, which Landlord
may give or withhold in its sole discretion. To the extent Landlord's prior
written consent shall be required in connection with any Alterations, Landlord
may impose such conditions thereon in connection with its approval thereof as
Landlord deems appropriate. Notwithstanding the foregoing, Landlord agrees that
painting, landscaping, and replacement of floor, wall and window coverings shall
be deemed Alterations that do not require Landlord's consent, regardless of the
cost thereof, so long as the same meet the requirements of clauses (ii) and
(iii) above.
11.2 Construction Requirements for all Alterations. Whether or not
Landlord's review and approval is required, for all Alterations of any Leased
Property, the following shall apply and shall be in addition to and not in lieu
of any other requirements that Landlord may impose on Tenant in connection with
the making of any Alterations:
43
11.2.1 Plans and Specifications. Prior to commencing any
Alterations, Tenant shall have submitted to Landlord a written proposal setting
forth in reasonable detail such Alteration and shall provide to Landlord for
approval, such plans and specifications, permits, licenses, construction budgets
and other information (collectively, the "Plans and Specifications") as Landlord
shall request, showing in reasonable detail the scope and nature of the
Alteration that Tenant desires to construct.
11.2.2 Permits. Such construction shall not commence until Tenant
shall have procured and paid for all municipal and other governmental permits
and authorizations required therefor (as well as any permits or approvals
required in connection with any Permitted Encumbrance), and Landlord shall join
in the application for such permits or authorizations whenever such action is
necessary; provided, however, that (i) any such joinder shall be at no
liability, cost or expense to Landlord; and (ii) any Plans and Specifications
required to be filed in connection with any such application that require the
approval of Landlord as hereinabove provided shall have been so approved by
Landlord.
11.2.3 No Impairment. Such construction shall not, and prior to
commencement of such construction Tenant's licensed architect or engineer shall
certify to Landlord that such construction shall not, impair the structural
strength of any component of the applicable Facility or overburden or impair the
operating efficiency of the electrical, water, plumbing, HVAC or other building
systems of any such component.
11.2.4 Compliance Certification. Prior to commencing any
Alterations, Tenant's licensed architect or engineer shall certify to Landlord
that the Plans and Specifications conform to and comply with all Insurance
Requirements and all applicable building, subdivision and zoning codes, laws,
ordinances, regulations and other Legal Requirements imposed by any Governmental
Authorities having jurisdiction over the Leased Property.
11.2.5 Parking. During and following completion of such
construction, the parking that is located at the applicable Facility or on the
Land relating to such Facility shall remain adequate for the operation of such
Facility for its Primary Intended Use and in no event shall such parking be less
than is required by any applicable Legal Requirements or was required by any
applicable Legal Requirements or was located in such Facility or on the Land
relating to such Facility prior to such construction.
11.2.6 Materials; Quality. All work done in connection with such
construction shall be done promptly and in a good and workmanlike manner using
first-class materials and in conformity with all Legal Requirements.
11.2.7 As-Builts. Promptly following the completion of the
construction of any Alterations, Tenant shall deliver to Landlord: (i) "as
built" drawings of such Capital Alterations, certified as accurate by the
licensed architect or engineer selected by Tenant to supervise such work, and
copies of any new or revised certificates of occupancy; and (ii) a certificate
from Tenant's licensed architect or engineer certifying to Landlord that such
Alterations or Capital Alterations have been completed in compliance with the
Plans and Specifications and all applicable Legal Requirements.
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11.2.8 Certificate of Occupancy. If, by reason of the
construction of any Capital Alteration, a new certificate of occupancy for any
component of the applicable Facility is required, Tenant shall obtain such
certificate in compliance with all applicable Legal Requirements and furnish a
copy of the same to Landlord promptly upon receipt thereof.
11.2.9 Lien Waivers. Upon completion of any Alteration or Capital
Alteration, Tenant shall promptly deliver to Landlord final lien waivers from
each and every general contractor and subcontractor that provided goods or
services in connection with such Alteration or Capital Alteration indicating
that such contractor or subcontractor has been paid in full for such goods or
services, together with such other evidence as Landlord may reasonably require
to satisfy Landlord that no liens have been created in connection with such
Alteration or Capital Alteration.
11.3 Capital Expenditures Accounts.
11.3.1 Capital Expenditure Account. Commencing on the fifteenth
(15th) day of the first full month of the first Lease Year and on every
fifteenth (15th) day of each month to occur thereafter during the Term, Tenant
shall deposit (the "Capital Expenditure Deposits") in an interest-bearing
account (the "Capital Expenditure Account") under the sole dominion and control
of Landlord (or any Facility Mortgagee) entitled "capital expenditure holdback
account", an amount for each Leased Property equal to one-twelfth (1/12) of the
product of (x) $300.00 in the case of each Facility for which the Primary
Intended Use is "Senior Nursing Facility" or "Assisted Living Facility" or
$500.00 in the case of each Facility for which the Primary Intended Use is
"Hospital" (the "Per Bed Allocation"); and (y) the aggregate number of patient
beds in such Leased Property. Landlord may reasonably increase the Per Bed
Allocation by written notice to Tenant, which reasonable increase shall occur
not more than once every two (2) years. The Capital Expenditure Account shall be
maintained with a Lending Institution reasonably satisfactory to Landlord (or
any Facility Mortgagee) and Tenant hereby grants to Landlord a first priority
security interest in the Capital Expenditure Account pursuant to the Uniform
Commercial Code (the "UCC") of the State which governs the protection of such
security interest. The Capital Expenditure Account shall be used for funding
repairs, replacements and capital improvements to be made on any Leased Property
from time to time, but in no event shall the Capital Expenditure Account be used
for funding repairs or additions to, or replacement of, any of Tenant's Personal
Property. All such repairs, replacements and capital improvements funded by the
Capital Expenditure Account shall be deemed to be a part of the Premises and be
performed subject to the terms of Sections 11.1 and 11.2 relative to
Alterations. On the express condition that no Event of Default then exists
hereunder, Tenant may request, by written notice to Landlord, that Landlord
disburse monies deposited in the Capital Expenditures Account for the purpose of
making repairs, replacements and capital improvements on any Leased Property and
Landlord shall disburse monies on account of such repairs, replacements and
capital improvements promptly after the presentation of invoices therefor
provided that: (i) such repairs, replacements and capital improvements are
contemplated by the Annual Capital Expenditure Budget; (ii) such repairs,
replacements and capital improvements have been completed in a good, workmanlike
and lien-free fashion and in compliance with all Legal Requirements and the
terms of Section 11.2 applicable to any Alterations; and (iii) Tenant has paid
for any Capital Expenditure Difference. Any repairs, replacements or capital
improvements that are not contemplated by the Annual Capital Expenditure Budget
shall be subject to
45
Landlord's reasonable approval. If Tenant's capital expenditures at the Premises
in any Lease Year shall exceed the Capital Expenditure Deposits for such Lease
Year (the "Capital Expenditure Difference"), Tenant shall fund the remaining
cost of such Capital Expenditure Difference. Any interest that accrues on the
funds in the Capital Expenditure Account shall at all times remain in the
Capital Expenditure Account. At the expiration of the Term, any funds remaining
in the Capital Expenditure Account shall become the property of Landlord unless
Landlord determines, in its sole discretion, that no capital repairs or
replacements are necessary from and after the Expiration Date to place the
Leased Properties in the condition required by Section 9.1 hereof, in which
event such funds shall be returned to Tenant.
11.3.2 Annual Capital Expenditure Budget. Within ninety (90) days
prior to the commencement of each calendar year, Tenant shall deliver to
Landlord, at Tenant's expense, a budget (the "Annual Capital Expenditure
Budget") setting forth Tenant's reasonable estimate of the repairs, replacements
and capital improvements to the Premises that Tenant anticipates will be
necessary in such calendar year to comply with the maintenance, repair and
replacement obligations contained in Section 8 hereto and maintain the Leased
Properties in a first class condition. The Capital Expenditure Budget shall be
subject to Landlord's review and approval (which approval shall not be
unreasonably withheld) for purposes of determining and confirming that the
repairs, replacements and capital improvements are sufficient to satisfy
Tenant's obligations pursuant to Section 8 hereof; provided, however, that the
grant by Landlord of its approval to any Annual Capital Expenditure Budget shall
not be deemed a consent, acknowledgement or agreement on Landlord's part that
such repairs, replacements or capital improvements are sufficient to satisfy
Tenant's obligations pursuant to Section 8 hereunder. Tenant shall perform any
and all repairs, replacements or capital improvements contemplated by the Annual
Capital Expenditure Budget within twenty-four (24) months after the commencement
of the Lease Year to which such Annual Capital Expenditure Budget relates. If
Tenant has not completed such repairs, replacements or capital improvements
within such twenty-four (24) month period, Landlord may, but shall not be
obligated to, complete such repairs, replacements or capital improvements, in
which case, Landlord may disburse funds from the Capital Expenditure Account
sufficient to pay for such repairs, replacements or capital improvements and
Tenant shall pay the cost of any deficiency.
12. Liens. Subject to the provisions of Section 13 below governing a
permitted contest by Tenant, Tenant will not, directly or indirectly, create or
allow to remain, and will promptly discharge at its expense, any lien,
encumbrance, attachment, title retention agreement or claim upon any Leased
Property or any attachment, levy, claim or encumbrance in respect of the Rent,
not including, however, (a) Permitted Encumbrances consented to in writing by
Landlord in its sole discretion, (b) restrictions, liens and other encumbrances
that are consented to in writing by Landlord, or any easements permitted to be
granted pursuant to the provisions of this Lease, (c) liens for those taxes of
Landlord that Tenant is not required to pay hereunder, (d) liens for Impositions
or for sums resulting from noncompliance with Legal Requirements, so long as (1)
the same are not yet payable or (2) such liens are in the process of being
contested as permitted by Section 13, (e) liens of mechanics, laborers,
materialmen, suppliers or vendors for sums either disputed in good faith or not
yet due, provided that (1) the payment of such sums shall not be postponed under
any related contract for more than sixty (60) days after the completion of the
work giving rise to such lien and such reserve or other appropriate provisions
as shall be required by law or generally accepted accounting principles shall
have been made
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therefor or (2) any such liens are in the process of being contested as
permitted by Section 13, and (f) any liens that are expressly the responsibility
of Landlord hereunder. Notwithstanding the foregoing, Tenant shall bond over any
lien affecting the applicable Leased Property if Landlord shall request, or if
any applicable Facility Mortgagee shall so require.
13. Permitted Contests. Tenant, on its own or on Landlord's behalf (or in
Landlord's name), but at Tenant's expense, may contest, by appropriate legal
proceedings, conducted in good faith and with due diligence, the amount,
validity or application, in whole or in part, of any Imposition or any lien,
attachment, levy, encumbrance, charge or claim not otherwise permitted by
Section 12, provided that (a) in the case of an unpaid Imposition, lien,
attachment, levy, encumbrance, charge, or claim, the commencement and
continuation of such proceedings shall suspend the collection thereof from
Landlord and from the applicable Leased Property, (b) neither the applicable
Leased Property nor any Rent therefrom nor any part thereof or interest therein
would be reasonably likely to be in danger of being sold, forfeited, attached or
lost, (c) Tenant shall indemnify and hold harmless Landlord from and against any
Losses incurred by Landlord and the Landlord Indemnified Parties in connection
therewith or as a result thereof, (d) Tenant shall give such security as may be
demanded by Landlord to insure ultimate payment of, or compliance with, the same
and to prevent any sale or forfeiture of the affected Leased Property or the
Rent by reason of such non-payment or non-compliance; provided, however, the
provisions of this Section 13 shall not be construed to permit Tenant to contest
the payment of Rent or any other sums payable by Tenant to Landlord hereunder,
(e) in the case of the contest of an Insurance Requirement, the coverage
required by Section 14 shall be maintained, and (f) if such contest is resolved
against Landlord or Tenant, Tenant shall, as Additional Rent due hereunder, pay
to the appropriate payee the amount required to be paid, together with all
interest and penalties accrued thereon, within ten (10) days after such
determination (or within such shorter period as may be required by the terms of
such determination), and comply, within any cure period allowed therefor by the
applicable agency or authority (or if no such cure period shall be allowed or
specified by the applicable agency or authority, promptly and diligently
following the effective date of such determination); provided, however, that
this subsection (f) is not intended, and shall not be construed, to afford
Tenant any cure or grace period beyond the effective date of any final
unappealable determination. Landlord, at Tenant's expense, shall execute and
deliver to Tenant such authorizations and other documents as may reasonably be
required in any such contest, and, if reasonably requested by Tenant or if
Landlord so desires, Landlord shall join as a party therein. Tenant shall
indemnify and save Landlord and the Landlord Indemnified Parties harmless
against any Losses of any kind that may be imposed upon Landlord in connection
with any such contest and any loss resulting therefrom. The terms of this
Section 13 shall survive the expiration or sooner termination of this Lease.
14. Insurance.
14.1 General Insurance Requirements. Tenant shall obtain and maintain,
or cause to be maintained, insurance for Tenant and the Leased Properties
providing at least the following coverages:
14.1.1 Coverage for loss or damage by fire, lightning, wind and
such other perils as are included in a standard "all risk" or "special causes of
loss" endorsement and
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against loss or damage by other risks and hazards covered by a standard property
insurance policy including, without limitation, riot, civil commotion,
vandalism, malicious mischief, burglary and theft on the Leased Improvements and
of the Tenant's Personal Property at each Leased Property, including contingent
liability from "Operation of Building Laws", "Demolition Costs" and "Increased
Cost of Construction" endorsements, in each case (A) in an amount equal to one
hundred percent (100%) of the Full Replacement Cost of such Leased Property; (B)
containing an agreed amount endorsement with respect to the Leased Improvements
and Tenant's Personal Property at the Leased Properties waiving all co-insurance
provisions; (C) providing for no deductible in excess of Ten Thousand and No/100
Dollars ($10,000.00) for all such insurance coverage; and (D) containing (a) an
"Ordinance or Law Coverage" or "Enforcement" endorsement and (b) "demolition"
insurance (in an amount equal to at least ten percent (10%) of the value of the
Leased Improvements at any Leased Property) and "increased cost of construction"
insurance (equal to at least twenty-five percent (25%) of the value of the
Leased Improvements), if any of the Leased Improvements or the use of any Leased
Property shall at any time constitute legal non-conforming structures or uses.
In addition, each Tenant shall obtain: (y) if any portion of the Leased
Improvements at any Leased Property is currently or at any time in the future
located in a federally designated "special flood hazard area", flood hazard
insurance in an amount equal to the lesser of (1) the Full Replacement Cost of
such portion of such Leased Improvements or (2) the maximum amount of such
insurance available under the National Flood Insurance Act of 1968, the Flood
Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of
1994, as each may be amended; and (z) earthquake insurance in amounts and in
form and substance satisfactory to Landlord in the event that any Leased
Property is located in an area with a high degree of seismic activity, provided
that the insurance pursuant to clauses (y) and (z) hereof shall be on terms
consistent with the comprehensive all risk insurance policy required under this
Section 14.1.1.
14.1.2 Commercial general liability insurance against claims for
personal injury, bodily injury, death or damage to the Leased Properties
occurring upon, in or about each Leased Property, such insurance (A) to be on
the so-called "occurrence" form with a combined limit, excluding umbrella
coverage, of not less than One Million and No/100 Dollars ($1,000,000.00) per
occurrence with a minimum Two Million and No/100 Dollars ($3,000,000.00) general
aggregate with limits applying on a "per location" basis; (B) to continue at not
less than the aforesaid limit until required to be changed by Landlord by reason
of changed economic conditions making such protection inadequate; (C) to cover
at least the following: (1) premises and operations; (2) products and completed
operations on an "if any" basis; (3) independent contractors; (4) blanket
contractual liability for all legal contracts; (5) contractual liability
covering indemnities, if any, given by Tenant contained in the Facility
Mortgage, if any, applicable to the Leased Property, to the extent the same is
available; (6) broad form property damage; (7) personal injury (including death
resulting therefrom); (8) healthcare professional liability and (9) a liquor
liability endorsement if alcoholic beverages are sold at any Leased Property;
and (D) providing for a deductible not in excess of Ten Thousand and No/100
Dollars ($10,000.00).
14.1.3 Business interruption insurance (A) with loss payable to
Landlord; (B) covering all risks required to be covered by the insurance
provided for in Section 14.1.1 above and Section 14.1.11 below; (C) in an amount
sufficient to avoid any co-insurance penalty and to provide proceeds that will
cover a period of not less than eighteen (18) months
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from the date of casualty or loss; (D) containing an extended period of
indemnity endorsement that provides that after the physical loss to the
applicable Leased Property has been repaired, the continued loss of income will
be insured until such income returns to the same level it was prior to the loss,
or the expiration twenty-four (24) months from the date of the loss, whichever
first occurs, and notwithstanding that the policy may expire prior to the end of
such period. The amount of coverage shall be an annual aggregate amount equal to
the projected gross revenue from the Leased Properties, assuming the aggregate
occupancy at the Facilities equals ninety-five percent (95%). The amount of
coverage shall be adjusted annually by Landlord to reflect the projected gross
revenue during the succeeding eighteen (18) month period.
14.1.4 At all times during which Alterations or structural
construction or repairs are being made with respect to any of the Leased
Improvements, and only if the Leased Properties' coverage form does not
otherwise apply, (A) owner's contingent or protective liability insurance
covering claims not covered by or under the terms or provisions of the above
mentioned commercial general liability insurance policy; and (B) the insurance
provided for in Section 14.1.1 above written in a so-called builder's risk
completed value form (1) on a non-reporting basis, (2) against all risks insured
against pursuant to Section 14.1.1 above, (3) including permission to occupy the
Leased Properties, and (4) with an agreed amount endorsement waiving
co-insurance provisions.
14.1.5 Workers' compensation, subject to the statutory limits of
the State in which the applicable Leased Property is located, and employer's
liability insurance with a limit of at least One Hundred Thousand and No/100
Dollars ($100,000.00) per accident and per disease, per employee, and Five
Hundred Thousand and No/100 Dollars ($500,000.00) aggregate in respect of any
work or operations on or about any Leased Property, or in connection with Leased
Property or its operation (if applicable).
14.1.6 Broad form boiler and machinery insurance (without
exclusion for explosion) covering all boilers or other pressure vessels,
machinery, and equipment located in, on or about any Leased Property (including
"system breakdown coverage") in an amount equal to or greater than the repair
and full replacement cost of such equipment and insurance against loss of
occupancy or use arising from any breakdown of such equipment in such amounts as
are generally required by institutional lenders for properties comparable to the
Leased Properties.
14.1.7 Umbrella liability insurance in addition to primary
coverage in an amount not less than Twenty-Five Million and No/100 Dollars
($25,000,000.00) per occurrence on terms consistent with the commercial general
liability insurance policy required under Section 14.1.2 above that cover all
claims typically covered by an umbrella liability policy including all legal
liability imposed upon the applicable Tenant and all court costs and attorneys'
fees in connection with the operation and maintenance of the Leased Properties.
14.1.8 Motor vehicle liability coverage for all owned and
non-owned vehicles, including rented and leased vehicles containing minimum
limits per occurrence, including umbrella coverage, of One Million and No/100
Dollars ($1,000,000.00).
49
14.1.9 If alcoholic beverages are sold at any Leased Property,
so-called "dramshop" insurance or other liability insurance required in
connection with the sale of alcoholic beverages.
14.1.10 Insurance against employee dishonesty in an amount not
less than six (6) months of gross revenue from the Leased Properties and with a
deductible not greater than Ten Thousand and No/100 Dollars ($10,000.00).
14.1.11 If the insurance required under Section 14.1.1 above
excludes coverage for acts of terrorism, Tenant shall provide terrorism
insurance coverage in an amount equal to the lesser of (1) the Full Replacement
Cost of the Leased Properties or (2) the maximum amount of such insurance that
is reasonably commercially available, unless at the time of determination: (A)
it is not available at commercially reasonable rates; (B) terrorism insurance is
not commonly maintained by owners of other similar properties and (C) terrorism
insurance is not required for loans similar to the Primary Loan and secured by
property similar to the Leased Properties.
14.1.12 Such other reasonable insurance and in such reasonable
amounts as Landlord or any Facility Mortgagee, if applicable, from time to time
may reasonably request against such other insurable hazards or casualties that
at the time are commonly insured against for property similar to the Leased
Properties located in or around the region in which the Leased Properties are
located including, without limitation, sinkhole, mine subsidence and
environmental insurance, due regard being given to the height and type of the
applicable Leased Property, construction, location, use and occupancy.
14.2 Policies; Certificates. All insurance provided for in Section
14.1 above shall be obtained under valid and enforceable policies (the
"Policies") and, to the extent not specified above, shall be subject to the
approval of Landlord as to deductibles, loss payees and insureds. Not less than
ten (10) days prior to the expiration dates of the Policies theretofore
furnished to Landlord, certificates of insurance evidencing the Policies
accompanied by evidence satisfactory to Landlord of payment of the premiums then
due thereunder (the "Insurance Premiums"), shall be delivered by Tenant to
Landlord. Tenant shall deliver certified copies of the Policies to Landlord
within thirty (30) days of the date hereof and thereafter upon request. All
Policies must have a term of not less than one (1) year.
14.3 Blanket Policies. Any blanket Policy shall specifically allocate
to each Leased Property the amount of coverage from time to time required
hereunder and shall otherwise provide the same protection as would a separate
Policy insuring only such Leased Property in compliance with the provisions of
Section 14.1.
14.4 Additional Insured. All Policies provided for or contemplated by
Section 14.1 above, except for the Policy referenced in Section 14.1.5, shall
name each applicable Tenant as the insured and Landlord and any Facility
Mortgagee and its/their successors and/or assigns as the additional insured, as
its/their interests may appear, and in the case of property damage, terrorism
insurance, boiler and machinery, flood and earthquake insurance, shall contain a
so-called New York standard non-contributing mortgagee clause in
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favor of Landlord or any Facility Mortgagee, as applicable, providing that the
loss thereunder shall be payable to Landlord or such Facility Mortgagee, as
applicable.
14.5 Policy Requirements. All Policies of insurance provided for in
Section 14.1 shall contain clauses or endorsements to the effect that:
(i) no act or negligence of Tenant or any Tenant Party, or failure to
comply with the provisions of any Policy, which might otherwise result in a
forfeiture of the insurance or any part thereof, shall in any way affect
the validity or enforceability of the insurance insofar as Landlord or any
Facility Mortgagee is concerned;
(ii) the Policy shall not be materially changed (other than to
increase the coverage provided thereby) or canceled without at least thirty
(30) days' written notice to Landlord, any Facility Mortgagee and any other
party named therein as an additional insured;
(iii) neither Landlord nor any Facility Mortgagee shall be liable for
any Insurance Premiums thereon or subject to any assessments thereunder;
and
(iv) to the extent available at commercially reasonable rates, a
waiver of subrogation rights as to Landlord and any Facility Mortgagee.
14.6 Evidence of Compliance. If at any time Landlord is not in receipt
of written evidence that all insurance required hereunder is in full force and
effect, Landlord shall have the right, without notice to Tenant, to take such
action as Landlord deems necessary to protect its interest in the Leased
Properties, including, without limitation, the obtaining of such insurance
coverage as Landlord in its sole discretion deems appropriate and all premiums
incurred by Landlord in connection with such action or in obtaining such
insurance and keeping it in effect shall be paid by Tenant to Landlord upon
demand and until paid and shall bear interest at the Overdue Rate.
14.7 Foreclosure; Transfer. In the event of foreclosure of any
Facility Mortgage or other transfer of title to any Leased Property, all right,
title and interest of the applicable Tenant in and to the Policies that are not
blanket Policies then in force concerning the Leased Properties and all proceeds
payable thereunder shall thereupon vest in the purchaser at such foreclosure or
Landlord, Facility Mortgagee or other transferee in the event of such other
transfer of title.
14.8 Insurance Company. The Policies shall be issued by one or more
domestic primary insurance companies, duly qualified in the jurisdictions where
the Leased Properties are located and rated A: VII or better by A.M. Best and
having a claims-paying ability of at least "AA" or its equivalent by each of the
Rating Agencies, or by a syndicate of insurers through which at least
seventy-five percent (75%) of the coverage (if there are four (4) or fewer
members of the syndicate) or at least sixty percent (60%) of the coverage (if
there are five (5) or more members of the syndicate) is with carriers having
such claims-paying ability ratings (provided that all such carriers shall have
claims-paying ability ratings of not less than "A" or the equivalent by each of
the Rating Agencies).
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15. Damage and Destruction.
15.1 Notice of Casualty. If any Leased Property shall be destroyed, in
whole or in part, or damaged by Casualty, Tenant shall give prompt written
notice thereof to Landlord and any Facility Mortgagee, in no event more than
three (3) Business Days after the occurrence of a Casualty. Within fifteen (15)
days after the occurrence of a Casualty, or as soon thereafter as such
information is reasonably available to Tenant, Tenant shall provide the
following information to Landlord: (i) the date of the Casualty; (ii) the nature
of the Casualty; (iii) a description of the damage or destruction caused by the
Casualty, including, but not limited to, the type of Leased Property damaged,
the area of the Leased Improvements damaged and the general extent of such
damage; (iv) a preliminary estimate of the cost to repair, rebuild, restore or
replace the Leased Property; (v) a preliminary estimate of the schedule to
complete the repair, rebuilding, restoration or replacement of the Leased
Property; (vi) a description of the anticipated property insurance claim,
including, but not limited to, the name of the insurer, the insurance coverage
limits, the deductible amounts, the expected settlement amount and the expected
settlement date; and (vii) a description of the business interruption claim,
including, but not limited to, the name of the insurer, the insurance coverage
limits, the deductible amounts, the expected settlement amount and the expected
settlement date. Tenant shall provide Landlord with copies of any and all
material correspondence to and from the insurance provider within five (5)
Business Days after Tenant's receipt or submission thereof and provide any other
information reasonably requested by Landlord.
15.2 Substantial Destruction. Except as otherwise set forth herein, if
a Facility is substantially destroyed or rendered Unsuitable For Its Primary
Intended Use by a Casualty at any time during the Term, Landlord may elect to
terminate this Lease with respect to the Leased Property on which such Facility
is located by providing written notice to Tenant within ninety (90) days of the
date upon which Tenant notifies Landlord of the Casualty, which termination
shall be effective as of the date of Tenant's receipt of such notice. If
Landlord elects to terminate, then, subject to the requirements of any Facility
Mortgage binding upon or secured by the Leased Property, Landlord shall receive
any and all of the insurance proceeds payable by reason of the Casualty (the
"Casualty Insurance Proceeds") and Tenant shall immediately pay to Landlord an
amount equal to any uninsured deductible, and as of the date of such
termination, the applicable Leased Property shall be deleted from this Lease and
the provisions of Section 17.9 governing a deletion of a Leased Property after
Casualty shall be applicable. If Landlord does not elect to terminate, then
Tenant shall promptly rebuild and restore the Leased Property in accordance with
Section 15.4 below and Landlord shall make the Casualty Insurance Proceeds
available to Tenant for such restoration only pursuant to, and in accordance
with, Section 15.5 below. The term "substantially destroyed" means any Casualty
resulting in the loss of use of fifty percent (50%) or more of the licensed beds
at the Facility located on the relevant Leased Property or that would require
more than fifty percent (50%) of the value of the Leased Improvements to
restore.
15.3 Partial Destruction. If a Leased Property is damaged by a
Casualty but the Facility(ies) located on such Leased Property is not
substantially destroyed or rendered Unsuitable For Its Primary Intended Use,
then, subject to the requirements of any Facility Mortgage binding upon, or
secured by, the Leased Property, Tenant shall restore the Leased Property in
accordance with the requirements of Section 15.4 below and Landlord shall make
the
52
Casualty Insurance Proceeds available to Tenant for such restoration pursuant to
Section 15.5 below. Notwithstanding the foregoing, if such Casualty shall occur
during the final two (2) Lease Years of the Term, then Landlord shall have the
right to terminate this Lease with respect to such Leased Property and retain
any Casualty Insurance Proceeds, by delivering notice of such election to Tenant
within ninety (90) days of its receipt of notice from Tenant of such Casualty,
which termination shall be effective as of the date such notice of termination
from Landlord is received by Tenant, whereupon Tenant shall immediately pay to
Landlord the amount of any uninsured deductible and the applicable Leased
Property shall be deleted herefrom pursuant to Section 17.9 below governing the
deletion of a Leased Property in connection with a Casualty.
15.4 Restoration.
15.4.1 Commencement of Restoration. Within forty-five (45) days
after the soonest to occur of (i) Tenant's receipt of notice from Landlord
directing Tenant to restore a Leased Property damaged or destroyed by a
Casualty, (ii) in the case of a Casualty that results in Landlord having the
option to terminate this Lease as to the affected Leased Property pursuant to
Section 15.2 or 15.3, the expiration of the period in which Landlord may
exercise such option to terminate if Landlord fails to affirmatively elect to
terminate this Lease with respect to such Leased Property, or (iii) in the case
of damage to a Leased Property by Casualty that does not result in the
substantial destruction or the rendering Unsuitable For Its Primary Intended Use
of the applicable Facility(ies), and that does not occur during the final two
Lease Years of the Term, the date of such Casualty, Tenant shall furnish to
Landlord complete plans and specifications (the "Restoration Plans and
Specifications") describing the work Tenant intends to undertake to restore the
applicable Leased Property (the "Work") for Landlord's review and approval,
which approval shall not be unreasonably withheld. The Restoration Plans and
Specifications shall be prepared in accordance with good and customary
construction and design practices and bear the signed approval thereof by an
architect licensed to do business in the State where the applicable Leased
Property is located and shall be accompanied by a written estimate from the
architect containing the projected cost of completing the Work. The Restoration
Plans and Specifications shall contemplate Work of such nature, quality and
extent that, upon the completion thereof, the Leased Property shall be at least
equal in value and general utility to its value and general utility prior to the
Casualty and shall be adequate to operate the applicable Facility(ies) for its
Primary Intended Use. Prior to commencing any Work, Tenant shall satisfy all of
the terms and conditions set forth in Sections 11.2.1 through 11.2.4 hereof
relative to Alterations as to the Work and the Restoration Plans and
Specifications.
15.4.2 Permits. Prior to the commencement of the Work, Tenant
shall furnish to Landlord certified or photostatic copies of all permits and
contracts required by any and all applicable Legal Requirements or Insurance
Requirements in connection with the commencement and conduct of the Work.
15.4.3 Conduct of Work. Upon satisfaction of the requirements set
forth in Section 15.4.1 and Section 15.4.2 above, Tenant shall perform the Work
diligently and in a good, workmanlike and lien-free fashion, in accordance with
(i) the Restoration Plans and Specifications; (ii) the permits and contracts
referred to in Section 15.4.2 above; and (iii) all applicable Legal Requirements
and other requirements of this Lease.
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15.5 Disbursement of Insurance Proceeds. Tenant shall use its best
efforts to complete the Work on or prior to the estimated completion date
provided by its architect. If Landlord is required or elects to apply any
Casualty Insurance Proceeds toward repair or restoration of the applicable
Facility, provided Tenant is diligently performing the Work in accordance with
this Lease, Landlord shall disburse such Casualty Insurance Proceeds as and when
required by Tenant in accordance with normal and customary practice for the
payment of a general contractor in connection with construction projects similar
in scope and nature to the Work, including, at Landlord's option, the
withholding of 10% of each disbursement of such Casualty Insurance Proceeds
until the Work is completed as evidenced by a certificate of occupancy or
similar evidence issued upon an inspection by the applicable Governmental
Authority and proof has been furnished to Landlord that no lien or liability has
attached or will attach to the applicable Leased Property or to Landlord in
connection with the Work. Upon the completion of the Work and the furnishing of
such proof, the balance of the Casualty Insurance Proceeds payable to Tenant on
account of the Work shall be paid to Tenant as and when the terms of Sections
15.4.1 through 15.4.3 have been complied with. Prior to any final disbursement
of Casualty Insurance Proceeds, Tenant shall satisfy all of the conditions set
forth in Sections 11.2.5 through 11.2.9 relative to Alterations as to the Work,
as well as provide evidence reasonably satisfactory to Landlord that any amounts
required to be paid by Tenant in connection with such Work pursuant to Section
15.6 below have been paid in full. Notwithstanding anything contained herein to
the contrary, any Facility Mortgagee may retain and disburse the Casualty
Insurance Proceeds and Tenant shall comply with the requests and requirements of
such Facility Mortgagee in connection with the Work and the disbursement of
Casualty Insurance Proceeds.
15.6 Insufficient Proceeds/Risk of Loss. If the Casualty Insurance
Proceeds are not sufficient to pay the costs of the Work in full, Tenant shall
be responsible, at its sole cost and expense, to complete the Work. Tenant
expressly assumes all risk of loss, including, without limitation, a decrease in
the use, enjoyment or value, of the Leased Property from any Casualty
whatsoever, whether or not insurable or insured against. Tenant shall pay any
insurance deductible and any other uninsured Losses.
15.7 Excess Proceeds. Provided no Event of Default exists and this
Lease is not terminated pursuant to Section 15 with respect to the Leased
Property on which the applicable Facility is located, Tenant shall be entitled
to any amount by which the Casualty Insurance Proceeds exceed the amount
necessary to complete the Work, which excess Casualty Insurance Proceeds shall
be promptly paid by Landlord to Tenant only following the disbursement of
Casualty Insurance Proceeds necessary to complete the Work in accordance with
Section 15.5.
15.8 Landlord's Inspection. During the progress of the Work, Landlord
and Landlord's Representatives may, from time to time, inspect the Work and the
Leased Property. If, during such inspection or otherwise, Landlord and
Landlord's Representatives determine that the Work is not being done in
accordance with the Restoration Plans and Specifications, this Lease or any
Legal Requirements, Landlord will give prompt written notice to Tenant, setting
forth in reasonable specificity and detail any defect in the Work. Upon the
receipt of any such notice, Tenant will cause corrections to be made to any such
defect.
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16. Condemnation.
16.1 Parties' Rights and Obligations. If during the Term there is any
Condemnation of all or any part of any Leased Property, the rights and
obligations of the parties shall be determined by this Section 16.
16.2 Total Taking. If any Leased Property is totally taken by
Condemnation, this Lease shall terminate as to such Leased Property on the Date
of Taking, in which event the provisions of Section 17.9 governing the deletion
of one or more Leased Properties from this Lease upon a Condemnation shall
apply.
16.3 Partial Taking. If any portion of any Leased Property is taken by
Condemnation, this Lease shall remain in effect as to such Leased Property if
the Facility(ies) located thereon is not thereby rendered Unsuitable For Its
Primary Intended Use as reasonably determined by Landlord, but if the
Facility(ies) is/are thereby rendered Unsuitable For Its Primary Intended Use,
this Lease shall terminate as to such Leased Property on the Date of Taking, in
which event the provisions of Section 17.9 governing the deletion of one or more
Leased Properties from this Lease upon a Condemnation shall apply. If, as a
result of any such partial taking by Condemnation, this Lease is not terminated
as provided above, Tenant's obligation to make payments of Rent and to pay all
other charges required under this Lease shall remain unabated during the Term
notwithstanding such Condemnation (provided that Landlord shall credit against
such payments any amount of any Award specifically attributable to Tenant
pursuant to Section 16.5).
16.4 Restoration. If there is a partial taking by Condemnation of any
Leased Property and this Lease remains in full force and effect pursuant to
Section 16.3, Tenant at its cost shall accomplish all necessary restoration,
which restoration activities shall be performed in accordance with the terms and
conditions applicable to Work under Section 15.
16.5 Award-Distribution.
16.5.1 Partial Taking. In the event of any partial taking by
Condemnation of any Leased Property, the entire Award shall belong to and be
paid to Landlord, except that, subject to the rights of the Facility Mortgagees,
Tenant shall be entitled to receive from the Award, if and to the extent such
Award specifically includes such item, the following:
(i) a sum specifically attributable to Tenant's Personal
Property and any reasonable removal and relocation costs included in the
Award; and
(ii) a sum specifically attributable to the cost of
restoring the Leased Property in accordance with Section 16.4 hereof; and
(iii) a sum specifically attributable to the interruption of
business operations, which sum shall be credited against payments of Rent
and other charges due from Tenant to Landlord under this Lease.
16.5.2 Total Taking. In the event of a total taking by
Condemnation of any Leased Property, the Award shall be solely the property of
Landlord, whether such
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damages shall be awarded as compensation for diminution in value of the
leasehold or the fee estate of the Premises, provided, however, Tenant shall be
entitled to any damages specifically attributable to reasonable removal and
relocation costs included in the Award.
16.6 Temporary Taking. The taking of any Leased Property, or any part
thereof, by military or other public authority shall constitute a taking by
Condemnation only when the use and occupancy by the Condemnor has continued for
longer than four (4) months. During any such four (4) month period all the
provisions of this Lease shall remain in full force and effect and Rent shall
not be abated or reduced during such period of taking.
16.7 Facility Mortgagee. Notwithstanding anything contained herein to
the contrary, in the event that any Facility Mortgagee elects to require that
any Casualty Insurance Proceeds in connection with any Casualty, or the Award in
connection with any Condemnation, be applied by Landlord to reduce the
outstanding principal balance of any loan secured by any Leased Property,
Landlord may elect, in its sole discretion and by written notice to Tenant,
delivered promptly after the receipt of written notice by Landlord of such
election from Facility Mortgagee, to terminate this Lease as to the Leased
Property affected by such Casualty or Condemnation, in which event the
provisions of Section 17.9 governing a deletion of one or more Leased Properties
from this Lease after a Casualty or Condemnation shall apply. Notwithstanding
anything contained in Section 15 or Section 16 hereof, Tenant shall remain
liable for any uninsured portion of any Casualty or the cost of any restoration
not covered by an Award in the event this Lease is terminated as to the
applicable Leased Property pursuant to Section 15 or Section 16 hereof.
17. Default.
17.1 Events of Default. The occurrence of any one or more of the
following events shall constitute an "Event of Default" under this Lease:
17.1.1 Payment Default. Tenant fails to make payment of the Rent
or any other sum payable under or pursuant to the terms of this Lease when the
same becomes due and payable.
17.1.2 Certain Covenant Defaults. Tenant fails to observe or
perform any term, covenant or agreement on its part to be performed or observed
pursuant to Section 3.4.3, Section 8.1.17, Section 8.2.1, Section 8.2.6, Section
8.3, Section 14.2, Section 14.5, Section 12, item (f) of Section 13, or Section
14.1.
17.1.3 General Covenant Defaults. Tenant fails to observe or
perform any material term, covenant or condition of this Lease not specifically
provided for in this Section 17.1 and such failure is not cured within a period
of thirty (30) days after receipt of notice from Landlord.
17.1.4 Licensure, Authorization or Facility Provider Agreement
Defaults. The receipt of written notice or formal notice of any pending,
threatened or contemplated, or the occurrence of any, (i) determination by
applicable Governmental Authorities of Tenant's non-compliance with Legal
Requirements applicable to any Leased Property, or (ii) revocation of any
license, permit, approval or other Authorization (including,
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without limitation, any CON) required for the lawful operation of a Leased
Property in accordance with its Primary Intended Use, or (iii) other
circumstances under which (a) Tenant is, or may be, required by a determination
of any such Governmental Authority to cease operations of such Facility in
accordance with its Primary Intended Use or (b) any Facility Provider Agreement
or reimbursement agreement, or certification of Tenant under Medicare or
Medicaid pursuant thereto, is, or may be, terminated, in whole or in part, prior
to the expiration of the term thereof or, without the prior written consent of
Landlord in each instance (which consent may be withheld in Landlord's sole and
absolute discretion), is not (or may not be) renewed or extended, in whole or in
part, upon the expiration of the stated term thereof. The receipt by any
Facility of any "Level A" (or its equivalent) violation under Medicare or
Medicaid, as applicable, or the statement of charges or deficiencies with
respect to such Facility under Medicare or Medicaid.
17.1.5 Representations and Warranties. Any representation or
warranty made by or on behalf of Tenant under or in connection with this Lease
or any document, financial statement, certificate or agreement delivered by or
on behalf of Tenant in connection with this Lease (including, but not limited
to, any Officer's Certificate or Estoppel Certificate) proves to have been false
or misleading in any material respect on the day when made or deemed made.
17.1.6 Bankruptcy. Any Tenant, Guarantor or any Affiliate of
Tenant or Guarantor:
(i) admits in writing its inability to pay its debts
generally as they become due;
(ii) files a petition in bankruptcy or a petition to take
advantage of any bankruptcy, reorganization or insolvency act;
(iii) makes an assignment for the benefit of its creditors;
(iv) consents to the appointment of a receiver for itself or
for the whole or any substantial part of its property; or
(v) files a petition or answer seeking reorganization or
arrangement under the federal bankruptcy laws or any other applicable law
or statute of the United States of America or any state thereof.
17.1.7 Bankruptcy Petition. Any petition is filed by or against
any Tenant, any Guarantor or any Affiliate of any Tenant or any Guarantor either
under federal bankruptcy laws, or any other proceeding is instituted by or
against any Tenant, any Guarantor or any Affiliate of Tenant or any Guarantor
seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official for any Tenant, Guarantor
or any Affiliate of any Tenant or any Guarantor, or for any substantial part of
the property of any Tenant, any Guarantor or any Affiliate of any Tenant or any
Guarantor, and such proceeding is not dismissed within sixty (60) days after
institution thereof, or any Tenant, any Guarantor or any Affiliate of any Tenant
or any Guarantor
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shall take any action to authorize or effect any of the actions set forth above
in this Section 17.1.7.
17.1.8 Liquidation. Any Tenant, any Guarantor or any Affiliate of
any Tenant or any Guarantor is liquidated or dissolved, or shall begin
proceedings toward such liquidation or dissolution.
17.1.9 Levy. The estate or interest of any Tenant in any Leased
Property or any part thereof is levied upon or attached in any proceeding and
the same shall not be vacated or discharged within the later of sixty (60) days
after commencement thereof or thirty (30) days after receipt by such Tenant of
notice thereof from Landlord or any other Person (unless such Tenant shall be
contesting such lien or attachment in good faith in accordance with Section 13
hereof).
17.1.10 Receiver. Any receiver, trustee, custodian or other
similar official is appointed for any Tenant, any Guarantor or any of the
Facilities and any such appointment is not dismissed within sixty (60) days
after the date of such appointment and prior to the entry of a final,
unappealable order approving such appointment.
17.1.11 Final Unappealable Determination. If a final unappealable
determination shall have been made by any applicable Governmental Authority of
any Tenant's non-compliance with material Legal Requirements applicable to any
Facility, or of the revocation of any Authorization required for the operation
of any Facility for its Primary Intended Use, or any other circumstances under
which any Tenant is required by a final unappealable determination of any such
Governmental Authority to cease operations of such Leased Property for its
Primary Intended Use.
17.1.12 Reduction in Number of Licensed Beds. There is a
reduction in the number of licensed beds set forth on Schedule 17.1.12 attached
hereto or a change in the type of licensed beds for any Facility in violation of
the requirements of this Lease.
17.1.13 Failure to Correct Deficiencies. Any Tenant shall fail to
correct, within the time deadlines set by any Medicare, Medicaid, licensing or
similar agency, any deficiency that justifies either of the following actions by
such agency with respect to any Facility and such agency commences either of the
following actions:
(1) a termination of any Facility Provider Agreement or Third
Party Payor Program; or
(2) a ban on new admissions generally or on admission of
patients otherwise qualifying for Medicaid or Medicare
coverage.
17.1.14 Material Fines. Any Leased Property is assessed material
fines or penalties by any state or any Medicare, Medicaid, health,
reimbursement, licensing or similar agency having jurisdiction over any Tenant
or any Leased Property.
17.1.15 Determination of Deficiency. With respect to any
Facility, any Governmental Authority (a) makes a substandard quality of care
determination regarding
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such Facility, which determination is not corrected within ninety (90) days
provided that (i) if the determination in question is of such a nature that it
cannot be reasonably cured within ninety (90) days; and (ii) Tenant is
diligently pursuing a cure, such ninety (90) day cure period may be reasonably
extended to up to one hundred eighty (180) days in the aggregate); (b) makes a
determination that such Facility is not in substantial compliance with any
applicable regulatory requirements, which determination is not corrected within
ninety (90) days provided that (i) if the determination in question is of such a
nature that it cannot be reasonably cured within ninety (90) days; and (ii)
Tenant is diligently pursing a cure, such ninety (90) day cure period may be
reasonably extended to up to one hundred eighty (180) days in the aggregate);
(c) designates any portion of such Facility or the entirety of such Facility as
part of a "poor performing chain"; (d) cites deficiencies at the scope or
severity of "G", "H" or higher with respect to such Facility and for which no
plan of correction is in place within ten (10) days of receipt of such
deficiency statement; (e) cites deficiencies at the scope and severity of "G",
"H" or higher with respect to such Facility for which a plan of correction has
been filed but not approved by such Governmental Authority, with such
designation, determination or action continuing unremedied for a period of
ninety (90) days provided that (i) if the designation, determination or action
in question is of such a nature that it cannot be reasonably cured within ninety
(90) days; and (ii) Tenant is diligently pursuing a cure, such ninety (90) day
cure period may be reasonably extended to up to one hundred eighty (180) days in
the aggregate) (ten (10) days for immediate jeopardy deficiencies) following any
Tenant's first receipt of notice of such designation, determination or action;
or (f) takes adverse regulatory action with respect to such Facility, including,
without limitation, the imposing of civil money penalties, with such
designation, determination or action continuing unremedied for a period of sixty
(60) days (ten (10) days for immediate jeopardy deficiencies) following any
Tenant's receipt of notice of such designation, determination or action.
17.1.16 Cessation of Services. Except pursuant to the terms
hereof, any cessation of operations at any Facility.
17.1.17 Reporting Obligations. Any Tenant fails to observe or
perform any term, covenant or other obligation of Tenant set forth in Section
8.2.6 or Section 25 hereof and such failure is not cured within a period of five
(5) days after receipt of notice thereof from Landlord.
17.1.18 Admissions Hold. Any ban or limitation upon the admission
of patients or residents to any Facility by any Governmental Authority having
jurisdiction over the licensure of Medicare or Medicaid certification of such
Facility is imposed and such ban or limitation is not removed within ten (10)
days (three (3) days for immediate jeopardy deficiencies); provided, however,
that if Tenant files a plan of correction with respect to such ban or limitation
within ten (10) days of the imposition of such ban or limitation, the
continuance of such ban or limitation shall not mature into an Event of Default
until sixty (60) days after the imposition of such ban or limitation.
17.1.19 Encumbrances. An Encumbrance Event of Default as
described in Section 8.2.7 occurs.
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17.1.20 Lease Guaranty; Cross Default. (i) Any Guarantor shall be
in material default pursuant to the Lease Guaranty beyond applicable notice and
cure periods (if any) therein contained; (ii) Tenant, Guarantor or any borrower
pursuant to the Loan Transaction shall be in material default beyond applicable
notice and cure periods pursuant to any of the loan agreements, notes,
mortgages, deeds of trust or other security instruments evidencing or securing
the Loan Transaction (such documents, the "Loan Documents"); or (iii) Tenant,
Guarantor or any Affiliate of Tenant or Guarantor shall be in default beyond any
applicable notice and cure periods pursuant to the terms of any note, mortgage,
deed of trust, security agreement and/or loan agreement evidencing or securing a
loan or financial accommodation provided by Landlord or any Affiliate of
Landlord to any such parties.
17.1.21 Reserve Event. The occurrence of any Reserve Event.
17.2 Existence and Continuation. An Event of Default shall be deemed
to be existing and continuing if Landlord shall have, prior to any cure of such
Event of Default by Tenant, exercised, or informed Tenant in writing of its
intent to exercise, any remedy available to Landlord with respect to such Event
of Default pursuant to Section 17.3 or otherwise, regardless of whether or not
Tenant shall have remedied such Event of Default subsequent to such exercise or
notification by Landlord.
17.3 Remedy Election. Upon the occurrence of any Event of Default,
Landlord may, at its option and by written notice to Tenant, terminate this
Lease (i) as to the Premises or (ii) as to any one or more of the Leased
Property(ies) (selected in Landlord's sole discretion and by written notice to
Tenant), upon receipt of which notice by Tenant, Tenant shall have no right to
cure the Event of Default in question, all rights of Tenant under this Lease
shall cease as to the Leased Property(ies) so specified, and, if the Leased
Property(ies) so specified is/are less than all of the Premises, the provisions
of Section 17.9 shall apply. Notwithstanding any Limited Termination Election,
Tenant shall pay, to the maximum extent permitted by law, as Additional Rent,
all Litigation Costs as a result of any Event of Default hereunder. Landlord
shall have all rights at law and in equity available to Landlord as a result of
an Event of Default or Tenant's material breach of this Lease. As to any Event
of Default, Landlord may elect, in its sole discretion, to (i) exercise its
rights pursuant to Section 39 relative to an Operational Transfer by delivering
a Transition Notice to Tenant as to any Leased Property(ies) that is/are the
subject of an Event of Default; and (ii) terminate (a "Limited Termination
Election") this Lease as to less than all of the Leased Properties (the Leased
Property(ies) as to which Landlord elects to terminate this Lease, the
"Terminated Lease Properties"). If Landlord exercises a Limited Termination
Election, each remaining Tenant shall be liable for any and all damages owing
from Tenant applicable to a Terminated Lease Property pursuant to this Section
17. Without limitation of the foregoing, if Landlord makes a Limited Termination
Election, the provisions of Section 17.9 governing a deletion of one or more
Leased Properties from this Lease shall apply to the Terminated Lease
Properties; provided, however, that the deletion of such Terminated Lease
Properties from this Lease shall be absolutely without limitation upon Tenant's
obligation (on a joint and several basis) for the damages and other amounts
owing on account of the Event of Default giving rise to the deletion herefrom of
the Terminated Lease Properties.
17.4 Certain Remedies. If an Event of Default shall have occurred,
Tenant shall, to the maximum extent permitted by law, if and to the extent
required by Landlord so to
60
do, immediately surrender to Landlord the Leased Property(ies) specified by
Landlord and as to which the Lease has been or may be terminated pursuant to
Section 17.2 or otherwise and quit the same, and Landlord may enter upon and
repossess such Leased Property(ies) by reasonable force, summary proceedings,
ejectment or otherwise, and may remove Tenant and all other persons and any and
all personal property from such Leased Property(ies) subject to the rights of
any occupants or patients and to any requirement of law.
17.5 Damages. To the extent permitted by law, neither (a) the
termination of this Lease pursuant to Section 17.2, (b) the repossession of any
or all of the Leased Properties or any portion thereof, (c) the failure of
Landlord to relet any or all of the Leased Properties or any portion thereof,
(d) the reletting of any or all of the Leased Properties or any portion thereof,
(e) the failure of Landlord to collect or receive any rentals due upon any such
reletting, nor (f) the election by Landlord not to terminate the Lease but
rather to seek all damages provided at law or in equity, shall relieve Tenant of
any of its liabilities or obligations hereunder, all of which shall survive any
such termination, repossession or reletting. In the event of any such
termination of this Lease (or any termination of this Lease as to less than all
of the Leased Properties in the event of a Limited Termination Election or the
election by Landlord not to terminate this Lease as to such Leased Properties,
but rather to pursue its damages at law or in equity), without limitation of
Section 17.6 and Section 19 below, Tenant shall forthwith pay to Landlord, at
Landlord's option, as liquidated damages with respect to Rent for the Premises
(or the Terminated Lease Properties in the event of any Limited Termination
Election), either:
(A) the sum of:
(i) the unpaid Rent that had been earned at the time of
termination (or the unpaid Rent as to the Terminated Lease Properties in
the event of a Limited Termination Election), which Rent shall bear
interest at the Overdue Rate from the date of such termination; and
(ii) the then net present value (computed using a discount rate
equal to the Prime Rate) of the amount of unpaid Rent (or the unpaid Rent
as to the Terminated Lease Properties in the event of a Limited Termination
Election) for the balance of the Term not previously collected pursuant to
clause (B) below following the date of termination (excluding, however, any
period following termination on account of which Landlord previously
collected Rent pursuant to clause (B) below) without any obligation or
deemed obligation on the part of Landlord to mitigate damages, or
(B) each installment of Rent hereof and other sums payable hereunder
(or such Rent and other sums as to the Terminated Lease Properties in the event
of a Limited Termination Election) as the same becomes due and payable, to the
extent that such Rent and other sums exceed the rent and other sums actually
collected by Landlord for the corresponding period pursuant to any reletting
(without any obligation or deemed obligation on the part of Landlord to mitigate
damages) of the Premises (or the Terminated Properties in the event of a Limited
Termination Election).
Notwithstanding anything contained herein to the contrary, in the event
that Landlord elects damages pursuant to clause (A) or clause (B) above,
Landlord may subsequently elect to
61
collect damages pursuant to the other of clause (A) and clause (B) above. In
case of any Event of Default, Landlord may, with or without terminating this
Lease, (x) relet any or all of the Premises or any part or parts thereof, either
in the name of Landlord or otherwise, for a term or terms that may, at
Landlord's option, be equal to, less than or exceed the period that would
otherwise have constituted the balance of the Term and may grant concessions or
free rent to the extent that Landlord considers advisable or necessary to relet
the same, and (y) make such reasonable alterations, repairs and decorations in
the applicable Leased Property(ies) or any portion thereof as Landlord, in its
reasonable judgment, considers advisable or necessary for the purpose of
reletting the applicable Leased Property(ies); and such reletting and the making
of such alterations, repairs and decorations shall not operate or be construed
to release Tenant from liability hereunder as aforesaid. Landlord shall in no
event be liable in any way whatsoever for failure to relet any Leased Property,
or, in the event that any Leased Property is relet, for failure to collect the
rent under such reletting. To the fullest extent permitted by law, Tenant hereby
expressly waives any and all rights of redemption granted under any present or
future laws in the event of Tenant's being evicted or dispossessed, or in the
event of Landlord's obtaining possession of any Leased Property, by reason of
the violation by Tenant of any of the covenants and conditions of this Lease or
any other Event of Default.
17.6 Waiver. If this Lease is terminated pursuant to this Section 17,
whether in whole or, in the case of any Limited Termination Election, in part,
Tenant waives, to the maximum extent permitted by applicable law, (a) any right
of redemption, re-entry or repossession, (b) any right to a trial by jury in the
event of proceedings to enforce the remedies set forth in this Section 17, and
(c) the benefit of any moratorium laws or any laws now or hereafter in force
exempting property from liability for rent or for debt.
17.7 Application of Funds. Any payments received by Landlord under any
of the provisions of this Lease during the existence or continuance of any Event
of Default (if and such payment is made to Landlord rather than Tenant due to
the existence of an Event of Default) shall be applied to Tenant's obligations
in the order that Landlord may determine.
17.8 Nature of Remedies. To the extent permitted by law, the rights
and remedies of Landlord under this Lease, at law and in equity shall be
cumulative and may be exercised concurrently or successively, on one or more
occasions, as Landlord deems appropriate in its sole discretion, as often as
occasion therefor arises. To the extent permitted by law, each such right and
remedy shall be in addition to all other such rights and remedies, and the
exercise by Landlord of any one or more of such rights and remedies shall not
preclude the simultaneous or subsequent exercise of any or all other such rights
and remedies. Without limiting the generality of the foregoing, liquidated
damages in respect of Rent provided for in clauses (A) and (B) of Section 17.5
hereof, and in Section 19 hereof, shall be payable by Tenant in addition to, and
not in lieu of, any other damages suffered by Landlord in connection with any
default or Event of Default by Tenant (including, without limitation, Litigation
Costs and costs of reletting).
17.9 Deletion of Properties. In the event that this Lease is
terminated as to one or more Deleted Properties (but not all of the Premises)
pursuant to Section 17.2 or as to one or more Leased Properties (but not all of
the Premises) in connection with a Casualty or Condemnation, the provisions of
this Section 17.9 shall be applicable. Without necessity of any
62
further action of the parties, this Lease shall terminate as to the Deleted
Property(ies), and the Deleted Property(ies) shall be separated and removed
herefrom, at such time (such date, the "Property Removal Date") as Landlord
delivers written notice to Tenant (or Tenant delivers written notice to Landlord
in certain limited instances herein expressly set forth) exercising its
termination rights pursuant to Section 15, Section 16 or Section 17.2 (any of
the foregoing, a "Deletion Notice"). As of the applicable Property Removal Date,
this Lease shall be automatically and ipso facto amended to: (i) delete and
eliminate the Deleted Property(ies) herefrom; (ii) exclude the applicable
Deleted Properties from the definition of Premises; (iii) reduce the Fixed Rent
payable hereunder by an amount equal to the product of: (x) the aggregate
Tenant's Proportionate Share(s) applicable to all of the Deleted Properties; and
(y) the aggregate Fixed Rent in effect under this Lease as of the Property
Removal Date; (iv) Exhibit C attached hereto and made a part hereof and the Base
Year Operating Income shall be amended and reduced, respectively, to delete and
eliminate the Deleted Property(ies) therefrom and reduce the Base Year Operating
Income(s) applicable to the remaining Leased Property(ies) by the amount of the
Allocated Base Year Operating Income applicable to the Deleted Properties for
the purposes of determining whether the Rent Escalation Condition has been
satisfied and otherwise; and (v) Schedule 2 attached hereto and made a part
hereof shall be revised to remove the allocation of rents and the Tenant's
Proportionate Share(s) for all of the Deleted Property(ies), and the Tenant's
Proportionate Shares applicable to the remaining Facilities set forth on
Schedule 2 attached hereto shall be recalculated so that each such Tenant shall
have a Tenant's Proportionate Share equal to the percentage that the Fixed Rent
for the Facility(ies) operated by such Tenant comprises of the aggregate Fixed
Rent for all Facilities remaining under this Lease such that the aggregate of
all of the remaining Tenant's Proportionate Shares equals one hundred percent
(100%). With respect to any Terminated Lease Property(ies), the terms of items
(iii) and (v) above shall be without limitation upon the liability of Tenant
(joint and several) for the rental amounts allocated to the Terminated Lease
Property(ies), and, (a) in case of any termination of this Lease as a result of
any Event of Default, any damages resulting from the Event of Default that
resulted in the deletion of such Terminated Lease Property(ies) herefrom; and
(b) in case of any termination of this Lease pursuant to Section 15 or Section
16 hereof, any obligations owed by Tenant to Landlord on account of such
termination under Section 15 or Section 16 hereof. Tenant shall execute and
enter into an amendment to this Lease reflecting the elimination of any Deleted
Property(ies) herefrom promptly (and in any event within ten (10) Business Days
after) after Landlord submits such amendment to Tenant for execution.
18. Landlord's Right to Cure Tenant's Default. If an Event of Default shall
have occurred and be continuing, Landlord, without waiving or releasing any
obligation of Tenant or the Event of Default, may (but shall be under no
obligation to) at any time thereafter make such payments or perform such acts
for the account and at the expense of Tenant, and may, to the extent permitted
by law, enter upon any or each Leased Property or any portion thereof for the
purpose of curing such Event of Default and take all such action thereon as, in
Landlord's opinion, may be necessary or appropriate in connection with curing
such Event of Default. No such entry shall be deemed an eviction of Tenant. All
sums so paid or advanced by Landlord and all costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) so incurred,
together with interest thereon (to the maximum extent permitted by law) as
Additional Rent hereunder at the Overdue Rate from the date on which such sums
or expenses are paid or incurred by Landlord, shall be paid by Tenant to
Landlord on demand. The
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obligations of Tenant and rights of Landlord contained in this Section 18 and in
Section 17 above shall survive the expiration or earlier termination of this
Lease.
19. Holding Over. If Tenant shall, for any reason, remain in possession of
any Leased Property after the expiration or earlier termination of the Term as
to such Leased Property, such possession shall, at the option of Landlord, in
its sole discretion as to each such Leased Property, be as a month-to-month
tenant during which time Tenant shall pay as rental each month (which rental
constitutes liquidated damages with respect to Rent, and not a penalty for the
period to which it relates), two (2) times the aggregate of the Fixed Rent
payable by Tenant pursuant to the provisions of this Lease, in each case, with
respect to the Leased Property(ies) in question (determined on the basis of the
aggregate Tenant's Proportionate Share of each applicable Tenant for the
affected Leased Properties without adjustment or removal of the Tenant's
Proportionate Share for such Leased Property pursuant to Section 17.9 hereof).
During such period of month-to-month tenancy, Tenant shall be obligated to
perform and observe all of the terms, covenants and conditions of this Lease
with respect to the Leased Property(ies) in question (including, but not limited
to, its obligation to pay Additional Rent), but shall have no rights hereunder
other than the right, to the extent given by law to month-to-month tenancies, to
continue its occupancy and use of the applicable Leased Property(ies). Landlord
shall have the right to terminate Tenant's month-to-month tenancy at any time
after giving Tenant ten (10) days' prior written notice, and at any time
thereafter, Landlord may re-enter and take possession of the Premises. Nothing
contained herein shall constitute the consent, express or implied, of Landlord
to the holding over of Tenant after the expiration or earlier termination of
this Lease. The terms of this Section 19 shall be without limitation upon any
other right Landlord may have hereunder, at law or in equity, on account of any
holdover with respect to the applicable Leased Property(ies). The obligations of
Tenant and the rights of Landlord contained in this Section 19 shall survive the
expiration or earlier termination of this Lease.
20. Subordination.
20.1 Subordination. This Lease and all rights of Tenant hereunder are
subject and subordinate to all Facility Mortgages that may now or hereafter
affect Landlord's interest in any Leased Property, and to all renewals,
modifications, consolidations, replacements and extensions of all Facility
Mortgages; provided, however, that such subordination is conditioned upon the
delivery by Landlord and the applicable Facility Mortgagee of a normal and
customary Subordination, Non-Disturbance and Attornment Agreement. Tenant
acknowledges that the form of Subordination, Non-Disturbance and Attornment
Agreement attached hereto as Exhibit F (the "Form SNDA") is a commercially
reasonable and customary subordination, non-disturbance and attornment
agreement. Tenant shall execute and enter into the Form SNDA within five (5)
Business Days after the submission thereof by Landlord or any Facility Mortgagee
to Tenant. In confirmation of the subordination of this Lease, Tenant also
agrees to execute and deliver promptly (and in any event within ten (10)
Business Days) any other commercially reasonable and customary agreement (in
recordable form, if requested) that Landlord or any Facility Mortgagee may
request to evidence such subordination.
20.2 Attornment. If the interests of Landlord under this Lease are
transferred by reason of, or assigned in lieu of, foreclosure or other
proceedings for enforcement of a Facility Mortgage, then Tenant shall, at the
option of such purchaser or assignee, as the case may
64
be, (x) attorn to such party and perform for its benefit all the terms,
covenants and conditions of this Lease on Tenant's part to be performed with the
same force and effect as if such party were the landlord originally named in
this Lease, or (y) enter into a New Lease with such party, as landlord, pursuant
to Section 41 hereof for the remaining Term and otherwise on the same terms and
conditions of this Lease, except that such successor landlord shall not be (i)
liable for any previous act, omission, breach, default or negligence of Landlord
under this Lease; (ii) subject to any counterclaim, defense or offset that
theretofore shall have accrued to Tenant against Landlord; (iii) bound by any
previous modification or amendment of this Lease or by any previous prepayment
of more than one month's rent, unless such modification, amendment or prepayment
shall have been approved in writing by the Facility Mortgagee through or by
reason of which, such successor landlord shall have succeeded to the rights of
Landlord under this Lease or, in case of any such prepayment, such prepayment of
rent has actually been delivered to such successor landlord; or (iv) liable for
any security deposited pursuant to this Lease unless such security has actually
been delivered to such successor landlord. Nothing contained in this Section
20.2 shall be construed to impair any right otherwise exercisable by any such
owner, holder or lessee.
20.3 Mortgagee Cure Rights. If any act or omission by Landlord would
give Tenant the right, immediately or after lapse of time, to cancel or
terminate this Lease or to claim a partial or total eviction, or abatement of
Rent, setoff or counterclaim not otherwise expressly permitted by the terms of
this Lease, or to declare a default hereunder, Tenant will not exercise any such
right until (i) it has given written notice of such act or omission to each
Facility Mortgagee whose name and address shall have previously been furnished
to Tenant, (ii) Landlord shall have failed to cure the same after the delivery
of such notice as may be herein required and within the time limits set forth in
this Lease, and (iii) following the giving of such notice to each Facility
Mortgagee, no Facility Mortgagee shall have remedied such act or omission (x) in
the case of an act or omission that is capable of being remedied without
possession of the applicable Leased Property, within the cure period available
to Landlord under this Lease plus thirty (30) days; and (y) in the case of any
act or omission that is incapable of being remedied without possession of the
applicable Leased Property, within thirty (30) days following the date on which
possession is obtained (either by such Facility Mortgagee or by a receiver in an
action commenced by such Facility Mortgagee).
20.4 Modifications. Tenant shall execute any modification of this
Lease reasonably requested by any Facility Mortgagee or prospective Facility
Mortgagee to cause the terms of this Lease to conform with customary and
reasonable mortgage financing requirements, provided that such modifications (i)
do not materially adversely increase the obligations of Tenant hereunder or
materially diminish Tenant's rights under this Lease, (ii) do not increase Rent
payable hereunder, and (iii) are requested by any such Facility Mortgagee or
prospective Facility Mortgagee only at the time of its initial loan advance or
any subsequent extension of the maturity date of its loan or material
modification of the terms of its loan.
21. Property Collateral.
21.1 Landlord's Security Interest. The parties intend that, if an
Event of Default occurs and is continuing under this Lease, Landlord will
control Tenant's Personal Property so that Landlord or its designee or nominee
can operate, sell or re-let each Facility for
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its Primary Intended Use. Accordingly, to implement such intention, and for the
purpose of securing the payment and performance obligations of Tenant hereunder,
Landlord and Tenant agree as follows:
21.1.1 Property Collateral. Tenant, as debtor, hereby grants to
Landlord, as secured party, a security interest and an express contractual lien
upon all of Tenant's right, title and interest in and to Tenant's Personal
Property and any and all products, rents, proceeds and profits thereof in which
Tenant now owns or hereafter acquires an interest or right, including, but not
limited to, any leased Tenant's Personal Property (collectively, the "Property
Collateral"). This Lease constitutes a security agreement pursuant to and in
accordance with the UCC covering all such Tenant's Personal Property. The
security interest granted to Landlord in this Section 21.1 with respect to
Tenant's Personal Property may be subordinated (in Landlord's sole discretion)
to any security interest granted in connection with the financing or leasing
(e.g., title retention agreements) from a Lending Institution of all or any
portion of the Tenant's Personal Property, provided, however, that in connection
with such financing and/or leasing, Landlord shall furnish Tenant's financiers'
with an intercreditor agreement in form and substance acceptable to Landlord in
its sole discretion. This security agreement and the security interest created
herein shall survive the expiration or earlier termination of this Lease. Tenant
hereby authorizes Landlord to file such financing statements, continuation
statements and other documents as may be necessary or desirable to perfect or
continue the perfection of Landlord's security interest in the Property
Collateral pursuant to the UCC. In addition, if required by Landlord at any time
during the Term, Tenant shall execute and deliver to Landlord, in form
reasonably satisfactory to Landlord, additional security agreements, financing
statements, fixture filings and such other documents as Landlord may reasonably
require to perfect or continue the perfection of Landlord's security interest in
the Property Collateral. Upon the occurrence of an Event of Default, Landlord
shall be entitled to exercise any and all rights or remedies available to a
secured party under the UCC, or available to a landlord under the laws of the
State(s) where the applicable Leased Property(ies) is (are) located, with
respect to Tenant's Personal Property, including the right to sell the same at
public or private sale.
21.1.2 Name Change. Tenant shall give Landlord at least thirty
(30) days' prior written notice of any change in any Tenant's name, identity,
jurisdiction of organization or corporate structure. With respect to any such
change, Tenant will promptly execute and deliver such instruments, documents and
notices and take such actions, as Landlord deems necessary or desirable to
create, perfect and protect the security interests of Landlord in the Property
Collateral.
21.2 Accounts Receivable Financing. Tenant may obtain so-called
"Accounts Receivable" financing with respect to any Facility (or its operations
therein) ("AR Financing") provided (i) the terms and conditions of this Section
21 have been satisfied; (ii) Tenant obtains Landlord's consent to the terms
thereof; and (ii) no Event of Default exists hereunder. Landlord shall not
unreasonably withhold its consent to any AR Financing provided that the amount
of such AR Financing is reasonable given the financial condition of Tenant and
the applicable Leased Properties and Landlord is presented with an intercreditor
agreement on terms acceptable to it in its reasonable discretion.
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22. Risk of Loss. During the Term, the risk of loss or of decrease in the
enjoyment and beneficial use of each Leased Property in consequence of the
damage or destruction thereof by fire, the elements, act of terrorism,
casualties, thefts, riots, wars or otherwise, or in consequence of foreclosures,
attachments, levies or executions (other than by Landlord and those claiming
from, through or under Landlord) is assumed by Tenant, and Landlord shall in no
event be answerable or accountable therefor nor shall any of the events
mentioned in this Section entitle Tenant to any abatement of Rent.
23. Indemnification. Notwithstanding the existence of any insurance
provided for herein, and without regard to the policy limits of any such
insurance, Tenant shall protect, indemnify, save harmless and defend Landlord
and the Landlord Indemnified Parties from and against all Losses (including,
without limitation, Litigation Costs), to the maximum extent permitted by law,
imposed upon or incurred by, or asserted or alleged against, Landlord or any
Landlord Indemnified Parties by reason of: (a) any accident, injury to, or death
of, persons or loss of, or damage to, property occurring on or about any Leased
Property (except to the extent caused by the gross negligence or willful
misconduct of Landlord); (b) any use, misuse, non-use, condition, maintenance or
repair of any Leased Property by Tenant, any Tenant Parties or anyone claiming
under Tenant or any Tenant Parties; (c) any Impositions; (d) any failure on the
part of Tenant, any Tenant Parties or anyone claiming under Tenant or any Tenant
Parties to perform or comply with any of the terms of this Lease; (e) claims for
work or labor performed or materials supplied to Tenant or any Tenant Parties;
(f) any material breach by Tenant of any of its representations and warranties
hereunder; (g) any breach or default under any Authorization by any Tenant (or
any Facility) or any revocation of any Authorizations (including, but not
limited to, any Facility Provider Agreement); (h) any negligence or misconduct
on the part of Tenant or any Tenant Parties; (i) the non-performance of any of
the terms and provisions of any and all existing and future subleases of any
Leased Property to be performed by the subtenant thereunder; and/or (j) the
claims of any broker or finder made in connection with this Lease except to the
extent claiming under the written agreements of Landlord. Any amounts that
become payable by Tenant under this Section 23 shall be paid within ten (10)
Business Days after demand by Landlord, and if not timely paid, shall bear
interest at the Overdue Rate from the date of such demand to the date of
payment. Tenant, at its expense, shall contest, resist and defend any such
claim, action or proceeding asserted or instituted against Landlord or any
Landlord Indemnified Parties with counsel acceptable to Landlord in its
reasonable discretion and shall not, under any circumstances, compromise or
otherwise dispose of any suit, action or proceeding without obtaining Landlord's
written consent. Tenant shall have the right to control the defense or
settlement of any claim provided that (A) Tenant shall first confirm in writing
to Landlord that such claim is within the scope of this indemnity and that
Tenant shall pay any and all amounts required to be paid in respect of such
claim; and (B) any compromise or settlement shall require the prior written
approval of Landlord, which approval shall not be unreasonably withheld provided
Landlord (or the applicable Landlord Indemnified Parties) are irrevocably
released from all liabilities in connection with such claim as part of such
settlement or compromise. Landlord shall have the right to approve counsel
engaged to defend such claim and, at its election and sole cost and expense,
shall have the right, but not the obligation, to participate in the defense of
any claim. If Tenant does not act promptly and completely to satisfy its
indemnification obligations hereunder, Landlord may resist and defend any such
claims or causes of action against Landlord or any Landlord Indemnified Party at
Tenant's sole cost. The terms of this Section 23 shall survive the expiration or
sooner termination of this Lease.
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24. Assignment; Sublease.
24.1 Prohibition. Tenant shall not, without Landlord's prior written
consent, which may be withheld in Landlord's sole discretion, either directly or
indirectly, or through one or more step transactions or tiered transactions,
voluntarily or by operation of law, (a) assign, convey, sell, pledge, mortgage,
hypothecate or otherwise encumber, transfer or dispose of all or any part of
this Lease or any Tenant's leasehold estate hereunder, (b) sublease all or any
part of any Leased Property; (c) engage the services of any Person for the
management or operation of all or any part of any Leased Property; (d) convey,
sell, assign, transfer, pledge, hypothecate, encumber or otherwise dispose of
any stock or partnership, membership or other interests (whether equity or
otherwise) in any Tenant (which shall include any conveyance, sale, assignment,
transfer, pledge, hypothecation, encumbrance or disposition of any stock or
partnership, membership or other interests (whether equity or otherwise) in any
controlling Person(s)), if such conveyance, sale, assignment, transfer or
disposition results, directly or indirectly, in a change in control of such
Tenant (or of such controlling Person(s)); (e) dissolve, merge or consolidate
any Tenant (which shall include any dissolution, merger or consolidation of any
controlling Person(s)) with any other Person, if such dissolution, merger or
consolidation, directly or indirectly, results in a change in control of such
Tenant (or in such controlling Person(s)); (f) sell, convey, assign, or
otherwise transfer all or substantially all of the assets of any Tenant (which
shall include any sale, conveyance, assignment, or other transfer of all or
substantially all of the assets of any controlling Person(s)); (g) sell, convey,
assign, or otherwise transfer any of the assets of any Tenant if the
consolidated net worth of such Tenant immediately following such transaction is
not at least equal to the greater of (1) the consolidated net worth of such
Tenant immediately prior to such transaction and (2) the consolidated net worth
of such Tenant; or (h) enter into or permit to be entered into any agreement or
arrangement to do any of the foregoing or to grant any option or other right to
any Person to do any of the foregoing (each of the aforesaid acts referred to in
clauses (a) through (h) being referred to herein as a "Transfer"). Without
limitation of the foregoing, a Transfer shall include a Change of Control of
Trans.
24.2 Change of Control of Trans. Without limitation of the terms of
the Section 24.1, a Change of Control of Trans shall be a Transfer within the
meaning of Section 24.1 of this Lease requiring the prior written consent of
Landlord, which consent may be withheld in Landlord's sole discretion. By way of
illustration only, and without limitation of Landlord's rights hereunder, for
purposes of determining whether to consent (or deny its consent) to a Change of
Control of Trans or any Replacement Operator, Landlord may consider any or all
of the following criteria and factors ("Transfer Criteria"): (i) the operating
history of the acquiring Person or the Replacement Operator (or their respective
principals and Affiliates) with respect to healthcare facilities comparable to
the Facility as well as its (and their) general expertise and experience as an
operator of healthcare facilities; (ii) the number of licensed beds operated by
the acquiring Person or the Replacement Operator (or their respective
Affiliates), as the case may be, in the State of Maryland and the State of Ohio;
(iii) the general reputation and character of the acquiring Person or the
Replacement Operator (or their respective principals and Affiliates); (iv) the
ability or inability of the acquiring Person or the Replacement Operator, as the
case may be, to accurately provide and make the representations and warranties
contained in Section 10.8 of this Lease as to the acquiring Person or the
Replacement Operator, as the case may be, as well as their respective Affiliates
and principals; and (v) the solvency and
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creditworthiness of the acquiring Person or Replacement Operator, as the case
may be. If Landlord does not consent, in writing, to a Change of Control of
Trans, Tenant shall have the right, but not the obligation, to attempt for a
period of sixty (60) days after its receipt of such determination from Landlord
(the "Identification Period") to locate, identify and submit to Landlord a
replacement operator (or replacement operators) (a "Replacement Operator") for
all (but not less than all) of the Facilities to assume and accept Tenant's
obligations hereunder pursuant to an assignment of this Lease by Tenant to such
Replacement Operator. On or prior to the expiration of the Identification
Period, Tenant may submit to Landlord for its review and consideration a list
prospective Replacement Operators to accept an assignment of the Lease and
operate the Facilities on behalf of Tenant. Any assignment of this Lease to a
Replacement Operator shall be a Transfer within the meaning of Section 24.1 of
this Lease, which Transfer shall require Landlord's prior written consent.
Landlord may consent, or deny its consent, to an assignment of this Lease to a
Replacement Operator in its sole discretion, and, no such assignment shall be
effective absent such consent. Landlord may (but shall not be obligated to)
consider the Transfer Criteria for purposes of evaluating any such proposed
assignment to a Replacement Operator. Landlord shall notify Tenant as to whether
Landlord has elected to approve or disapprove such Transfer within fifteen (15)
Business Days after receipt of notice of the prospective Replacement Operators
and the failure by Landlord to provide such notice shall be deemed a denial of
its consent to such Transfer. If Landlord approves any such Transfer to a
Replacement Operator, Landlord shall also approve the Change of Control of Trans
at such time as: (i) the conditions to the approval of Landlord to such Change
of Control in Section 2.4.2(d) of the Mezzanine Loan Agreement and Section
2.4.2.2(b) or Section 8.2(b) of the Mortgage Loan Agreement have been satisfied;
and (ii) Tenant and Replacement Operator have executed assignment instruments
evidencing such Transfer acceptable to Landlord.
24.3 Permitted Assignments and Subleases. Any purported Transfer made
without the prior written consent of Landlord shall be absolutely null and void.
If Landlord consents to any Transfer, such Transfer shall not be effective and
valid unless and until the applicable transferee executes and delivers to
Landlord any and all documentation reasonably required by Landlord. Any consent
by Landlord to a particular Transfer shall not constitute consent or approval of
any subsequent Transfer, and Landlord's written approval shall be required in
all such instances. No consent by Landlord to any Transfer shall be deemed to
release any Tenant from its obligations hereunder and such Tenant shall remain
fully liable for payment and performance of all obligations under this Lease.
24.4 Rights of Landlord. If this Lease is assigned, or if the Premises
(or any part thereof) are sublet or used or occupied by anyone other than
Tenant, whether or not in violation of this Lease, Landlord may (without
prejudice to, or waiver of its rights), collect rent from the assignee,
subtenant or occupant. Landlord may apply the net amount collected to the Rent
herein required to be paid by Tenant, but no such assignment, subletting,
occupancy or collection shall be deemed a waiver of any of the provisions of
this Section 24. With respect to the allocable portion of the Premises sublet,
in the event that the total rent and any other considerations received under any
sublease by Tenant is greater than the total Fixed Rent required to be paid,
from time to time, under this Lease, Tenant shall pay to Landlord sixty-five
percent (65%) of such excess received from any subtenant and such amount shall
be deemed a component of the Additional Rent.
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25. Financial Statements and Reporting.
25.1 Maintenance of Books and Records. Tenant shall keep and maintain,
or cause to be kept and maintained, proper and accurate books and records, in
accordance with GAAP in all material respects, reflecting the financial affairs
of each Tenant. Landlord shall have the right from time to time during normal
business hours upon reasonable notice to the applicable Tenant to examine such
books and records at the office of such Tenant or other Person maintaining such
books and records and to make such copies or extracts thereof as Landlord shall
request.
25.2 Annual Financial Statements. As soon as available, and in any
event within one hundred twenty (120) days after the close of each Fiscal Year,
Tenant shall furnish to Landlord, in hard copy and electronic format, and
presented on a consolidated and consolidating as well as on a
property-by-property basis, financial statements prepared for such Fiscal Year
with respect to Tenant, including a balance sheet and operating statement as of
the end of such Fiscal Year, together with related statements of income and
members' or partners' capital for such Fiscal Year, audited by a "Big Four"
accounting firm or a nationally recognized, independent certified public
accounting firm reasonably satisfactory to Landlord, whose opinion shall be to
the effect that such financial statements have been prepared in accordance with
GAAP, applied on a consistent basis, and shall not be qualified as to the scope
of the audit or as to the status of any Tenant as a going concern. Together with
Tenant's annual financial statements, Tenant shall furnish to Landlord an
Officer's Certificate certifying as of the date thereof whether, to the best of
Tenant's knowledge, there exists an event or circumstance that constitutes an
Event of Default or that, with the giving of notice or the passage of time, or
both, would constitute an Event of Default, and if such Event of Default or
latent Event of Default exists, the nature thereof, the period of time it has
existed and the action then being taken to remedy the same. Together with
Tenant's annual financial statements, Tenant shall furnish to Landlord, in hard
copy and electronic format:
(i) a statement of cash flows for each Leased Property; and
(ii) such other information as Landlord shall reasonably request.
25.3 Quarterly Financial Information. As soon as available, and in any
event within forty-five (45) days after the end of each fiscal quarter (based on
a Fiscal Year), Tenant shall furnish to Landlord, in hard copy and electronic
format, and presented on a consolidated and consolidating as well as a
property-by-property basis, quarterly and year-to-date unaudited financial
statements prepared for such fiscal quarter with respect to Tenant, including a
balance sheet and operating statement as of the end of such fiscal quarter,
together with related statements of income, members' or partners' capital and
cash flows for such fiscal quarter and for the portion of the Fiscal Year ending
with such fiscal quarter, which statements shall be accompanied by (i) an
Officer's Certificate certifying that the same are true and correct and were
prepared in accordance with GAAP, applied on a consistent basis, subject to
changes resulting from audit and normal year-end audit adjustments and (ii) an
Officer's Certificate certifying as of the date thereof whether, to the best of
Tenant's knowledge, there exists an event or circumstance that constitutes an
Event of Default or that, with the giving of notice or the passage of time, or
both, would constitute an Event of Default and if such Event of Default or
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latent Event of Default exists, the nature thereof, the period of time it has
existed and the action then being taken to remedy the same. Each such quarterly
statement shall show the separate operations of each Leased Property, including,
without limitation, (1) a breakdown of Patient Revenues and other revenues
itemized by payor type and a reasonably detailed breakdown of operating expenses
and (2) patient census information by payor type (collectively, "Census
Information"). Each such quarterly report shall be accompanied by the following,
in hard copy and electronic format:
(i) a statement in reasonable detail showing the calculation of
Net Operating Income for each Facility for the trailing four fiscal
quarters, in each case, ending at the end of such fiscal quarter;
(ii) a then current occupancy report for each Facility; and
(iii) such other information as Landlord shall reasonably
request.
25.4 Certification of Compliance with Financial Covenants.
Simultaneously with the delivery of the quarterly and annual financial
statements contemplated by Sections 25.2 and 25.3, and as part of the applicable
Officer's Certificate, Tenant shall certify to and for the benefit of Landlord
that (i) Tenant (or each Tenant, as applicable) is in compliance with the
covenants contained in Section 8.2.6 for the applicable period, or a list of
such covenants with which such Tenant is not in compliance for the applicable
period and (ii) a clear, reasonably detailed explanation of the calculations of
Coverage Ratio, Net Worth, Portfolio Coverage Ratio, debt to equity ratio and
the minimum occupancy rates for the relevant period, as applicable.
25.5 Reports of Material Adverse Events. As soon as available, and in
any event within thirty (30) days after the end of each calendar month, Tenant
shall furnish a report describing in reasonable detail the occurrence during
such calendar month of any event that is reasonably likely to result in a
material adverse effect on the ability of Tenant to perform any material
provision of this Lease, or the value, use or enjoyment of any of the Leased
Properties or the operation thereof. Tenant shall, simultaneously with
delivering such report, furnish, in hard copy and electronic format and
presented on a consolidated and consolidating as well as a property-by-property
basis, monthly and year-to-date unaudited financial statements prepared for the
applicable month with respect to Tenant, including a balance sheet and operating
statement as of the end of such month, together with related statements of
income, members' or partners' capital and cash flows for such month and for the
portion of the Fiscal Year ending with such month, which statements shall be
accompanied by (i) an Officer's Certificate certifying that the same are true
and correct and were prepared in accordance with GAAP, applied on a consistent
basis, subject to changes resulting from audit and normal year-end audit
adjustments and (ii) an Officer's Certificate certifying as to any material
variances from the approved Annual Budget on a line-item basis. Each monthly
report shall show the separate operations of each Leased Property, including,
without limitation, the Census Information for such Leased Property. Each such
monthly report shall be accompanied by the following in hard copy and electronic
format:
(i) a statement setting forth in reasonable detail the
calculation of Net Operating Income for each Facility for the trailing
twelve (12) months, in each case, ending at the end of that month;
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(ii) then current occupancy report for each Facility; and
(iii) such other information as Landlord shall reasonably
request.
25.6 Report of Compliance with Authorizations. As soon as available,
and in any event within ninety (90) days after the end of each calendar year,
Tenant shall furnish to Landlord true and complete copies of a report regarding
the compliance of each Facility with all Authorizations for such Facility.
25.7 Weekly and Monthly Cash Flow and Census Reports. Upon Landlord's
written request, as soon as available, and in any event within five (5) days
after preparation thereof, each Tenant shall furnish to Landlord the weekly and
monthly consolidated cash flow reports of each Tenant and consolidated patient
census reports for each Tenant.
25.8 Quarterly Deficiency Reports. As soon as available, and in any
event no later than thirty (30) days after the end of each fiscal quarter,
Tenant shall furnish to Landlord (i) the quarterly consolidated survey
deficiency summary report, indicating for each Facility, whether any survey,
citation or report alleging any deficiency with respect to such Facility has
been issued during the prior month and, if so, setting forth the identity of the
Governmental Authority that issued such survey, citation or report, a
description of the alleged deficiency and the timetable or deadline for
remedying same and the applicable Tenant's plan for curing such deficiency and
(ii) to the extent existing, all actuarial reports relating to all professional
liability claims. Tenant shall also deliver to Landlord promptly after request
therefor by Landlord any other Facility specific survey reports reasonably
requested by Landlord.
25.9 Reduction in Licensed Beds. As soon as available, and in any
event within forty-five (45) days after the end of each calendar quarter, Tenant
shall deliver to Landlord copies of Officer's Certificates, setting forth
whether any Event(s) of Default has/have occurred and is/are continuing with
respect to the reduction of the number of licensed beds at any Facility or the
revocation of certification for reimbursement under Medicare or Medicaid with
respect to any Facility.
25.10 Notices from Governmental Authorities. As soon as available, and
in any event within ten (10) days of receipt, Tenant shall deliver to Landlord
any and all notices (regardless of form) from any Governmental Authority (i)
that any Authorization for any Facility or the Medicare certification or
Medicaid certification of any Facility is the subject of any enforcement action,
revocation or suspension, or is subject to assessment for civil monetary
penalties or is the subject of any overpayment claim or recoupment claim or (ii)
that action is pending or being considered to revoke or suspend any
Authorization or to institute enforcement actions of any kind.
25.11 Medicare and Medicaid Filings. Upon the request of Landlord,
within five (5) days of the earlier of (i) the date of the required filing of
cost reports for any Facility with the Medicaid agency or (ii) the date of
actual filing of such cost report for any Facility with such agency, Tenant
shall furnish to Landlord a complete and accurate copy of the annual Medicaid
cost report for each Facility, which will be prepared by an independent
certified public accountant or by an experienced cost report preparer acceptable
to Landlord in its sole discretion,
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and promptly furnish to Landlord any amendments filed with respect to such
reports and all responses, audit reports or inquiries with respect to such
reports.
25.12 Medicare and Medicaid Deficiency Reports. As soon as available,
and in any event within two (2) days of receipt, Tenant shall deliver to
Landlord a copy of any Medicare, Medicaid or other Governmental Authority survey
or report and any statement of deficiencies, and within the time period required
by the particular agency for furnishing a plan of correction, shall also furnish
or cause to be furnished to Landlord, a copy of the plan of correction generated
from such survey or report for a Facility, and correct or cause to be corrected
any deficiency, the curing of which is a condition of continued licensure or for
full participation in Medicare or Medicaid for existing patients or for new
patients to be admitted with Medicare or Medicaid coverage, by the date required
for cure by such agency (plus any extensions of time granted by such agency).
25.13 Annual Budgets. Tenant has previously delivered to Landlord the
Annual Budget for each Leased Property for the 2002 Fiscal Year. At least thirty
(30) days prior to the commencement of each subsequent Fiscal Year during the
Term, Tenant shall deliver to Landlord for approval an Annual Budget presented
on a consolidated and consolidating as well as a property-by-property basis for
the ensuing Fiscal Year and, promptly after preparation thereof, any subsequent
revisions to the Annual Budget.
25.14 Financial Statements of Guarantor. As soon as available, and in
any event within one hundred (100) days after the close of each Fiscal Year,
Tenant shall cause Guarantor to furnish to Landlord, in hard copy and electronic
format and presented on a consolidated and consolidating as well as an
individual entity basis, financial statements prepared for such year with
respect to Guarantor, including a balance sheet and operating statement as of
the end of such year, together with related statements of income and members' or
partners' capital for such Fiscal Year, audited by a "Big Four" accounting firm
or a nationally recognized, independent certified public accounting firm
reasonably satisfactory to Landlord, whose opinion shall be to the effect that
such financial statements have been prepared in accordance with GAAP, applied on
a consistent basis, and shall not be qualified as to the scope of the audit or
as to the status of any Guarantor as a going concern. Together with Guarantor's
annual financial statements, Tenant shall cause Guarantor to furnish to Landlord
an Officer's Certificate certifying as of the date thereof whether, to the best
of Tenant's knowledge, there exists an event or circumstance that constitutes an
Event of Default or that, with the giving of notice or the passage of time, or
both, would constitute an Event of Default by any Guarantor under the Lease
Guaranty, and if such Event of Default or latent Event of Default exists, the
nature thereof, the period of time it has existed and the action then being
taken to remedy the same.
25.15 Estoppel Certification. Together with every Officer's
Certificate required to be provided hereunder, or otherwise upon request by
Landlord in connection with a proposed sale or refinancing of any Leased
Property(ies) by Landlord or otherwise (in any such case within five (5)
Business Days), Tenant shall provide an "Estoppel Certificate" certifying to
Landlord and Landlord's designees (which certificate may be relied upon by
Landlord and any prospective purchaser or prospective Facility Mortgagee of any
Leased Property or any other designee) the following information:
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(i) this Lease is unmodified and is in full force and effect (or
that this Lease is in full force and effect as modified and setting forth
the modifications);
(ii) the dates to which Rent has been paid, each Tenant's
Proportionate Share and the amount of Rent by Facility;
(iii) all Facilities are in good standing with respect to all
necessary federal, state and local licenses, permits and other
Authorizations (including, but not limited to, all of the Facility Provider
Agreements);
(iv) each Facility that participates in the Medicare program is
in compliance with the terms of its Facility Provider Agreement relative to
Medicare and in good standing with the Medicare program;
(v) each Facility that participates in the Medicaid program is in
compliance with the terms of its Facility Provider Agreement relative to
Medicaid and in good standing with the Medicaid program;
(vi) each Facility that participates in any Third Party Payor
Program is in compliance with the terms of such program and is in good
standing thereunder;
(vii) the current number of licensed beds at each Facility;
(viii) Tenant is not in default in the performance of its
obligations under this Lease or, if a default or an Event of Default
exists, specifying the same in reasonable detail;
(ix) Landlord is not in default pursuant to the terms of this
Lease;
(x) the representations and warranties of Tenant contained in
Section 10 of the Lease are true and correct in all material respects;
(xi) such other information, certifications and assurances as
Landlord (or any prospective purchaser or prospective Facility Mortgagee)
shall reasonably require or request as part of an Estoppel Certificate or
otherwise;
(xii) no Facility has a TAG of "G" or higher or is the subject of
any admissions hold; and
(xiii) no Facility or Tenant is the subject of any litigation,
investigation, suit or proceeding for which adequate insurance coverage is
not available under existing insurance policies maintained by Tenant.
Any Estoppel Certificate shall, at Landlord's request, be delivered together
with complete and accurate copies (originals of which shall be made available
for inspection upon request by Landlord) of all licenses, permits and other
Authorizations necessary to operate the Facilities in accordance with all
applicable laws.
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25.16 SEC Reports. As soon as reasonably available, copies of any
Forms 10K, 10Q and 8K, and any other annual, quarterly, monthly or other
reports, copies of all registration statements and any other public information
that any Tenant, Guarantor or Affiliate of Tenant or Guarantor files with the
SEC or any other Governmental Authority. Promptly upon the furnishing thereof to
the shareholders of any Tenant, Guarantor or Affiliate of Tenant or Guarantor,
copies of all statements, reports, notices and proxy statements so furnished.
25.17 Supplemental Information. Such supplements to the foregoing
documents and such other information and reports (including, without limitation,
non-financial information), as any Landlord or Facility Mortgagee may reasonably
request, provided such supplements, and such information and reports, are
consistent with the types of supplements, reports and information generally
utilized by such institutions within the financing industry.
25.18 Weekly and Monthly Cash Flow and Census Information. On a weekly
basis to the extent requested by Landlord, (a) a weekly cash flow report of each
Tenant and (b) a weekly patient census report (reported separately for hospitals
and nursing centers and broken down by payor source) for each Tenant, in form
reasonably acceptable to Landlord. On a monthly basis during the Term, (i) a
monthly cash flow report for each Tenant; (ii) a monthly patient census report
for each Tenant; (iii) a monthly survey deficiency summary report in form
reasonably acceptable to Landlord and listing each of the Facility with an
indication of whether any survey, citation or report alleging a deficiency in
relation to such Facility has been issued with respect thereto during the period
covered by such report and, if so, setting forth the identity of the agency or
Governmental Authority that issued such citation or report, a description of the
alleged deficiency, the proposed plan for remedying such deficiency and the
timetable or deadline for curing the same; and (iv) a monthly summary of
accounts receivable with respect to each Facility and all of the Facilities in
form acceptable to Landlord.
25.19 Quarterly Meetings; Facility Level Meetings and Reviews. On a
quarterly basis, Tenant shall permit, and upon request by Landlord, shall make
appropriate arrangements for, Landlord and/or Landlord's Representatives to
discuss the affairs, operations, finances and accounts of Tenant, Guarantor and
their respective Affiliates with, and be advised as to the same by, senior
officers of Tenant (and such of Tenant's independent accountants and other
financial advisors as would be relevant to the topic(s) of the particular
meeting), all as Landlord may deem appropriate for the purpose of verifying any
report(s) delivered by Tenant to Landlord under this Lease or for otherwise
ascertaining compliance with this Lease by Tenant or the business, operational
or financial condition of Tenant, Guarantor and/or their respective Affiliates
and/or any of their respective Facilities. Without limitation of the foregoing,
from time to time promptly following receipt of written notice from Landlord to
Tenant (and in any event within five (5) Business Days of such receipt), Tenant
shall permit, and shall make appropriate arrangements for, Landlord and/or
Landlord's Representatives to discuss the business, operational and financial
condition of specific Facility(ies) designated by Landlord with, and be advised
as to the same by, appropriate personnel of Tenant and its Affiliates having
operational and accounting responsibilities for the Facility(ies) so specified
by Landlord and to review, and make abstracts from and copies of, the books,
accounts and records of Tenant and its Affiliates relative to any such
Facility(ies), in each case provided, and on the condition, that any such
discussions or reviews, abstracting or copying shall not materially interfere
with Tenant's business operations relative to any affected Facility(ies). Unless
otherwise agreed in writing by
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Landlord and Tenant, all of the discussions, reviews, abstracting and copying
referenced in this Section 25.19 shall occur during normal business hours.
25.20 Authorizations. Not later than thirty (30) days after the
commencement of any Fiscal Year during the Term, Tenant shall submit accurate
and complete copies of any and all Authorizations (together with any renewals or
extensions thereof) certified by Tenant as accurate and complete in an Officer's
Certificate.
25.21 Format. Notwithstanding anything contained herein to the
contrary, Tenant shall submit the financial information, reports, operating
budgets and other financial data contemplated by Section 25 to Landlord in paper
and electronic form, in a format acceptable to Landlord in the exercise of its
reasonable discretion.
26. Landlord's Right to Inspect. Tenant shall permit Landlord, Landlord's
Representatives, any then current or prospective Facility Mortgagee or other
lender to Landlord, any then current or prospective investment banker, mortgage
broker or other professional engaged by Landlord, any prospective purchaser of
any Leased Property or any investor in Landlord or any Affiliate of Landlord
and/or, any prospective lessee, and its and their respective authorized
representatives, to enter upon and conduct a physical inspection of any Leased
Property during normal business hours and, except in an emergency, upon not less
than three (3) Business Days' prior written notice, subject to any security,
health, safety or confidentiality requirements of any Governmental Authority
relating to the Premises, or imposed by law or applicable regulations or any
insurance requirement, and provided that no such entry or inspection shall
materially interfere with Tenant's business operations within the affected
Leased Property(ies). Landlord shall use reasonable efforts not to interfere, or
allow any person entering upon any Leased Property pursuant to the rights
granted to Landlord under this Section 26 to interfere, with the conduct of
Tenant's business operations at the applicable Leased Property in the exercise
of Landlord's rights pursuant to this Section 26. Landlord shall, and does
hereby indemnify, defend and hold Tenant and Tenant's agents, employees and
officers harmless from and against any Losses actually suffered or incurred by
Tenant or Tenant's agents, employees or officers as a result of any injury to,
or death of, persons, or damage to property, resulting from any entry upon the
Leased Properties by Landlord (or any Person entering thereon pursuant to the
rights granted to Landlord under this Section 26) pursuant to this Section 26.
Nothing contained in this Section 26 shall limit or impair Landlord's right to
immediately enter upon and inspect the Premises, or any of Landlord's other
rights or remedies, upon the occurrence of any Event of Default by Tenant.
27. No Waiver. No failure by Landlord or Tenant to insist upon the strict
performance of any term hereof or to exercise any right, power or remedy
consequent upon a breach thereof, and no acceptance of full or partial payment
of Rent during the continuance of any such breach, shall constitute a waiver of
any such breach or of any such term. To the extent permitted by law, no waiver
of any breach shall affect or alter this Lease, which shall continue in full
force and effect with respect to any other then existing or subsequent breach.
28. Single Lease. Tenant hereby acknowledges that the agreement between
Landlord and Tenant to treat this as single lease in all respects, was and is of
primary importance to Landlord, and Landlord would not have entered into this
Lease without there being such an
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agreement and such treatment of this Lease. All rights and obligations under
this Lease relating to the Premises shall apply to each Leased Property and any
default under this Lease pertaining to a single Leased Property or to the
Premises or any portion thereof shall be an Event of Default pertaining to the
Premises; provided, however, that in connection with any Event of Default,
Landlord may elect to exercise its rights only as to one or more of the Leased
Properties. Without limiting the generality of the foregoing, the parties hereto
acknowledge that this Lease constitutes a single lease of the Premises and is
not divisible notwithstanding any references herein to any individual Leased
Property and notwithstanding the possibility that certain individual Leased
Properties may be deleted herefrom pursuant to the express provisions of this
Lease under certain limited circumstances. The parties hereto expressly intend
that this Lease, notwithstanding the possibility that certain individual Leased
Properties may be deleted herefrom under certain limited circumstances expressly
provided for in this Lease, be treated as a single lease for all purposes
whatsoever, including Extended Terms, any assignment of the leasehold estate by
Tenant (as approved by Landlord), and in the context of Tenant's attempted
rejection, assumption and/or assignment of this Lease in any bankruptcy or other
insolvency proceeding affecting any Tenant, in which case the parties hereto
intend for such rejection to terminate this Lease with respect to the entire
Premises or such assumption to apply with respect to the entire Premises, i.e.,
all but not less than all of the Leased Properties. Notwithstanding anything
contained herein to the contrary, the existence of Tenant's Proportionate Share
and the allocation of Rent described in Section 3.1.2 hereof and elsewhere does
not change the joint and several nature of each Tenant's obligation to pay Rent
hereunder (it being acknowledged that each Tenant shall be jointly and severally
liable for any and all obligations of each other Tenant hereunder, including,
but not limited to, each individual Tenant's obligation to pay Rent hereunder).
This Lease does not constitute, and may not be enforced (except at Landlord's
sole discretion in connection with a Limited Termination Election) or treated
as, a separate lease for any individual Leased Property. Notwithstanding the
foregoing, the right of possession and leasehold right granted to each Tenant
hereunder is limited to the applicable Facility operated by such Tenant as
specified on Schedule 1 attached hereto and made a part hereof and the Leased
Property on which such Facility is located.
29. Acceptance of Surrender. No surrender to Landlord of this Lease or of
any Leased Property or any part of any thereof, or of any interest herein or
therein, shall be valid or effective unless agreed to and accepted in writing by
Landlord, and no act by Landlord or any representative or agent of Landlord,
other than such a written acceptance by Landlord, shall constitute an acceptance
of any such surrender.
30. No Merger of Title. There shall be no merger of this Lease or of the
leasehold estate created hereby by reason of the fact that the same person,
firm, corporation or other entity may acquire, own or hold, directly or
indirectly, (a) this Lease or the leasehold estate created hereby or any
interest in this Lease or such leasehold estate and (b) the fee estate in any
Leased Property.
31. Conveyance by Landlord. Landlord may, without the consent or approval
of Tenant, sell, transfer, assign, pledge, encumber, hypothecate, convey or
otherwise dispose of all or any portion of the Premises. If Landlord or any
successor owner of any Leased Property shall sell, transfer, assign, convey or
otherwise dispose of any Leased Property in accordance with the terms hereof
other than as security for a debt, and the purchaser, grantee, assignee or
transferee
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of the Leased Property(ies) shall expressly assume all obligations of Landlord
hereunder with respect to such Leased Property(ies) arising or accruing from and
after the date of such sale, conveyance, transfer, assignment or other
disposition, Landlord or such successor owner, as the case may be, shall
thereupon be released from all future liabilities and obligations of Landlord
under this Lease with respect to such Leased Property(ies) arising or accruing
from and after the date of such sale, conveyance, transfer, assignment or other
disposition as to such Leased Property(ies) and all such future liabilities and
obligations with respect to such Leased Property(ies) shall thereupon be binding
upon such purchaser, grantee, assignee or transferee. In the event of any such
sale, transfer, assignment, conveyance or other disposition (other than as
security for a debt) of less than all of the Premises, the provisions of Section
41 hereof governing New Leases shall apply.
32. Quiet Enjoyment. So long as Tenant shall pay all Rent as the same
becomes due and shall fully comply with all of the terms of this Lease and fully
perform its obligations hereunder, Tenant shall peaceably and quietly have, hold
and enjoy each Leased Property for the Term hereof, free of any claim,
interruption or other action by Landlord or anyone claiming by, through or under
Landlord, but subject to all Permitted Encumbrances. No failure by Landlord to
comply with the foregoing covenant shall give Tenant any right to xxxxx, reduce
or make a deduction from or offset against the Rent or any other sum payable
under this Lease, or to fail to perform any other obligation of Tenant
hereunder. Notwithstanding the foregoing, Tenant shall have all rights and
remedies available at law or in equity, except as otherwise provided herein, by
separate and independent action, to pursue any claim or claims it may have
against Landlord as a result of any breach by Landlord of the covenant of quiet
enjoyment contained in this Section 32.
33. Notices. All notices, demands, requests, consents, approvals and other
communications hereunder shall be in writing and delivered by mail (registered
or certified mail, return receipt requested), in which case such notice shall be
deemed received three (3) Business Days after its deposit, by confirmed
facsimile, in which case such notice shall be deemed received the same day, or
by reputable nationally recognized overnight courier service, in which case such
notice shall be deemed received the next Business Day, addressed to the
respective parties, as follows:
(a) if to any Tenant:
c/o Trans Healthcare, Inc.
0000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: President, CEO
Facsimile: (000) 000-0000
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with a copy to:
Xxxxxx Xxxxx & Xxxx, P.C.
0000 Xxx Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxx
Facsimile: (000) 000-0000
(b) if to Landlord:
Ventas Realty, Limited Partnership
c/o Ventas, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Asset Manager
Facsimile: (000) 000-0000
with a copy to:
Ventas, Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
or to such other address as either party may hereunder designate in writing.
34. Appraisals.
34.1 Appraisals. If Tenant timely and properly exercises the Option or
a Renewal Option, Landlord promptly shall deliver to Tenant its determination
of: (i) Fair Market Value and the Option Purchase Price; or (ii) Fair Market
Rental and Fixed Rent for the first Lease Year of the applicable Extended Term,
as the case may be (the "Landlord Determination"). If Tenant reasonably and in
good faith disputes or disagrees with any Landlord Determination, Landlord and
Tenant shall act mutually, reasonably and in good faith for a period of thirty
(30) days to agree upon the Fair Market Value or the Fair Market Rental, as the
case may be. If Landlord and Tenant are unable to agree upon the Fair Market
Rental (and the resultant Fixed Rent for the first Lease Year of the applicable
Extended Term) or the Fair Market Value (and the resultant Option Purchase
Price) of any Leased Property(ies) for purposes of Section 36 or Section 1.3,
respectively, such amounts shall be determined pursuant to the appraisal
procedures set forth in Sections 34.2 through 34.5 below.
34.2 Appointment of Appraisers. Within ten (10) Business Days after
the expiration of the thirty (30) day negotiation period described in Section
34.1 above, Landlord
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shall, by written notice to Tenant, propose an appraiser meeting the
requirements of Section 34.3 below (the "Landlord Appraiser Notice", and such
identified appraiser, "Landlord's Appraiser"). Within five (5) Business Days
after its receipt of the Landlord Appraiser Notice, Tenant shall, by written
notice to Landlord, either accept or contest Landlord's Appraiser as the sole
and final appraiser for the purposes of determining the Fair Market Rental or
the Fair Market Value, as the case may be. If Tenant accepts Landlord's
Appraiser as the sole and final appraiser for such purposes, then Landlord's
Appraiser shall perform the necessary appraisal and determine the Fair Market
Rental or the Fair Market Value, as the case may be, in accordance with the
appraisal requirements set forth in the definition of "Fair Market Rental", or
"Fair Market Value", as applicable (a "Conforming Appraisal"). The results of
such Conforming Appraisal made by Landlord's Appraiser shall thereupon
constitute the final determination of Fair Market Rental or Fair Market Value,
as the case may be. If Tenant contests Landlord's Appraiser as the sole and
final appraiser for the purposes of determining the Fair Market Rental or the
Fair Market Value, as the case may be, then: (i) Tenant shall, within five (5)
Business Days after its receipt of the Landlord Appraiser Notice, appoint an
appraiser meeting the requirements of Section 34.3 below ("Tenant's Appraiser")
and notify Landlord in writing of such appointment, and (ii) Landlord's
Appraiser and Tenant's Appraiser shall perform independent Conforming Appraisals
within fifteen (15) Business Days thereafter. If Tenant fails to timely appoint
Tenant's Appraiser, Tenant shall be deemed to have accepted Landlord's Appraiser
as the sole and final appraiser for the purpose of determining Fair Market
Rental or Fair Market Value, as the case may be, and the Conforming Appraisal of
Landlord's Appraiser shall control. If the results of such Conforming Appraisals
differ by less than five percent (5%) of the lower of such results, then Fair
Market Value or Fair Market Rental, as the case may be, shall be deemed to be
the arithmetic average of such results. If the results of such Conforming
Appraisals differ by five percent (5%) or more of the lower of such results,
then Landlord's Appraiser and Tenant's Appraiser shall, within five (5) Business
Days of the completion of such Conforming Appraisals, select a third appraiser
meeting the requirements of Section 34.3 below (the "Third Appraiser"), which
Third Appraiser shall perform a Conforming Appraisal within fifteen (15)
Business Days thereafter. Upon completion of such third Conforming Approval, the
Fair Market Rental or Fair Market Value shall be determined as follows: the
result of such Conforming Appraisals that differs the most (either higher or
lower) from the middle result shall be discarded and Fair Market Value or Fair
Market Rental, as the case may be, shall be deemed to be the arithmetic average
of the results contained in the two (2) remaining Conforming Appraisals.
34.3 Qualifications of Appraisers. Each of Landlord's Appraiser,
Tenant's Appraiser and any Third Appraiser must (a) be a member of the American
Institute of Real Estate Appraisers (or any successor organization thereto)
and/or a person employed by an accounting firm that, at the time of such
appointment, is one of the four (4) largest public accounting firms in the
United States and (b) have not less than five (5) years experience, including
substantial expertise, in valuing hospitals and nursing centers and/or
determining the fair market rental value of hospitals and nursing centers.
34.4 Binding Nature. The determination of Fair Market Rental or Fair
Market Value pursuant to this Section 34 shall be final and binding upon the
parties for purposes of determining Fair Market Rental (and the resultant Fixed
Rent for the first Lease Year of any
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Extended Term) or the Fair Market Value (and resultant Option Purchase Price),
as applicable, and shall not be subject to judicial review.
34.5 Costs. Tenant shall pay the actual fees and expenses of all of
the appraisers appointed hereunder, which costs shall be Consent Expenses for
all relevant purposes.
35. General REIT Provisions. Tenant understands that, in order for
Landlord's general partner, Ventas, Inc., to qualify as a REIT, certain
requirements (the "REIT Requirements") must be satisfied, including, without
limitation, the provisions of Section 856 of the Code. Accordingly, Tenant
agrees, and agrees to cause its Affiliates, permitted subtenants, if any, and
any other parties subject to its control by ownership or contract, to reasonably
cooperate with Landlord to ensure that the REIT Requirements are satisfied,
including, but not limited to, providing Landlord or Ventas, Inc. with
information about the ownership of Tenant and its Affiliates. Tenant agrees, and
agrees to cause its Affiliates, upon request by Landlord or Ventas, Inc., to
take all action reasonably necessary to ensure compliance with the REIT
Requirements.
36. Landlord's Option to Purchase the Tenant's Personal Property. Effective
on not less than ninety (90) days' prior written notice given at any time within
one hundred eighty (180) days prior to the expiration of the Term, but not later
than ninety (90) days prior to such expiration, or within thirty (30) days after
the termination of this Lease if this Lease is terminated in whole or in part,
or within thirty (30) days after the dispossession of Tenant of any of the
Leased Properties prior to the expiration of the Term, Landlord or any Successor
Operator shall have the option to purchase all or any portion of Tenant's
Personal Property located at the Leased Property(ies) in question, if any, for a
purchase price equal to the unamortized portion of the original cost based upon
the economic useful life, as defined by the American Hospital Guide (or, if such
guide ceases to be published by the American Hospital Association, a substitute
guide or other economic useful life reference book mutually agreed upon by
Landlord and Tenant, each acting reasonably), subject to, and with appropriate
price adjustments for, all equipment leases, conditional sale contracts, UCC-1
financing statements and other encumbrances to which such Tenant's Personal
Property is subject. The notice from Landlord or any Successor Operator
exercising such right shall specify that portion of the Tenant's Personal
Property that Landlord or any Successor Operator have elected to acquire.
Promptly following demand by Landlord (but in any event within thirty (30) days
following such demand), Tenant shall deliver to Landlord a computation and
statement, in form, content and detail reasonably satisfactory to Landlord, of
the purchase price described above as of the date of such expiration,
termination or dispossession, as the case may be, for all of Tenant's Personal
Property located at the Leased Property(ies) in question. If Landlord reasonably
and in good faith disputes or disagrees with Tenant's calculation of such
purchase price, Landlord shall so notify Tenant in writing, whereupon the
parties shall act mutually, reasonably and in good faith for a period of ten
(10) days to agree upon such purchase price. If the parties are unable to agree
upon such purchase price, then Landlord's calculation, absent manifest error,
shall control and be binding on the parties. Tenant shall execute and deliver
such assignments, conveyance documents, bills of sale and other instruments as
Landlord shall reasonably require to evidence such conveyance and otherwise
reasonably assist Landlord with such conveyance.
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37. Compliance With Environmental Laws.
37.1 Hazardous Substances. Tenant shall not place or hold any
Hazardous Substances on or at any of the Leased Properties, except as is
necessary or reasonable in the ordinary course of its business. If Tenant's
business requires the use of any Hazardous Substances, other than such cleaning
materials as are typically found in healthcare facilities, Tenant shall notify
Landlord in writing and shall comply in all material respects with hazard
communication and notification requirements of the Occupational Safety and
Health Act and any other Environmental Laws with respect to such Hazardous
Substances. Tenant shall comply in all material respects with any and all
Environmental Laws in connection with its use, operation and management of the
Leased Properties. Tenant shall not cause or allow any asbestos to be
incorporated into any Leased Improvements or Alterations that it makes or causes
to be made on or to any of the Leased Improvements where the presence of such
asbestos would pose a risk to human health or safety or result in a violation of
Environmental Laws. Tenant shall not place, hold or dispose of any Hazardous
Substances on, under or at any of the Leased Properties except as specifically
allowed pursuant to this Section 37.1. Tenant further agrees that it shall not
use any of the Leased Properties as a treatment, storage, or disposal (whether
permanent or temporary) facility for Hazardous Waste as defined under RCRA. If
Tenant, in the ordinary course of its business, generates Hazardous Waste, then
Tenant shall comply in all material respects with any and all Environmental Laws
relating to the appropriate use, storage, transportation and disposal of
Hazardous Waste. Tenant further agrees that it shall properly, and in material
compliance with all Environmental Laws, dispose of all "infectious waste" such
as, without limitation, laboratory waste, pathological waste, blood specimens or
products, resident or patient waste including, without limitation, bandages and
disposable gowns, sharp waste and any material generated by the production or
testing of biological agents. All of the terms, covenants, warranties and
indemnifications contained in this Section 37 shall survive the expiration or
sooner termination of this Lease.
37.2 Remediation; Notification. If Tenant becomes aware of a material
violation of any Environmental Laws relating to any Hazardous Substance or
otherwise in, on, under or about any Leased Property or any adjacent property
thereto, or if Tenant, Landlord or a Leased Property becomes subject to any
order of any federal, state or local agency to repair, close, detoxify,
decontaminate or otherwise remediate such Leased Property, Tenant shall promptly
notify Landlord of such event and, at its sole cost and expense, cure such
violation or effect such repair, closure, detoxification, decontamination or
other remediation, which activities shall in all events be performed in
accordance with any and all applicable Environmental Laws and shall be subject
to Landlord's written approval as to their scope, process, content and standard
for completion prior to their commencement, such approval not to be unreasonably
withheld or delayed. If Tenant fails to implement and diligently pursue any such
cure, repair, closure, detoxification, decontamination or other remediation
pursuant to the terms of this Section 37.2, Landlord shall have the right, but
not the obligation, to carry out such action and to recover from Tenant all of
Landlord's costs and expenses incurred in connection therewith. Tenant shall
promptly notify Landlord upon becoming aware (or being notified) of (i) any
claims, suits, proceedings, investigations or demands, or any enforcement,
cleanup or other regulatory or judicial action, threatened, made, or initiated
against or involving Tenant and relating to the Leased Properties pursuant to
Environmental Laws, including, without limitation, those relating to the
presence, treatment, storage, handling, disposal, generation, spill, release or
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discharge of any Hazardous Substances on, at, in, under or about the Leased
Properties or the migration thereof from or to any other property; and (ii) the
imposition of any lien arising under Environmental Laws on the Leased
Properties. Landlord shall promptly notify Tenant upon becoming aware of (i) any
claims, suits, proceedings, investigations or demands, or any enforcement,
cleanup or other regulatory or judicial action, threatened, made, or initiated
against or involving Landlord and relating to the Leased Properties pursuant to
Environmental Laws, including, without limitation, those relating to the
presence, treatment, storage, handling, disposal, generation, spill, release or
discharge of any Hazardous Substances on the Leased Properties or the migration
thereof from or to any other property; and (ii) the imposition of any lien
arising under Environmental Laws on the Leased Properties.
37.3 Indemnity. Tenant shall indemnify, defend, protect, save, hold
Landlord and all of the Landlord Indemnified Parties harmless from and against
any and all Losses (including, but not limited to, losses of use or economic
benefit or diminution in value) suffered or incurred by Landlord or any Landlord
Indemnified Parties in connection with, arising out of, resulting from or
incident to: (i) the production, use, generation, storage, treatment,
transporting, disposal, discharge, release or other handling or disposition of
any Hazardous Substances from, in, on or about any of the Leased Properties,
whenever caused, arising or occurring, except to the extent caused by Landlord
or any of the Landlord Indemnified Parties from and after the date hereof; (ii)
the presence of any Hazardous Substances in, on, under or about any Leased
Properties (x) before the date hereof or (y) during the Term as a result of the
actions or omissions of Tenant or any Tenant Parties; (iii) the violation of any
Environmental Laws by (x) Tenant or any Tenant Parties during the Term or (y)
the Leased Properties prior to the date hereof; and (iv) a breach by Tenant or
any Tenant Parties of this Section 37.
37.4 Environmental Inspection. Upon reasonable belief that Tenant has
not satisfied its obligations pursuant to this Section 37 and otherwise not more
than once annually, Landlord shall have the right, and upon not less than five
(5) days' written notice to Tenant, except in the case of an emergency, in which
event no notice shall be required, to conduct an inspection of any Leased
Property to determine the existence or presence of Hazardous Substances at, in,
on, under or about any Leased Property in material violation of any
Environmental Laws or the existence at any Leased Property of any material
violation of any Environmental Laws. Landlord shall have the right to enter and
inspect any Leased Property, conduct any testing, sampling and analyses
reasonably necessary and shall have the right to inspect materials brought into
any Leased Property. Landlord may, in its discretion, retain such experts to
conduct the inspection, or perform the tests, referred to herein, and to prepare
a written report in connection therewith. Landlord shall have the right to
inspect the Leased Properties with regard to the management and disposal of
Hazardous Substances and Hazardous Waste at all reasonable times during the
Term. All reasonable costs and expenses incurred by Landlord under this Section
37.4 shall be paid by Tenant as Consent Expenses.
37.5 Removal. Upon the expiration of the Term, or the earlier
termination thereof as to one or more Leased Properties, whichever shall be the
first to occur, Tenant shall forthwith remove all Hazardous Substances from any
portion of the Leased Properties as to which such expiration or termination
relates, to the extent caused by Tenant or any Tenant Parties, or brought upon
any such Leased Properties by Tenant or any Tenant Parties, from and
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after the date hereof, which removal shall be performed in accordance with any
Environmental Laws and to Landlord's reasonable satisfaction.
38. Tenant's Option to Purchase the Leased Property. Provided no Event of
Default exists, and is continuing hereunder at the time Tenant exercises the
Option or at the closing of the sale of the Premises to Tenant, Tenant shall
have the option (the "Option") to purchase all (but not less than all) of the
Premises upon the expiration of the Initial Term (but not any Extended Term), at
the greater of (i) the Minimum Purchase Price or (ii) the Fair Market Value (the
"Option Purchase Price"). Tenant may exercise such Option by giving written
notice to Landlord of its exercise of the Option (an "Option Exercise Notice")
no earlier than eighteen (18) months and not less than fifteen (15) months prior
to the expiration of the Initial Term and depositing with Landlord twenty
percent (20%) of the Minimum Purchase Price (the "Xxxxxxx Money Deposit")
simultaneously with the delivery of the Option Exercise Notice. Any exercise by
Tenant of the Option shall void all Renewal Options (including any previously
exercised Renewal Options). Landlord shall have thirty (30) days after Tenant's
exercise of the Option to elect, in its sole discretion, to expand the Premises
to include one or more Additional Properties pursuant to, and in accordance
with, Section 41 hereof. For purposes of the exercise of the Option, any such
Additional Properties shall be included in the Premises for all relevant
purposes, including, but not limited to, the calculation of the Option Purchase
Price. Landlord and Tenant shall proceed to the closing (the "Option Closing")
on the date that is nine (9) months after the exercise of the Option. If Tenant
fails to proceed to the Option Closing for any reason other than a default by
Landlord with respect to its obligations pursuant to the terms of Exhibit D
relative to the Option and the Option Closing, Landlord shall have the
unconditional right to: (i) retain the Xxxxxxx Money Deposit, as fixed and
liquidated damages (and not as a penalty); and (ii) either: (x) declare an
immediate Event of Default hereunder; or (y) extend the Initial Term for a
period of one (1) year on and subject to the terms of this Lease, in which case
the Fixed Rent for such extension period shall be subject to the escalation
pursuant to Section 3.1.2 hereof applicable to any other Lease Year during the
Term. The Option shall be exercised subject to, and in accordance with, the
terms and conditions applicable to the exercise of the Option set forth in
Exhibit D attached hereto.
39. Operational Transfer.
39.1 Exercise; Transfer of Authorizations.
39.1.1 Exercise. Upon (a) the expiration of this Lease as to any
Leased Property in accordance with its terms as of the Expiration Date specified
herein or (b) the occurrence of an Early Termination Event as to any Leased
Property (including any Deleted Property), Landlord shall have the unequivocal
and unilateral right to require an Operational Transfer with respect to such
Leased Property (any Leased Property with respect to which Landlord elects to
require an Operational Transfer, a "Transition Property") by delivery of written
notice to Tenant specifying such election (a "Transition Notice"). Landlord may
elect (in its sole discretion) to exercise its right to require an Operational
Transfer with respect to any Leased Property with respect to which the Lease
will terminate by its terms as of the Expiration Date stated herein by
delivering written notice of such election to Tenant on or prior to ten (10)
days prior to the Expiration Date. In the event of an Early Termination Event as
to one or more
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Leased Properties, Landlord may exercise (in its sole discretion) its right to
require an Operational Transfer at any time by delivering a Transition Notice to
Tenant.
39.1.2 Transfer of Permits. Provided that Landlord exercises its
unilateral right to require an Operational Transfer with respect to any Leased
Property, Tenant shall take any and all necessary actions; file such
applications, petitions, and transfer notices; make such assignments,
conveyances and transfers of permits, licenses, approvals and Facility Provider
Agreements issued to Tenant to and for the benefit of Landlord and/or any
Landlord's designee (any such designee, a "Successor Operator"); and cause such
permits, licenses, approvals and Provider Agreements to be issued to and for the
benefit of Landlord and/or any Successor Operator, in any and all such cases, as
are necessary, desirable, or advisable, such that the day-to-day operations of
the Transition Property for the Primary Intended Use(s) of the Facility(ies)
located on such Transition Property) are transferred and transitioned,
practically and legally, to the Landlord and/or any Successor Operator
simultaneously with the termination or earlier expiration of this Lease as to
the Transition Property(ies) without interruption of the business activities
therein, regulatory or otherwise (such transfer of operations, the "Operational
Transfer"). Without limitation of the foregoing, as part of any Operational
Transfer, Tenant shall, to the extent permitted by applicable law, (i) sell,
transfer, convey and assign to Landlord and/or any Successor Operator, as
applicable, those of the Authorizations that Landlord elects to assume and
accept (or cause Successor Operator to assume and accept) (the "Assigned
Authorizations"); (ii) cooperate in all respects with Landlord and/or any
Successor Operator, and use its unconditional, best efforts to enable Landlord
and/or Successor Operator to apply for and obtain any and all licenses,
operating permits, Provider Agreements, provider status, certificates of need,
certificates of exemption, approvals, waivers, variances and other governmental,
quasi-governmental and private authorizations necessary or advisable for the
continuous operation of the Facility(ies) located on any Transition Property for
its/their Primary Intended Use(s) (collectively, "Transfer Authorizations"); and
(iii) assign to Landlord or any Successor Operator, as applicable, such
assignable patient, vendor, service provider and other contracts relating to the
Facility(ies) located on any Transition Property as Landlord or Successor
Operator may request (the "Assigned Contracts"). The costs and expenses incident
to any Operational Transfer including, but not limited to, any costs incident to
assigning the Assigned Authorizations, obtaining Transfer Authorizations and
assigning the Assigned Contracts shall be paid entirely by Tenant, which costs
and expenses shall be Consent Expenses. It is the express intention of the
parties that, at the expiration or earlier termination of the Term as to any
Transition Property, and upon any dispossession of Tenant in connection with any
Event of Default as to any Facility(ies) located on such Transition Property,
any and all Authorizations needed to operate each Transition Property as to
which the Term is expired or terminated, or as to which Tenant has been
dispossessed, for its/their Primary Intended Use(s) shall, to the maximum extent
permitted by applicable law, and if Landlord so elects, remain with such
Facility(ies) and shall be transferred into the name of Landlord and/or
Successor Operator, as applicable, regardless of whether such Authorization is
in the name of Tenant at any time during the Term. Without limiting the
generality of the foregoing, Tenant shall furnish to Landlord or Successor
Operator, as applicable, complete and accurate documents and information in
Tenant's possession, custody or control necessary or reasonably requested by
Landlord or Successor Operator in connection with any Operational Transfer and
the completion and processing of any applications for the assignment of the
Assigned Authorizations or the Assigned Contracts or obtaining Transfer
Authorizations.
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39.2 Reasonable Assistance. In anticipation of the expiration of this
Lease as to any Leased Property, or upon any Early Termination Event as to any
Leased Property, Tenant shall cooperate with Landlord in all respects to
facilitate and effectuate an Operational Transfer if Landlord elects to require
an Operational Transfer. Such cooperation shall include, without limitation: (i)
furnishing to Landlord or any prospective Successor Operator complete and
accurate books, records, files, documents and information in Tenant's
possession, custody or control necessary or reasonably requested by Landlord or
Successor Operator in connection with the assessment and/or assumption of the
operations of any Transition Properties; and (ii) facilitating the evaluation
and employment by Landlord or any prospective Successor Operator of such
employees of Tenant or its Affiliates (or any third party employment agency with
whom Tenant or its Affiliates has an agreement pursuant to which such agency
employs such parties) as Landlord or Successor Operator may elect to evaluate or
employ, including, without limitation, to the extent permitted by law, affording
Landlord or Successor Operator, as applicable, access to all relevant personnel
files, records, documents and information in Tenant's or its Affiliates'
possession, custody or control.
39.3 Facility Termination; Limited Extension.
39.3.1 Facility Termination. Notwithstanding anything to the
contrary contained in this Lease, Tenant shall not, prior to the tenth (10th)
day preceding the stated Expiration Date as to any Leased Property, commence to
wind up and terminate the operations of the Facility(ies) operated thereon (a
"Facility Termination"). In no event, and under no circumstances, shall any
Tenant relocate the patients or occupants of any Facility to any other
healthcare facility without obtaining Landlord's prior written consent (which
consent may be withheld in Landlord's sole discretion); provided, however, that
if Landlord has not delivered a Transition Notice to Tenant prior to the tenth
(10th) day preceding the stated Expiration Date of this Lease as to a Leased
Property, then Tenant may commence the Facility Termination (involving the
relocation of patients) as to the Facility(ies) located on such Leased Property
and, upon the expiration of this Lease as to such Leased Property and
Facility(ies), Tenant shall vacate such Leased Property and surrender possession
thereof to Landlord in accordance with all of the applicable requirements of
this Lease. If, prior to the tenth (10th) day preceding the stated Expiration
Date of this Lease as to a Leased Property, Landlord elects to require an
Operational Transfer by delivering a Transition Notice to Tenant, Tenant shall
not commence or otherwise engage in a Facility Termination with respect to the
Facility(ies) located on such Leased Property. In the event of an Early
Termination Event, Tenant shall in no event commence a Facility Termination in
connection with the applicable Leased Property unless and until Landlord
affirmatively elects, in writing and in its sole discretion, not to deliver a
Transition Notice with respect to such Leased Property.
39.3.2 Limited Extension. In the event Landlord delivers a
Transition Notice, Tenant shall thereafter operate the Facility(ies) located on
such Transition Property in accordance with all of the requirements of this
Lease until the earliest to occur of (i) the date (on or after the expiration of
this Lease as to such Transition Property and Facility(ies)) on which Landlord
or Successor Operator, as applicable, will assume the operation of such
Facility(ies), as specified in a written notice from Landlord to Tenant given
not less than fifteen (15) days prior to the date of such assumption; (ii) the
date that is ninety (90) days after the stated Expiration Date of this Lease as
to such Transition Property and Facility(ies) (except that
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in connection with any Early Termination Event, such ninety (90) day period
shall not commence until Landlord delivers a Transition Notice as to the
applicable Leased Property); and (iii) the date (on or after the stated
expiration of this Lease as to any Transition Property and Facility(ies)) that
is ninety (90) days after Tenant receives written notice from Landlord that,
notwithstanding the foregoing, Tenant may commence the Facility Termination, on
which earliest date, Tenant shall vacate the Leased Property in question and
surrender possession thereof to Landlord in accordance with all of the
applicable requirements of this Lease. In the event Landlord sends Tenant a
Transition Notice with respect to only a Leased Property as to which the Lease
has terminated as of the Expiration Date (i.e. not in the case of an Early
Termination Event), and, as a result thereof, Tenant operates one or more
Facilities beyond the aforesaid Expiration Date applicable thereto, then, from
and after the expiration of this Lease as to such Facility(ies) and until the
earliest to occur of the dates described in clauses (i), (ii) and (iii) above
(the "Reimbursement Period"), Landlord shall provide Tenant with an operating
budget and shall reimburse Tenant for any operating deficits with respect to
such Facility(ies) that Tenant may be required to fund out-of-pocket on account
of operating losses and expenses of such Facility(ies) incurred by Tenant by
reason of, or arising out of compliance with, such budget with respect to the
Reimbursement Period. Any such reimbursement shall be due from Landlord to
Tenant within thirty (30) days after written request by Tenant, provided that
Tenant shall furnish such documentation of any operating deficits, losses and
expenses as Landlord may reasonably request. The terms of this Section 39 shall
survive the expiration or sooner termination of this Lease.
40. Non-Recourse. Tenant specifically agrees to look solely to Landlord's
and any successor owner's interest in the then applicable Premises for recovery
of any judgment from Landlord, it being specifically agreed that neither
Landlord, any such successor owner, nor any officer, director, employee, lender,
agent or Affiliate of Landlord or any such successor owner shall ever be
personally liable for any such judgment or for the payment of any monetary
obligation to Tenant. Tenant shall have no recourse against any other property
or assets of Landlord or any successor owner, or against any property or assets
of any officer, director, shareholder, partner, member, lender, agent or
Affiliate of Landlord or any successor owner. Furthermore, in no event shall
Landlord (original or successor) ever be liable to Tenant for any special,
indirect or consequential damages suffered by Tenant from whatever cause.
41. Combination of Leases. If Landlord is the lessor under both this Lease
and any New Lease, Landlord shall have the right, at any time during the Term,
by written notice to Tenant, to require that this Lease and such New Lease (the
"Combination Lease") be combined into a single lease and to require Tenant to
execute an amendment to this Lease whereby (a) if this Lease is the Section 41
Lease, the Leased Properties covered by the Combination Lease ("Additional
Properties") are added as Leased Properties under this Lease and otherwise
merged into this Lease or (b) if the Combination Lease is the Section 41 Lease,
the Leased Properties covered by this Lease are added as Leased Properties under
the Combination Lease and otherwise merged into the Combination Lease, in each
case subject to the following terms and conditions:
41.1 Section 41 Lease. References in this Lease to the "Section 41
Lease" shall mean and refer to whichever of this Lease or the Combination Lease
is chosen by Lessor to be the Section 41 Lease.
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41.2 Additional Properties. If this Lease is the Section 41 Lease,
effective as of the date specified in Section 41.4 below (the "Section 41
Date"), this Lease shall be deemed to be modified and amended as follows:
41.2.1 The Additional Properties shall be included as Leased
Properties under this Lease and the appropriate exhibits to this Lease shall be
modified to add the addresses and legal descriptions of such Additional
Properties.
41.2.2 Fixed Rent under this Lease shall be the combination of
the respective amounts of the Fixed Rent under this Lease and the Combination
Lease.
41.2.3 Any rental escalations that are to be made with respect to
the Leased Properties under this Lease shall also be made with respect to the
Additional Properties as if such Additional Properties had been Leased
Properties under this Lease since the beginning of the Term.
41.2.4 Schedule 2 to this Lease shall be modified and amended so
as to add thereto the Tenant's Proportionate Share(s) relative to the Tenant(s)
under the Combination Lease that was/were previously included in Schedule 2 to
the Combination Lease, and the Tenant's Proportionate Share(s) of the Tenants
included in this Lease (including, without limitation, the additional Tenant(s)
from the Combination Lease) shall be recalculated so that each such Tenant shall
have a Tenant's Proportionate Share equal to the percentage that the Fixed Rent
allocable to the Facility operated by such Tenant (which allocable portion of
Fixed Rent shall remain equal to the share of Fixed Rent that was allocated to
such Facility under this Lease or the Combination Lease, as applicable, prior to
the combination of the Leases pursuant to this Section 41) comprises of the
aggregate Fixed Rents for all Leased Properties included in this Lease
(including, without limitation, the Additional Properties) and so that the
aggregate of all Tenant's Proportionate Shares equals 100%.
41.2.5 Tenant under this Lease shall be responsible for the
payment, performance and satisfaction of all duties, obligations and liabilities
arising under the Combination Lease, insofar as they relate to the Additional
Properties, that were not paid, performed and satisfied in full prior to the
Section 41 Date, and, without limitation of the foregoing, (x) any Event of
Default that had occurred, arisen or accrued under the Combination Lease prior
to the Section 41 Date shall be, and shall be deemed to be, an Event of Default
under this Lease, as to which the rights and remedies and other provisions of
this Lease shall be applicable, (y) any breach or default that had occurred,
arisen or accrued under the Combination Lease prior to the Section 41 Date but
had not yet become an Event of Default under the Combination Lease as of the
Section 41 Date shall be, and be deemed to be, a breach or default under this
Lease, as to which the cure periods, rights and remedies and other provisions of
this Lease shall be applicable, and (z) with respect to any breach or default
described in subsection (y) above, although the cure periods, rights and
remedies and other provisions of this Lease shall be applicable, the portion of
any cure period under the Combination Lease that had elapsed as of the Section
41 Date shall be counted in determining whether and when the applicable cure
period under this Lease has expired.
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41.2.6 The Additional Properties shall otherwise be incorporated
into this Lease as Leased Properties included under this Lease the same as if
this Lease, from the inception of the Lease, had included such Leased Properties
as Leased Properties hereunder on the rent, lease terms and other economic terms
described in the Combination Lease.
41.2.7 Exhibit C attached hereto and made a part hereof and the
Base Year Operating Income shall thereafter be amended and increased,
respectively, to include the Additional Properties and increase the Base Year
Operating Income by the amount of the Allocated Base Year Operating Income
applicable to the Additional Properties.
41.3 Combination Lease. If this Lease is not the Section 41 Lease,
effective as of the Section 41 Date, this Lease shall be modified and amended as
necessary (x) to incorporate into the Combination Lease as Leased Properties
thereunder the Leased Properties covered by this Lease the same as if the Leased
Properties covered by this Lease had, from the inception of this Lease, been
included in the Combination Lease as Leased Properties thereunder on the rent,
lease terms and other economic terms described in this Lease and (y) otherwise
to comply with the requirements of Section 41 of the Combination Lease, as the
Section 41 Lease thereunder. Tenant acknowledges and agrees that, without
limitation of Section 41.2.5 above, the modification and amendment referenced in
this Section 41.2.7 shall not result in Tenant being released from any duties,
liabilities or obligations that had accrued under this Lease through the Section
41 Date.
41.4 Section 41 Date. In the case of any combination of leases
pursuant to this Section 41, such combination shall be effective on the date
that is the earlier of (x) the date the required modifications and amendments to
the Lease and the Combination Lease are fully executed and delivered by the
parties thereto and (y) the date specified in the written notice from Landlord
to Tenant requiring a combination of this Lease and the Combination Lease as
described above, which date shall be no sooner than ten (10) days, nor later
than sixty (60) days, after the date such notice is issued.
41.5 Additional Actions. Landlord and each Tenant shall take such
actions and execute and deliver such documents, including, without limitation,
required modifications and amendments to this Lease and the Combination Lease,
as are reasonably necessary and appropriate to effectuate fully the provisions
and intent of this Section 41.
42. New Lease. Landlord shall have the right, at any time and from time to
time during the Term, by written notice to Tenant, to require Tenant to execute
an amendment to this Lease whereby one or more Leased Properties (individually,
a "Transferred Premises" or collectively, "Transferred Premises") are separated
and removed from this Lease, and simultaneously to execute a substitute lease
with respect to such Transferred Premises, in which case:
42.1 New Lease Terms. Landlord and Tenant shall execute a new lease
(the "New Lease") for such Transferred Premises, effective as of the date
specified in Section 42.3 below (the "Property Transfer Date"), in the same form
and substance as this Lease, but with the following changes thereto:
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42.1.1 Fixed Rent. The initial Fixed Rent for such Transferred
Premises shall be an amount equal to the product of (x) the sum of Tenant's
Proportionate Shares applicable to all of the Facilities located on the
Transferred Premises, and (y) aggregate Fixed Rent in effect under this Lease on
the Property Transfer Date. The allocable share of Fixed Rent for each Tenant
under the New Lease shall be equal to the product of (i) Tenant's Proportionate
Share for the Facility(ies) located on such Transferred Premises under the New
Lease, as calculated pursuant to Section 42.1.2 and (ii) Fixed Rent under the
New Lease. Any rental escalations required under this Lease shall be made under
the New Lease on the same date and in the same manner as is required under this
Lease, in the full amount required as if such Transferred Premises had been
under the New Lease for a full year, notwithstanding that the period from the
Property Transfer Date to the rent escalation date may be less than one full
year. The Base Year Operating Income applicable to the Transferred Premises for
purposes of determining whether the Rent Escalation Condition under such New
Lease has been satisfied shall be equal to the aggregate of the Allocated Base
Year Operating Incomes for all of the Transferred Premises.
42.1.2 Proportionate Shares. An exhibit to such New Lease
comparable to Schedule 2 attached to this Lease shall include Tenant's
Proportionate Share for each Facility located on the Transferred Premises
covered by the New Lease, equal to the percentage that the Fixed Rent for such
Facility under the New Lease comprises of the aggregate Fixed Rent for all
Facilities located on all the Transferred Premises under such New Lease (and the
aggregate of all such Tenant's Proportionate Shares under such New Lease shall
equal 100%).
42.1.3 Liabilities and Obligations. The New Lease shall provide
that each Tenant thereunder shall be responsible for the payment, performance
and satisfaction of all duties, obligations and liabilities arising under this
Lease, insofar as they relate to the Transferred Premises subject to the New
Lease, that were not paid, performed and satisfied in full prior to the
commencement date of the New Lease (and Tenant under this Lease shall also be
responsible for the payment, performance and satisfaction of the aforesaid
duties, obligations and liabilities not paid, performed and satisfied in full
prior to the commencement date of such New Lease), and shall further provide
that the Tenant thereunder shall not be responsible for the payment, performance
or satisfaction of any duties, obligations and liabilities of Tenant under this
Lease arising after the Property Transfer Date.
42.1.4 Single Leased Property. If the New Lease relates to a
single Leased Property, all references to multiple Leased Properties in the New
Lease shall be eliminated.
42.1.5 REIT Provisions. At the election of Landlord, any one or
more of the provisions of the New Lease pertaining to the REIT status of Ventas,
Inc. status shall be deleted. In addition, Landlord may delete and eliminate
from such New Lease such provisions herein as it elects, provided such deletion
and elimination does not materially and adversely affect the Tenant under such
New Lease.
42.1.6 Security Deposit; Escrow Deposits. Such New Lease shall
contemplate both a security deposit and escrow deposits in the same manner or
fashion as
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contemplated by this Lease, which amounts shall initially be funded by Landlord,
on a proportional basis, from the Security Deposit and the escrow deposits held
by Landlord hereunder.
42.2 Modifications to this Lease. Upon execution of such New Lease,
and effective as of the Property Transfer Date, this Lease shall be deemed to be
modified and amended as follows: (i) the Transferred Premises shall be excluded
from the Premises hereunder; (ii) Fixed Rent hereunder shall be reduced by the
amount of the Fixed Rent allocable to the Transferred Premises; (iii) Exhibit C
attached hereto and made a part hereof and the Base Year Operating Income shall
be amended and reduced, respectively, to delete and eliminate the Transferred
Premises therefrom and reduce the Base Year Operating Income by the amount of
the Allocated Base Year Operating Income(s) applicable to the Transferred
Premises for purposes of determining whether the Rent Escalation Condition has
been satisfied or otherwise under this Lease; and (iv) Schedule 2 attached
hereto shall be modified so as to remove the Tenant's Proportionate Shares for
the Transferred Premises, and the Tenant's Proportionate Shares for the Leased
Properties remaining under this Lease shall be recalculated so that each such
Facility shall have a Tenant's Proportionate Share equal to the percentage that
the Fixed Rent for such Facility comprises of the aggregate Fixed Rents for all
Premises remaining under this Lease, and so that the aggregate of all Tenant's
Proportionate Shares remaining under this Lease equals 100%. Such revisions may,
at Landlord's election, be reflected in a formal amendment to this Lease, which
amendment shall be promptly executed by Tenant.
42.3 Effective Date. Any New Lease shall be effective on the date
which is the earlier of: (i) the date the New Lease is fully executed and
delivered by the parties thereto and (ii) the date specified in the written
notice from Landlord to Tenant requiring a New Lease as described above, which
date shall be no sooner than ten (10) days, nor later than sixty (60) days,
after the date such notice is issued.
42.4 Other Undertakings. Tenant shall take such actions and execute
and deliver such documents, including without limitation the New Lease and new
or amended Memorandum(s) of Lease and, if requested by Landlord, an amendment to
this Lease, as are reasonably necessary and appropriate to effectuate fully the
provisions and intent of this Section 41, and Landlord shall execute and deliver
such new or amended Memorandum(s) of Lease as are reasonably necessary and
appropriate to effectuate fully the provisions and intent of this Section 41 and
an amendment of this Lease in accordance with Section 42.2 above, as applicable.
43. Expansion of Lease. If at any time during the Term, Tenant, Guarantor
or any Affiliate of Tenant or Guarantor desire to acquire, construct or assume
any additional healthcare facilities, the terms of that certain side letter
agreement between Tenant, Landlord and Guarantor governing "Expansion" shall be
applicable.
44. Restrictive Covenant. Tenant, Guarantor and its Affiliates shall be
subject to the restrictive covenants and conditions governing the ownership,
leasing, management or operation of additional healthcare facilities contained
in Exhibit E attached hereto.
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45. Miscellaneous.
45.1 Survival. Anything contained in this Lease to the contrary
notwithstanding, all claims against, and liabilities of, Tenant or Landlord
arising prior to any date of termination or expiration of this Lease shall
survive such termination or expiration.
45.2 Maximum Rate. If any late charges or interest computations
provided for in any provision of this Lease are based upon a rate in excess of
the maximum rate permitted by applicable law, the parties agree that such
charges or interest computations shall be fixed at the maximum permissible rate.
45.3 Headings. The headings in this Lease are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
45.4 Integration. This Lease contains the entire agreement between
Landlord and Tenant with respect to the subject matter hereof. No
representations, warranties or agreements have been made by Landlord except as
set forth in this Lease.
45.5 Severability. If any term or provision of this Lease is held or
deemed to be invalid or unenforceable, such term or provision shall be modified
as slightly as possible so as to render it valid and enforceable; if such term
or provision, as modified, shall be held or deemed invalid or unenforceable,
such holding shall not affect the remainder of this Lease and same shall remain
in full force and effect.
45.6 Subject to Law. All rights, powers and remedies provided herein
may be exercised only to the extent that the exercise thereof, including those
that do not require the giving of notice, does not violate any applicable law,
and are intended to be limited to the extent necessary so that they will not
render this Lease invalid or unenforceable under any applicable law. All
waivers, consents, confessions and releases provided for in this Lease are
effective only to the extent permitted by applicable law. This Lease was
negotiated in the State of Illinois, which State the parties agree has a
substantial relationship to the parties and to the underlying transaction
embodied hereby. In all respects, the law of the State of Illinois shall govern
the validity of and enforceability of the obligations of the parties set forth
herein, but all provisions hereof relating to the creation of the leasehold
estate and remedies set forth in Section 17 shall be governed by the laws of the
State in which each applicable Leased Property that is the subject of dispute is
located, and the parties hereto will submit to jurisdiction and the laying of
venue for any suit on this Lease in the Commonwealth of Kentucky.
45.7 Waivers. No waiver of any condition or covenant herein contained,
or of any breach of any such condition or covenant, shall be held or taken to be
a waiver of any subsequent breach of such covenant or condition, or to permit or
excuse its continuance or any future breach thereof, or of Landlord's right to
terminate this Lease or exercise any other remedy granted herein on account of
such existing default.
45.8 Binding Character. This Lease shall be binding upon and shall
inure to the benefit of the heirs, successors, personal representatives, and
permitted assigns of Landlord and Tenant.
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45.9 Modification. This Lease may be only be modified by a writing
signed by both Landlord and Tenant.
45.10 Forbearance. No delay or omission by either party hereto to
exercise any right or power accruing upon any noncompliance or default by the
other party with respect to any of the terms hereof shall impair any such right
or power or be construed to be a waiver thereof.
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IN WITNESS WHEREOF, the parties have caused this Lease to be executed and
their respective corporate seals to be hereunto affixed and attested by their
respective officers hereunto duly authorized.
LANDLORD:
Witness: VENTAS REALTY, LIMITED PARTNERSHIP,
a Delaware limited partnership
/s/ XXXXX XXXXXXXX By: Ventas, Inc., a Delaware corporation
------------------------------------
Name: Xxxxx Xxxxxxxx
-------------------------------
By: /s/ T. XXXXXXX XXXXX
---------------------------------
/s/ XXXXXX X. XXXXXXX Name: T. Xxxxxxx Xxxxx
------------------------------------ -------------------------------
Name: Xxxxxx X. Xxxxxxx Title: Executive Vice President
------------------------------- ------------------------------
TENANT:
Witness: THI OF OHIO AT CHARDON, LLC
/s/ XXXXX X. XXXXXXXXX THI OF OHIO AT GREENBRIAR NORTH, LLC
------------------------------------
Name: Xxxxx X. Xxxxxxxxx TRANS HEALTHCARE OF OHIO, INC.
-------------------------------
/s/ XXXXXX XXXXXXXX THI OF OHIO ALFs AT THE COMMONS, LLC
------------------------------------
Name: Xxxxxx Xxxxxxxx THI OF MARYLAND AT SOUTH RIVER, LLC
-------------------------------
MILLENNIUM HEALTH AND REHABILITATION
CENTER OF FORESTVILLE, LLC
MILLENNIUM HEALTH AND REHABILITATION
CENTER OF ELLICOTT CITY, LLC
By: /s/ XXXXXXX XXXXXXXX
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
------------------------------------
Title: President
-----------------------------------
S-1
State of New York
County of New York
Before me a notary public in and for said county, personally appeared T.
Xxxxxxx Xxxxx known to me to be the person who, as Executive Vice President of
the Corporation which executed the foregoing instrument, signed the same, and
acknowledged to me that (s)he did so sign said instrument in the name and upon
behalf of said Corporation as such officer; that the same is his/her free act
and deed as such officer, and the free and corporate act and deed of said
Corporation on behalf of said limited partnership.
In testimony whereof, I have hereunto subscribed my name and affixed my
official seal (if official has one) at New York, NY this 30 day of October,
2002.
(Seal)
/s/ XXXX XXXXXX XXXXXXX
--------------------------------------------
(signature of person taking acknowledgment)
(Title or rank)
(Serial number, if any)
State of New York [Notary Seal]
County of New York
Before me a notary public in and for said county, personally appeared
Xxxxxxx Xxxxxxxx known to me to be the person who, as President of the entities
which executed the foregoing instrument, signed the same, and acknowledged to me
that (s)he did so sign said instrument in the name and upon behalf of said
entities as such officer; that the same is his/her free act and deed as such
officer, and the free and corporate act and deed of said entities.
In testimony whereof, I have hereunto subscribed my name and affixed my
official seal (if official has one) at New York, NY this 30 day of October,
2002.
(Seal)
/s/ XXXX XXXXXX XXXXXXX
--------------------------------------------
(signature of person taking acknowledgment)
(Title or rank)
(Serial number, if any)
[Notary Seal]
S-2
