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Exhibit 10.20
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made and entered into effective
as of the 24th day of April, 1996 by and between Parkview Regional Hospital,
Inc., a Texas non-profit corporation ("Landlord"), and Brim Hospitals, Inc.,
an Oregon corporation ("Tenant").
RECITALS
In consideration of the mutual undertakings and covenants hereinafter
contained and the acts to be performed hereunder, Landlord and Tenant
hereby agree to the within Lease for the following acute care facility:
Parkview Regional Hospital, 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxx, (the
"Hospital"), which is located on the real property described in Exhibit "A"
attached hereto, and incorporated herein by this reference (the "Real
Property"). For purposes hereof, the term "Hospital" shall include any
additions or renovations thereof which result from the completion of the
Development Program (as hereinafter defined).
PART I
Section 1. Landlord's Representations and Warranties. Landlord hereby
makes the following representations, warranties and covenants to Tenant:
(a) Authority. Landlord has full power and authority to execute and to
deliver this Lease and all related documents, and to carry out the transaction
contemplated herein. This Lease is valid, binding and enforceable against
Landlord in accordance with its terms, except as such enforceability may be
limited by creditors rights laws and general principles of equity. The
execution of this Lease and the consummation of the transaction contemplated
herein will not result in a breach of the terms and conditions of nor constitute
a default under or violation of any law, regulation, court order, note, bond,
indenture, articles of incorporation, agreement, license or other instrument or
obligation to which Landlord is now a party or by which Landlord or any of the
assets of Landlord may be bound or affected, Landlord has duly and properly
taken or obtained or caused to be taken or obtained, or prior to the
Commencement Date will have duly and properly taken or obtained or caused to be
taken or obtained, all action necessary for Landlord (i) to enter into and to
deliver this Agreement and any and all documents and agreements executed by
Landlord in connection herewith or in furtherance hereof and (ii) to carry out
the terms hereof and thereof and the transaction contemplated herein and
therein. Landlord represents and warrants that as of the date of execution of
this Agreement, it has secured the consent of its Board of Directors for the
execution of this Agreement and of any documents or agreements necessary to
carry out the terms hereof and for the consummation of the transactions
contemplated by this Agreement. No other action by or on behalf of Landlord is
or will be necessary to authorize the execution, delivery and performance of
this Agreement and any documents and agreements executed by Landlord in
connection herewith or consummation of the transactions contemplated herein,
other than securing those third party consents and regulatory approvals for
which Landlord is responsible under the terms hereof. Nothing herein shall be
construed as a guarantee by Landlord that it will be able to secure the third
party consents or regulatory approvals for which it is responsible, but rather
this paragraph
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paragraph shall be limited to Landlord's representation and warranty that it
will use its best efforts to secure such third party consents and regulatory
approvals;
(b) Title/Ownership of Real Property and Personal Property. On the
Commencement Date, as defined below, Landlord will provide Tenant with
the Hospital, including the Personal Property (as defined below). Landlord has
fee title to the Hospital and the Real Property and marketable title to the
Personal Property, subject only to the real and personal property encumbrances,
set forth in Exhibit "B". The Personal Property is all of the property
currently utilized for the operation of the Hospital at its current occupancy
level and all of the Personal Property is owned by Landlord except as otherwise
provided in those operating and capital leases attached hereto as Exhibit "C."
(c) Operating Contracts. Landlord has entered into certain operating
agreements in connection with its operation of the Hospital and those
which Tenant shall assume as of the Commencement Date are listed on Exhibit "D"
(the "Operating Agreements"), subject to Landlord securing any and all consents
necessary for said assumption, it being understood and agreed that any such
agreements which are not listed on Exhibit "D" shall be and remain the
responsibility of Landlord after the Commencement Date and Tenant shall have no
liability with respect thereto;
(d) Licenses/Certification. The Hospital has a current license for 77
acute care beds issued by the Texas Department of Health and current valid
provider agreements under the Medicaid/Medicare Programs for reimbursement for
acute care services and is accredited by the Joint Commission on Accreditation
of Health Care Organizations. To the best of Landlord's knowledge, the Hospital
is in compliance with all applicable State and Federal statutes, rules or
regulations governing the operations of the Hospital, except as may be shown on
State survey reports previously provided to Tenant. There is no action pending
or, to the best knowledge of Landlord, threatened by the appropriate State or
Federal agency having jurisdiction thereof, to revoke or rescind the Hospital's
license or to terminate the participation of the Hospital in the Title XVIII
and/or XIX Programs or the JCAHO accreditation of the Hospital, nor is there
any decision not to renew any provider agreement related to the Hospital, or
any action of any other type which would have a material adverse effect on the
Hospital, its operations or business.
(e) Intentionally Omitted.
(f) Employees of the Hospital; Unions. Except as set forth in Exhibit
"E", none of the employees of the Hospital are subject to any employment
agreement or collective bargaining agreement nor, to Landlord's actual
knowledge, are any such employees engaged in any union organizing activities.
Landlord is not presently a party to any labor dispute or grievance subject to
Federal labor laws, except as disclosed to Lessee prior to the execution of
this Agreement. Landlord will promptly advise Tenant of any such labor matters
which arise subsequent to the execution of this Agreement.
(g) Surveys and Reports. Complete copies of the most recent survey
reports, any waivers of deficiencies, plans of correction, and any
other investigation reports issued with respect to the Hospital have been
provided by Landlord to Tenant prior to execution of this Agreement.
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(h) Inventory. All inventories of non-perishable food and central
supplies located at the Hospital are in sufficient condition and quantity to
operate the Hospital at normal capacity for two (2) weeks or at such higher
levels as may be required by law. All inventories of perishable food are at
levels normally maintained by Landlord or at such higher levels as may be
required by law.
(i) Litigation. Except as provided in Exhibit "F", there is no
litigation, investigation or other proceeding pending or threatened
against or relating to Landlord, its properties or business, which is material
to the Premises (as defined below) or to this Agreement, and the transaction
contemplated herein has not been challenged by any governmental agency or any
other person, nor does Landlord know, or have reasonable grounds to know, of
any basis for any such litigation, investigation or other proceeding;
(j) Liens. There are no mechanic's, materialmen's or similar claims or
liens presently claimed or, to the best of Landlord's knowledge, which will be
claimed against the Hospital for work performed or commenced prior to the date
hereof at the request of Landlord or of which Landlord has knowledge, Landlord
having made or caused to be made arrangements for payment of all those
improvements now under construction or development including those which may be
shown on the preliminary title commitment;
(k) Mortgages/Security Instruments. Neither the Real Property nor the
Hospital nor the Personal Property is subject to any mortgages or deeds
of trust or other security instruments, other than those described in Exhibit
"B" hereto nor, without the prior written consent of Tenant, which consent
shall not be unreasonably withheld, shall Landlord so encumber the Real
Property or the Hospital at any time during the term hereof; provided, however,
that Landlord shall be entitled to encumber the Real Property and the Hospital
in connection with the execution and delivery of the deed of trust or mortgage
and related security documents securing the Loan (as defined in Part I, Section
l(x))(collectively, the "Development Mortgage") provided Landlord secures
Tenant's prior approval of the terms and conditions thereof, which approval
shall not be unreasonably withheld;
(l) Financial Statements. Attached as Exhibit "G" is Landlord's balance
sheet dated January 31, 1996 (the "Balance Sheet"). To the best of Landlord's
knowledge, the Balance Sheet fairly presents the financial condition of
Landlord as of such date and was prepared in accordance with generally accepted
accounting principles on a basis consistent with that used in prior periods.
(m) Undisclosed Liabilities. Except for liabilities set forth in the
Balance Sheet or in Exhibit "H", and any liabilities incurred since
January 31, 1996 in the case of the Balance Sheet in the ordinary course of
business in accordance with past operations and practices, to the best of
Landlord's knowledge, neither Landlord nor the Hospital is subject to any
liabilities or obligations of any kind, whether accrued, absolute, contingent
or otherwise. Landlord does not know of, nor does it have any reasonable ground
to know of, any basis for the assertion against Landlord or the Hospital of any
such liability. With respect to any liabilities either set forth in the Balance
Sheet or otherwise incurred in the ordinary course of business which involve
claims by third parties with respect to the services provided by Landlord or
its agents or employees, Landlord
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maintains professional liability insurance with limits of $1 million per
occurrence and $3 million in the aggregate which provides coverage on a claims
made basis and said insurance is, as of the date hereof, and shall remain until
the Commencement Date, in full force and effect;
(n) Accounts Receivable. To the best knowledge of Landlord, after
reasonable investigation, the accounts receivable of Landlord to be
purchased under Part II, Section 5.1 arose from bona fide transactions in the
ordinary course of Landlord's business and the allowance for bad debts is
appropriate and sufficient.
(o) Zoning. The Real Property is currently not subject to any zoning
requirements of the City of Mexia or the County of Limestone, Texas.
Accordingly, Landlord has no reason to believe that the rebuilding of the
Hospital in the event of the damage thereto or destruction thereof would not be
permitted. Landlord has obtained all necessary governmental consents, permits
and approvals, including, but not limited to, a Certificate of Occupancy, for
the use and operation of the Hospital. Landlord has provided Tenant with a
letter issued by the City of Mexia confirming the representation set forth
herein with respect to the absence of zoning affecting the Real Property and
with a true and correct copy of the Certificate of Occupancy for the Hospital.
(p) Xxxx-Xxxxxx Liability. Landlord has no liability under the
Xxxx-Xxxxxx Program and Tenant will have no liability or obligation, as
transferee of the Hospital or otherwise, under the Xxxx-Xxxxxx Program as a
result of this Lease.
(q) Environmental Matters.
(i) Neither Landlord nor the Hospital is subject to any existing or
pending investigation or action by any federal, state, or local governmental
authority under any Environmental Law (as defined below).
(ii) Except as set forth in that Phase I Assessment prepared by ATC
Environmental, a true and correct copy of which is attached hereto as Exhibit
"I", no Hazardous Substance (as defined below) has at any time been generated,
used, stored, released, or disposed of on, under or from the Hospital; Landlord
has filed all reports and documents required to be filed under applicable
Environmental Law with respect to the Hospital. There are no underground tanks
on the Hospital; and the Hospital is free from any Hazardous Substance, in each
case except as set forth on Exhibit "I".
(iii) The term "Environmental Law" means any federal, state, or
local law, statute, ordinance, or regulation pertaining to health, industrial
hygiene, the use or disposal of Hazardous Substances or the environmental
conditions (including soil and groundwater conditions) on, under, or about the
Hospital, including, without limitation (a) the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 USC Section
9601 et seq., and (b) the Resource Conservation and Recovery Act of 1976
("RCRA"), 42 USC Section 6901 et seq., and (c) to the extent that the laws of
the State of Texas establish a meaning for "hazardous substance" or "release"
which is broader than that specified in CERCLA, as CERCLA may be amended from
time to time, or a meaning for "solid waste," "disposal," and "disposed" which
is broader than
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specified in RCRA, as RCRA may be amended from time to time, such broader
meanings under said state law shall apply in all matters relating to the laws
of the State of Texas. The term "release" will have the meaning given to it by
CERCLA.
(iv) The term "Hazardous Substance" includes without limitation the
following:
(a) Those substances included within the definitions of "hazardous
substances," "hazardous materials," "toxic substances," and "hazardous
wastes," or "solid wastes" in CERCLA; RCRA; the Hazardous Materials
Transportation Act, 42 USC Section 1801 et seq.; and the Clean Water Act, 33
USC Section 1251 et seq.; and in the regulations promulgated pursuant to such
statutes;
(b) Those substances defined as "hazardous substances," "hazardous
materials," "toxic substances," "hazardous wastes," "dangerous wastes,"
or "solid wastes," in applicable Texas state and local environmental statutes
and in any regulations promulgated pursuant to such statutes;
(c) Those substances listed in the United States Department of
Transportation Table (49 CFR 172.101 and amendments thereto) or by the
Environmental Protection Agency as hazardous substances (40 CFR part 302 and
amendments thereto);
(d) Such other substances, materials and wastes as are or become
regulated, or are classified as hazardous or toxic under federal, state or
local laws or regulations; and
(e) Any material, waste or substance which is or which contains (i)
asbestos, (ii) polychlorinated biphenyls, or (iii) radioactive materials.
(r) Xxxxx Cash. Exhibit "J" sets forth a correct and complete list of
all xxxxx cash accounts maintained by Landlord. Landlord will sign all
documents and instruments necessary to transfer such xxxxx cash to Tenant. Any
other cash or cash equivalents owned by Landlord shall be and remain the
property of Landlord after the Commencement Date.
(s) Licenses. Landlord has all material licenses, permits and
authorizations necessary for the lawful ownership and operation of the
Hospital (the "Landlord Licenses"). True and correct copies of the licenses
issued most recently by the applicable health care authority with respect to
the operation of the Hospital are attached hereto as Exhibit "K." Landlord has
not received written or verbal notice of any action or proceeding which has
been initiated or is proposed to be initiated by the appropriate state or
federal agency having jurisdiction thereof, to either revoke, withdraw or
suspend any of the Landlord Licenses or to terminate the participation of the
Hospital in either the Medicare or Medicaid Programs (to the extent it
participates therein) or any judicial or administrative agency judgement or
decision not to renew any of the Landlord Licenses or any licensure or
certification action of any other type, which would have a material adverse
effect on the business, assets or financial condition of the Hospital.
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(t) Compliance with Law. With respect to the compliance of the
Hospital with law:
(i) Set forth in Exhibit "L" is a list of the most recent
licensure or certification survey for the Hospital and the clinical
service areas included therein, such as pharmacy, laboratory and X-Ray,
copies of which have been made available to Tenant as of the date hereof. To
the best of Landlord's knowledge, the Hospital and its current operation and
use is in substantial compliance with all applicable municipal, county,
state and federal laws, regulations, ordinances, standards and orders and
with all municipal health, building and zoning by-laws and regulations
(including, without limitation, the building, zoning and life safety codes)
where the failure to comply therewith would have a material adverse effect
on the business, property, condition (financial or otherwise) or operation
thereof;
(ii) There are no outstanding cited deficiencies or written work
orders of any authority having jurisdiction over the Hospital requiring
conformity to any applicable statute, regulation, ordinance or bylaw, which
have not been corrected as of the date hereof;
(iii) Landlord has not received written or, to the best of
Landlord's knowledge, verbal notice from any licensing or certifying
agency supervising or having authority over the Hospital requiring it to be
reworked or redesigned or additional furniture, fixtures, equipment or
inventory to be provided thereat so as to conform to or comply with any
existing law, code or standard except where the requirement either (A) has
been fully satisfied prior to the date hereof, (B) will be satisfied by
Landlord prior to the Commencement Date, (C) will be in the process of being
satisfied in the ordinary course of Landlord's business pursuant to the
terms of a Plan of Correction or other documentation submitted to and
approved by the appropriate authority or (D) will be the subject of a valid
written waiver issued by the applicable licensing or certifying agency; and
(iv) If and to the extent applicable, Landlord has no knowledge
based on the results of facility surveys or complaint investigations
provided verbally or in writing to the Hospital by the applicable
supervising agency or authority that the Hospital participating in the
Medicare or Medicaid Programs or certified by JCAHO is not in substantial
compliance with all Conditions and Standards of Participation in the
Medicare and Medicaid Programs or with all applicable requirements of the
JCAHO.
(v) There is no action pending or threatened against the Hospital
to revoke or suspend its license or to ban or limit admissions thereto or, to
the extent applicable, to terminate or not renew its participation in the
Medicare or Medicaid Programs.
(u) Taxes. All tax and other returns, reports and filings of any
kind or nature, required to be filed by Landlord with respect to its ownership
of and operations at the Hospital prior to date of execution of this Agreement
have been properly completed and timely filed, or extensions for the filing
thereof have been timely secured, with all such filings being in material
compliance with all applicable requirements and all taxes due with respect to
Landlord have been timely paid, except to the extent that the same are being
duly contested in good faith in accordance with applicable law and adequate
reserves therefor are reflected on the Balance Sheet or will be reflected in
any subsequent
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financials prepared in accordance with the representations and warranties
contained in this Agreement.
(v) Fraud and Abuse. Landlord has not (i) made any contributions,
payments or gifts to or for the private use of any governmental
official, employee or agent where either the payment or the purpose of such
contribution, payment or gift is illegal under the laws of the United States or
the jurisdiction in which made, (ii) established or maintained any unrecorded
fund or asset for any purpose or made any false or artificial entries on its
books, (iii) given or received any payments or other forms of remuneration in
connection with the referral of patients which would violate the
Medicare/Medicaid Anti-kickback Law, Section 1128(b) of the Social Security
Act, 42 USC Section 1320a-7b(b) or any analogous state statute or (iv) made any
payments to any person with the intention or understanding that any part of
such payment was to be used for any purpose other than that described in the
documents supporting the payment. Landlord shall not be deemed to be in breach
of this representation and warranty in the event the same is untrue as a result
of the acts or omissions of Tenant's or the same was known to be untrue to,
affiliate, Brim Healthcare, Inc., in its capacity as the manager of the
Hospital.
(w) Disclosure. No representation or warranty by or on behalf of
Landlord contained in this Agreement, as those representations have
been modified by any written exceptions thereto delivered by Landlord to Tenant
and no statement contained in any certificate, list, exhibit, or other
instrument furnished or to be furnished to Tenant pursuant hereto contains or
will contain any untrue statement of a material fact, or omits or will omit to
state any material facts which are necessary in order to make the statements
contained herein or therein, in light of the circumstances under which they
were made, not misleading.
(x) Development Program. As of the date hereof, Landlord has committed
to undertake the development program described in Exhibit "M," which
is currently estimated to have a cost of approximately $4.9 million (the
"Development Program"). In order to facilitate the same, Landlord represents
and warrants that it will proceed with all due diligence to secure a loan in
the principal amount of approximately $3 million from a commercial lender to
finance the cost of the Development Program (the "Loan"), the terms and
conditions of which shall be acceptable to both Landlord and Tenant, it being
understood and agreed that this Lease shall be pledged by Landlord as
collateral for the Loan. In addition, Landlord shall make available such
additional funds as may be needed to ensure the timely completion of the
Development Program, it being understood and agreed, however, that Tenant shall
provide the vehicles, equipment, furniture, fixtures and furnishings listed on
Exhibit "R" (the "Development Program Equipment"), which has an aggregate value
of approximately $660,000 in order to assist Landlord in the completion of the
Development Program. Landlord shall bear any and all costs necessary to
negotiate and consummate the Loan, including but not limited to, survey fees,
title fees, loan commitment fees and legal fees.
Section 2. Tenant's Representations and Warranties. Tenant hereby makes
the following representations, warranties and covenants to Landlord:
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(a) Authority. Tenant has full power and authority to execute and to
deliver this Lease and all related documents, and to carry out the transaction
contemplated herein. This Lease is valid, binding and enforceable against
Tenant in accordance with its terms, except as such enforceability may be
limited by creditors rights laws and general principles of equity.
(b) No Conflict. Subject to obtaining the approval of Tenant's Board of
Directors, the execution of this Lease and the consummation of the transaction
contemplated herein, will not result in a breach of the terms and conditions of
nor constitute a default under or violation of any law, regulation, court
order, mortgage, note, bond, indenture, articles of organization, agreement,
license or other instrument or obligation to which Tenant is now a party or by
which Tenant or any of the assets of Tenant may be bound or affected.
Section 3. Landlord's Covenants. Landlord covenants and agrees for the
benefit of Tenant as follows:
Section 3.1. Pre-Delivery Date. From and after the date of the execution
of this Agreement and until the fifth day after the satisfaction or waiver of
the conditions to the effectiveness of this Lease set forth in Part I, Sections
6 and 7 (the "Delivery Date"), except as contemplated by this Agreement or with
the consent of Tenant, which consent shall not be unreasonably withheld,
conditioned or delayed:
Section 3.1.1. Landlord will comply with all of its obligations under
that Management Agreement dated November 27, 1991 between Landlord and Tenant's
affiliates, Brim Healthcare, Inc., as amended by First Amendment, Second
Amendment and Third Amendment dated February 1, 1992, February 1, 1993 and June
27, 1995, respectively (the "Management Agreement").
Section 3.1.2. As soon as practicable after the date hereof but in no
event later than April 30, 1996, Landlord will deliver to Tenant (i) a
UCC-1 search report in the name of Landlord and the Hospital conducted at the
state and county level and (ii) a title insurance commitment for a leasehold
policy with respect to the Premises (the "Leasehold Title Policy") with a value
equal to the present value of the aggregate rent due hereunder during the
Initial Term and each Extension Term, the cost of both of which shall be borne
by Tenant;
Section 3.1.3. Within five (5) days after Landlord's receipt of
Tenant's title objections, UCC search and survey objections pursuant to Part I,
Section 4.1.1, Landlord shall advise Tenant whether it intends to correct the
defects to which Tenant has objected.
Section 3.1.4. Landlord will use its best efforts to cause all of the
conditions set forth in this Part I, Sections 6 and 7 which are within
Landlord's control to be satisfied and Landlord will not take any action
inconsistent with its obligations under this Agreement or which could hinder or
delay the consummation of the transaction contemplated by this Agreement or
which is intended to cause any representation, warranty or covenant made by
Landlord in this Agreement or in any certificate, list, exhibit, or other
instrument furnished or to be furnished pursuant hereto, or in connection with
the transaction contemplated hereby, to be untrue in any material respect as of
the Commencement Date;
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Section 3.1.5. Neither Landlord nor any of its board members, officers
advisors, or others authorized to act on its behalf shall directly initiate or
solicit discussions relating to any alternative acquisition proposal or similar
transaction including, without limitation, a merger or other business
combination involving Landlord or the Premises or any part thereof, or offer to
acquire or convey in any manner, directly or indirectly, all or substantially
all of the equity interests in Landlord or the Premises; provided, however,
that public announcements of the transaction contemplated by this Agreement
shall not be prohibited hereby;
Section 3.1.6. Landlord will not do or to cause to be done any of the
acts which it has covenanted not to do under this Part I, Section 3.1; and
Section 3.1.7. Landlord will proceed with all due diligence to secure
any regulatory approvals and third party consents for which it is responsible
under the terms hereof.
Section 3.2. Delivery Date. On the Delivery Date, Landlord will deliver
or cause to be delivered to Tenant the following:
Section 3.2.1. The Premises in their AS IS, WHERE IS condition, it being
understood and agreed that Tenant has agreed to accept the same in said
condition;
Section 3.2.2. A certificate of a responsible officer of Landlord
dated as of the Delivery Date, certifying on behalf of Landlord in such detail
as Tenant may reasonably specify the fulfillment of the conditions set forth
in this Part I, Section 6.4;
Section 3.2.3. Evidence reasonably satisfactory to Tenant that the
requisite consent of the Board of Directors of Landlord has been obtained
authorizing and approving the transactions contemplated herein;
Section 3.2.4. A duly executed Assignment of the Operating Contracts,
which shall be in the form attached hereto as Exhibit "N" (the "Operating
Contract Assignment Agreement");
Section 3.2.5. A duly executed Assignment of Landlord's Working Capital
(as defined in Part II, Section 5,1) which shall be in the form attached
hereto as Exhibit "O" (the "Working Capital Assignment Agreement");
Section 3.2.6. The Leasehold Title Policy; and
Section 3.2.7. A duly executed Employee Leasing Agreement, which shall be
in the form attached hereto as Exhibit "P" (the "Employee Leasing Agreement").
Section 3.3. Post Delivery Date. From and after the Delivery Date,
Landlord shall take such actions and properly execute and deliver to
Tenant such further instruments of assignment, conveyance and transfer as, in
the reasonable opinion of counsel for Tenant and Landlord, may be reasonably
necessary to assure, complete an evidence the transaction provided for herein.
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Section 4. Tenant's Covenants. Tenant covenants and agrees with
Landlord as follows:
Section 4.1. Pre-Delivery Date. Between the date hereof and the
Delivery Date, except as contemplated by this Agreement or with the
consent of Landlord, which consent shall not be unreasonably withheld,
conditioned or delayed:
Section 4.1.1. Within ten (10) days after its receipt of the Title
Commitment and an ALTA survey of the Real Property and the Hospital
(the "Survey"), Tenant shall advise Landlord in writing of its objections, if
any, to the Title Commitment, Survey and UCC search report. If Landlord refuses
to correct some or all of the title, survey or lien defects objected to by
Tenant or to give Tenant reasonable assurances that the same will be corrected
as of the Commencement Date, Tenant shall have ten (10) days to advise Landlord
of its decision to close, notwithstanding the defects, or of its election to
terminate this Agreement, in which case neither party shall have any further
rights or obligations hereunder. Any matter reflected on the Title Commitment
or Survey and not objected to by Tenant in accordance with the terms hereof,
shall be deemed accepted by Tenant;
Section 4.1.2. Tenant will proceed with all due diligence to obtain any
third party consents and regulatory approvals for which it is responsible under
the terms hereof.
Section 4.1.3. Unless specifically prohibited by law, Tenant will use its
best efforts to cause all of the conditions set forth in Part I; Sections 6 and
7 which are within its control to be satisfied and Tenant will not take any
action inconsistent with its obligations under this Agreement or which could
hinder or delay the consummation of the transaction contemplated by this
Agreement or which is intended to cause any representation, warranty or
covenant made by Tenant in this Agreement or in any certificate, list, exhibit,
or other instrument furnished or to be furnished pursuant hereto, or in
connection with the transaction contemplated hereby, to be untrue in any
material respect as of the Commencement Date; and
Section 4.1.4. Tenant will not do or to cause to be done any of the acts
which it has covenanted not to do under this Part I, Section 4.
Section 4.2. Delivery Date. On the Delivery Date, Tenant will deliver to
Landlord the following documents:
Section 4.2.1. A certificate of a responsible officer of Tenant dated as
of the Delivery Date certifying on behalf of Tenant in such detail as Landlord
may reasonably specify the fulfillment of the condition set forth in Part I,
Section 7.3;
Section 4.2.2. Resolutions of Tenant's Board of Directors, certified by the
Secretary of Tenant authorizing and approving the transaction contemplated
herein;
Section 4.2.3. The executed Operating Contract Assignment Agreement,
Section 4.2.4. The executed Working Capital Assignment Agreement; and
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Section 4.2.5. The executed Employee Leasing Agreement.
Section 4.3. Post-Delivery Date. After the Delivery Date, Tenant will:
Section 4.3.1. Provide Landlord with access during normal business hours
to any books or records which Landlord may need to file or to defend tax returns
or other filings filed prior to or subsequent to the Commencement Date which
relate to the period prior to the Commencement Date; and
Section 4.3.2 Take such actions and properly execute and deliver such
further instruments as Landlord may reasonably request to assure, complete and
evidence the transaction provided for in this Agreement.
Section 5. Mutual Covenants. Following the execution of this
Agreement, Landlord and Tenant agree:
Section 5.1. Cure of Preventing Conditions. If any event should occur,
either within or without the knowledge or control of any party, which would
prevent fulfillment of the conditions to the obligations of any party hereto to
consummate the transactions contemplated by this Agreement, to use its or their
reasonable efforts to cure the same as expeditiously as possible;
Section 5.2. Cooperation. To cooperate fully with each other in
preparing, filing, prosecuting, and taking any other actions which are or may be
reasonable and necessary to obtain the consent of any governmental
instrumentality or any third party, to accomplish the transactions contemplated
by this Agreement;
Section 5.3. Delivery. To deliver such other instruments of title,
certificates, consents, endorsements, assignments, assumptions and other
documents or instruments, in form reasonably acceptable to the party requesting
the same and its counsel, as may be reasonably necessary to carry out and/or to
comply with the terms of this Agreement and the transactions contemplated
herein;
Section 5.4. Conferences. To confer on a regular basis with the other,
report on material operational matters and promptly advise the other orally and
in writing of any change or event having, or which, insofar as can reasonably be
foreseen could have, a material adverse effect on such party or which would
cause or constitute a material breach of any of the representations, warranties
or covenants of such party contained herein;
Section 5.5. Information. To promptly provide the other (or its
counsel) with copies of all other filings made by such party with any state or
federal governmental entity in connection with this Agreement or the
transactions contemplated hereby;
Section 5.6. Consents/Approvals. Each of Tenant and Landlord will use
its best efforts to obtain prior to the Commencement Date all consents,
approvals and licenses necessary to permit the consummation of the transactions
contemplated by this Agreement, including, but not limited to, such licensure
and certification approval as may be necessary to enable Tenant to lawfully own
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and/or operate the Hospital from and after the Commencement Date and the consent
of its lenders, lessors and other third parties to the extent required under any
loan documents, lease agreements, management agreements or other instruments to
which it is a party.
Section 5.7 Press Releases. The parties shall consult with each other
prior to the issuance by either party of any press release or any written
statement with respect to this Agreement or the transactions contemplated
hereby.
Section 6. Conditions to Tenant's Obligations. The obligation of
Tenant under this Lease are subject to the satisfaction or waiver by Tenant of
each of the following conditions on or before the Commencement Date:
Section 6.1. Licenses. Tenant and Hospital will have received all
permits, licenses, orders, certifications and approvals from all federal, state
and local governmental and regulatory bodies required to enable Tenant to
operate the Hospital under this Lease.
Section 6.2. Adverse Changes. There shall be no material adverse
change in the financial condition or operations of the Hospital prior to the
Commencement Date. In addition, there shall be no material adverse changes or
modifications to any of the disclosures set out in the Exhibits to this Lease
prior to the Commencement Date.
Section 6.3. Insurance. Landlord will have obtained a "tail" policy or
Tenant will have obtained a claims made policy, acceptable to Tenant, insuring
Tenant and Landlord against the risks ordinarily insured by standard
professional malpractice liability insurance available to the hospitals respect
to incidents, errors, omissions and claims which arose, existed or were created
before the Commencement Date and with limits and carriers approved by Tenant.
Section 6.4. Representations. Etc. Each of the representations,
warranties and covenants of Landlord set forth in this Lease will be correct and
fully performed.
Section 6.5. Title Insurance. Tenant will have received a commitment
from Chicago Title Insurance Company to issue a policy (the "Title Policy")
insuring the leasehold estate of Tenant in the Real Property (at Tenant's
expense), subject only to liens approved by Tenant.
Section 6.6. Environmental Audit. Tenant will have received, at
Landlord's expense, a level one environmental study and will have accepted the
conclusions and results of the study, which acceptance will be in Tenant's sole
discretion.
Section 6.7. Due Diligence. Tenant shall be satisfied with the results
of its due diligence investigation of Landlord and the Premises, which
investigation shall include, but not be limited to, a review of (i) the books
and records of Landlord related to the Hospital, (ii) the books and records of
the Hospital, including records relating to escrow accounts, accounts payable,
leases or occupancy agreements in effect with the patients or tenants of the
Hospital or any portion thereof, operating statements for the prior three (3)
years, rent rolls for the prior three (3) years, operating contracts with
vendors and other third parties providing goods and services to the Hospital,
(iii) an MAI
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appraisals of the Premises in the possession of Landlord, (iv) a structural
inspection of the Premises conducted by an engineer retained by Tenant and (v)
any seismic assessments, wetlands and soils reports in Landlord's possession and
delivered to Tenant or otherwise acquired by Tenant at its own cost and expense.
Section 6.8. UCC Search. Tenant shall be satisfied with the results of
the UCC Search.
Section 6.9. Damage, Destruction, Condemnation. The Premises shall not
have been damaged or destroyed nor taken by condemnation or eminent domain
proceeds nor subject to any pending condemnation action or eminent domain
proceeding.
Section 7. Conditions to Landlord's Obligations. The obligation of
Landlord under this Lease are subject to the satisfaction or waiver by Landlord
of each of the following conditions on or before the Commencement Date:
Section 7.1. Licenses. Tenant and Hospital will have received all
permits, licenses, orders, certifications and approvals from all federal, state
and local governmental and regulatory bodies required to enable Tenant to
operate the Hospital under this Lease.
Section 7.2 Insurance. Landlord will have obtained a "tail" policy or
Tenant will have obtained a claims made policy, insuring Tenant and Landlord
against the risks ordinarily insured by standard professional malpractice
liability insurance available to the hospitals respect to incidents, errors,
omissions and claims which arose, existed or were created before the
Commencement Date and with limits and carriers approved by Tenant.
Section 7.3. Representations. etc. All of the representations and
warranties of Tenant set forth herein shall be true and correct as of the
Commencement Date in all material respects and Tenant shall have performed as of
the Commencement Date all of its obligations hereunder which it is required to
perform as of said date.
Section 7.4. Assignment and Assumption Agreement. Landlord and Tenant
shall have executed and delivered an Assignment and Assumption Agreement with
respect to the Operating Contracts listed in Exhibit D and the liabilities set
forth in Exhibit G-1.
Section 8. Termination.
Section 8.1. By Landlord or Tenant. This Agreement may be terminated
by Tenant or Landlord prior to the Commencement Date upon the following
conditions:
(a) By mutual consent of the parties;
(b) By Tenant if the conditions set forth in Part I, Section 6 have
not been satisfied or waived by the Outside Commencement Date;
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(c) By Landlord if the conditions set forth in Part I, Section 7 have
not been satisfied or waived by the Outside Commencement Date; and
(d) By either party if the Lease Term has not commenced by July 1, 1996
(the "Outside Commencement Date").
Section 8.2. Notice and Cure. Neither party to this Agreement may
claim termination or pursue any other remedy referred to in Part I, Section 8.1
on account of a breach of a condition, covenant or warranty by the other,
without first given such other party written notice of such breach and not less
than ten (10) days within which to cure such breach. The Commencement Date shall
be postponed if necessary to afford such opportunity to cure provided, however,
in no event shall it be postponed beyond the Outside Commencement Date.
Section 8.3. Landlord's Remedies. In the event of the termination of
this Agreement by Landlord under either Part I, Section 8.1(c) or Section 8.1(d)
where, in either case the term has failed to commence as a result of a
material breach by Tenant of its obligations hereunder, Landlord shall be
entitled to terminate this Agreement and xxx to recover any damages suffered by
it as a result of said breach.
Section 8.4. Tenant's Remedies. In the event of the termination of
this Agreement by Tenant under either Part I, Section 8.1(b) or Section 8.1(d)
where, in either case the term has failed to commence as a result of a
material breach by Landlord of its obligations hereunder, Tenant shall have the
right either (A) to seek specific performance of Landlord's obligations
hereunder or (B) to terminate this Agreement and xxx to recover any damages
suffered by it as a result of said breach.
Section 8.5. Mutual Termination Without Recourse. In the event of the
termination of this Agreement pursuant to Part I, Section 8.1(a) neither party
shall have any further rights or obligations hereunder.
PART II
Section 1. The Premises.
Section 1.1. Landlord hereby demises and leases to Tenant and Tenant
hereby leases and takes from Landlord, the real estate described in Exhibit "A"
attached hereto and by this reference made a part hereof (the "Real Property")
and the improvements thereon or to be added thereto in conjunction with the
Development Program that do or will upon completion constitute the Hospital.
Notwithstanding the foregoing, Landlord and Tenant acknowledge and agree that
Landlord shall be responsible for the supervision of the Development Program and
that Tenant shall not be in breach of its obligations hereunder in the event of
any delay in the completion of the Development Program which results from a
breach by Landlord of its obligations with respect thereto; provided, however,
that Tenant shall provide a project manager to assist Landlord with the
supervision of the Development Program; and provided, further, that in the event
that neither Landlord nor the lender under the Loan has completed the
Development Program on or before December 1, 1997, Tenant shall have the right
to terminate this Lease, it being understood and
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agreed that the completion of the Development Program was a material inducement
to both Landlord's and Tenant's willingness to enter into this Lease.
Section 1.2. Landlord hereby demises and leases to Tenant, and Tenant
hereby leases and takes from Landlord, the vehicles, equipment, furniture,
furnishings, and fixtures listed on Exhibit "Q", attached hereto and by this
reference made a part hereof located therein (such equipment, vehicles,
furniture, furnishings and fixtures, together with all replacements thereof and
additions thereto financed with the proceeds of the Loan as part of the
Development Program, will hereinafter be referred to as the "Personal
Property"). The Development Program Equipment together with any other equipment
that is necessary or convenient to operate the Hospital and which is acquired,
in addition to the Personal Property, shall be acquired by and at the cost of
Tenant and the same shall be and remain the property of Tenant ("Tenant's
Equipment"). Landlord and Tenant acknowledge and agree that Tenant's Equipment
shall include, but not be limited to, the equipment described in Exhibit "R"
which Tenant has agreed to lease in connection with and to facilitate the
Development Program and which Tenant shall have the right to remove from the
Hospital at the end of the Term hereof, whether by expiration or earlier
termination, unless Landlord elects to assume the leases with respect thereto if
and to the extent Tenant has obligations outstanding thereunder as of said
termination date; provided, however, that in the event of the termination of
this Lease as a result of the default of Tenant hereunder, Tenant shall have no
right to remove said portion of the Tenant's Equipment from the Hospital but
shall be obligated to assign the leases related thereto to Landlord effective
upon the date of said termination and any default by Tenant thereunder which is
cured by Landlord in conjunction with said assumption shall be added to the
damages owing to Landlord as a result of Tenant's default hereunder.
Section 1.2.1. Tenant shall keep all of the Personal Property in good
working order and condition at Tenant's sole cost and expense, and at the
expiration or termination of the Lease Term shall return and deliver all of such
property to Landlord in as good order and condition as when received hereunder,
reasonable wear and tear excepted. If necessary for the proper operation of the
Hospital, Tenant shall during the Lease Term replace part or all of the items of
Personal Property which have been damaged or destroyed or become worn out or
obsolete, and such replacement shall be at the sole cost of Tenant, but any such
replaced equipment shall be and remain the property of Landlord, subject,
however, to Landlord's obligations under Part II, Section 2.3. In furtherance of
Tenant's obligations hereunder, Landlord shall assign to Tenant all of its
right, title and interest in and to any warranties granted to Landlord in
connection with any of the Personal Property acquired as a part of the
Development Program.
Section 1.2.2. Landlord agrees upon request of Tenant to subordinate
any statutory or Landlord's lien that Landlord may have to any security interest
granted by the Tenant to secure a purchase money obligation or an acquisition
lease of any of Tenant's Equipment acquired by Tenant pursuant to Part II,
Section 1.2.1.
Section 1.3. Throughout this Lease Agreement, the Real Property, the
Hospital and the Personal Property will collectively be referred to as the
"Premises". The Premises shall in no event include Tenant's Equipment as defined
in Part II, Section 1.2.1.
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Section 2. Term and Right of First Refusal.
Section 2.1. Initial Lease Term. Subject to the satisfaction of the
conditions set forth in Part I, Section 3 and 4, and regardless of the date of
the execution of this Agreement or of the Delivery Date as defined in this
Agreement, the Term of this Lease shall commence effective retroactively to
February 1, 1996 (the "Commencement Date") and shall extend for a period of
fifteen (15) years thereafter, unless extended or earlier terminated as provided
herein (the "Initial Lease Term").
Section 2.1.1. Tenant shall have the right to renew this Lease beyond
the Initial Lease Term for two five (5) year renewal term(s) (the "Renewal
Term(s)) by giving notice of the exercise of its renewal option at least one
hundred twenty (120) days prior to the expiration of the Initial Lease Term and
each Renewal Term. In the event Tenant is in default on the date of the giving
of notice of its intent to renew the Lease, the notice may at Landlord's option
be ineffective; in the event Tenant is in default on the date the applicable
Renewal Term is to commence, then at Landlord's option the Renewal Term shall
not commence and this Lease may expire as of the end of the Initial Lease Term
or any applicable Renewal Term.
Section 2.1.2. Upon the termination of this Lease, whether by
forfeiture, lapse of time or otherwise, or upon termination of Tenant's right to
possession of the Premises, Tenant will at once surrender and deliver the
Premises, together with all improvements thereof, to Landlord, (but, except as
otherwise provided in Part II, Section 1.2, specifically excluding Tenant's
Equipment) in good condition and repair, reasonable wear and tear excepted. At
the time of surrender, Tenant shall remove Tenant's Equipment; provided,
however, that Tenant shall repair any injury or damage done to the premises
which may result from such removal and shall restore the Premises to the same
condition as existed prior to the installation thereof.
Section 2.2. Right of First Refusal. During the Lease Term, Landlord
shall not sell the Premises to a third party ("Third Party") at any time when
this Lease is not in default unless and until (i) Landlord has received and,
subject to Tenant's right of first refusal, accepted a bona fide written offer
("Offer") from Third Party containing the sales price and all of the terms and
conditions upon which Landlord is willing to sell the Premises to Third Party,
and (ii) Landlord has provided Tenant with a copy of the Offer.
Section 2.2.1. If Tenant, within twenty (20) days after receipt of
Landlord's written notice, gives Landlord written notice of its desire to
purchase the Premises, Landlord and Tenant shall, within thirty (30) days after
Landlord receives Tenant's notice, enter into a written purchase and sale
agreement for Landlord's sale of the Premises to Tenant for the price, and on
the terms and condition, set forth in the Offer. In the event Tenant wrongfully
fails to close under said agreement, then the Tenant shall have no further
rights under this Part II, Section 2.2.
Section 2.2.2. If Tenant does not give Landlord its written notice
within such twenty (20) day period, Landlord thereafter shall have the right to
sell the Premises to Third Party on the terms and conditions set forth in the
Offer, so long as the sale to Third Party closes within one hundred eighty (180)
days after delivery of the Offer to Tenant. If such sale to Third Party does
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not close within the time period specified herein, then all of Tenant's first
refusal rights stated in this Part II, Section 2.2 shall be reinstated with
respect to such Offer and any and all subsequent offers.
Section 2.3. Payment on Termination. Upon the termination of the Lease
at the end of the Initial Lease Term or the Renewal Terms, as applicable, (a)
Landlord shall reimburse Tenant for the cost less depreciation of (i) any and
all capital improvements made to the Hospital at Tenant's expense and (ii) any
Personal Property acquired by Tenant and used in connection with the operation
of the Hospital, (b) Landlord will have the right to purchase from Tenant all,
but not less than all, of Tenant's working capital then in use at the Hospital
(which, for purposes hereof, shall specifically exclude all cash and cash
equivalents) and (c) Landlord shall have the option, exercised in writing no
later than sixty (60) days prior to the end of the Initial Term or the Renewal
Terms, as applicable, to acquire Tenant's Equipment for a purchase price equal
to the book value thereof less depreciation attributable thereto as reflected on
Tenant's financial statements, in the case of any owned equipment, and
assumption of any lease obligations outstanding with respect thereto, in the
case of any leased equipment. The purchase price to be paid by Landlord for
Tenant's working capital will be equal to the then current assets less the then
current liabilities, which liabilities shall be assumed by Landlord using a form
of Assignment Agreement similar to the Working Capital Assignment Agreement
executed by Landlord and Tenant pursuant to the terms hereof. The purchase price
for Tenant's working capital and/or Tenant's Equipment shall be payable in cash
within 15 days after the end of the Initial Term or the Renewal Terms, as
applicable. The then "Current Assets" shall include the net book value of
Landlords inventories and supplies and accounts receivable but shall include
cash and cash equivalents.
Section 2.4. Licenses. Upon termination or expiration of this Lease,
Tenant will: (a) surrender or transfer to Landlord, as appropriate, all
licenses, certificates and permits associated with the Hospital; (b) transfer
to Landlord all medical records, medical staff records, financial records and
other books and records associated with the Hospital; and (c) immediately stop
using the name "Parkview Regional Hospital" or any similar name.
Section 3. Rent.
Section 3.1. Basic Rent. During the Initial Lease Term the annual rent
due hereunder (the "Basic Rent") shall be as follows:
(i) From the Commencement Date until the completion of the Development
Program (the "Completion Date") as evidenced by (i) the issuance of an
unconditional Certificate of Occupancy from the City of Mexia and of
all necessary licenses and permits to operate the same from the State
of Texas and (ii) the certification of the project architect that the
same is substantially complete subject only to the correction of
approved punch list items, the annual Basic Rent shall be in the
amount of Two Hundred Thousand and no/100 Dollars ($200,000), payable
in equal monthly installments of Sixteen Thousand Six Hundred Sixty
Six and 67/100 Dollars ($16,666.67).
(ii) During the first Lease Year after the Completion Date, the annual
Basic Rent shall be in the amount of Three Hundred Seventy Five
Thousand and no/100 Dollars ($375,000)
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payable in equal monthly installments of Thirty One Thousand Two
Hundred Fifty and no/100 Dollars ($31,250.00).
(iii) During each subsequent Lease Year after the Completion Date, the
annual Basic Rent shall be in an amount equal to the annual Basic Rent
paid during the immediately preceding Lease Year increased by the
lesser of (i) the percentage change in the Consumer Price Index (the
"CPI") (as hereinafter defined) from the CPI in effect as of the first
day of the immediately preceding Lease Year to the CPI in effect as of
the first day of the current Lease Year and (ii) three (3%) per cent
per annum; provided, however, in no event shall the Basic Rent payable
in any Lease Year be less than the Basic Rent paid during the
immediately preceding Lease Year.
For purposes of this Part II, Section 3, a Lease Year shall be the
twelve (12) month period commencing on the Completion Date. In the event the
Commencement Date or the Completion Date shall be other than the first day of
the month, Tenant shall pay to Landlord a pro rata portion of rent for the
month. All annual rental payments shall be made in advance in equal monthly
installments in the amounts specified and shall be paid on the fifth day of each
month; provided, however, that the first monthly payment shall be due on the
fifth day after the Commencement Date.
For purposes of this Part II, Section 3, the CPI shall be the Consumer
Price Index for Wage Earners and Clerical Workers, Dallas-Fort Worth SMSA: All
Items (1982-1984=100), published by the Bureau of Labor Statistics (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, the adjustment to the rent provided for herein 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 Lessor and Lessee.
Section 3.2. Payment of Basic Rent. The Basic Rent shall be payable
without offset, abatement or other deduction (including offsets resulting from
any defaults by Landlord under any other agreement to which it or its affiliates
and Tenant or its affiliates may be a party, unless expressly set forth herein)
to Landlord at the address set forth in Part II, Section 16, or to such other
person, firm or corporation at such other address as Landlord may designate by
notice in writing to Tenant.
Section 3.2.1. This Lease is intended to be triple net to Landlord, and
Tenant shall pay to Landlord, net throughout the Initial Lease Term and any
Renewal Term, the Basic Rent prescribed by Part II, Section 3.1, free of any
offset, abatement, or other deduction, except as may be expressly set forth
herein. Tenant is hereby obligated to make all rental payments set
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forth herein to Landlord. Landlord shall not be required to make any payment of
any kind with respect to the Premises, except as may otherwise be expressly set
forth herein and except for the payment of the principal and interest due on the
mortgages and security instruments described in Exhibit "B." Accordingly, Tenant
agrees to pay all additional rent payments described in Part II, Section 3.4.1
and all charges described in Part II, Section 6 as they become due and payable.
Section 3.3. Late Charges. If any payment of any sums required to be
paid or deposited by Tenant to Landlord under this Lease and payments made by
Landlord under any provision hereof for which Landlord is entitled to
reimbursement by Tenant shall become overdue for a period of ten (10) days
beyond the date on which they are due and payable as provided for in Part II,
Section 12.1.1. of this Lease, a late charge of one percent (1%) per month on
the sums so overdue shall begin to accrue as of the expiration of said period
and shall immediately be due and payable to Landlord, and said late charge shall
be payable on the first day of the month next succeeding the month during which
such late charge becomes payable. Such late charge shall compensate Landlord
only for loss of interest on the payments due Landlord and shall be in addition
to any and all other amounts, including damages, to which Landlord may be
entitled pursuant to this Lease or in law or equity. The acceptance by Landlord
of a late charge shall not limit or preclude Landlord from exercising its rights
pursuant to Part II, Section 12. If non-payment of any late charge shall occur,
Landlord shall have, in addition to all other rights and remedies, all rights
and remedies provided for herein and by law in the case of non-payment of rent.
No failure by Landlord to insist upon the strict performance by Tenant of
Tenant's obligations to pay late charges shall constitute a waiver by Landlord
of its rights to enforce the provisions of this Section in any instance
thereafter occurring.
Section 3.4. Additional Rent.
Section 3.4.1. The additional rent shall consist of all real estate
taxes, general and special assessments, personal property taxes, and other
public charges which are assessed, levied, confirmed, or imposed upon the
Premises during the Lease Term, and all sales taxes and other taxes that are now
or hereafter may be payable in connection with the Basic Rent payable hereunder
during the Initial Lease Term and any Renewal Term (other than income taxes
owing by Landlord as a result of Tenant's payment of Basic Rent hereunder).
Section 3.4.2. Any taxes and assessments relating to a fiscal period of
any authority, a part of which is already included within the Initial Lease Term
or any Renewal Term and a part of which is included in a period of time before
or after the Initial Lease Term or any Renewal Term, shall be adjusted pro rata
between Landlord and Tenant and each party shall be responsible for its pro rata
share of any such taxes and assessments.
Section 3.4.3. Nothing herein shall require Tenant to pay income taxes
assessed against Landlord if and to the extent the same may hereafter be
assessed against Landlord as a result of the existence of this Lease, it being
specifically understood and agreed that as of the Commencement Date, no such
taxes are assessed against Landlord.
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Section 3.4.4. Tenant may contest, in its own name or in the name of
Landlord, with Landlord's cooperation, which Landlord agrees to give, the
legality or validity of any such tax or assessment or of any law under which the
same shall be imposed. This must be done in good faith, with due diligence,
and at Tenant's own expense. If Tenant does so contest such tax or assessment
beyond the time limit for payment thereof by Tenant, Tenant shall do one of the
following: Tenant may pay such amount under protest; procure and maintain a stay
of all proceedings with adequate bond to enforce collection of such tax or
assessment; or deposit with Landlord reasonable security for the payment of all
contested sums. Once such action is taken by Tenant, Tenant shall not be
considered to be in default hereunder with respect thereto.
Section 3.4.5. Tenant shall have, and Landlord hereby irrevocably grants
to Tenant, the power and authority, at Tenant's cost to make and file and
prosecute any statement or report or claim for refund which may be required or
permitted by law, as the basis of or in connection with the assessment,
determination, equalization, reduction or payment of any and every tax or
assessment or license or charge which Tenant is required to pay or discharge
hereunder.
Section 3.4.6. Upon the termination of any such proceeding, Tenant shall
pay the amount of such taxes and assessments or part thereof as finally
determined in such proceedings, the payment of which may have been deferred
during the prosecution of such proceedings, together with any costs, fees,
interest, penalties or other liabilities in connection therewith.
Section 3.4.7. If any income, profits or revenue tax shall be levied,
assessed or imposed upon the income, profits or revenue arising from rents
payable hereunder, partially or totally in lieu of or as a substitute for real
estate or personal property taxes imposed upon the Premises during the term of
this Lease, then Tenant shall be responsible for the payment of such tax.
Section 3.4.8. Tenant shall pay before delinquency any and all real and
personal property taxes and assessments, payable hereunder by Tenant. In the
event of a late payment, Tenant shall pay all interest and penalties plus the
amount due. Tenant shall further provide Landlord with evidence of payment as
soon as practicable after Landlord's written request therefor.
Section 4. Use of the Premises/Compliance With Laws.
Section 4.1.1. Tenant covenants upon execution of this Lease to use its
best efforts to obtain all approvals needed to operate the Hospital under
applicable state and federal law, including, but not limited to, certificate of
need, licensure and certification, and, during the Initial Lease Term and any
Renewal Terms, to operate the Hospital as a provider of health care services and
to maintain its certification for reimbursement and its licensure and its JCAHO
accreditation. Landlord agrees to assist Tenant as reasonably necessary to
obtain such approvals. Tenant shall not amend or alter the Hospital license or
certification without the prior written approval of Landlord, which shall not be
unreasonably withheld. In addition, Tenant covenants and agrees that in
connection with its operation of the Hospital it shall provide charity care in
each Lease Year in a manner consistent with the past practices of the Hospital.
For purposes hereof, charity care shall be deemed to be the care provided to
patients who are determined under the Hospital's charity care policy in effect
at the time of execution of this Agreement (Exhibit T) to otherwise
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pay for their care, it being the intent of the parties to provide hospital care
and related services to residents of the Hospital's primary service area without
regard to ability to pay.
Section 4.1.2. Tenant covenants and agrees that it will return the
Hospital to Landlord at the end of the Initial Lease Terms and/or any applicable
Renewal Terms licensed and certified in the same manner as it is on the
Commencement Date. Tenant shall provide at all times sufficient personnel,
equipment and supervision to operate the Hospital safely and effectively and
shall take such measures as are necessary (including disciplinary actions
against, and termination of employment of, personnel where appropriate).
Section 4.2. After the Commencement Date, Tenant shall neither use nor
permit to be used the Premises, or any part thereof for any purpose or purposes
other than as an acute care facility without the prior written consent of
Landlord, which shall not be unreasonably withheld. No use shall be made or
permitted to be made of the Premises, and no acts shall be done, which will
cause the cancellation of any insurance policy covering the Premises or any part
thereof, nor shall Tenant sell or permit to be kept, used or sold in or about
the Premises any article which may be prohibited by the standard form of fire
insurance policies. Tenant shall, at its sole cost, comply with all of the
requirements pertaining to the Premises of any insurance organization or company
necessary for the maintenance of insurance, as herein provided, covering the
Premises.
Section 4.3. Tenant covenants and agrees that the Premises shall not
be used for any unlawful purpose. Tenant shall not commit or suffer to be
committed any waste on the Premises, nor shall Tenant cause or permit any
nuisance thereon. Tenant further covenants and agrees that Tenant's use of the
Premises and maintenance, alteration, and operation thereof shall at all times
conform to all applicable and lawful local, state, and federal ordinances, rules
and regulations; including but not limited to the certificate of need, licensure
and certification. Tenant may, however, contest the legality or applicability of
any such ordinance, rule or regulation, or any licensure or certification
decision. This must be done in good faith, with due diligence, without prejudice
to Landlord's rights hereunder, and at Tenant's own expense. If Tenant does so
contest any such ordinance, rule, regulation or decision, Landlord may require
Tenant to deposit with Landlord reasonable security for the payment of all
liability, costs, and expenses which may arise from the litigation. Once such a
deposit has been made or while such a contest is pending, even if no such
deposit is required by Landlord, Tenant shall not be considered in default under
this Part II, Section 4.3. of the Lease.
Section 4.4. Tenant shall neither suffer nor permit the Premises or
the Hospital or any portion thereof to be used in such a manner as (i) might
reasonably tend to impair Landlord's interest in the Premises or any portion
thereof, or (ii) may reasonably make possible a claim or claims of adverse usage
or adverse possession by the public, as such, or of implied dedication of the
Premises or any portion thereof.
Section 4.5. Within ten (10) days after receipt of Landlord's written
request therefor, Tenant shall deliver to Landlord a copy of the results of all
surveys, investigations and inspections of the Hospital and its operation
performed by state or federal authorities, including, but not
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limited to, notifications of actual or possible violations of state or federal
law and regulations pertaining to the Hospital.
Section 4.6. Tenant shall timely pay all Hospital payroll and related
payroll taxes and impositions.
Section 4.7 In connection with its operations at the Hospital,
Tenant shall work with the Hospital's Governing Board established pursuant to
Tenant's Bylaws, which Board shall be comprised of three members of the
community served by the Hospital, two physicians with staff privileges at the
Hospital and two officers or employees of Tenant and (ii) Tenant shall take
such action as the Governing Board may deem to be necessary from time to time
to monitor the satisfaction of the patients and community served by the
Hospital and to take any action which is deems to be appropriate to address
concerns raised by said patients and community members. The community members
shall be selected as follows: one of the community members shall be appointed
from a list of nominees recommended by the Hospital Board and two of the
community members may, but shall not be required to, be appointed from said
list of nominees.
Section 5. Liabilities.
Section 5.1 In consideration of the payment on the Delivery Date of
an amount equal to the Excess Assets (as defined herein), Landlord hereby sells,
assigns and transfers to Tenant all of the Hospital's working capital existing
on the Commencement Date as reflected on the balance sheet attached hereto as
Exhibit "G" (the "Working Capital"). Landlord and Tenant acknowledge and agree
that the Working Capital does not include all of Landlord's assets or
liabilities existing on the Commencement Date. For purposes hereof, the term
"Excess Assets" shall mean the amount by which the current assets included in
the Working Capital exceed the current liabilities included therein. For
purposes hereof, the term "current assets" shall include the net book value of
Landlord's inventories and supplies and accounts receivable but shall exclude
cash and cash equivalents.
Section 5.2 Landlord represents and warrants to Tenant that Landlord
owns all of the assets sold to Tenant under Part II, Section 5.1 free and clear
all liens, encumbrances, defenses or set-offs or charges of any nature
whatsoever other than those liens described in Exhibit "B".
Section 5.3 Tenant is not and is not to be deemed to be a successor
of Landlord's business or operations at the Hospital. It is expressly understood
and agreed that Tenant has not and does not assume or agree to assume any
liability or obligation whatsoever of Landlord or of Hospital, except as
expressly agreed to in writing by Tenant.
Section 5.4 Tenant does hereby assume and agree to pay all of the
current liabilities of the Hospital as of the Commencement Date as set forth on
Exhibit "G-1". For this purpose, current liabilities means only those
liabilities with a scheduled maturity date of less than 12 months. Landlord
represents that the current liabilities will not exceed $1,450,000.
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Section 5.5. Tenant assumes and agrees to pay and perform Landlord's
obligations under, but only to the extent such obligations accrue during the
Lease Term, (i) the Operating Agreements set forth in Exhibit "D," and (ii) the
equipment leases set forth on Exhibit "C."
Section 5.6. In order to facilitate the transfer of operational
responsibility for the Hospital to Tenant and to enable Tenant to continue to
operate the Hospital under Landlord's Medicare and Medicaid provider numbers,
Tenant agrees to assume responsibility for all claims under Medicare or
Medicaid, including payments of any amounts in excess of the amounts shown as
due to Medicare or Medicaid on Landlord's Balance Sheet or by any third party
payor for recapture of depreciation, cost report settlements, charges, xxxxxxxx
or other amounts arising out of operation of the Hospital prior to the
Commencement Date or the termination of Landlord's operations at the hospital,
subject to Landlord's agreement that, as between Landlord and Tenant, Landlord
shall be obligated to reimburse Tenant for any amounts paid by it pursuant to
this Part II, Section 5.6 together with interest at the rate of 12 percent per
year until paid in full; provided, however, that Landlord's failure to so
indemnify Tenant shall not affect Tenant's obligations hereunder to Medicare and
Medicaid and the appropriate fiscal intermediaries. Landlord hereby grants
Tenant the right, but not the obligation, to appeal all Medicare, Medicaid, or
other third payor decisions related to periods prior to the Commencement Date.
Tenant will remit to Landlord any recovery under such appeal or appeals, after
deducting all costs incurred and any amounts which are the subject of the
indemnity provisions of the immediately preceding sentence and which have not
been paid by Landlord to Tenant as and when due.
Section 5.7. Without limiting Part II, Section 5.3, Tenant
specifically does not assume any of the following liabilities (collectively, the
"Excluded Liabilities"):
Section 5.7.1. Malpractice liability for any action, failure to act or
event occurring prior to the Commencement Date.
Section 5.7.2. Obligations or liabilities to employees of Landlord
under any employment benefit plans, except for accrued amounts included as
current liabilities under Part II, Section 5. 4.
Section 5.7.3. Any other liability, claim, cost, debt or obligation,
whether liquidated or unliquidated contingent or otherwise, not expressly
assumed by Tenant in writing, including, but not limited to, those set forth in
Exhibit "S."
Section 5.8. Landlord will promptly pay all Excluded Liabilities as
the same become due. If Landlord fails to pay an Excluded Liability within 10
days after request by Tenant, Tenant may pay the same. Landlord will promptly
reimburse Tenant for such amounts together with interest at the rate of 12
percent per year until paid in full. The unreimbursed balance of the Excluded
Liabilities paid by Tenant together with interest thereon is referred to herein
as the "Excluded Liabilities Account." Upon expiration or termination of this
Lease for any reason (other than the purchase of the Hospital by Tenant pursuant
to its right of first refusal granted under this Lease or otherwise), Landlord
will pay the then existing balance of the Excluded Liabilities Account
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within 15 days after the expiration or termination. Any amounts not paid will be
treated in the same manner as other unpaid amounts in accordance with Part II,
Section 2. 3.
Section 6. Maintenance. Repair. Alterations and Utilities.
Section 6.1. Tenant shall, at its own cost, and without expense to the
Landlord, keep and maintain the Premises, including all sidewalks, buildings,
surface parking lots and improvements of any kind which may be a part thereof in
good, sanitary and neat order, condition and repair, ordinary wear and tear and
obsolescence in spite of repair and acts of God excepted, and, except as
specifically provided in Part II, Section 10, below, restore and rehabilitate
any of the Premises which may be destroyed or damaged by fire, casualty or cause
whatsoever and in such a manner as may be necessary to operate the Hospital in
accordance with applicable state and/or federal laws or regulations. Tenant
shall perform all interior and exterior painting, and maintain the grounds of
the Hospital in a good and sightly appearance. Tenant shall be obligated during
the Lease Term to make any repairs, replacements or renewals of any kind, nature
or description whatsoever to the Premises.
Section 6.2. For changes, alterations or additions to the Premises in
excess of $50,000.00 after the Commencement Date, other than the changes,
alterations and additions included in the Development Program, Tenant shall
obtain the prior written consent of Landlord, which shall not be unreasonably
withheld, except as hereinafter provided. Further, Tenant shall make any and all
alterations required by applicable state and/or federal laws or regulations,
without the need to first obtain Landlord's consent thereto regardless of the
cost thereof. Landlord acknowledges and agrees under Part II, Section 2.3,
Landlord is obligated to reimburse Tenant at the expiration of the Initial Lease
Term or any Extended Term, as applicable, for the cost less depreciation of any
changes, alterations or additions to the Premises which constitute capital
improvements thereto.
Section 6.3. Tenant shall pay all charges for water, electricity, gas,
sewage, waste, trash and garbage disposal, telephone, cable television, and
other services furnished to the Premises from and after the Commencement Date.
Section 7. Liens Against the Premises.
Section 7.1. Tenant will not permit the Premises to become subject to
any lien, charge, or encumbrance as a result of work performed by or at the
request of Tenant, including the work included in the Development Program.
Tenant shall maintain the Premises free from all orders, notices, and violations
filed or entered by any public or quasi-public authorities. Notwithstanding the
foregoing, in the event any such lien, charge, or encumbrance is imposed, Tenant
may contest any such lien, charge, encumbrance, order, notice or violation. This
must be done in good faith, with due diligence and at Tenant's own expense and
Tenant shall not be considered in default of the provisions of this Part II,
Section 7.1. as a result of such contest, provided Tenant posts adequate bond
with the court or, upon Landlord's request, deposits with the Landlord
reasonable security for the payment of all contested sums.
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Section 7.2. Should a judgment on any lien, charge, encumbrance,
order, notice or violation be rendered against the Premises and should Tenant
fail to discharge such judgment or take action to protest such judgment,
Landlord shall have the right but not the obligation to discharge said judgment.
If Landlord exercises that option, any amounts paid by Landlord shall be due
from Tenant as additional rent. Such additional rent shall be due and payable on
the next date after the expense is incurred that Basic Rent is otherwise due.
Section 7.3. Tenant shall take all reasonable steps necessary to
ensure that no lien arising under Texas Mechanic's or Materialman's Law as a
result of construction done at the Premises at Tenant's request, shall extend to
the interest of Landlord in the Premises. Tenant shall pay all costs incurred by
Tenant in connection with the construction, alteration, demolition, maintenance
and repair of any and all improvements on the Premises. Should a lien or claim
of lien be filed against the Landlord's or Owner's interest in the Premises by
any contractor, subcontractor, mechanic, laborer, materialman or any other
person whomsoever retained by Tenant, Tenant shall, within sixty (60) days after
the filing thereof, cause the same to be discharged of record.
Section 8. Non-Liability and Indemnification.
Section 8.1. During the Lease Term, Tenant agrees to protect,
indemnify and save harmless Landlord from and against all claims arising out of
or connected with the use, occupancy and condition of the Premises and shall pay
all costs and expenses incurred by Landlord in connection with such claims,
including without limitation, court costs and reasonable attorney's fees for
trial and appellate proceedings. Landlord shall be protected hereby from all
claims arising during the Lease Term from loss of or damage to property, or
death or injury to persons except to the extent such loss, damage, death or
injury is caused by the negligence or willful actions of Landlord or from the
acts or omissions of Landlord or Landlord's tenant prior to the Commencement
Date.
Section 8.1.1. Landlord agrees to protect, indemnify and save harmless
Tenant, including the members, managers, employees and agents of Tenant and
their successors and assigns, from and against all claims arising out of or
connected with its use, operation, and occupancy of the Premises prior to the
Commencement Date or a breach by Landlord of any of its representations,
warranties and covenants set forth herein, and Landlord shall pay all costs and
expenses incurred by Tenant in connection with such claims, including without
limitation, court costs and reasonable attorneys' fees for trial and appellate
proceedings. In furtherance of Landlord's indemnity obligations hereunder,
Landlord agrees to keep available $150,000 of cash until the later of (i) one
year after the Delivery Date or (ii) the final non-appealable resolution of any
claims for indemnity made by Tenant during said one year period.
Section 9. Insurance.
Section 9.1. During the term of this Lease, Tenant shall at all times
keep the Premises insured with the kinds and amounts of insurance described
below through an insurance carrier qualified to do business in the state of
Texas which is reasonably acceptable to Landlord. The policies must name
Landlord as a named insured or loss payee as their interests may appear and
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must provide that no policy will be cancelled or terminated in any way without
not less then 10 days prior written notice to Landlord. Losses shall be payable
to Landlord and Tenant in the manner set forte in Part II, Section 10.1 herein.
Any loss adjustment shall require the written consent of Landlord and Tenant.
Evidence of insurance shall be deposited with Landlord. The policies on the
Premises shall insure against the following risks:
Section 9.1.1. Loss or damage by fire and such other risks as may be
included in the broadest form of extended coverage insurance from time to time
available (which shall include the effects of floods and hurricanes if the
Premises are located in a designated flood plain area) in amounts sufficient to
prevent Landlord or Tenant from becoming a coinsured within the terms of the
applicable policies and in any event in an amount not less than one hundred
percent (100%) of the then full replacement value thereof (as defined below in
Part II, Section 9.2.);
Section 9.1.2. Loss or damage from leakage of any sprinkler system now
or hereafter installed in the Hospital on the Premises;
Section 9.1.3. Loss or damage by explosion of steam boilers, pressure
vessels or similar apparatus, now or hereafter installed in the Hospital, in
such limits with respect to any one accident as may be reasonably requested by
Landlord from time to time;
Section 9.1.4. Business interruption insurance covering the risk of loss
during the reconstruction resulting from the occurrence of any of the hazards
described in Part II, Sections 9.1.1., 9.1.2. or 9.1.3. in an amount sufficient
to pay the rental required under this Lease for a period of 6 months;
Section 9.1.5. Claims for personal injury or property damage under a
policy of general public liability insurance with combined single limits in
respect of bodily injury and property damage of not less than One Million and
no/100 Dollars ($1,000,000) per occurrence and annual aggregate limits of not
less than Three Million and no/100 Dollars ($3,000,000). If obtainable at a
reasonable cost, the public liability insurance shall be on an as occurrence
basis as opposed to a claims made basis;
Section 9.1.6. Professional liability insurance insuring Tenant and
Landlord in amounts and against the risks ordinarily insured by standard
professional liability insurance available to the hospitals, but in no event
less than One Million Dollars ($1,000,000) per occurrence and annual aggregate
limits of not less then Three Million Dollars ($3,000,000);
Section 9.1.7. Claims for employee injuries covered by worker's
compensation in accordance with the requirements of Texas law, provided that
Tenant may self-insure if duly qualified in accordance with Texas law or with
the consent- of the Landlord elect to operate the Hospital without worker's
compensation insurance to the extent permitted by Texas law; and
Section 9.1.8. Such other hazards and in such amounts as may be
customary for comparable properties in the area.
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Section 10.1. All proceeds payable by reason of any physical loss of
any of the improvements comprising the Premises and insured under any policies
of insurance required by this Lease shall be held in trust by Landlord and
(subject to Part II, Section 10.2.) shall be available for the reconstruction or
repair, as the case may be, of any damage to or destruction of the Premises and
shall be paid out by Landlord from time to time for the reasonable cost of such
work. Any excess of money received from insurance remaining with the Landlord
after the restoration or reconstruction of the Premises shall be paid to Tenant
free and clear upon completion or restoration or reconstruction. Any shortfall
shall be the Tenant's responsibility. All salvage resulting from any such loss
covered by insurance shall belong to Landlord.
Section 10.2. In the event any improvements comprising the Hospital,
the Premises or the Personal Property are damaged by peril covered by insurance
or required to be covered by insurance in accordance with the terms hereof,
Tenant shall commence to rebuild the same within sixty (60) days after the
proceeds of any insurance become available and pursuant to plans and
specifications prepared by Tenant and approved by Landlord within said sixty
(60) day period, and Tenant shall proceed with all due diligence to complete
said restoration within a commercially reasonable period of time unless Tenant
is not obligated to rebuild in accordance with Part II, Section 10.2.1 below.
Any repair or restoration shall be undertaken by Tenant in such a manner as to
ensure that upon its completion the Hospital is of the same standard and quality
as prior to the damage or destruction.
Section 10.2.1. Tenant shall not be obligated to rebuild if the repairs
or reconstruction of the damage cannot be made under existing laws, ordinances,
statutes or regulations of any governmental authority applicable thereto in
which case this Lease shall terminate effective thirty (30) days after the
damage occurs and all insurance proceeds with respect to the Premises shall be
payable to and retained by Landlord, free of any claims by Tenant; provided,
however, Tenant shall be entitled to retain any business interruption proceeds
payable with respect to such loss.
Section 10.3. In the event any damage occurs which renders the Hospital
unsuitable for use as an acute care facility and no insurance coverage against
the loss was required under the terms hereof and Tenant did not otherwise elect
to maintain such insurance, Landlord may, at its election, either terminate this
Lease or elect to rebuild or repair the damage so incurred provided that unless
Landlord notifies Tenant in writing within thirty (30) days after such damage as
to which election it makes, Landlord shall be deemed to have elected to
terminate this Lease. In the event of such an uninsured loss which does not
render the Hospital unsuitable for use as an acute care facility, Landlord shall
be required to rebuild or repair the damage so incurred. Any replacement or
repairs performed by Landlord pursuant to this Part II, Section 10.3 shall be
commenced within sixty (60) days of the date of election by Landlord, but not
later than one hundred twenty (120) days after the loss. In the event Landlord
does not elect to rebuild or repair, this Lease shall automatically terminate as
provided in Part II, Section 10.2.1 above. In the event Landlord elects not to
rebuild the Hospital pursuant to this Part II, Section 10.3 and it is determined
to be in the best interests of the patients to be transferred from the Hospital
as a result of the damage thereto, Tenant shall be entitled to transfer the
patients of the Hospital to any other facilities operated by it or its
affiliates to which said patients are willing to move.
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Section 10.4. In the event Tenant or Landlord, as appropriate, is not
obligated or does not elect to rebuild or repair, Tenant shall promptly, at its
own expense, remove from the Premises any of Tenant's Equipment not so damaged
or destroyed, subject to Landlord's right to acquire the same pursuant to Part
II, Section 2.4.
Section 10.5. For the purposes of this Part II, Section 10, the
Hospital shall be deemed to have been rendered unsuitable for use as an acute
care facility if, in the good faith judgment of Tenant and Landlord, reasonably
exercised, after any such loss the Hospital cannot be operated on a commercially
practicable basis as an acute care facility of the type and quality existing and
licensed immediately prior to such loss, taking into account, among other
relevant factors, the number of licensed and operational beds affected by such
loss.
Section 10.6. This Lease shall remain in full force and effect and
Tenant's obligation to make rental payments and to pay all other charges
required by this Lease shall remain unabated during the first six (6) months of
any period of repair or reconstruction, but thereafter, assuming the
reconstruction has been commenced and is being diligently pursued by Tenant and
the failure to complete the restoration is through no fault of Tenant, rental
payments shall be abated to the extent that is fair, just and equitable to both
Tenant and Landlord, taking into consideration, among other relevant factors,
the number of licensed beds rendered unusable by such loss or damage.
Section 11. Condemnation.
Section 11.1 If, during the Lease Term, so much of the Premises are
taken or condemned for a public or quasi-public use that the Premises are
rendered unsuitable for use as an acute care facility, this Lease shall
terminate. Termination will be effective without entry or notice. Termination
shall occur as of the day when possession is required to be surrendered to the
taking or condemning authority.
Section 11.2. If, during the term of this Lease, a portion of the
Premises and/or the Hospital is taken or condemned in fee for a public or
quasi-public use such that the Hospital is not rendered unsuitable for use as an
acute care facility, this Lease shall not terminate. If, however, as a result of
the taking, the number of beds available for operation of the Hospital as an
acute care facility of the type and quality existing and licensed prior to the
taking has been or must be reduced, Tenant shall be entitled to an abatement of
rent. The rent abatement shall be to the extent that is fair, just and equitable
to both Tenant and Landlord, taking into consideration, among other relevant
factors, the number of licensed beds rendered unusable by such loss or damage.
Section 11.3. All damages awarded in connection with the taking of the
Premises shall vest in Landlord. All damages awarded in connection with the
taking of the leasehold estate and Tenant's Equipment shall vest in Tenant.
Section 11.4. For purposes of this Part II, Section 11, the Premises
shall be deemed to have been rendered unsuitable for use as an acute care
facility if, in the good faith judgment of
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Landlord and Tenant reasonably exercised, after any such loss the Premises
cannot be operated on a commercially practicable basis as an acute care facility
of the type and quality existing and licensed immediately prior to such loss,
taking into account, among other relevant factors, the number of licensed beds.
Section 12. Default.
Section 12.1. The occurrence of any of the events, acts or
circumstances described in Part II, Sections 12.1.1. and 12.1.2. shall
constitute an Event of Default under this Lease.
Section 12.1.1. Failure by Tenant to pay in full any rent payable under
this Lease when due, and the continuance of such failure for ten (10) days.
Section 12.1.2. Failure by Tenant to observe, perform or comply with
any of the terms, covenants, agreements or conditions contained in this Lease
(other than as specified in Part II, Section 12.1.1 or Section 12.1.6), and the
continuance of such failure for thirty (30) days after Landlord has given Tenant
notice of such failure. If Tenant has promptly commenced and diligently pursued
remedial action within said thirty (30) day period but has been unable to cure
its default (except for any default that can be reasonably cured by the payment
of money) prior to the expiration thereof, said thirty (30) day period shall be
extended for the minimum time reasonably required for the completion of Tenant's
remedial action. Notwithstanding the foregoing, in the event any such failure of
performance by Tenant is deemed to pose a substantial risk of harm to the
patients of the Hospital or to the licensure or certification status or JCAHO
accreditation of the Hospital, Tenant shall be required to cure such failure
within a period of time as may be established by the state or federal authority
having jurisdiction over the Hospital or, if no such time frame is established,
as soon as is reasonably practicable, but in no event within more than one week
from the determination of the existence of such condition; provided, however,
that in the event Landlord is not satisfied that the Tenant is undertaking such
cure within one half of the time allocated by such authority or by the terms
hereof, then Landlord shall have the right to enter into the Hospital and to
undertake the completion of such cure, in which case Landlord shall have no
liability to Tenant with respect thereto except for liability which Tenant
incurs as a result of the Landlord's negligence or wrongful misconduct in
undertaking such cure.
Section 12.1.3. The making by Tenant or any guarantor of this Lease of
an assignment for the benefit of its creditors or the commencement of
proceedings in a court of competent jurisdiction for the reorganization,
liquidation or involuntary dissolution of Tenant of any guarantor of this Lease
or for the adjudication of either such party as a bankrupt or insolvent or for
the appointment of a receiver of the property of either such party, which
proceeding are not dismissed and any receiver, trustee or liquidator appointed
therein is not discharged, within sixty (60) days after the institution thereof.
Section 12.1.4. The abandonment of the Premises by Tenant other than as
a result of the damage or destruction or taking thereof.
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Section 12.1.5. The levying of a writ of execution or attachment on or
against the property of Tenant or any guarantor of this Lease which is not
discharged or stayed by action of said party contesting the same within sixty
(60) days after such levy or attachment and/or the sale of the interest of
Tenant in the Premises under such a writ of execution or attachment.
Section 12.1.6. If (i) any government agency having jurisdiction over
the Hospital revokes or terminates any license required for the operation of the
Hospital as a licensed acute care facility; (ii) there is any involuntary
decertification of the Hospital from participation in any state or federal
reimbursement program; or (iii) there is any action taken by a state or federal
agency which results in the removal of patients from the Hospital as a result of
deficiencies cited by said agency in the care rendered by Tenant at the
Hospital.
Section 12.1.7. If there is any generation, disposal, release or use of
any hazardous substance upon or from the Premises other than in compliance with
applicable laws and regulations.
Section 12.2. Upon the occurrence of any Event of Default, Landlord,
in addition to the other rights or remedies it may have, shall have the
option at any time thereafter to pursue any one or more of the following
remedies without any notice or demand whatsoever: (i) the immediate right of
re-entry; (ii) enter upon the Premises and repossess any equipment, furniture,
fixtures, or other personalty encumbered by a lien or security interest in
favor of Landlord and sell such personalty in the manner as provided in this
Lease; (iii) alter any and all locks and other security devices restricting
access to the Premises; and (iv) exercise any and all other rights or remedies
given hereunder or available to Landlord at law or in equity.
Section 12.2.1. Should Landlord elect to re-enter, as herein provided,
or should it take possession pursuant to legal proceedings or pursuant to any
notice provided for by law, Landlord may either terminate this Lease or it may
from time to time, without terminating this Lease, relet the Premises or any
part thereof for such term or terms, which may be for a term shorter than or for
a term extending beyond the Lease Term, and at such rental or rentals and on
such other terms and conditions as Landlord, in its reasonable discretion, may
deem advisable. In the event that Landlord relets all or a portion of the
Premises, the rents actually received by Landlord shall be applied as follows:
first, to the payment of any cost or expense incurred by Landlord for which
Tenant is liable; second, to the payment of any indebtedness, other than rent,
due to Landlord from Tenant; third, to the payment of all past due rent and any
other amounts then due and payable by Tenant under this Lease; and fourth, to
any other amounts payable by Tenant hereunder. Any net amounts received by
Landlord as a result of reletting in excess of the amounts payable by Tenant
hereunder shall be remitted by Landlord to Tenant.
Section 12.2.2. Should Landlord at any time terminate this Lease as a
result of any Event of Default, in addition to any other remedy it may have,
Landlord may recover from Tenant all damages incurred by reason of such Event of
Default, including the cost of recovering the Premises.
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Section 12.2.3. Whether or not Landlord elects to terminate this Lease,
Landlord may terminate Tenant's right to possession of the Premises by any
lawful means, in which case all of Tenant's rights in this Lease shall terminate
and Tenant shall immediately surrender possession of the Premises to Landlord.
Possession of the Premises includes but is not limited to possession of all
Personal Property, patients, patient records, Hospital business records, general
intangibles and proceeds. If Landlord elects to terminate this Lease or
terminate Tenant's right to possession of the Premises, Tenant shall immediately
vacate the Premises. If Tenant fails TO immediately vacate the Premises,
Landlord may, without prejudice to any other right or remedy and without being
deemed guilty of trespass and with or without resort to legal process,
immediately enter upon and take possession of the Premises and expel or remove
Tenant or any other person occupying the Premises (other than the patients and
any third party operators of departments within the Hospital who are not
affiliates of Tenant) and any property found within the Premises. To the extent
permitted by law, Tenant hereby waives (i) any notice of Landlord's intent to
re-enter or retake possession, (ii) any notice provided by statute or otherwise
of such re-entry or repossession or the changing of locks, (iii) any claim or
cause of action, whether based upon trespass, conversion, or otherwise, against
Landlord for any damages caused by the alteration of any locks or any re-entry,
or repossession by Landlord, except if by the negligence or wilful misconduct of
Landlord or otherwise, and (iv) any right of redemption, re-entry or
repossession of Tenant and any notice of legal proceedings for re-entry,
including any actions in forcible entry and detainer. Tenant shall have no right
to re-enter the Premises or to obtain any key to the Premises until Tenant cures
all Events of Default hereunder and pays all amounts owing to Landlord
hereunder, including any late charges, as a result of said Event of Default.
Section 12.2.4. Any termination of this Lease by Landlord shall not in
any event terminate Tenant's obligation to pay rent and other amounts owed by
Tenant pursuant to this Lease for the full Lease term. Upon the occurrence of an
Event of Default, Landlord shall have the right to recover from Tenant the
following:
(a) the worth, at the time of the award, of the unpaid Basic Rent that
had been earned at the termination of this Lease; and
(b) the worth, at the time of the award, of the amount by which the
unpaid Basic Rent that would have been earned after the date of
termination of this Lease until the time of the award exceeds the
amount of the loss of rent that Tenant proves could have been
reasonably or has actually been avoided by Landlord; and
(c) the worth, at the time of the award, of the amount by which the
unpaid Basic Rent for the balance of the Lease Term after the time of
the award exceeds the amount of the loss of rent that Tenant proves
could have been reasonably or actually has been avoided by Landlord;
and
(d) any other amount, and court costs and reasonable attorneys' fees,
necessary to compensate Landlord for all detriment and damage
proximately caused by Tenant's default.
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The worth at the time of the award as used in (a) and (b) of the
preceding sentence is to be computed by allowing interest at the maximum rate
permitted by law (or 12% per annum if there is no maximum rate). The worth at
the time of the award as referred to in (c) above is to be computed by
discounting the amount at the annual discount rate of the Federal Reserve Bank
of San Francisco at the time of the award, plus 1%.
Section 12.3. No remedy herein conferred upon or reserved to Landlord
or Tenant is intended to be exclusive of any other available remedy or remedies,
but each and every such remedy shall be cumulative and shall be in addition to
every other remedy given under this Lease or now or hereafter existing at law or
in equity or by statute. No delay or omission to exercise any right, remedy, or
power accruing upon any Event of Default shall impair any such right, remedy or
power or shall be construed to be a waiver thereof unless and until such Event
of Default has been cured. No waiver by Landlord of any provision of this Lease
or any breach by Tenant of any obligation of Tenant hereunder shall be deemed to
be a waiver of any provision hereof or of any subsequent breach by Tenant of the
same or any other provisions hereof. Neither the acceptance of rent by Landlord
following the occurrence of an Event of Default by Tenant (whether known to
Landlord or not) nor any custom or practice followed in connection with this
Lease shall constitute a waiver by Landlord of such Event of Default or any
other Event of Default. Landlord's consent to any act by Tenant shall not be
deemed to render unnecessary the obtaining of Landlord's consent to any
subsequent act of Tenant. From and after the occurrence of an Event of Default,
any payments received by Landlord from Tenant may be applied by Landlord to any
rent or other amounts owing by Tenant to Landlord hereunder, at Landlord's sole
discretion.
Section 12.4. In addition to any other remedy provided in this Lease,
from and after the occurrence of an Event of Default and during the continuance
thereof Landlord shall be entitled, to the extent permitted by applicable law,
to injunctive relief or appointment of a receiver, or both without the necessity
of proving the inadequacy of any legal remedy or irreparable harm. The rights
and remedies of Landlord as provided herein shall be enforceable to the maximum
extent not prohibited by applicable law, and the unenforceability of any portion
thereof shall not thereby render unenforceable any other portion. Any injunction
or temporary restraining order issued prior to a final hearing may enjoin
Tenant, its officers, agents and employees and those in active concert or
participation with them, from removing from the Premises any patients, patient
records, equipment, furniture, fixtures, Hospital business records, monies and
other things related in any way to Tenant's business at the Hospital; provided,
however, that the receiver may only apply such monies in accordance with the
order of the court. The receiver shall have all powers and duties necessary and
reasonable to conduct Tenant's business at the Hospital until this Lease is
terminated. Responsibility for the costs associated with the appointment of a
receiver shall be determined by the court.
Section 12.5. The exercise by Landlord of any one or more of the
remedies granted herein or otherwise available at law or in equity shall not be
deemed to be an acceptance of surrender of the Premises, whether by agreement or
by operation of law. Landlord and Tenant agree that a surrender of the Premises
can be effected only by an agreement in writing between Landlord and
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Tenant. No act or omission of Landlord shall be construed as an election by
Landlord to terminate this Lease unless Landlord gives written notice of
termination to Tenant.
Section 13. Landlord's Right to Perform Tenant's Covenants.
Section 13.1 If Tenant defaults in the making of any of the
payments, or the performance of any of the obligations provided for in
this Lease, Landlord may, at its option and on behalf of Tenant, make any such
payments or perform any such obligations.
Section 13. 2. Before exercising that option, however, Landlord must
give Tenant written notice of Tenant's default and of Landlord's intention to
correct that default. If thirty (30) days after such notice, or such shorter
time period as Landlord may specify in the notice if further delay would impair
materially any substantial right, property, or benefit of Landlord, Tenant has
not corrected such default, Landlord may exercise its rights under this Part II,
Section 13.
Section 13.3. In the event Landlord performs any obligation on
Tenant's behalf, Tenant shall reimburse Landlord for any amounts reasonably paid
or expended. This reimbursement shall be due and payable on the next rent
payment date after the expense is incurred that rent is otherwise due. Landlord
shall not be held liable or in any way responsible for any loss, inconvenience,
annoyance or damage resulting to Tenant on account of such performance by
Landlord, unless Landlord is found to have been negligent or engaged in willful
misconduct in its performance. All amounts payable by Tenant to Landlord under
any of the provisions of this Lease, if not paid when the same become due as in
this Lease provided, shall bear interest from the date they become due until
paid, at the prime rate of interest published in the Wall Street Journal, but in
no event at a rate which would be deemed to be usurious under Texas law. In the
event that the Wall Street Journal ceases or fails to publish or announce a
prime rate, the amounts due hereunder shall bear interest at the prime rate
announced by the bank designated by Landlord, provided such a bank is among the
top twenty-five (25) banks in the United States in terms of deposits.
Section 14. Quiet Enjoyment.
Section 14.1. Landlord covenants and agrees that, so long as Tenant
observes and performs all of the covenants, conditions, and stipulations of this
Lease, Tenant may lawfully and quietly hold, occupy and enjoy the Premises
during the Lease Term.
Section 14.2. In the event that an order is entered by a court of
competent jurisdiction ruling that either (a) this Lease or the continued
leasing of the Hospital to Tenant was or would be in violation of applicable law
(other than any matter described in clause (c) on page 6 hereof), or (b)
Landlord lacked the full power and authority, including without limitation the
absence of any necessary approvals, to enter into and perform its obligations
under this Lease, in either case then in addition to the other remedies of
Tenant at law, in equity or pursuant to the provisions of this Lease, the Tenant
may terminate this Lease upon ten (10) days written notice of termination to
Landlord.
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Section 15. Assignment and Subletting.
Section 15.1. Tenant may, without prior approval from Landlord,
sublease the Premises or assign its rights and obligations under this Lease to
any Affiliate of Tenant or the Affiliate of any member of Tenant without
novation of Tenant, unless Landlord specifically consents in writing to such a
novation, which consent shall not be unreasonably withheld. For purposes of
this Lease, an "Affiliate" of a specified entity is an entity which directly, or
indirectly through one or more intermediaries, controls, is controlled by, or is
under common control with, the specified entity. For purposes of this
definition, "control" means either (i) the ownership, directly or indirectly, of
50% of the ownership interest in the relevant entity, or (ii) the ability,
directly or indirectly, to appoint 50% of the governing board of the relevant
entity by virtue of any ownership interest, a member interest, a membership
interest, by right of contract or any other means. Before any such assignment
shall be valid, the assignee shall assume in writing and agree to be bound by
all of the terms and conditions of this Lease as if named the Tenant herein;
provided, however, that a subsequent sale or other conveyance by Tenant of the
stock or beneficial ownership (direct or indirect) of said Affiliate, other than
to itself or another Affiliate, shall be deemed to be an assignment for which
Landlord's consent is required in accordance with the terms of Part II, Section
15.2, below. A change in the ownership of the stock of Tenant's parent
corporation or a sale by Tenant's parent corporation of its assets, including
its stock in Tenant, shall not be deemed to be an assignment of this Lease.
Section 15.2. Tenant shall give Landlord notice of any assignment or
subletting pursuant to Part II, Section 15.1, and shall give to Landlord,
concurrently with such assignment, an executed original assignment agreement
wherein such assignee agrees to be bound by the terms and conditions of this
Lease.
Section 15.3. Tenant may sublease the Premises or assign its rights
and obligations under this Lease to a person or entity that is not an Affiliate
with the prior written consent of Landlord which consent shall not be
unreasonably withheld if the proposed assignee satisfies any and all conditions
with respect to an assignment by the Lessee which may be set forth in the
documents evidencing the Loan. No such assignment will, however, release Tenant
from its obligations under this Lease, however, before any such assignment shall
be valid, the assignee shall assume in writing and agree to be bound by all of
the terms and conditions of this Lease as if named the Tenant herein.
Notwithstanding the foregoing, Tenant shall have the right, without Landlord's
consent, to assign or mortgage this Lease and its rights and obligations
hereunder, including, but not limited to, its rights with respect to any
accounts receivable generated from its operations at the Hospital, as collateral
for a working capital loan secured by Tenant or its parent corporation, the
proceeds of which are used in whole or in part by Tenant in connection with its
operations at the Hospital.
Section 15.4. Landlord may at any time assign its rights and
obligations under this Lease, provided, however, that Landlord shall furnish to
Tenant a written statement from Landlord's assignee that such assignee
recognizes all of Tenant's rights under this Lease. Notwithstanding the failure
of Landlord to obtain said recognition from Landlord's assignee, any assignment
of Landlord's rights and obligations shall be subject to Tenant's rights under
this Lease.
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Section 15.5. No assignment or subletting that is approved pursuant to
this Part II, Section 15 shall be deemed to remove any subsequent assignment or
subletting from the provisions of this Part II, Section 15, it being the intent
hereof that every assignment and subletting, whenever occurring, shall require
the same approval as is set forth herein for an original assignment or
subletting.
Section 16. Notices.
Section 16.1. All notices provided for in this Lease or related to
this Lease shall be in writing and shall be delivered to the parties at the
addresses set forth below. All such notices or other papers or instruments
related to this Lease shall be deemed sufficiently served or delivered on the
date of mailing, provided that they are sent by United States Registered or
Certified Mail, postage prepaid, in an envelope properly sealed or on the date
of receipt if hand delivered or sent by overnight courier or facsimile
transmission:
To Landlord: Parkview Regional Hospital, Inc.
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxx
Facsimile Number: 000-000-0000
Attn: Chairman of the Board
with copy to: Xxxxx & Xxxxxxxxx
000 Xxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Facsimile Number: 000-000-0000
Attn: Xxxxx Xxxx
To Tenant: Brim Hospitals, Inc.
000 XX 000xx Xxxxxx
Xxxxxxxx, XX 00000
Facsimile Number: 000-000-0000
Attn: Xxxx Xxxxxx
with copy to: The Xxxxxxxxx Group
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile Number: 206-623-1738
Attn: Xxxxx X. Xxxxxxxxx
Section 16.2. Both Landlord and Tenant may change the address or the
name of the addressee applicable to subsequent notices by giving notice as
provided above. However, notice of such a change shall not be effective until
the fifth day after mailing.
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Section 17. Miscellaneous.
Section 17.1. The captions in this Lease are for convenience of
reference only. In no way do those captions define, limit or describe the scope
or intent of this Lease.
Section 17.2. Words showing number shall be taken to include both the
singular and the plural forms. Words showing gender shall be taken to include
masculine, feminine and neuter.
Section 17.3. Subject to the restrictions on transfers set forth
herein, this Lease shall inure to the benefit of and be binding upon Landlord
and Tenant and their respective successors and assigns. The definition of
"Landlord" and "Tenant" herein refer to the Landlord and Tenant at the time in
question.
Section 17.4. This Lease shall be governed, construed, and enforced in
accordance with the laws of the State of Texas and venue of any action arising
under this Agreement shall be proper in Dallas County, Texas.
Section 17.5. This Lease represents the entirety of the agreement
among the parties hereto with respect to the subject matter hereof and shall be
deemed to supersede any prior discussions or agreements among the parties
hereto. This Lease may not be amended or modified except by written instrument
signed by the parties hereto. Landlord and Tenant agree to enter into such
mutually acceptable amendments hereto as may be necessary to incorporate any
covenants or other amendments required by the terms of the documents evidencing
the Loan.
Section 17.6. The failure of either party to insist upon strict
performance of any of the covenants, agreements, terms and conditions of this
Lease in any one or more instances shall not be construed as a waiver or
relinquishment of any such covenant, agreement, terms, or condition and the same
shall remain in full force and effect.
Section 17.7. In the event either party brings an action to enforce
any of the terms hereof or in connection herewith, the prevailing party in such
action shall be entitled to and the losing party agrees to pay the reasonable
attorneys' fees and expenses, including attorneys' fees and expenses of
appellate proceedings, of the prevailing party.
Section 17.8. Landlord and Tenant shall execute a Memorandum of this
Lease in a form acceptable to Landlord and Tenant. The Memorandum shall be
recorded in the public records of Limestone County, Texas. Landlord and Tenant
shall share the cost of recording.
Section 17.9. Each term and provision of this Lease shall be enforced
to the fullest extent permitted by law. Should any term or provision of this
Lease, or the application thereof, prove illegal or unenforceable, the remainder
of this Lease shall still be valid and enforced.
Section 17.10. Landlord and Tenant each represent to the other that
there are no claims for brokerage or other commissions or finder's or other
similar fees in connection with the
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transactions contemplated by this Lease insofar as such claims shall be based on
arrangements or agreements made by or on behalf of the party so representing.
Section 17.11. Neither this Lease nor any provision hereof may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the parties hereto.
Section 17.12. This Lease may be executed in any number of
counterparts, each of which shall be deemed to be an original and all
of which together shall comprise but a single instrument.
Section 17.13 No provision of this Lease shall be construed against or
interpreted to the disadvantage of either Landlord or Tenant by any court or
other governmental or judicial authority by reason of such party's having or
being deemed to have structured, written, drafted or dictated such provisions.
Section 17.14. Time is of the essence of this Lease.
Section 17.15. Nothing in this Lease shall be construed to render or
constitute Landlord in any way or for any purpose a partner, joint venturer or
associate in any relationship with Tenant other than that as Landlord and
Tenant, nor shall this Lease be construed to authorize either party to act as
agent for the other party except as expressly provided to the contrary in this
Lease.
Section 17.16. Throughout the Lease Term, Tenant shall deliver to
Landlord within thirty (30) days following the end of each month accurate copies
of financial statements, including balance sheet and profit/loss statement for
said month and on a year to date basis, reflecting the financial condition of
Tenant and of the Hospital, and within one hundred twenty (120) days following
the end of Tenant's fiscal year, accurate copies of the annual financial
statements for Tenant and the Hospital.
Section 18. Landlord Inspection. Without limiting any other rights
reserved or available to Landlord under this Lease, in law or in equity,
Landlord on behalf of itself and its agents reserves the following rights to be
exercised at Landlord's election:
(a) To inspect the Premises after reasonable notice and to make repairs,
additions or alterations to the Premises, or any part thereof, as permitted
or required under this Lease, whether such repairs are the responsibility
of Landlord or Tenant; and
(b) To enter upon the Premises for any and all of said purposes and may
exercise any and all of the foregoing rights hereby reserved during normal
business hours unless an emergency exists, in which case Landlord shall
have the right of entry upon 24 hours advance notice.
Section 19. Estoppel Statements. The parties hereto shall, at any
time and from time to time upon not less than ten (10) days prior written notice
from the other party, execute, acknowledge and deliver to such other party, in
form reasonably satisfactory to such other party
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or such other party's mortgagee, in the case of a request by Tenant, a written
statement certifying (if true) that this Lease is unmodified and in full force
and effect (or if there have been modifications stating the nature thereof),
that such other party is not in default hereunder (or specifying the nature of
any default), the date to which rental and other charges have been paid and such
other information as may be reasonably required by such other party. It is
intended that any such statement delivered pursuant to this subsection may be
relied upon by any prospective purchaser of the Premises and their respective
successors and assigns.
Section 20. Hazardous Substances. Tenant shall not generate, dispose
of, release, use, handle, possess or store any Hazardous Substances upon the
Premises except in accordance with applicable environmental laws. Tenant shall,
at its sole cost and expense, promptly remove or clean up any Hazardous
Substances introduced onto the Premises by Tenant or with its permission or at
its sufferance. Such removal or cleanup shall be in compliance with all
applicable environmental laws. Tenant hereby agrees to indemnify and hold
Landlord harmless and agrees to defend Landlord from all losses, damages, claims
and liabilities and fines, including costs and reasonable attorneys' fees, of
any nature whatsoever in connection with the actual or alleged presence upon the
Premises of any Hazardous Substance introduced by Tenant or with its permission
or at its sufferance.
Section 21. Subordination. Tenant acknowledges and agrees that this
Lease is and shall be subordinate to any liens created in connection with the
incurrence of the Loan. Tenant further agrees to execute any and all documents
which may be reasonably requested by Landlord's lender to evidence said
subordination provided the same include a provision wherein the lender agrees
not to disturb Tenant's possession of the Premises upon the occurrence of a
default under the Loan unless Tenant is then in default of its obligations
hereunder.
IN WITNESS WHEREOF, the parties hereby execute this Lease Agreement on
the day and year first written above.
LANDLORD: PARKVIEW REGIONAL HOSPITAL, INC.
By: /s/ Xxxxxxxx X. Xxxx
-----------------------------------
Its: Chairman of Board of Trustees
----------------------------------
TENANT: BRIM HOSPITALS, INC.
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Its: President
----------------------------------
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STATE OF TX )
) ss.
COUNTY OF LIMESTONE)
BEFORE ME, the undersigned authority, on this day personally appeared
Xxxxx Xxxx, the Chairman of Parkview Regional Hospital, Inc., to me to be the
person and officer whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and
consideration therein expressed, and as the act and deed of said Authority, and
in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 24th day of April, 1996.
XXXXX X. XXXXXXXX /s/ Xxxxx Xxxxxxxx
MY COMMISSION EXPIRES -----------------------------
May 30, 0000 Xxxxxx Xxxxxx
XXXXX XX Xxxxxx )
) ss.
COUNTY OF Multnomah)
BEFORE ME, the undersigned authority, on this day personally appeared
Xxxx X. Xxxxxx, the President of Brim Hospitals, Inc., an Oregon corporation,
known to me to be the person and officer whose name is subscribed to the
foregoing instrument, and acknowledged to me that he executed the same for the
purposes and consideration therein expressed, and as the act and deed of said
corporation, and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 1st day of May, 1996.
OFFICIAL SEAL /s/ Xxxxx X. Xxxxxx
XXXXX X. XXXXXX ----------------------------
NOTARY PUBLIC-OREGON Notary Public
COMMISSION NO. 040767
MY COMMISSION EXPIRES JAN. 17, 1999
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FIRST AMENDMENT TO LEASE AGREEMENT AND TO
AMENDED MEMORANDUM OF LEASE
THE FIRST AMENDMENT TO LEASE AGREEMENT AND TO AMENDED MEMORANDUM OF
LEASE is made and entered into effective as of the 3rd day of June, 1997 by and
between Parkview Regional Hospital, Inc., a Texas non-profit corporation
("Landlord"), and Brim Hospitals, Inc., an Oregon corporation ("Tenant").
RECITALS
A. By Lease Agreement dated effective as of April 24, 1996 (the
"Lease"), Landlord leased to Tenant and Tenant leased from Landlord the acute
care facility commonly known as Parkview Regional Hospital, 000 Xxxx Xxxxxxxx
Xxxxxx, Xxxxx, Xxxxx, (the "Hospital"). The Lease contemplated that the
property leased to Tenant included the Real Property (as defined in the Lease,
which Real Property is described in Exhibit A hereto (the "Original Real
Property").
B. A Memorandum with respect to the Lease was placed of record by
Memorandum of Lease dated April 24, 1996 and recorded in Volume 948, Page 543
of the Real Estate Records of Limestone County, Texas, which Memorandum was
amended by Amended Memorandum of Lease dated May 15, 1996 and recorded in
Volume 951, Page 512 of the Real Estate Records of Limestone County, Texas
(the "Memorandum").
C. Landlord is interested in entering into a transaction (the
"Exchange Transaction") pursuant to which it would exchange a portion of the
Original Real Property which is described in Exhibit B hereto (the "Old
Parcel") with a third party and would obtain in consideration therefor a new
parcel of land which is described in Exhibit C hereto (the "New Parcel"),
subject to the reservation by such third party of an easement over the New
Parcel, which easement is described in Exhibit D hereto (the "Easement"), which
would be deemed for all purposes of the Lease to be included in the Real
Property (as that term is defined in the Lease).
D. In light of the proposed Exchange Transaction, Landlord has
requested, and Tenant has agreed, that Tenant consent to an amendment of the
Lease to reflect the affect of the Exchange Transaction on the Lease and the
Landlord's and the Tenant's rights and obligations thereunder.
E. The Lease provides that it may only be amended by written
instrument signed by Landlord and Tenant.
F. Landlord and Tenant are interested in documenting the terms and
conditions of such amendment and of amending the Memorandum by placing this
document of record.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants of the parties set forth herein, IT IS HEREBY AGREED AS
FOLLOWS:
1
41
AGREEMENT
1. Replacement of Exhibit A. Exhibit A to the Lease is hereby deleted
in its entirety and Exhibit E attached hereto is hereby substituted in lieu
thereof. Landlord and Tenant acknowledge and agree that the conveyance of the
New Parcel and rights of Tenant with respect thereto under the terms of the
Lease are subject to the rights reserved by the former owner thereof under the
Easement.
2. Amendment of Part II, Section 4.2. The first sentence of Part II,
Section 4.2 is hereby deleted in its entirety and the following inserted
instead:
After the Commencement Date, Tenant shall neither use nor permit to be
used the Premises, or any part thereof for any purpose or purposes
other than as an acute care facility without the prior written consent
of Landlord, which shall not be unreasonably withheld; provided,
however, that Tenant shall have the right to operate a medical office
building on the New Parcel it being understood and agreed as of the
date hereof that Landlord and Tenant shall, as and when they deem
appropriate, pursue the development on the New Parcel by either
Landlord or Tenant of a medical office building which, upon completion
of the construction thereof, is anticipated to be operated by Tenant
under the terms of either this Lease or an amendment hereto if and to
the extent such an amendment is deemed to be necessary and appropriate
by Landlord and Tenant.
3. Hospital Mortgage. Tenant acknowledges and agrees that the Premises
(as defined in the Lease) are subject to a first lien in favor of Key Bank
("Lender"). Tenant further acknowledges and agrees that the effectiveness of
this Amendment is specifically conditioned on Landlord securing the Agreement
of Lender to release the Old Parcel from such lien and that in connection
therewith Tenant may be required to execute certain documents to confirm the
subordination of its leasehold rights to the lien granted to Lender. By its
signature set forth below, Tenant agrees to execute any and all documents as
may be reasonably requested by Lender to evidence the continued subordination
of its leasehold interest in the Premises provided Lender confirms in such
documents its non-disturbance obligations in favor of Tenant.
4. Counterparts. This Amendment may be executed in counterparts, each
of which shall be deemed to be an original, but all of which taken together
shall constitute but one and the same instrument.
5. No Further Modification. Except as specifically set forth herein,
the Lease shall remain in full force and effect as originally executed by
Landlord and Tenant.
2
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IN WITNESS WHEREOF, the parties hereby execute this Agreement as of the
day and year first set forth above.
LANDLORD: PARKVIEW REGIONAL HOSPITAL, INC.
By: /s/ Xxxxxxxx X. Xxxx
------------------------------------------
Its: Chairman
------------------------------------------
TENANT: BRIM HOSPITALS, INC.
By: /s/ Xxxxxx
-------------------------------------------
Its: Vice President
-------------------------------------------
3
00
XXXXXXXXXXXXXXX
XXXXX XX XXXXX )
) ss.
COUNTY OF LIMESTONE )
On this 10 day of June, 1997, before me, a Notary Public in and for the
State of Texas, personally appeared Xxxxxxxx X. Xxxx, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person who
executed this instrument, on oath stated that he was authorized to execute the
instrument as the Chairman of Parkview Regional Hospitals, Inc., a Texas
non-profit corporation, and acknowledged it to be the free and voluntary act
and deed of said corporation for the uses and purposes mentioned in the
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the
day and year first above written.
/s/ Xxxxxx Xxxxx Xxxxx
----------------------------------
Notary Public in and for the State
of Texas
Residing at: Mexia, TX
----------------------
My commission expires: 01-29-98
------------
STATE OF OREGON )
) ss.
COUNTY OF MULTNOMAH )
On this 3rd day of June, 1997, before me, a Notary Public in and for
the State of Oregon, personally appeared Xxxxx Xxxxxx personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person who
executed this instrument, on oath stated that he was authorized to execute the
instrument as the Vice President of Brim Healthcare, Inc., an Oregon
corporation, and acknowledged it to be the free and voluntary act and deed of
said corporation for the uses and purposes mentioned in the instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal the
day and year first above written.
/s/ Xxxxx X. Xxxxxx
----------------------------------
Notary Public in and for the State
of Oregon
Residing at: Gresham, OR
----------------------
My commission expires: 1-17-99
------------
[SEAL]
OFFICIAL SEAL
XXXXX X. XXXXXX
NOTARY PUBLIC-OREGON
COMMISSION NO. 040767
MY COMMISSION EXPIRES JAN. 17, 1999
4
44
EXHIBIT A
THE ORIGINAL REAL PROPERTY
5
45
February 18, 1996
Surveyor's Field Note to PARKVIEW REGIONAL HOSPITAL for
ACRES, being a part of SUBDIVISION 8 and SUBDIVISION 9 of DIVISION "L"
of the City of Mexia, Limestone County, Texas, according to the plat of record
in Volume 2, Page 17 of the Plat Records of Limestone County and embracing
those certain tracts described as the SECOND TRACT, THIRD TRACT, FOURTH TRACT
and FIFTH TRACT in a deed to PARKVIEW REGIONAL HOSPITAL, INC. of record in
Volume 865 Page 195 of the Deed Records of Limestone County, Texas, also
embracing that certain tract described in a deed to PARKVIEW REGIONAL HOSPITAL,
of record in Volume 640, Page 183 of the Deed Records of Limestone County,
Texas said 3.339 acre tract being more particularly described by these metes
and bounds as follows:
BEGINNING at a 1/2" iron rod found in the intersection of the south margin of
GLENDALE AVENUE, with the west margin of BONHAM STREET, said streets shown on
the recorded plat of said DIVISION "L", being the northeast corner of said
SUBDIVISION 8, same being the northeast corner of said SECOND TRACT and being
the northeast corner of this tract.
THENCE in a southerly direction, with the west margin of said BONHAM
STREET, same being the east line of said SECOND TRACT also along the east line
of said FOURTH TRACT, also along the east line of said HOSPITAL tract described
in Volume 940, Page 183 (record call of S 04 deg 40 min E. 110.00 feet) SOUTH
04 deg 40 min 41 sec EAST, at a distance of 380.09 feet pass a 1/2" iron rod
found being the southeast corner of said FOURTH TRACT, same being the northeast
corner of said HOSPITAL tract and continuing in all a distance of 489.89 feet
to a 1/2" iron rod found being the eastern most southeast corner of said
HOSPITAL tract, same being the northeast corner of that certain tract
described in a deed to XXXXXX XXXXXXX and wife, DE XXX XXXXXXX, of record in
Volume 938, Page 327 of the Deed Records of Limestone County, Texas and being
the eastern most southeast corner of this tract.
THENCE in a westerly direction, with a southeast line of said HOSPITAL
tract (record call of S 85 deg 20 min W. 100.00 feet) same being the north line
of said XXXXXXX tract (record call of S 85 deg 20 min 00 sec W. 100.00 feet)
SOUTH 85 deg 16 min 40 sec WEST, a distance of 99.94 feet to a 1/2" iron rod
found being the northwest corner of said XXXXXXX tract same being an interior
corner of said HOSPITAL tract and being an interior corner of this tract.
THENCE in a southerly direction, with the west line of said XXXXXXX
tract (record call of S 04 deg 40 min 00 sec E. 100.00 feet) same being a line
of said HOSPITAL tract (record call of S 04 deg 40 min E. 100.00 feet) SOUTH 04
deg 40 min 00 sec EAST, a distance of 99.99 feet to a 60 xxxxx nail found in
the north margin of TYLER STREET, said street shown on the recorded plat of
said DIVISION "L", being the corner of said XXXXXXX tract, same being the
southern most southeast corner of said HOSPITAL tract and being the southern
most southeast corner of this tract.
THENCE in a westerly direction, with the north margin of said TYLER
STREET, same being south line of said HOSPITAL tract (record call of S 85 deg
20 min W. 140.00 feet) SOUTH 85 deg 27 min 01 sec WEST, a distance of 138.83
feet to a 1/2" iron rod found being the southwest corner of said HOSPITAL
TRACT, same being the southeast corner of that certain tract called TRACT 1,
in a deed to XXXXX X. XXXXX and wife, JUNE X. XXXXX of record in Volume 717,
Page 311 of the Deed Records of Limestone County, Texas and being the southern
most southwest corner of this tract.
THENCE in a northerly direction, with the east line of said TRACT 1, same
being the west line of said HOSPITAL tract (record calls of N 04 deg 40 min W.
48.00 feet, N 85 deg 20 min E. 5.00 feet and N 04 deg 40 min W. 150.00 feet)
also along the east line of TRACT 2, as described in said XXXXX deed (record
call of N 04 deg 40 min E. 61 35 feet) for the following THREE (3) courses and
distances:
1). NORTH 04 deg 42 min 37 sec WEST, a distance of 48.00 feet to a
1/2" iron rod set.
2). NORTH 85 deg 21 min 26 sec EAST, a distance of 4.50 feet to a 1/2"
iron rod set and
3). NORTH 04 deg 28 min 47 sec WEST, at a distance of 66.52 feet pass
a 1/2" iron rod found and continuing in all a distance of 161.72
feet to a 1/2" iron rod found and continuing in all a distance
of 161.72 feet to a 1/2" iron rod found being the southeast corner
of said FIFTH TRACT, same being the southwest corner of said
FOURTH TRACT also being the northeast corner of said TRACT 2 and
being an interior corner of this tract.
THENCE in a westerly direction, with the south line of said FIFTH TRACT,
same being the north line of said TRACT 2 (record call of S 85 deg 20 min W.
55.0 feet) SOUTH 85 deg 45 min 41 sec WEST, a distance of 58.74 feet to a 3/8"
iron rod found being the southwest corner of said FIFTH TRACT, same being the
northwest corner of said TRACT 2, also being the northeast corner of that
certain tract described as the SECOND TRACT, in a deed to XXXX XXXX XXXXXX, SR.
and wife, XXXXXX X. XXXXXX, of record in Volume 784 Page 185 of the Deed
Records of Limestone County, Texas same being the southeast corner of the FIRST
TRACT in said XXXXXX deed and being the western most southwest corner of this
tract.
THENCE in northerly direction, with the east line of said XXXXXX SECOND
TRACT same being the west line of said FIFTH TRACT (record call of northerly
1007 NORTH 04 deg 29 min 36 sec WEST, a distance of 99.25 feet to a 50 xxxxx
nail found in the south line of a tract occupied by XXXXX XXXXXX FUNERAL HOME
(No deed was found by this surveyor), being the northwest corner of said FIFTH
TRACT, and being an interior corner of this tract.
THENCE in an easterly direction, with the south line of said FUNERAL HOME
tract, same being the north line of said FIFTH TRACT (record call of easterly
55 feet) NORTH 85 deg 19 min 31 sec EAST, a distance of 14.88 feet to an "X"
found in concrete, being the southwest corner of said THIRD TRACT, same being
the southeast corner of said FUNERAL HOME tract and being an interior corner of
this tract.
THENCE in a northerly direction, with the east line of said FUNERAL HOME
tract, same being the west line of said THIRD TRACT (record call of northerly
280 feet) NORTH 04 deg 42 min 04 sec WEST, a distance of 280.16 feet to a 1/2"
iron rod found in the south margin of said GLENDALE AVENUE, being the northeast
corner of said FUNERAL HOME tract, same being the northwest corner of said
THIRD TRACT, and being the northwest corner of this tract.
THENCE in an easterly direction, with the south margin of said GLENDALE
AVENUE, same being the north line of said THIRD TRACT, also along the north line
of said SECOND TRACT NORTH 95 deg 18 min 14 sec EAST, a distance of 275.02 feet
to the Point of Beginning, Continuing ACRES (145,440 Sq. Ft.) OF LAND.
February 18, 1996
Surveyor's Field Note to PARKVIEW REGIONAL HOSPITAL for
0.687 ACRE, being a part of SUBDIVISION 5, of DIVISION "L", of the City of
Mexia, Limestone County, Texas, according to the plat of record in Volume 2,
Page 17 of the Plat Records of Limestone County and embracing that certain
tract described as the FIRST TRACT in a deed to PARKVIEW REGIONAL HOSPITAL INC.
of record in Volume 865, Page 195 of the Deed Records of Limestone County,
Texas also embracing that certain called 40' x 115' tract described in a
Special Warranty Deed from the CITY OF MEXIA to PARKVIEW REGIONAL HOSPITAL,
Dated October 18, 1995, said 0.687 acre tract being more particularly described
by these metes and bounds as follows:
BEGINNING at a 1/2" iron rod found at the intersection of the west margin of
BONHAM STREET, with the north margin of GLENDALE AVENUE, said streets shown on
the recorded plat of said DIVISION "L", being the southeast corner of said
SUBDIVISION 5, same being the southeast corner of said FIRST TRACT and being
the southeast corner of this tract.
THENCE in a westerly direction, with the north margin of said GLENDALE
AVENUE, same being the south line of said SUBDIVISION 5, also being the south
line of said FIRST TRACT (record call of S 85 deg W. 115 feet) SOUTH 85 deg 18
min 14 sec WEST, a distance of 115.01 feet to a 1/2" iron rod found being the
southwest corner of said FIRST TRACT, same being the southeast corner of the
CALVARY BAPTIST CHURCH (No deed was found by this surveyor) tract and being the
southwest corner of this tract.
THENCE in a northerly direction, with the east line of said CHURCH
tract, same being the west line of said FIRST TRACT (record call of N 05 deg W.
220 feet) NORTH 04 deg 41 min 22 sec WEST, a distance of 220.04 feet to a 1/2"
iron rod found in the south margin XXXXXXXXX XXXXXX, xxxx xxxxxx shown on the
recorded plat of said DIVISION "L", being the southwest corner of said 40' x
115' tract, same being the southeast corner of that certain called 18,600 Sq.
Ft. tract described in a deed to XXXXX XXXXX, XXXXXX XXXXXXX and XXXXX NEW,
TRUSTEES of record in Volume 821, Page 602 of the Deed Records of Limestone
County, Texas and being an angle point in the west line of this tract.
THENCE continuing in a northerly direction, over and across said EVERGREEN
STREET, with the east line of said 18,600 Sq. Ft. tract (record call of N 04
deg 40 min W. 40.0 feet) same being the west line of said 40' x 115' tract
(record call of N 114 deg 40 min W. 40.00 feet) NORTH 04 deg 37 min 19 sec
WEST, a distance of 39.97 feet to a 1/2" iron rod found being the northeast
corner of said 18,600 Sq. Ft. tract same being the northwest corner of said 40'
x 115' tract and being the northwest corner of this tract.
THENCE in an easterly direction, continuing across said EVERGREEN STREET,
with the north line of said 40' x 115' tract (record call of N 85 deg 20 min E.
115.00 feet) NORTH 85 deg 16 min 35 sec EAST, a distance of 115.00 feet to a
1/2" iron rod found in the west margin of said BONHAM STREET, being the
northeast corner of said 40' x 115' tract and being the northeast corner of
this tract.
THENCE in a southerly direction, with the west margin of said BONHAM
STREET, same being the east line of said 40' x 115' tract (record call of S 04
deg 40 min E. 40.00 feet) SOUTH 04 deg 39 min 38 sec EAST, a distance of 40.05
feet to a 1/2" iron rod found being the southeast corner of said 40' x 115'
tract, same being the northeast corner of said FIRST TRACT and being an
angle point in the east line of this tract.
THENCE continuing in a southerly direction and continuing with the west
margin of said BONHAM STREET, being the east line of said FIRST TRACT (record
call of S 05 deg E. 220 feet) SOUTH 04 deg 41 min 08 sec EAST, a distance of
220.02 feet to the Point of Beginning, Containing 0.687 ACRE (29.908 Sq. Ft) OF
LAND.
46
0.262 ACRE, being as of LOT 4, in SUBDIVISION "L", and the called south
FORTY-NINE feet of LOT 3, in said SUBDIVISION 1 of the City of Mexia,
Limestone County, Texas, according to the plat of record in Volume 2, Page 17
of the Plat Records of Limestone County and embracing that certain tract
described in a deed to PARKVIEW REGIONAL HOSPITAL, INC., of record in
Volume 937, Page 192 of the Deed Records of Limestone County, Texas said 0.262
acre tract being more particularly described by these metes and bounds as
follows:
BEGINNING at a 1/2" iron rod set in the east margin of XxXXXXXX STREET, said
street shown on the recorded plant of said DIVISION "L", being the northwest
corner of this tract same being the northwest corner of said PARKVIEW tract,
also being the southwest corner of that certain tract described as the SECOND
TRACT, in a deed to XXXXXX XXXXXXXX of record in Volume 800, Page 612 of the
Deed of Records of Limestone County, Texas, from which a 1" metal pipe found
being the northwest corner of the FIRST TRACT as described in said STERLING
deed, bears: NORTH 04 deg 37 min 43 sec WEST, a distance of 141.13 feet.
THENCE in an easterly direction, with the north line of said PARKVIEW
tract, same being the south line of said SECOND TRACT (record call of 115 feet)
NORTH 85 deg 22 min 17 sec EAST, a distance of 14.94 feet to a 1/2" iron rod
set in the east line of said LOT 3, same being the west line of LOT 6, in said
SUBDIVISION 1, being a corner of said SECOND tract, same being the northeast
corner of said PARKVIEW tract and being the northeast corner of this tract.
THENCE in a southerly direction, with the east line of said LOT 3,
(record call of 50 feet) same being the west line of said LOT 6 (record call of
150 feet) also along the east line of said LOT 4 (record call of 50 feet) SOUTH
04 deg 38 min 49 sec EAST, a distance of 99.09 feet to a 1/2" iron rod found
being the southeast corner of said PARKVIEW tract and said LOT 3, same being
the northeast corner of LOT 5, in said SUBDIVISION 1, being the southeast
corner of this tract, from which a 1/2" iron rod found being the southeast
corner of said LOT 5, bears: SOUTH 04 deg 39 min 39 sec EAST, a distance of
49.93 feet.
THENCE in a westerly direction, with the common line between said LOT 4
and 5 (record call of 115 feet) SOUTH 85 deg 22 min 17 sec WEST, a distance of
114.98 feet to a 1/2" iron rod set in the east margin of said XxXXXXXX STREET,
being the southwest corner of said LOT 4, same being the northwest corner of
said LOT 5, being the southwest corner of this tract, from which a 1/2"
iron rod set being the southwest corner of said SUBDIVISION 1, bears: SOUTH 04
deg 37 min 43 sec EAST, a distance of 49.93 feet.
THENCE in a northerly direction, with the east margin of said XxXXXXXX
STREET, same being the west line of said LOT 4 (record call of 50 feet) also
along the west line of said LOT 3 (record call of 50 feet) NORTH 04 deg 37 min
43 sec WEST, a distance of 99.09 feet to the Point of Beginning. Containing
0.262 ACRE (11,382 Sq. Ft.) OF LAND.
Surveyed February 12 & 13, 1996
47
EXHIBIT B
THE OLD PARCEL
6
48
0.262 Acre, being all of Lot 4, in Subdivision 1, of Division "L", and the
called South forty-nine feet of Lot 3, in said Subdivision 1, of the City of
Mexia, Limestone County, Texas, according to the plat of record in Volume 2,
Page 17 of the Plat Records of Limestone County and embracing that certain
tract described in a Deed to Parkview Regional Hospital, Inc. of record in
Volume 937, Page 192 of the Deed Records of Limestone County, Texas, said 0.262
acre tract being more particularly described by these metes and bounds as
follows:
BEGINNING at a 1/2 inch iron rod set in the East margin of XxXxxxxx Street,
said street shown on the recorded plat of said Division "L", being the
Northwest corner of this tract, same being the Northwest corner of said
Parkview tract, also being the Southwest corner of that certain tract described
as the Second Tract, in a Deed to Xxxxxx Xxxxxxxx, of record in Volume 800,
Page 612 of the Deed Records of Limestone County, Texas, from which a 1 inch
metal pipe found being the Northwest corner of the First Tract as described in
said Sterling Deed, bears: North 04 deg. 37 min. 43 sec. West, a distance of
141.13 feet;
THENCE in an Easterly direction, with the North line of said Parkview tract,
same being the South line of said Second Tract (record call of 115 feet) North
85 deg. 22 min. 17 sec. East, a distance of 114.94 feet to a 1/2 inch iron rod
set in the East line of said Lot 3, same being the West line of Lot 6, in said
Subdivision 1, being a corner of said Second Tract, same being the Northeast
corner of said Parkview tract and being the Northeast corner of this tract;
THENCE in a Southerly direction, with the East line of said Lot 3, (record call
of 50 feet) same being the West line of said Lot 6 (record call of 150 feet)
also along the East line of said Lot 4 (record call of 50 feet) South 04 deg.
38 min. 49 sec. East, a distance of 99.09 feet to a 1/2 inch iron rod found
being the Southeast corner of said Parkview tract and said Lot 3, same being
the Northeast corner of Lot 5, in said Subdivision 1, being the Southeast
corner of this tract, from which a 1/2 inch iron rod found being the Southeast
corner of said Xxx 0, xxxxx Xxxxx 00 xxx. 39 min. 39 sec. East, a distance of
49.93 feet;
THENCE in a Westerly direction, with the common line between said Lots 4 and 5
(record call of 115 feet) South 85 deg. 22 min. 17 sec. West, a distance of
114.98 feet to a 1/2 inch iron rod set in the East margin of said XxXxxxxx
Street, being the Southwest corner of said Lot 4, same being the Northwest
corner of said Lot 5, being the Southwest corner of this tract, from which a
1/2 inch iron rod set being the Southwest corner of said Subdivision 1, bears:
South 04 deg. 37 min. 43 sec. East, a distance of 49.93 feet;
THENCE in a Northerly direction, with the East line of said XxXxxxxx Street,
same being the West line of said Lot 4 (record call of 50 feet) also being the
West line of said Lot 3 (record call of 50 feet) North 04 deg. 37 min. 43 sec.
West, a distance of 99.09 feet to the POINT OF BEGINNING, containing 0.262 Acre
(11,392 sq. ft.) of land.
EXHIBIT A
----
49
EXHIBIT C
THE NEW PARCEL
7
50
Description of: 1.069 Acres, Part of Subdivisions 5 & 6, Division L, and a
part of Evergreen St. (closed), City of Mexia, Limestone Co.,
Texas, Owner: Calvary Baptist Church, Vol. 442, Xx. 000,
X.X.X.X.
BEING a 1.069 acres tract of land situated in Division L, City of Mexia,
Limestone County, Texas, a part of Subdivisons 5 & 6, and a part of Evergreen
St. (closed) in said Division, said subdivisions being conveyed from the Mexia
Independent School District to Calvary Baptist Church by deed dated May 17,
1957 and recorded in Vol. 442, Pg. 138, Deed Records of Limestone County, Texas
(L.C.D.R.), and said part (40.0 ft. by 465 ft.) of Evergreen St. being conveyed
from the City of Mexia to Calvary Baptist Church by deed dated September 29,
1989 and recorded in Vol. 821, Xx. 000, X.X.X.X., said 1.069 acres being more
particularly described by metes and bounds as follows:
BEGINNING at a found 1/2" iron rod in the center of Evergreen St. and in the
North line of said part of said street conveyed to Calvary Baptist Church for
Northeast corner of this tract, same being the Northwest corner of that tract,
conveyed from Xxxxxx Methodist Hospital to Parkview Regional Hospital by deed
of record in Vol. 865, Xx. 000, X.X.X.X.
THENCE S.4 degrees 40'E. with the West line of said hospital tract, at 40.0 ft.
a found 1/2" iron rod in the South line of Evergreen St. (closed), in all,
260.00 ft. to a found 1/2" iron rod in the North line of Glendale St. and in
the South line of Subdivision 5 for Southeast corner of this tract, same being
the Southwest corner of said Hospital tract;
THENCE S.85 degrees 20'W. with the North line of Glendale St. and the South
line of Division L, at 175.0 ft. the Southwest corner of Subdivision 5 and the
Southeast corner of Subdivision 6, in all, 179.54 ft. to a set 1/2" iron rod in
the South line of Subdivision 6 for Southwest corner of this tract;
THENCE N.4 degrees 28'W. at 220.01 ft. the South line of Evergreen St.
(closed), in all, 260.01 ft. to a set 1/2" iron rod in the center of Evergreen
St. (closed), same being the North line of that part of Evergreen St. conveyed
to Calvary Baptist Church, for Northeast corner of this tract;
THENCE N.85 degrees 20'E. at 3.62 ft. the intersection of the extended boundary
line between Subdivisions 5 & 6, in all, 178.62 ft. with the centerline of
Evergreen St. (closed) to the point of BEGINNING, containing 1.069 acres.
The foregoing description was prepared from that plat
dated May 20, 1997 that correctly represents that
actual ground survey made under my supervision.
Dated this 20th day of May, 1997
/s/ Xxx X. Xxxxx
-------------------------------------
Xxx X. Xxxxx, P.E., R.P.L.S. No. 3282
Xxxxx Engineering and Surveying
X.X. Xxx 000
000 X. Xxxxxxx Xx., Xxxxx, Xxxxx 00000
000-000-0000
EXHIBIT A PG
----- -----
51
EXHIBIT D
THE EASEMENT
8
52
Description of: A Three (3) Ft. Easement, Part of Subdivision 6, Division L,
City of Mexia, Limestone County, Texas, and Part of
Evergreen St. (closed). Owner: Calvary Baptist Church, Vol.
442, Pg. 138, and Vol. 821, Xx. 000, X.X.X.X.
BEING a three (3) ft. wide easement a part of Subdivision 6, Division L. and a
part of Evergreen St. (closed), City of Mexia, Limestone County, Texas, said
subdivision being conveyed from Mexia Independent School District to Calvary
Baptist Church by deed dated May 17, 1957 and recorded in Vol. 442, Pg. 138,
Deed Records of Limestone County, Texas (L.C.D.R.) and said part of Evergreen
St. (closed) being from the City of Mexia to Calvary Baptist church
by deed dated September 29, 1989 and recorded in Vol. 821, Xx. 000, X.X.X.X.,
said easement being part of and adjacent to the Western edge of a 1.069 acres
tract surveyed this date out of Subdivision 5, Division L and said Subdivision
6, and out of said part of Evergreen St. (closed), said easement being more
particularly described by metes and bounds as follows:
BEGINNING at a set 1/2" iron rod in the North line of Glendale St. and in the
South line of Subdivision 6 for Southwest corner of this easement, same being
the Southwest corner of said 1.069 acres tract, said corner bears S.85 degrees
20'W. 4.54 ft. from the Southeast corner of Subdivision 6 and N.85 degrees
20'E. 285.46 ft. from the Southwest corner of Subdivision 6;
THENCE N.4 degrees 28'W. with the West line of said 1.069 acres tract, at
220.01 ft. the South line of Evergreen St. (closed), in all, 260.01 ft. to a
set 1/2" iron rod for Northwest corner of this easement and said 1.069 acres
tract, said corner being in the center of Evergreen St. (closed);
THENCE N.85 degrees 20'E. 3.0 ft. with the centerline of Evergreen St. (closed)
and the North line of said 1.069 acres tract to a point for Northeast corner of
this easement;
THENCE S.4 degrees 28'E., at 40.00 ft., the South line of Evergreen St.
(closed), in all, 260.01 ft. to a point in the North line of Glendale St. and
in the South line of Subdivision 6 and said 1.069 acres tract for Southeast
corner of this easement;
THENCE S.85 degrees 20'W. 3.0 ft. with the North line of Glendale St. and the
South line of Subdivision 6 and said 1.069 acres tract, to the point of
BEGINNING.
The foregoing description was prepared from that plat
dated May 20, 1997 that correctly represents that
actual ground survey made under my supervision.
Dated this 23rd day of May, 1997.
/s/ XXX X. XXXXX
-----------------------------------------------
Xxx X. Xxxxx, P.E., R.P.L.S. No. 3282
Xxxxx Engineering and Surveying
X.X. Xxx 000
000 X. Xxxxxxx Xx., Xxxxx, Xxxxx 00000
000-000-0000
[SEAL]
53
EXHIBIT E
NEW LEGAL DESCRIPTION
9
54
February 18, 1996
Surveyor a Field Note to PARKVIEW REGIONAL HOSPITAL for:
.39 ACRES being a part of SUBDIVISION 8 of DIVISION "L" of the City of Mexie,
Limestone County, Texas, according to the plat of record in Volume 2, Page 17
of the Plat Records of Limestone County and embracing those certain tracts
described as the SECOND TRACT, THIRD TRACT, FOURTH TRACT and FIFTH TRACT in a
deed to PARKVIEW REGIONAL HOSPITAL INC. of record in Volume 865 Page 195 of the
Deed Records of Limestone County, Texas, also embracing that certain tract
described in a deed to PARKVIEW REGIONAL HOSPITAL of record in Volume 640, Page
183 of the Deed Records of Limestone County, Texas, and 3.339 acre tract being
more particularly described by these metes and bounds as follows:
BEGINNING at a 1/2" iron rod found in the intersection of the south margin of
GLENDALE AVENUE, with the west margin of BONHAM STREET, said streets shown on
the recorded plat of said DIVISION "L", being the northeast corner of said
SUBDIVISION 8, same being the northeast corner of said SECOND TRACT and being
the northeast corner of this tract.
THENCE in a southerly direction, with the west margin of said BONHAM
STREET, same being the east line of said SECOND TRACT also along the east line
of said FOURTH TRACT, also along the east line of said HOSPITAL tract described
in Volume 940, Page 183 (record call of S 04 deg 40 MIN. E. 110.00 feet) SOUTH
04 deg 40 min. 41 sec. EAST, at a distance of 380.09 feet pass a 1/2" iron rod
found being the southeast corner of said FOURTH TRACT, same being the northeast
corner of said HOSPITAL tract and continuing in all a distance of 499.89 feet
to a 1/2" iron rod found being the eastern most southeast corner of said
HOSPITAL tract, same being the northeast corner of that certain tract described
in a deed to XXXXXX XXXXXXX and wife, DE XXX XXXXXXX, of record in Volume 938,
Page 327 of the Deed Records of Limestone County, Texas and being the eastern
most southeast corner of this tract.
THENCE in a westerly direction, with a southeast line of said HOSPITAL tract
(record call of S 85 deg 20 min. W., 100.00 feet) same being the north line of
said XXXXXXX tract (record call of S 85 deg 20 min. 00 sec. W. 100.00 feet)
SOUTH 85 deg 16 min. 40 sec. WEST, a distance of 99.94 feet to a 1/2" iron rod
found being the northwest corner of said XXXXXXX tract, same being an interior
corner of said HOSPITAL tract and being an interior corner of this tract.
THENCE in a southerly direction, with the west line of said XXXXXXX tract
(record call of S 04 deg 40 min 00 sec. E. 100.00 feet) same being a line of
said HOSPITAL tract (record call of S 04 deg 40 min. E. 100.00 feet) SOUTH 04
deg 40 min. 00 sec. EAST, a distance of 99.99 feet to a 60 xxxxx Nail found in
the north margin of TYLER STREET, said street shown on the recorded plat of said
DIVISION "L", being the southwest corner of said XXXXXXX tract, same being the
southern most southeast corner of said HOSPITAL tract and being the southern
most southeast corner of this tract.
THENCE in a westerly direction, with the north margin of said TYLER STREET,
same being the south line of said HOSPITAL tract (record call of S 85 deg 20
min. W. 140.00 feet) SOUTH 85 deg 27 min. 01 sec. WEST, a distance of 138.83
feet to a 1/2" iron rod found being the southwest corner of said HOSPITAL tract,
same being the southeast corner of that certain tract called TRACT 1, in a deed
to XXXXX X. XXXXX and wife, JUNE X. XXXXX of record in Volume 717, Page 311 of
the Deed Records of Limestone County, Texas and being the southern most
southwest corner of this tract.
THENCE in a northerly direction, with the east line of said TRACT 1, same being
the west line of said HOSPITAL tract (record calls of N 04 deg 40 min. W. 48.00
feet N 85 deg 20 min. E. 5.00 feet and N 04 deg 40 min W. 150.00 feet) also
along the east line of TRACT 2, as described in said XXXXX deed (record call of
N 04 deg 40 min E. 61 35 feet) for the following THREE (3) courses and
distances:
1) NORTH 04 deg 42 min. 37 sec. WEST, a distance of 48.00 feet to a 1/2"
iron rod set.
2) NORTH 85 deg 21 min 28 sec. EAST, a distance of 4.50 feet to a 1/2"
iron rod set and
3) NORTH 04 deg 28 min. 47 sec. WEST, at a distance of 66.52 feet pass a
1/2" iron rod found and continuing in all a distance of 181.72 feet
to a 1/2" iron rod found being the southeast corner of said FIFTH
TRACT, same being the southwest corner of said FOURTH TRACT also being
the northeast corner of said TRACT 2 and being an interior corner of
this tract.
THENCE in a westerly direction, with the south line of said FIFTH TRACT, same
being the north line of said TRACT 2 (record call of S 85 deg 20 min. W. 55.0
feet) SOUTH 85 deg 45 min. 41 sec. WEST, a distance of 55.74 feet to a 3/5" iron
rod found being the southwest corner of said FIFTH TRACT, same being the
northwest corner of said TRACT 2, also being the northeast corner of that
certain tract described as the SECOND TRACT, in a deed to XXXX XXXX XXXXXX, SR.
and wife, XXXXXX X. XXXXXX, of record in Volume 784 Page 185 of the Deed Records
of Limestone County, Texas same being the southeast corner of the FIRST TRACT
in said XXXXXX deed and being the western most southwest corner of this tract.
THENCE in northerly direction, with the east line of said XXXXXX SECOND TRACT
same being the west line of said FIFTH TRACT (record call of northerly 1007
NORTH 04 deg 29 min. 36 sec. WEST, a distance of 99.25 feet to a 50 xxxxx Nail
found in the south line of a tract occupied by XXXXX XXXXXX FUNERAL HOME (No
deed was found by this surveyor), being the northwest corner of said FIFTH
TRACT, and being an interior corner of this tract.
THENCE in an easterly direction, with the south line of said FUNERAL HOME
tract, same being the north line of said FIFTH TRACT (record call of easterly
55 feet) NORTH 85 deg 19 min. 31 sec. EAST, a distance of 14.88 feet to an "X"
found in concrete, being the southwest corner of said THIRD TRACT, same being
the southeast corner of said FUNERAL HOME tract and being an interior corner of
this tract.
THENCE in a northerly direction, with the east line of said FUNERAL
HOME tract, same being the west line of said THIRD TRACT (record call of
northerly 280 feet) NORTH 04 deg 42 min. 04 sec. WEST, a distance of 280.16
feet to a 1/2" iron rod found in the south margin of said GLENDALE AVENUE,
being the northeast corner of said FUNERAL HOME tract, same being the northwest
corner of said THIRD TRACT, and being the northwest corner of this tract.
THENCE in an easterly direction, with the south margin of said GLENDALE
AVENUE, same being the north line of said THIRD TRACT, also along the north
line of said SECOND TRACT NORTH 85 deg 18 min. 14 sec. EAST, a distance of
273.02 feet to the Point of Beginning, Continuing ACRES (145.440 Sq. Ft.)
OF LAND.
February 18, 1996
Surveyors Field Note to PARKVIEW REGIONAL HOSPITAL for:
0.887 ACRE, being a part of SUBDIVISION 5, of DIVISION "L", of the City of
Mexia, Limestone County, Texas, according to the plat of record in Volume 2,
Page 17 of the Plat Records of Limestone County and embracing that certain
tract described as the FIRST TRACT in a deed to PARKVIEW REGIONAL HOSPITAL,
INC. of record in Volume 865, Page 195 of the Deed Records of Limestone County,
Texas also embracing that certain called 40' x 115' tract described in a
Special Warranty Deed from the CITY OF MEXIA TO PARKVIEW REGIONAL HOSPITAL,
Dated October 18, 1995, said 0.667 acre tract being more particularly described
by these metes and bounds as follows:
BEGINNING at a 1/2" iron rod found at the intersection of the west margin of
BONHAM STREET, with the north margin of GLENDALE AVENUE, said streets shown on
the recorded plan of said DIVISION "L", being the southeast corner of said
SUBDIVISION 5, same being the southeast corner of said FIRST TRACT and being
the southeast corner of this tract.
THENCE in a westerly direction, with the north margin of said GLENDALE AVENUE,
same being the south line of said SUBDIVISION 5, also being the south line of
said FIRST TRACT (record call of S 85 deg W. 115 feet) SOUTH 85 deg 18 min. 14
sec. WEST, a distance of 115.01 feet to a 1/2" iron rod found being the
southwest corner of said FIRST TRACT, same being the southeast corner of the
CALVARY BAPTIST CHURCH (No deed was found by this surveyor) tract and being the
southwest corner of this tract.
THENCE in a northerly direction, with the east line of said CHURCH tract, same
being the west line of said FIRST TRACT (record call of N 05 deg W. 220 feet)
NORTH 04 deg 41 min. 22 sec. WEST, a distance of 220.04 feet to a 1/2" iron rod
found in the south margin XXXXXXXXX XXXXXX, xxxx xxxxxx shown on the recorded
plat of said DIVISION "L", being the southwest corner of said 40' x 115' tract,
same being the southeast corner of that certain called 18.600 Sq. Ft. tract
described in a deed to XXXXX XXXXX, XXXXXX XXXXXXX and XXXXX NEW, TRUSTEES, of
record in Volume 821, Page 602 of the Deed Records of Limestone County, Texas
and being an angle point in the west line of this tract.
THENCE continuing in a northerly direction, over and across and
EVERGREEN STREET, with the east line of said 18.800 Sq. Ft. tract (record call
of N 04 deg 40 min. W. 40.0 feet) same being the west line of said 40' x 115'
tract (record call of N 14 deg 40 min. W. 40.00 feet) NORTH 04 deg 37 min. 19
sec. WEST, a distance of 39.97 feet to a 1/2" iron rod found being the
northeast corner of said 18,600 Sq. Ft. tract, same being the northwest corner
of said 40' x 115' tract and being the northwest corner of this tract.
THENCE in an easterly direction continuing across said EVERGREEN STREET, with
the north line of said 40' x 115' tract (record call of N 85 deg 20 min. E.
115.00 feet) NORTH 85 deg 15 min. 35 sec EAST, a distance of 115.00 feet to a
1/2' iron rod found in the west margin of said BONHAM STREET, being the
northeast corner of said 40' x 115' tract and being the northeast corner of
this tract.
THENCE in a southerly direction, with the west margin of said BONHAM
STREET, same being the east line of said 40' x 115' tract (record call of S 04
deg 40 min. E. 40.00 feet) SOUTH 04 deg 39 min. 38 sec EAST, a distance of
40.05 feet to a 1/2" iron rod found being the southeast corner of said 40' x
115' tract, same being the northeast corner of said FIRST TRACT and being an
angle point in the east line of this tract.
THENCE continuing in a southerly direction and continuing with the west margin
of said BONHAM STREET, being the east line of said FIRST TRACT (record call of
S 05 deg E. 220 feet) SOUTH 04 deg 41 min. 08 sec EAST, a distance of 220.02
feet to the Point of Beginning, Containing 0.687 ACRE (29.908 Sq. Ft.) OF LAND.
55
Description of: 1.069 Acres, Part of Subdivisions 5 & 6, Division L, and a
part of Evergreen St. (closed), City of Mexia, Limestone Co.,
Texas, Owner: Calvary Baptist Church, Vol. 442, Xx. 000,
X.X.X.X.
BEING a 1.069 acres tract of land situated in Division L, City of Mexia,
Limestone County, Texas, a part of Subdivisions 5 & 6, and a part of Evergreen
St. (closed) in said Division, said subdivisions being conveyed from the Mexia
Independent School District to Calvary Baptist Church by deed dated May 17,
1957 and recorded in Vol. 442, Pg. 138, Deed Records of Limestone County, Texas
(L.C.D.R.), and said part (40.0 ft. by 465 ft.) of Evergreen St. being conveyed
from the City of Mexia to Calvary Baptist Church by deed dated September 29,
1989 and recorded in Vol. 821, Xx. 000, X.X.X.X., said 1.069 acres being more
particularly described by metes and bounds as follows:
BEGINNING at a found 1/2" iron rod in the center of Evergreen St. and in the
North line of said part of said street conveyed to Calvary Baptist Church for
Northeast corner of this tract, same being the Northwest corner of that tract,
conveyed from Xxxxxx Methodist Hospital to Parkview Regional Hospital by deed
of record in Vol. 865, Xx. 000, X.X.X.X.
THENCE S.4 degrees 40'E. with the West line of said hospital tract, at 40.0 ft.
a found 1/2" iron rod in the South line of Evergreen St. (closed), in all,
260.00 ft. to a found 1/2" iron rod in the North line of Glendale St. and in
the South line of Subdivision 5 for Southeast corner of this tract, same being
the South-west corner of said Hospital tract;
THENCE S.85 degrees 20'W. with the North line of Glendale St. and the South
line of Division L, at 175.0 ft. the Southwest corner of Subdivision 5 and the
South-east corner of Subdivision 6, in all, 179.54 ft. to a set 1/2" iron rod
in the South line of Subdivision 6 for Southwest corner of this tract;
THENCE N.4 degrees 28'W. at 220.01 ft. the South line of Evergreen St.
(closed), in all, 260.01 ft. to a set 1/2" iron rod in the center of Evergreen
St. (closed), same being the North line of that part of Evergreen St. conveyed
to Calvary Baptist Church, for Northeast corner of this tract;
THENCE N.85 degrees 20'E. at 3.62 ft. the intersection of the extended boundary
line between Subdivisions 5 & 6, in all, 178.62 ft. with the centerline of
Evergreen St. (closed) to the point of BEGINNING, containing 1.069 acres.
The foregoing description was prepared from that plat
dated May 20, 1997 that correctly represents that
actual ground survey made under my supervision.
Dated this 20th day of May, 1997
/s/ XXX X. XXXXX
--------------------------------------
Xxx X. Xxxxx, P.E., R.P.L.S. No. 3282
Xxxxx Engineering and Surveying
X.X. Xxx 000
000 X. Xxxxxxx Xx., Xxxxx, Xxxxx 00000
000-000-0000
56
Description of: A Three (3) Ft. Easement, Part of Subdivision 6, Division L,
City of Mexia, Limestone County, Texas, and Part of Evergreen
St. (closed). Owner: Calvary Baptist Church, Vol. 442,
Pg. 138, and Vol. 821, Xx. 000, X.X.X.X.
BEING a three (3) ft. wide easement a part of Subdivision 6, Division L. and a
part of Evergreen St. (closed), City of Mexia, Limestone County, Texas, said
subdivision being conveyed from Mexia Independent School District to Calvary
Baptist Church by deed dated May 17, 1957 and recorded in Vol. 442, Pg. 138,
Deed Records of Limestone County, Texas (L.C.D.R.) and said part of Evergreen
St. (closed) being from the City of Mexia to Calvary Baptist church by
deed dated September 29, 1989 and recorded in Vol. 821, Xx. 000, X.X.X.X., said
easement being part of and adjacent to the Western edge of a 1.069 acres tract
surveyed this date out of Subdivision 5, Division L and said Subdivision 6, and
out of said part of Evergreen St. (closed), said easement being more
particularly described by metes and bounds as follows:
BEGINNING at a set 1/2" iron rod in the North line of Glendale St. and in the
South line of Subdivision 6 for Southwest corner of this easement, same being
the Southwest corner of said 1.069 acres tract, said corner bears S.85 degrees
20'W. 4.54 ft. from the Southeast corner of Subdivision 6 and N. 85 degrees
20'E. 285.46 ft. from the Southwest corner of Subdivision 6;
THENCE N.4 degrees 28'W. with the West line of said 1.069 acres tract, at
220.01 ft. the South line of Evergreen St. (closed), in all, 260.01 ft. to a
set 1/2" iron rod for Northwest corner of this easement and said 1.069 acres
tract, said corner being in the center of Evergreen St. (closed);
THENCE N.85 degrees 20'E. 3.0 ft. with the centerline of Evergreen St. (closed)
and the North line of said 1.069 acres tract to a point for Northeast corner of
this easement;
THENCE S.4 degrees 28'E., at 40.00 ft., the South line of Evergreen St.
(closed), in all, 260.01 ft. to a point in the North line of Glendale St. and
in the South line of Subdivision 6 and said 1.069 acres tract for Southeast
corner of this easement;
THENCE S.85 degrees 20'W. 3.0 ft. with the North line of Glendale St. and the
South line of Subdivision 6 and said 1.069 acres tract, to the point of
BEGINNING.
The foregoing description was prepared from that plat
dated May 20, 1997 that correctly represents that
actual ground survey made under my supervision.
Dated this 23rd day of May, 1997.
/s/ XXX X. XXXXX
-----------------------------
Xxx X. Xxxxx, P.E., R.P.L.S. No. 3282
Xxxxx Engineering and Surveying
X.X. Xxx 000
000 X. Xxxxxxx Xx., Xxxxx, Xxxxx 00000
000-000-0000
57
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT (this "Amendment") is made and
entered into by and between Parkview Regional Hospital, Inc., a Texas nonprofit
corporation ("Landlord"), and Brim Hospitals, Inc., an Oregon corporation
("Tenant"), with respect to that certain Lease Agreement dated as of April 24,
1996, by and between Landlord and Tenant (such agreement, as amended from time
to time, being the "Lease").
RECITALS
Landlord and Tenant have previously entered into the Lease. Landlord
desires to obtain financing for the purpose of completing certain improvements
to the real property and improvements which are subject to the Lease (the
"Premises"). Key Bank of Oregon, a national banking association ("Lender") has
indicated its willingness to extend a loan for such purpose (the "Loan"),
subject to certain terms and conditions set forth in a financing proposal dated
March 18, 1996, and more fully set forth in a Construction and Term Loan
Agreement of approximate even date herewith by and between Lender and Landlord
(the "Loan Agreement") and the ancillary documents contemplated thereby or
executed in conjunction therewith (such documents, together with the Loan
Agreement, being the "Loan Documents"). It is a condition of Lender's
willingness to proceed with the Loan that Landlord and Tenant enter into this
Amendment, which is intended for the benefit of the Lender, as well as the
parties hereto, but which evidences or incorporates no obligation on the part of
Lender.
TERMS AND CONDITIONS
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
ARTICLE I
DEFINITIONS
SECTION 1.1. GENERAL. Any accounting term used herein but not defined
herein shall be construed in accordance with the definition of such term under
generally accepted accounting principles ("GAAP"); provided, that capitalized
terms (including accounting terms) not otherwise defined herein, but defined in
the Lease or the Loan Documents, shall be given the meaning indicated in those
respective documents.
58
Section 1.2. Defined terms. As used in this Amendment:
ADJUSTED TANGIBLE NET WORTH means Total (excluding intercompany
receivables) Assets plus Subordinated Debt less (a) Total (including
intercompany payables) Liabilities and (b) intangible assets including but not
limited to long term prepayments, prepaid consulting fees, goodwill,
organizational costs, patents, trademarks, franchise rights, licenses, permits
and all other deferred assets according to GAAP.
DEBT AND RENTAL EXPENSE means all payments due under leases of real or
personal property, whether denominated as rent or otherwise, all interest
expense in respect of money borrowed, and all payments of principal falling due
during the relevant accounting period under any lease of real or personal
property or obligation for money borrowed.
BRIM means Brim, Inc., an Oregon corporation which is the parent
corporation of Tenant.
EBIT means net income after taxes plus interest expense plus income tax
expense less extraordinary gain.
EBITDAR means an amount determined by adding to EBIT all Rental
Payments, Depreciation and Amortization, computed quarterly on the basis of the
four most recent fiscal quarters.
EQUIPMENT RENT means rent payable under equipment leases.
FUNDED DEBT means the amount of Loans plus all other items of debt for
money borrowed, reimbursement obligations in respect to bonds, letters of credit
(but excepting letters of credit securing obligations which are themselves
included in the computation of Funded Debt or Rent Leverage Equivalent) and
acceptances, obligations to pay the deferred purchase price of property or
services (other than trade payables), obligations secured by a lien on property,
capital lease obligations, conditional sale agreements and obligations to
redeem, defease or otherwise make any payments in respect to capital stock.
GENERAL HOSPITAL DEBT means the total amount of debt secured by the
General Hospital Facility (which debt has been incurred by lessor under the
General Hospital Lease, but which is, by the terms of such lease passed through
to the Company's Subsidiary as rent payable by the lessee under such lease).
GENERAL HOSPITAL FACILITY means the Facility subject to the General
Hospital Lease.
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59
GENERAL HOSPITAL LEASE means that certain Lease Agreement dated December
16, 1985 by and between Union Labor Hospital Association and Brim Hospitals,
Inc., as amended from time to time.
GUARANTIES means any contingent obligation of Tenant with respect to
borrowed money or leases of real or personal property to the extent not already
included in the computation of Total Leverage (but specifically excluding
guaranties related to physician contracts.
LETTER OF CREDIT means a Letter of Credit as defined in the Revolving
Credit Agreement.
LOANS means long term debt and current portion of long term debt.
NON-RECOURSE INDEBTEDNESS means Indebtedness that is non-recourse to the
Company and/or any Guarantor.
NON-RECOURSE OPERATING LEASES means operating leases that are
nonrecourse to the Company and/or any Guarantor.
NON-RECOURSE RENT means all rent (including contingent rent) payable
under Non-Recourse Operating Leases.
RECOURSE RENT means all rent (including contingent rent) other than
Non-Recourse Rent, rent payable under the General Hospital Lease, and Equipment
Rent.
RENT LEVERAGE EQUIVALENT means an amount equal to the sum of (i) General
Hospital Debt plus (ii) the annual amount of each of Non-Recourse Rent, Recourse
Rent and Equipment Rent, each element being first multiplied by the applicable
conversion factor. The applicable conversion factors are: NonRecourse Rent = 6x,
Recourse Rent = 8x, Equipment Rent = 3x.
REVOLVING CREDIT AGREEMENT means that certain Revolving Credit Agreement
by and among Brim, Lender, Key Bank of Washington, and Lender as Agent for the
Banks (as defined therein) dated January 17, 1995.
SUBORDINATED DEBT means Funded Debt of a Person which is subordinated,
in a manner satisfactory to the Agent, to all Funded Debt owing to the Bank.
TOTAL LEVERAGE means Funded Debt plus Rent Leverage Equivalent and the
amount of any Guaranties.
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60
TOTAL ASSETS means all assets appearing on Lessee's balance sheet
prepared in accordance with GAAP (except for divergences from GAAP customary as
to quarterly unaudited statements).
TOTAL LIABILITIES means all liabilities appearing on Lessee's balance
sheet prepared in accordance with GAAP (except for divergences from GAAP
customary as to quarterly unaudited statements).
The foregoing definitions shall be applied with reference to the
Financial Statements of Tenant, without consolidation with the Financial
Statements of Tenant's parent corporation, Brim.
SECTION 1.3. REFERENCES INCLUSIVE OF AMENDMENTS. Any reference in this
Amendment to the Lease or any Loan Document shall refer, inclusively, to such
document as it may from time to time be amended, modified or restated.
SECTION 1.4. GENDER AND NUMBER IN CONTEXT. In this Agreement as the
context may require the singular shall include the plural and the plural the
singular, and each gender may include another.
ARTICLE II
TENANT'S FINANCIAL COVENANTS
SECTION 2.1 CASH FLOW COVERAGE RATIO. Tenant will not permit at any time
the ratio of EBITDAR to Debt and Rental Expense to be less than 1.75, which
shall be calculated at the end of each fiscal quarter with respect to the four
preceding quarters then ending.
SECTION 2.2 MINIMUM ADJUSTED TANGIBLE NET WORTH. Tenant will not permit
its Adjusted Tangible Net Worth to be at any time less than the Six Million
Dollars ($6,000,000).
SECTION 2.3 TOTAL LEVERAGE TO EBITDAR RATIO. Tenant will not permit at
any time the ratio of Total Leverage to EBITDAR to be greater than 2.75, which
shall be calculated at the end of each fiscal quarter with respect to the four
preceding quarters then ending.
SECTION 2.4 MEASUREMENT OF FINANCIAL COVENANTS. Compliance with the
foregoing financial covenants shall be demonstrated with reference to the
Tenant's financial statements prepared for each fiscal quarter as indicated
above.
SECTION 2.5 BREACH OF COVENANT CONSTITUTES LEASE DEFAULT. Tenant's
breach of any covenant hereunder shall constitute an Event of Default under the
Lease, and Landlord shall thereupon be entitled to all remedies provided for
under the Lease.
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61
ARTICLE III
ACKNOWLEDGEMENT OF SECURITY
SECTION 3.1 ACKNOWLEDGMENT OF SECURITY. Tenant acknowledges that Lender
is entering into the Loan Agreement and extending the Loan to Landlord in
reliance upon the value provided by the Lease, and has taken an assignment for
security of such Lease pursuant to the Loan Documents. Subject to the provisions
of the Subordination Nondisturbance and Attornment Agreement, Tenant agrees to
take no action to impair such security, or to frustrate or hinder Lender in its
enjoyment or exercise of the rights afforded by the Loan Documents.
SECTION 3.2 NO SETOFF AGAINST LENDER. Tenant agrees that in any action
brought by Lender following an Event of Default under the Loan Documents to
enforce rights under the Lease, Tenant will neither make nor assert any setoff
or right to setoff against the rent payable under the Lease any sum asserted to
be due to Tenant by Landlord under the terms of the Lease or otherwise. Without
the consent of the Lender, Tenant will not make any payment of rent in advance
of one month of when such rent is due and payable; any rent paid in violation of
this section shall be directly recoverable from the Tenant by the Lender.
SECTION 3.3 NO AMENDMENT OR TERMINATION. Without Lender's prior written
consent, Landlord and Tenant shall not enter into any amendment of the Lease, or
terminate the Lease, including any termination for breach by the Landlord (but
excluding a lawful termination for breach by the Tenant), and any attempted
termination of the Lease in violation of this Section shall be void and of no
effect.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 GOVERNING LAW. This Amendment, and the Lease as amended
hereby, shall be governed, with respect to the interest in creates in the Real
Property, by the laws of the State of Texas, but all other obligations created
hereunder shall, to the extent permissible, be governed by the laws of the State
of Oregon, and an action may be brought in any court of competent jurisdiction
to enforce the provisions hereof; Landlord and Tenant specifically consent to
the jurisdiction of any court of competent jurisdiction of the State of Oregon
to hear and determine any action brought by Lender to enforce its rights
hereunder or with respect hereto.
SECTION 4.2 COUNTERPARTS. This Amendment may be executed in any number
of counterparts,
SECTION 4.3 SEVERABILITY. If any provision of this Agreement or the
Note, or any action taken hereunder, or any application thereof, is for any
reason held to be illegal or invalid, such illegality or invalidity shall not
affect any other provision of this
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62
Agreement or the Note, each of which shall be construed and enforced without
reference to such illegal or invalid portion and shall be deemed to be effective
or taken in the manner and to the full extent permitted by law.
SECTION 4.4 ENTIRE AGREEMENT. This Agreement, the Note and any other
Loan Document integrate all the terms and conditions mentioned herein or
incidental hereto and supersede all oral representations and negotiations and
prior writings with respect to the subject matter hereof. In the event of any
express conflict or express inconsistency between the provisions of this
Agreement and the provisions of any of the other Loan Documents, the terms and
conditions of this Agreement shall govern and control the rights and obligations
of the parties.
SECTION 4.5 JURY TRIAL WAIVER. COMPANY, AGENT AND EACH BANK EACH WAIVE
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, IN CONNECTION WITH, RELATED TO,
OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH
THIS AGREEMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED
OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.
SECTION 4.6 COUNTERPARTS. This First Amendment may be executed in any
number of counterparts, each of which shall be enforceable against the parties
actually executing such counterparts, and all of which together shall constitute
one (1) document.
IN WITNESS WHEREOF, THE PARTIES hereto have executed this First
Amendment to Lease Agreement as of May 16, 1996.
Landlord:
PARKVIEW REGIONAL HOSPITAL, INC.,
a Texas nonprofit corporation
By:
-------------------------------------
-------------------------------------
Its:
-------------------------------------
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63
Tenant:
BRIM HOSPITALS, INC.,
an Oregon corporation
By: /s/ XXXX X. XXXXXX
-----------------------
Its: President
-----------------------
STATE OF TEXAS )
) ss.
COUNTY OF _____________ )
This instrument was acknowledge before me on the 16th day of May, 1996,
by _____________________, ____________________________ of Parkview Regional
Hospital, Inc., a non-profit Corporation, on behalf of the corporation.
______________________________
Notary Public
State of Texas
STATE OF OREGON )
) ss.
COUNTY OF Multnomah )
On this 16th day of May, 1996, before me personally appeared Xxxx
Xxxxxx, to me known to be the President of Brim Hospitals, Inc., an Oregon
corporation, the corporation that executed the within and foregoing instrument,
and acknowledged said instrument to be the free and voluntary act and deed of
said corporation, for the uses and purposes therein mentioned, and on oath
stated that he was authorized to execute said instrument and that the seal
affixed is the corporate seal of said corporation.
GIVEN under my hand and official seal the day and year first above
written.
OFFICIAL SEAL /s/ XXXXX X. XXXXXX
[SEAL] XXXXX X. XXXXXX -----------------------------------
NOTARY PUBLIC-OREGON Notary Public in and for the State
COMMISSION NO.040767 of Oregon, residing at Salem, Oregon
MY COMMISSION EXPIRES JAN. 17, 1999 My appointment expires: 1-17-99
--------
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64
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT (this "Amendment") is made and
entered into by and between Parkview Regional Hospital, Inc., a Texas nonprofit
corporation ("Landlord"), and Brim Hospitals, Inc., an Oregon corporation
("Tenant"), with respect to that certain Lease Agreement dated as of April 24,
1996, by and between Landlord and Tenant (such agreement, as amended from time
to time, being the "Lease").
RECITALS
Landlord and Tenant have previously entered into the Lease. Landlord
desires to obtain financing for the purpose of completing certain improvements
to the real property and improvements which are subject to the Lease (the
"Premises"). Key Bank of Oregon, a national banking association ("Lender") has
indicated its willingness to extend a loan for such purpose (the "Loan"),
subject to certain terms and conditions set forth in a financing proposal dated
March 18, 1996, and more fully set forth in a Construction and Term Loan
Agreement of approximate even date herewith by and between Lender and Landlord
(the "Loan Agreement") and the ancillary documents contemplated thereby or
executed in conjunction therewith (such documents, together with the Loan
Agreement, being the "Loan Documents"). It is a condition of Lender's
willingness to proceed with the Loan that Landlord and Tenant enter into this
Amendment, which is intended for the benefit of the Lender, as well as the
parties hereto, but which evidences or incorporates no obligation on the part of
Lender.
TERMS AND CONDITIONS
NOW THEREFORE THE PARTIES AGREE AS FOLLOWS:
ARTICLE I
DEFINITIONS
Section 1.1. General. Any accounting term used herein but not defined
herein shall be construed in accordance with the definition of such term under
generally accepted accounting principles ("GAAP") provided, that capitalized
terms (including accounting terms) not otherwise defined herein, but defined in
the Lease or the Loan Documents, shall be given the meaning indicated in those
respective documents.
65
Section 1.2. Defined terms. As used in this Amendment:
ADJUSTED TANGIBLE NET WORTH means Total (excluding intercompany
receivables) Assets plus Subordinated Debt less (a) Total (including
intercompany payables) Liabilities and (b) intangible assets including but not
limited to long term prepayments, prepaid consulting fees, goodwill,
organizational costs, patents, trademarks, franchise rights, licenses, permits
and all other deferred assets according to GAAP.
DEBT AND RENTAL EXPENSE means all payments due under leases of real or
personal property, whether denominated as rent or otherwise, all interest
expense in respect of money borrowed, and all payments of principal falling due
during the relevant accounting period under any lease of real or personal
property or obligation for money borrowed.
BRIM means Brim, Inc., an Oregon corporation which is the parent
corporation of Tenant.
EBIT means net income after taxes plus interest expense plus income tax
expense less extraordinary gain.
EBITDAR means an amount determined by adding to EBIT all Rental
Payments, Depreciation and Amortization, computed quarterly on the basis of the
four most recent fiscal quarters.
EQUIPMENT RENT means rent payable under equipment leases.
FUNDED DEBT means the amount of Loans plus all other items of debt for
money borrowed, reimbursement obligations in respect to bonds, letters of credit
(but excepting letters of credit securing obligations which are themselves
included in the computation of Funded Debt or Rent Leverage Equivalent) and
acceptances, obligations to pay the deferred purchase price of property or
services (other than trade payables), obligations secured by a lien on property,
capital lease obligations, conditional sale agreements and obligations to
redeem, defease or otherwise make any payments in respect to capital stock.
GENERAL HOSPITAL DEBT means the total amount of debt secured by the
General Hospital Facility (which debt has been incurred by lessor under the
General Hospital Lease, but which is, by the terms of such lease passed through
to the Company's Subsidiary as rent payable by the lessee under such lease).
GENERAL HOSPITAL FACILITY means the Facility subject to the General
Hospital Lease.
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66
GENERAL HOSPITAL LEASE means that certain Lease Agreement dated
December 16, 1985 by and between Union Labor Hospital Association and Brim
Hospitals, Inc., as amended from time to time.
GUARANTIES means any contingent obligation of Tenant with respect to
borrowed money or leases of real or personal property to the extent not already
included in the computation of Total Leverage (but specifically excluding
guaranties related to physician contracts.
LETTER OF CREDIT means a Letter of Credit as defined in the Revolving
Credit Agreement.
LOANS means long term debt and current portion of long term debt.
NON-RECOURSE INDEBTEDNESS means Indebtedness that is non-recourse to
the Company and/or any Guarantor.
NON-RECOURSE OPERATING LEASES means operating leases that are
nonrecourse to the Company and/or any Guarantor.
NON-RECOURSE RENT means all rent (including contingent rent) payable
under Non-Recourse Operating Leases.
RECOURSE RENT means all rent (including contingent rent) other than
Non-Recourse Rent, rent payable under the General Hospital Lease, and Equipment
Rent.
RENT LEVERAGE EQUIVALENT means an amount equal to the sum of (i)
General Hospital Debt plus (ii) the annual amount of each of Non-Recourse Rent,
Recourse Rent and Equipment Rent, each element being first multiplied by the
applicable conversion factor. The applicable conversion factors are:
NonRecourse Rent = 6x, Recourse Rent = 8x, Equipment Rent = 3x.
REVOLVING CREDIT AGREEMENT means that certain Revolving Credit
Agreement by and among Brim, Lender, Key Bank of Washington, and Lender as Agent
for the Banks (as defined therein) dated January 17, 1995.
SUBORDINATED DEBT means Funded Debt of a Person which is subordinated,
in a manner satisfactory to the Agent, to all Funded Debt owing to the Bank.
TOTAL LEVERAGE means Funded Debt plus Rent Leverage Equivalent and the
amount of any Guaranties.
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TOTAL ASSETS means all assets appearing on Lessee's balance sheet
prepared in accordance with GAAP (except for divergences from GAAP customary as
to quarterly unaudited statements).
TOTAL LIABILITIES means all liabilities appearing on Lessee's balance
sheet prepared in accordance with GAAP (except for divergences from GAAP
customary as to quarterly unaudited statements).
The foregoing definitions shall be applied with reference to the
Financial Statements of Tenant, without consolidation with the Financial
Statements of Tenant's parent corporation, Brim.
SECTION 1.3. REFERENCES INCLUSIVE OF AMENDMENTS. Any reference in this
Amendment to the Lease or any Loan Document shall refer, inclusively, to such
document as it may from time to time be amended, modified or restated.
SECTION 1.4. GENDER AND NUMBER IN CONTEXT. In this Agreement as the
context may require the singular shall include the plural and the plural the
singular, and each gender may include another.
ARTICLE II
TENANT'S FINANCIAL COVENANTS
SECTION 2.1 CASH FLOW COVERAGE RATIO. Tenant will not permit at any
time the ratio of EBITDAR to Debt and Rental Expense to be less than 1.75, which
shall be calculated at the end of each fiscal quarter with respect to the four
preceding quarters then ending.
SECTION 2.2 MINIMUM ADJUSTED TANGIBLE NET WORTH. Tenant will not permit
its Adjusted Tangible Net Worth to be at any time less than the Six Million
Dollars ($6,000,000).
SECTION 2.3 TOTAL LEVERAGE TO EBITDAR RATIO. Tenant will not permit at
any time the ratio of Total Leverage to EBITDAR to be greater than 2.75, which
shall be calculated at the end of each fiscal quarter with respect to the four
preceding quarters then ending.
SECTION 2.4 MEASUREMENT OF FINANCIAL COVENANTS. Compliance with the
foregoing financial covenants shall be demonstrated with reference to the
Tenant's financial statements prepared for each fiscal quarter as indicated
above.
SECTION 2.5 BREACH OF COVENANT CONSTITUTES LEASE DEFAULT. Tenant's
breach of any covenant hereunder shall constitute an Event of Default under the
Lease, and Landlord shall thereupon be entitled to all remedies provided for
under the Lease.
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ARTICLE III
ACKNOWLEDGMENT OF SECURITY
SECTION 3.1 ACKNOWLEDGMENT OF SECURITY. Tenant acknowledges that Lender
is entering into the Loan Agreement and extending the Loan to Landlord in
reliance upon the value provided by the Lease, and has taken an assignment for
security of such Lease pursuant to the Loan Documents. Subject to the provisions
of the Subordination Nondisturbance and Attornment Agreement, Tenant agrees to
take no action to impair such security, or to frustrate or hinder Lender in its
enjoyment or exercise of the rights afforded by the Loan Documents.
SECTION 3.2 NO SETOFF AGAINST LENDER. Tenant agrees that in any action
brought by Lender following an Event of Default under the Loan Documents to
enforce rights under the Lease, Tenant will neither make nor assert any setoff
or right to setoff against the rent payable under the Lease any sum asserted to
be due to Tenant by Landlord under the terms of the Lease or otherwise. Without
the consent of the Lender, Tenant will not make any payment of rent in advance
of one month of when such rent is due and payable; any rent paid in violation
of this section shall be directly recoverable from the Tenant by the Lender.
SECTION 3.3 NO AMENDMENT OR TERMINATION. Without Lender's prior written
consent, Landlord and Tenant shall not enter into any amendment of the Lease, or
terminate the Lease, including any termination for breach by the Landlord (but
excluding a lawful termination for breach by the Tenant), and any attempted
termination of the Lease in violation of this Section shall be void and of no
effect.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 GOVERNING LAW. This Amendment, and the Lease as amended
hereby, shall be governed, with respect to the interest in creates in the Real
Property, by the laws of the State of Texas, but all other obligations created
hereunder shall, to the extent permissible, be governed by the laws of the State
of Oregon, and an action may be brought in any court of competent jurisdiction
to enforce the provisions hereof; Landlord and Tenant specifically consent to
the jurisdiction of any court of competent jurisdiction of the State of Oregon
to hear and determine any action brought by Lender to enforce its rights
hereunder or with respect hereto.
SECTION 4.2 COUNTERPARTS This Amendment may be executed in any number
of counterparts,
SECTION 4.3 SEVERABILITY. If any provision of this Agreement or the
Note, or any action taken hereunder, or any application thereof, is for any
reason held to be illegal or invalid, such illegality or invalidity shall not
affect any other provision of this
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Agreement or the Note, each of which shall be construed and enforced without
reference to such illegal or invalid portion and shall be deemed to be effective
or taken in the manner and to the full extent permitted by law.
SECTION 4.4 ENTIRE AGREEMENT. This Agreement, the Note and any other
Loan Document integrate all the terms and conditions mentioned herein or
incidental hereto and supersede all oral representations and negotiations and
prior writings with respect to the subject matter hereof. In the event of any
express conflict or express inconsistency between the provisions of this
Agreement and the provisions of any of the other Loan Documents, the terms and
conditions of this Agreement shall govern and control the rights and obligations
of the parties.
SECTION 4.5 JURY TRIAL WAIVER. COMPANY, AGENT AND EACH BANK EACH WAIVE
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, IN CONNECTION WITH, RELATED TO,
OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH
THIS AGREEMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED
OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.
SECTION 4.6 COUNTERPARTS. This First Amendment may be executed in any
number of counterparts, each of which shall be enforceable against the parties
actually executing such counterparts, and all of which together shall constitute
one (1) document.
IN WITNESS WHEREOF, THE PARTIES hereto have executed this First
Amendment to Lease Agreement as of May 16, 1996.
Landlord:
PARKVIEW REGIONAL HOSPITAL, INC.,
a Texas nonprofit corporation
By:
------------------------------
------------------------------
Its:
--------------------------
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Tenant:
BRIM HOSPITALS, INC.,
an Oregon corporation
By: /s/ XXXX X. XXXXXX
-----------------------
Its: President
-----------------------
STATE OF TEXAS )
) ss.
COUNTY OF _____________ )
This instrument was acknowledge before me on the 16th day of May, 1996,
by _____________________, ____________________________ of Parkview Regional
Hospital, Inc., a non-profit Corporation, on behalf of the corporation.
______________________________
Notary Public
State of Texas
STATE OF OREGON )
) ss.
COUNTY OF Multnomah )
On this 16th day of May, 1996, before me personally appeared Xxxx
Xxxxxx, to me known to be the President of Brim Hospitals, Inc., an Oregon
corporation, the corporation that executed the within and foregoing instrument,
and acknowledged said instrument to be the free and voluntary act and deed of
said corporation, for the uses and purposes therein mentioned, and on oath
stated that he was authorized to execute said instrument and that the seal
affixed is the corporate seal of said corporation.
GIVEN under my hand and official seal the day and year first above
written.
OFFICIAL SEAL /s/ XXXXX X. XXXXXX
[SEAL] XXXXX X. XXXXXX -----------------------------------
NOTARY PUBLIC-OREGON Notary Public in and for the State
COMMISSION NO.040767 of Oregon, residing at Salem, Oregon
MY COMMISSION EXPIRES JAN. 17, 1999 My appointment expires: 1-17-99
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