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EXHIBIT 10.9
SUBLEASE
THIS SUBLEASE (the "Sublease") made and entered into this 1st day of
October, 1996, by and between BCC at Mt. Royal Pines, Inc., herewith called the
"Lessor," and BCC Therapies of Pennsylvania, Inc., hereinafter called the
"Lessee."
Lessor leases the property identified on Exhibit A from Health Care
Property Investors, Inc., pursuant to a lease dated as of March 21, 1996 (the
"HCPI Lease") and desires to sublease a portion thereof to Lessee. Accordingly,
Lessor hereby subleases to Lessee, and Lessee hereby sublets from Lessor, the
premises identified on Exhibit B, and all necessary access rights
(collectively, the "Premises"), all on the terms set forth below.
1. TERM: The initial term of this Lease shall commence on the date
hereof and shall continue for a period of 3 years (the "Initial Term"). In
addition, Lessee shall have the option to extend the Initial Term for two
additional 3-year periods (each, an "Extended Term") (hereinafter, the Initial
Term, together with the Extended Terms, if any, may be collectively referred to
as the "Term"). Lessee's extension options shall be exercised by Lessee by
giving written notice to Lessor of each such extension at least 90 days, but
not more than 180 days, prior to the end of the then existing Term. During each
Extended Term, the terms and conditions of this Lease shall continue in full
force and effect.
2. RENT: During the Term of this Lease, the total rent shall be $2,000
per month payable in advance on or before the first day of each calendar month
for the ensuing month in lawful money of the United States. All payments
hereunder shall be made to Lessor at 0000 Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxxxxx, XX 00000, or at such other place or to such other person as
Lessor from time to time may designate in writing to Lessee.
3. USE: The Premises are to be used to provide rehab therapy services
and such other uses necessary or incidental to such use (the "Intended Use").
Lessee covenants and agrees that it will obtain and maintain all licenses,
certifications, authorizations, permits and approvals needed to use and operate
the Premises for its Intended Use in accordance with all Legal Requirements (as
defined in section 6).
4. USES PROHIBITED: Lessee shall not use any portion of the Premises
for purposes other than Lessee's Intended Use, and no use shall be made or
permitted to be made upon the Premises, nor acts done, which will increase the
existing rate of insurance upon the property, or cause cancellation of
insurance policies covering said property. Lessee's delivery of rehab services
and related uses shall not be deemed to violate this section.
5. ASSIGNMENT AND SUBLETTING: Lessee may not assign this Sublease or
sublet the Premises without the prior written consent of Lessor, which consent
may be withheld in Lessor's sole and absolute discretion.
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6. LEGAL REQUIREMENTS: Lessee shall comply with all federal, state,
county, municipal or other governmental statutes, laws, rules, policies, codes,
guidance, orders, regulations, ordinances, permits, licenses, covenants,
conditions, restrictions, judgments, decrees and injunctions affecting, whether
now or hereinafter enacted and in force, occasioned by or affecting Lessee, the
Premises or Lessee's Intended Use of the Premises (collectively, the "Legal
Requirements").
7. MAINTENANCE, REPAIRS, ALTERATIONS: Lessee accepts the Premises in
their present condition and agrees to maintain the Premises in such condition
throughout the Sublease Term, ordinary wear and tear, deterioration by reason
of aging expected. Lessor shall be responsible for the normal maintenance and
repair of the inside of the Premises. In addition, Lessor shall be responsible
for the maintenance and repair of heating, air conditioning, plumbing and
electrical equipment. Lessor shall also be responsible for all repairs required
to be done to the roof, exterior walls and all other structural or mechanical
systems. Lessor shall be totally responsible for maintenance of Lessor's
property not included in the Premises. Lessor shall be required, at its
expense, to (i) provide routine pest control for the Premises, (ii) provide
laundry service for Lessee, (iii) provide housekeeping services for the
Premises and (iv) clean the common area ways provided for use in connection
with the offices, halls, stairways and sidewalks and to keep the common area
ways free from trash, debris or filth.
No improvement, alteration or change in the size of the Premises
shall be made without the prior written consent of Lessor, which consent may be
withheld in Lessor's sole and absolute discretion.
8. ENTRY AND INSPECTION: Lessee shall permit Lessor or Lessor's agents
to enter upon the Premises at reasonable times and upon reasonable notice, to
(i) inspect the same and (ii) exhibit the same to prospective purchasers,
sublessees or managers. Lessee shall cooperate with Lessor in exhibiting the
Premises to prospective purchasers, sublessees or managers.
9. INDEMNIFICATION OF LESSOR: Lessee shall protect, indemnify, save
harmless and defend Lessor from and against all liabilities, obligations,
claims, damages, penalties, causes of action, costs and expenses, including
reasonable attorneys' fees, imposed upon or incurred by or asserted against
Lessor by reason of: (i) any accident, injury to or death of persons or loss of
or damage to property occurring on or about the Premises; (ii) any use, misuse,
condition, maintenance or repair of the Premises (for which Lessee is obligated
to perform under this Sublease); (iii) any failure or non-performance on the
part of Lessee to comply with the provisions of this Sublease; (iv) any claim
for malpractice, negligence or misconduct committed by any person on or working
for Lessee on the Premises and (v) the violation of any Legal Requirement.
10. POSSESSION: Lessee shall be entitled to immediate possession.
11. INSURANCE: Lessee, at its expense, shall maintain medical
professional liability insurance and commercial general liability insurance
covering bodily injury or property damage insuring Lessee and Lessor with
minimum coverage not less than the applicable industry
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standards. Lessee's insurance may be blanket insurance covering the Premises as
well as other Premises owned or operated by affiliates of Lessee, including
Lessor; provided, however, the coverage afforded Lessor will not be diminished
or reduced or otherwise be different from that which would exist if provided
under a separate policy of insurance. Lessee shall pay the premiums therefor,
and upon Lessor's request, shall deliver such policies or certificates thereof
to Lessor. Each insurer shall agree, by endorsement to the policy, that it will
give Lessor not less than ten (10) days' written notice before the policy or
policies shall be altered, allowed to expire or canceled.
All proceeds payable by reason of any loss or damage to the Premises,
or any portion thereof, under any policy of insurance required to be paid
hereunder shall be paid to Lessor for the reasonable costs of reconstruction or
repair, as the case may be. Any excess proceeds of insurance remaining after
completion of restoration or reconstruction of the Premises (or in the event
that no repair or restoration is elected or required, all such insurance
proceeds) shall be released to Lessee, provided Lessee is not otherwise in
default hereunder.
To the maximum extent permitted by insurance policies which may be
owned by Lessor or Lessee, Lessee or Lessor, for the benefit of each other,
waive any and all rights of subrogation which might otherwise exist.
12. UTILITIES: Lessee agrees that it shall be responsible for the
payment of all utilities, including water, gas, electricity, heat and other
services delivered to the Premises.
13. SIGNS: Lessor reserves the exclusive right to the roof, side and
rear walls of the Premises. Lessee shall not construct any projecting sign or
awning without the prior written consent of Lessor which consent may be
withheld in the sole and absolute discretion of Lessor.
14. ABANDONMENT OF PREMISES: Lessee shall not vacate or abandon the
Premises at any time during the Term hereof, and if Lessee shall abandon or
vacate the Premises, or be dispossessed by process of law, or otherwise, any
personal property belonging to Lessee left upon the Premises shall be deemed to
be abandoned, at the option of Lessor.
15. CONDEMNATION: If any part of the Premises shall be taken or
condemned for public use, and a part thereof remains which is susceptible of
occupation hereunder, this Sublease shall, as to the part taken, terminate as
of the day immediately preceding the date upon which the condemnor acquires
possession, and thereafter Lessee shall be required to pay such proportion of
the rent for the remaining Term as the value of the Premises remaining bears to
the total value of the Premises at the date of condemnation; provided, however,
that Lessor may at its option, terminate this Sublease as of the day
immediately preceding the date upon which the condemnor acquires possession. In
the event that the demised Premises are condemned in whole, or that such
portion is condemned that the remainder is not susceptible for use hereunder,
this Sublease shall terminate upon the day immediately preceding the date upon
which the condemnor acquires possession. All sums which may be payable on
account of any condemnation shall belong to Lessor; provided, however, that
Lessee shall be entitled to retain any amount awarded to Lessee for Lessee's
trade fixtures and moving expenses.
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16. TRADE FIXTURES: Any and all improvements made to the Premises
during the Term hereof shall belong to Lessor, except trade fixtures of Lessee.
Lessee may upon termination hereof remove all of Lessee's trade fixtures, but
shall repair or pay for all repairs necessary for damages to the Premises
occasioned by removal.
17. DESTRUCTION OF PREMISES: If, during the Term of this Sublease,
said Premises are damaged to the extent that they are wholly untenantable,
Lessor may, at its option, terminate this Sublease by giving Lessee written
notice thereof within thirty (30) days after such damage, and prepaid rent from
the date of such damage shall be refunded.
If said Premises shall be damaged to the extent that they are wholly
untenantable and the same cannot be restored to a condition substantially as
good as prior to the destruction within ninety (90) days, Lessee may terminate
this Sublease by giving Lessor written notice of its intent to terminate within
thirty (30) days after the damage, and in case of such termination, Lessee
shall be entitled to a refund of prepaid rent from the date of damage.
In case said Premises are damaged, but not rendered wholly
untenantable, the rent shall xxxxx proportionately until the Premises are
restored and Lessor shall repair the same as promptly as possible; provided,
however, that if it is not restored within ninety (90) days, Lessee may, at its
election, terminate the Sublease by giving Lessor thirty (30) days written
notice of its intention to do so.
If in the case of destruction of the Premises as aforesaid neither
party elects to terminate the Sublease as above provided, Lessor shall restore
the same with all reasonable speed and for that purpose shall have the right to
enter the said premises for the purpose of restoring the property.
18. INSOLVENCY: In the event that a receiver shall be appointed to
take over the business of Lessee, or in the event that Lessee shall make a
general assignment for the benefit of creditors, or Lessee shall take or suffer
any action under any insolvency or bankruptcy act, the same shall constitute
breach of this Sublease by Lessee.
19. REMEDY UPON DEFAULT: That if any default shall be made in the
payment of rent and if said rent remains unpaid seven (7) days after written
notice of such default is given to Lessee or if after thirty (30) days written
notice setting forth the default, the default shall continue by Lessee in the
performance of any other covenant, agreement, or condition contained in this
Sublease, Lessor shall have the right to re-enter and take possession of the
Premises, and Lessee shall peacefully surrender possession thereof and all
rights and interests of Lessee shall cease and terminate but nothing herein
contained shall affect Lessor's right of the rent for the Term specified. Upon
taking possession hereunder, Lessor may, at its election, terminate and end
this Sublease by giving Lessee written notice thereof, or Lessor may relet the
Premises and Lessee shall be liable for and will pay as it accrues, the
difference in the rental for the balance of the Term.
20. SECURITY: Lessor does not require a security deposit.
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21. ATTORNEY'S FEES. In case suit should be brought for recovery of
the Premises, or for any sum due hereunder, or because of any act which may
arise out of the possession of the Premises, by either party the prevailing
party shall be entitled to all costs incurred in connection with such action,
including reasonable attorneys' fees.
22. WAIVER: No failure of Lessor to enforce any term hereof shall be
deemed to be a waiver thereof.
23. NOTICES: All notices and other communications given or made
pursuant to this Sublease shall be in writing and shall be deemed to have been
duly given or made (i) the second business day after the date of mailing, if
delivery by registered or certified mail, postage prepaid, (ii) upon delivery,
if sent by hand delivery, (iii) upon delivery, if sent by prepaid courier, with
a record of receipt, or (iv) the next day after the date of dispatch, if sent
by cable, telegram, facsimile or telecopy (with a copy simultaneously sent by
registered or certified mail, postage prepaid, return receipt requested), to
the parties at the following addresses:
If to Lessor, to:
BCC at Mt. Royal Pines, Inc.
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
If to Lessee, to:
BCC Therapies of Pennsylvania, Inc.
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
24. HOLDING OVER: If Lessee shall for any reason remain in possession
of the Premises after the expiration or earlier termination of the Term of this
Sublease, such possession shall become a month-to-month tenancy during which
time Lessee shall pay rent each month in an amount equal to twice the rent
payable during the prior Term. During such period of month-to-month tenancy,
Lessee shall be obligated to perform and observe all of the terms, covenants
and conditions of this Sublease, 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 Premises. Nothing herein shall constitute the
consent, express or implied, of Lessor to the holding over of Lessee after the
expiration or earlier termination of this Sublease.
25. TIME: Time is of the essence of this Sublease.
26. ENTIRE AGREEMENT: The foregoing constitutes the entire agreement
between the parties and may be modified only by a writing signed by both
parties.
27. COMPLIANCE WITH HCPI LEASE: Lessee acknowledges that it has
received and reviewed a copy of the HCPI Lease. Lessee agrees that it will
comply with the terms of the HCPI Lease to the extent applicable to Lessee, and
that all of Lessee's rights hereunder are
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subject and subordinate to all applicable terms and conditions of the HCPI
Lease, and further, that HCPI, at its option and without any obligation to do
so, may require Lessee to attorn to HCPI, in which event HCPI shall undertake
the obligations of Lessor, as sublessor under this Sublease from the time of
exercise of such option to the termination of this Sublease and in such case
HCPI shall not be liable for any prepaid rents paid by Lessee to Lessor or for
any other prior defaults of Lessor under this Sublease. In the event that HCPI
shall not require such attornment with respect to this Sublease, then this
Sublease shall automatically terminate upon the expiration or earlier
termination of the HCPI Lease, including any early termination by mutual
agreement of HCPI and Lessor. In addition, Lessee shall furnish Lessor and/or
HCPI with such financial and operational information and information about the
physical condition of the Premises as Lessor and/or HCPI may request from time
to time.
IN WITNESS WHEREOF, intending to be legally bound hereby, the parties
hereto have executed this Sublease as of the date first set forth above.
LESSOR: LESSEE:
BCC at Mt. Royal Pines, Inc. BCC Therapies of Pennsylvania, Inc.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxx
________________________ _____________________
Name: Xxxxx X. Xxxxxx Name: Xxxx X. Xxxxx
Title: Secretary Title: Vice President
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