Hollyoke
Lease and Security Agreement
THIS LEASE AND SECURITY AGREEMENT ("Lease"1) is made and
entered into as of the of March, 1997 by and between
▇▇▇▇▇▇▇ NURSING HOME, Massachusetts corporation ("Landlord")
and OASIS HEALTHCARE, a Georgia corporation ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord is the owner of certain real property
cornmonly known and numbered as ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ consisting of approximately 1.097
acres presently irnproved by a skilled care nursing home facility
(such facilities, generally, are sometimes referred to herein as
a "Nursing Home") licensed for one hundred two (102) beds and all
appurtenances thereto, all as more particularly described in
Exhibit "A" hereto (the"Facility"),
together with certain of the furniture, machinery,
equipment, appliances, fixtures, supplies and other personal
property used in connection therewith as more specifically
described on Exhibit "B " attached hereto ("Landlord Personal
Property"). All of the
foregoing property owned by the Landlord is sometimes referred to
in this Lease, collectively, as the "Premises".
WHEREAS, pursuant to a certain Guaranty of Lease of even
date herewith, latros Health Network, Inc., a Delaware
corporation (the "Guarantor") has agreed to guarantee all of
Tenant's obligations under this Lease.
WHEREAS, Landlord desires to lease the Premises to Tenant,
and Tenant desires to lease the Premises from Landlord.
NOW THEREFORE, in consideration of the mutual covenants,
conditions and agreements set forth herein, Landlord hereby
leases and lets unto Tenant the Premises for the term and upon
the conditions and provisions hereinafter set forth.
1. Term.
1.1 Term. The term of this Lease shall commence on
________ 1997 (the "Commencement Date") and shall end on _______2007
(the "Initial Term") unless extended pursuant
to Section 6.3 or earlier terminated in accordance with the
provisions hereof. The Initial Term and the Renewal Term (as
hereinafter defined), if any, are referred to collectively as the
"Term".
2. Rent. During the Initial Term and the Renewal Term, if
any, Tenant shall pay to Landlord minimum rent ("Minimum Rent")
and additional rent ("Additional Rent") as follows:
2.1 Initial Term Minimum Rent.
2.1.1 Tenant shall pay to Landlord annual Minimum
Rent which is equal to (i)
$710,750.04 during the first twelve (12) month period
of the Initial Term, and (ii)
$728,750.04 during the next succeeding twelve (12)
month period. All such Minimum
Rent (as the same may be adjusted as hereinafter
provided) shall be paid in equal
monthly installments on the twenty-fifth (25th) day of
each calendar month.
2.1.2 During the remainder of the Initial Term,
annual Minimum Rent shall be equal to $740,022.46.
2.1.3 Notwithstanding the foregoing, Tenant may
elect to pay a portion of the annual Minimum Rent
due Landlord equal to (i) $638,750.04 annually during
the first two (2) years of the Initial Term, and
(ii) $700,022.46 annually during the remainder of the
Initial Term, directly to NHI to be applied to the NHI
Indebtedness (as such terms are hereinafter defined).
The balance of the Minimum Rent then due from time
to time shall be paid to Landlord as provided above.
2.2 Initial Term Additional Rent.
2.2.1 Commencing with the second (2nd) Lease Year
(as defined below) and continuing thereafter during the
Initial Term, Tenant agrees to pay Additional Rent to
Landlord on a quarterly basis in arrears no more than 30
days after the end of each quarter of the Lease Year. Such
Additional Rent shall be equal to five percent (5%) of the
amount by which the Gross Revenues for the Lease Year
through the applicable quarter exceed the prorated Gross
Revenues for the applicable portion of the Base Year (as
such terms are defined below). On or before the thirtieth
(30th) day following any Lease Year for which Additional
Rent is payable hereunder, Tenant shall deliver to Landlord
an Officer's Certificate setting forth the Gross Revenues
for the subject Lease Year. If the Additional Rent, as
finally determined for any Lease Year (or portion thereof),
exceeds the sum of the quarterly payments of Additional Rent
previously paid by Tenant with respect to such Lease Year,
within five (5) business days after such determination is so
made, Tenant shall pay such deficit to Landlord. If the
Additional Rent, as finally determined for any Lease Year
(or portion thereof), is less than the amount previously
paid with respect thereto by Tenant, Tenant shall notify
Landlord either to (a) pay to Tenant an amount equal to such
overpayment or (b) grant Tenant a credit against Additional
Rent or Minimum Rent next coming due in the amount of such
overpayment.
2.2.2 "Gross Revenues" shall be calculated
according to generally accepted accounting principles
consistently applied ("GAAP") and shall be defined as all
revenues generated by the Tenant's operation, sublease
and/or use of the Premises in any way, excluding (or
subtracting therefrom, as the case may be) (i) contractual
allowances during the Term for ▇▇▇▇▇▇▇▇ not paid by or
received from the appropriate governmental agencies or third
party providers; (ii) all proper patient billing credits and
adjustments according to GAAP relating to health care
accounting; (iii) federal, state or local sales or excise
taxes and any tax based upon or measured by said revenues
which is added to or made a part of the amount billed to the
patient or other recipient of such services or goods,
whether included in the billing or stated separately; (iv)
revenue from professional fees or charges by physicians and
unaffiliated providers of ancillary services, when and to
the extent such charges are paid over to such physicians or
unaffiliated providers or are separately billed and not
included in comprehensive fees; and (v) monies received by
Tenant on account of capital contributions made by Tenant's
shareholders or other owners, loans to Tenant, insurance
proceeds or premium refunds and/or condemnation awards
relating to the Premises; and (v) other non-operating
revenues such as interest income (other than interest income
received in connection with late payment of fees or charges
assessed by Tenant), investor note payments or income from
assets not sold in the ordinary course of business.
2.2.3 "Lease Year" shall be defined as the twelve
(12) month periods commencing on January 1st of each calendar
year during the Term provided (i) the first Lease Year
shall commence on the Commencement Date and end on December
31, 1997, and (ii) the last Lease Year of the Initial Term
shall end on the tenth (10th) anniversary of the
Commencement Date.
2.2.4 The "Base Year" during the Initial Term shall
mean the last quarter of calendar year 1997, as such period
shall be "annualized" by extrapolation of the Gross Revenues
generated during such period to create the equivalent of an
annual Gross Revenues amount for purposes of calculating
Additional Rent under this Lease.
2.3 Renewal Term Minimum Rent. The Minimum Rent for the
Renewal Term shall be expressed as an annual amount but shall be
payable in equal monthly installments on the twenty-fifth
business day of each calendar month. Such annual Minimum Rent
shall be equal to the greater of (i) the fair market rental value
of the Premises as of the expiration of the Initial Term (the
'~Fair Market Rent"), as determined by the parties pursuant to
the procedure set forth below or (ii) the Minimum Rent in effect
as of the last Lease Year of the Initial Term. If Landlord and
Tenant are unable to agree on the Fair Market Rent by that date
which is 240 days prior to the expiration of the Initial Term,
then such Fair Market Rent shall be established by the appraisal
process set forth on Exhibit "C" attached hereto. The Fair Market
Rent of the Premises as so determined shall be binding upon the
parties and must in all cases be finally determined on or before
a date which is not less than 180 days prior to the expiration of
the Initial Term.
2.4 Renewal Term Additional Rent. Except during the first
Lease Year of the Renewal Term, Tenant shall pay to Landlord
Additional Rent in the Renewal Term on a quarterly basis in
arrears no more than 30 days after the end of each Lease Year
quarter. The Additional Rent for the Renewal Term shall be
calculated as provided in Section 2.2 except that the Base Year
for the purpose of determining such Additional Rent shall be the
first Lease Year of the Renewal Term provided, that in no event
shall the sum of Minimum Rent and Additional Rent (the "Total
Rent") for any Lease Year of the Renewal Term be less than the
Total Rent for the last Lease Year of the Initial Term.
2.5 Proration for Partial Periods. The rent for any month
during the Term which begins or ends on other than the first or
last calendar day of a calendar month shall be prorated based on
actual days elapsed.
2.6 Form for Additional Rent. Tenant shall accompany each
payment of Additional Rent with a completed calculation
supporting such payment in a form mutually approved by Landlord
and Tenant.
2.7 Absolute Net Lease. All rent payments shall be
absolutely net to the Landlord free of taxes, assessments,
utility charges, operating expenses, refurnishings, insurance
premiums or any other charge or expense in connection with the
Premises. All expenses and charges, whether for upkeep,
maintenance, repair, refurnishing, refurbishing, restoration,
replacement, insurance premiums, taxes, utilities, and other
operating or other charges of a like nature or otherwise, shall
be paid by Tenant. This provision is not in derogation of the
specific provisions of this Lease, but in expansion thereof and
as an indication of the general intention of the parties hereto.
Tenant shall continue to perform its obligations under this Lease
even if Tenant claims that Tenant has been damaged by any act or
omission of Landlord. Therefore, Tenant shall at all times remain
obligated under this Lease without any right of set-off,
counterclaim, abatement, deduction, reduction or defense of any
kind. Tenant's sole right to recover damages against Landlord by
reason of a breach or alleged breach of Landlord's obligations
under this Lease shall be to prove such damages in a separate
action against Landlord.
3. Taxes Assessments and Other Charges:
3.1 Tenant's Obligations. Tenant agrees to pay and
discharge (including the filing of all required returns) any and
all taxes (including but not limited to real estate and personal
property taxes, business and occupational license taxes, ad
valorem sales, use, single business, gross receipts, transaction
privilege, rent or other excise taxes) and other assessments
levied or assessed against the Premises or any interest therein
during the Term, prior to delinquency or imposition of any fine,
penalty, interest or other cost. Notwithstanding the foregoing,
nothing contained in this Lease shall be construed to require
Tenant to pay (a) customary federal or state income taxes based
on Landlord's net income (expressly excluding any franchise or
business privilege tax assessed with respect to the Premises),
(b) any tax imposed with respect to the sale, exchange or other
disposition by Landlord of the Premises or the proceeds thereof,
or (c) except as expressly provided elsewhere in this Lease with
respect to the NHI Indebtedness, any
principal or interest regarding any mortgage or other encumbrance
with respect to the Landlord's interest in the Premises.
3.2 Proration. At the commencement and at the end of the
Term, all such taxes and assessments shall be prorated.
3.3 Right to Protest. Landlord and/or Tenant shall have the
right, but not the obligation, to protest the amount or payment
of any real or personal property taxes or assessments levied
against the Premises; provided that in the event of any protest
by Tenant, Landlord shall not incur any expense because of any
such protest, Tenant shall diligently and continuously prosecute
any such protest at its sole cost and expense and notwithstanding
such protest Tenant shall pay any tax, assessment or other charge
before the imposition of any penalty or interest. If Tenant
chooses to protest, Landlord will cooperate therewith.
3.4 Tax Bills. Landlord shall promptly forward to Tenant
copies of all tax bills and payment receipts relating to the
Premises received by Landlord, and Tenant, upon paying any such
tax ▇▇▇▇, shall promptly forward to Landlord evidence of such
payment.
3.5 Other Charges. Tenant agrees to pay and discharge,
punctually as and when the same shall become due and payable
without penalty, all electricity, gas, garbage collection, cable
television, telephone, water, sewer, and other utilities costs
and all other charges, obligations or deposits assessed against
the Premises during the Term.
4. Insurance.
4.1 General Insurance Requirements . All insurance
provided for in this Lease shall be obtained by the Tenant at its
sole cost and expense and shall be maintained under valid and
enforceable policies issued by insurers of recognized
responsibility, licensed and approved to do business in the
Commonwealth of Massachusetts, having a general policyholders
rating of not less than "A" in the then most current Best's
Insurance Report. Any and all policies of insurance required
under this Lease shall name the Landlord as a so-called "named
insured" and NHI as an additional insured and shall be on an
"occurrence" basis. In addition, NHI shall be shown as the loss
payable beneficiary under the casualty insurance policy
maintained by Tenant pursuant to Section 4.2. All policies of
insurance required herein may be in the form of "blanket" or
"umbrella" type policies which shall name the NHI, Landlord and
Tenant as their interests may appear and allocate to the Premises
the full amount of insurance required hereunder. Certified copies
of the policies or satisfactory certificates from the insurers
evidencing the existence of all policies of insurance required by
this Lease and showing the interest of the Landlord and NHI shall
be filed with the Landlord prior to the commencement of the Term
and shall provide that the subject policy may not be canceled
except upon not less than ten (10) days prior written notice to
Landlord. If Landlord is provided with a certificate, upon
Landlord's request Tenant shall provide Landlord with a complete
copy of the insurance policy evidenced by such certificate within
30 days of the commencement of the Term. Certified copies of the
renewal policies or certificates therefore from the insurers
evidencing the existence thereof shall be
deposited with Landlord not less than ten (10) days prior to the
expiration dates of the policies. If Landlord is provided with a
certificate for a renewal policy, upon Landlord's request Tenant
shall deliver a copy of the complete renewal policy to Landlord
within 30 days of the expiration of the replaced policy. Any
claims under any policies of insurance described in this Lease
shall be adjudicated by and at the expense of the Tenant or of
its insurance carrier, but shall be subject to joint control of
Tenant and Landlord. Notwithstanding any particular amounts
specified in this Lease for Tenant's insurance coverage, Landlord
shall have the right at any time hereafter to require such higher
limits as it may determine in its reasonable discretion are
prudent.
4.2 Fire and Other Casualty. Tenant shall keep the
Premises insured against loss or damage from all causes under
standard "all risk" property insurance coverage, without
exclusion for fire, lightning, windstorm, explosion, smoke
damage, vehicle damage, sprinkler leakage, flood, vandalism,
earthquake, malicious mischief or any other risk as is normally
covered under an extended coverage endorsement, in the amounts
that are not less than the full insurable value of the Premises
including all equipment and personal property (whether or not
Landlord Personal Property) used in the operation of the
Premises, but in no event less than the full insurable value of
the Premises from time to time, and together with an agreed
amount endorsement, a replacement cost endorsement and a waiver
of subrogation endorsement. During any period of construction
such insurance shall be on a builder's risk, completed value,
non-reporting form (including all risk and extended coverage,
collapse, cost of demolition, increased cost of construction and
value of undamaged portion of improvements protection). The term
"full insurable value" as used in this Lease shall mean the
actual replacement value of the Premises (including all
improvements) and every portion thereof, including the cost of
compliance with changes in zoning and building codes and other
laws and regulations, demolition and debris removal and increased
cost of construction. In addition, the casualty insurance
required under this Section 4.2 will include an agreed amount
endorsement such that the insurance carrier has accepted the
amount of coverage and has agreed that there will be no co-
insurance penalty.
4.3 Public Liability . Tenant shall maintain comprehensive
general public liability insurance coverage (including products
liability coverage) against claims for bodily injury, death or
property damage occurring on, in or about the Premises and the
adjoining sidewalks and passageways, such insurance to include a
broad form endorsement and to afford protection to Landlord and
Tenant of not less than Three Million Dollars ($3,000,000) per
occurrence with respect to bodily injury or death to any one
person, and not less than Three Million Dollars ($3,000,000) with
respect to property damage.
4.4 Professional Liability Insurance. Guarantor or
Tenant shall maintain insurance against liability imposed by law
upon Guarantor and its Affiliates (including Tenant) for damages
on account of professional services rendered or which should have
been rendered by Guarantor and Tenant or any person for which
acts Guarantor or Tenant is legally liable on account of injury,
sickness or disease, including death at any time resulting
therefrom, and including damages allowed for loss of service, in
a minimum amount of Three Million Dollars ($3,000,000.00) for
each claim.
4.5 Workers Compensation. Tenant shall comply with all legal
requirements regarding worker's compensation, including any
requirement to maintain worker's compensation insurance against
claims for injuries sustained by Tenant's employees in the course
of their employment.
4.6 Boiler Insurance . Tenant shall maintain boiler and
pressure vessel insurance, including an endorsement for boiler
business interruption insurance, on any fixtures or equipment
which are capable of bursting or exploding, in an amount not less
than One Million Dollars ($1,000,000) for damage to Premises,
bodily injury or death resulting from such perils.
4.7 Business Interruption Insurance. Tenant shall maintain,
at its expense, business interruption and extra expense insurance
insuring not less than one (1) year's Minimum Rent.
4.8 Deductible Amounts. The policies of insurance which
Tenant is required to provide
under this Lease will not have deductibles or self-insured
retentions in excess of Ten Thousand Dollars ($10,000).
5. Use, Maintenance and Alteration of the Premises.
5.1 Tenant's Maintenance Obligations.
5.1.1 General Facility Maintenance. At its sole cost
and expense, Tenant will
keep and maintain the Premises in good appearance, repair
and condition and maintain proper housekeeping. Tenant
shall promptly make or cause to be made all repairs,
interior and exterior, structural and nonstructural,
ordinary and extraordinary, foreseen and unforeseen,
necessary to keep the Premises in good and lawful order and
condition and in substantial compliance with all
requirements for the licensing of a Nursing Home in the
Commonwealth of Massachusetts and certification for
participation in Medicare and Medicaid (or any successor
programs) or as otherwise required under all applicable
local, state and federal laws.
5.1.2 Personal Property . As part of Tenant's
obligations under this Section 5.1, Tenant shall be
responsible to maintain, repair and replace all Landlord
Personal Property and all Tenant Personal Property (as
defined in Section 7.1 below) in good condition, ordinary
wear and tear excepted, consistent with prudent Nursing Home
industry practice.
5.1.3 Required Capital Expenditures . Without
limiting Tenant's obligations to maintain the Premises under
this Lease, within thirty (30) days of the end of each Lease
Year starting with the end of the third (3rd) Lease Year
during the Initial Term, Tenant shall provide Landlord with
evidence satisfactory to Landlord, in the reasonable
exercise of Landlord's discretion, that the Tenant has spent
on Capital Expenditures (as hereinafter defined) an annual,
average amount over the preceding three (3) year period in
each case of at least $500 per Facility bed (the "Capital
Expenditure Target"). If the Tenant fails to make at least
the Capital Expenditure Target in any Lease Year, Tenant
shall pay to
Landlord the difference between the Capital Expenditures
Target for the Lease Year in question and the amount
actually spent by the Tenant on Capital Expenditures in
such year (the "Shortage"). In the event a Shortage occurs,
Tenant shall pay such Shortage in nine (9) equal monthly
installments to Landlord commencing on the first (1St) day
of the fourth (4th) month immediately following the Lease
Year in question; and the Landlord, or its lender, National
Health Investors, Inc., a Maryland corporation ("NHI")
shall hold the Shortage in a separate deposit account (the
"Capital Improvement Reserve"). Absent the occurrence and
continuation of any Event of Default, any earnings on the
Capital Improvements Reserve shall be paid quarterly to the
Tenant. If the Tenant elects or is required to spend more
than the Capital Expenditure Target in any subsequent Lease
Year, Tenant may use funds from the Capital Improvement
Reserve to pay such costs subject to the terms and
conditions specified in that certain Capital Improvement
Reserve Agreement by and between Landlord, NHI and Tenant
of even date herewith. Any Capital Expenditures made by
Tenant in any Lease Year in excess of the Capital
Expenditure Target shall be credited against future
obligations of Tenant to make Capital Expenditures, and in
no event shall Tenant be required to fund further Shortages
at any time that the balance of the Capital Improvement
Reserve together with the like reserve under the Holyoke
Lease (as defined below) is equal or greater than $500,000,
all as more particularly set forth in the foregoing Capital
Improvement Reserve Agreement.
5.1.3(a) "Capital Expenditures" means, for any
period, the aggregate amount (without duplication) of all
expenditures made by Tenant during the period in
connection with the Facility, whether paid in cash or
other consideration, to acquire fixed or capital assets
or make repairs, renovations or improvements to the
Facility that in accordance with GAAP would be classified
as Capital Expenditures.
5.2 Regulatory Compliance.
5.2.1 Tenant covenants that during the Term, Tenant
and the Premises shall comply with all federal, state and
local licensing and other laws and regulations applicable to
Nursing Home facilities as well as with the certification
requirements of Medicare and Medicaid (or any successor
program). Further, Tenant shall ensure that the Premises
continue to be licensed as a Nursing Home beds at all times
certified for participation in Medicare and Medicaid (or any
successor program) throughout the Term and at the time the
Premises are returned to Landlord at the termination
thereof, all without any suspension, revocation or
decertification, and without any penalty which is not fully
satisfied, or material limitation which is not removed,
within sixty (60) days from the imposition thereof (or such
lesser time period as may be required by the relevant
program). Further, Tenant shall not commit any act or
omission that would in any way violate any certificate of
occupancy affecting the Premises.
5.2.2 During the Term, all inspection fees, costs
and charges associated with a change of any licensure or
certification shall be borne solely by Tenant. Tenant shall
at its
sole cost make any additions or alterations to the Premises
necessitated by, or imposed in connection with, a change of
ownership inspection survey for the transfer of operation
of the Premises from Tenant or Tenant's assignee or
subtenant to Landlord or Landlord's designee at the
expiration or earlier termination of the Term in accordance
herewith.
5.3 Permitted Use. Tenant shall continuously use and occupy
the Premises during the Term, solely as a Nursing Home licensed
for not less than one hundred twenty (120) beds, except in the
event of a casualty or taking. Tenant shall not permit in the
Premises any nuisance, or the emission from the Premises of any
objectionable noise, odor or vibration, nor use or devote the
Premises or any part thereof for any purpose which is contrary to
any applicable law, nor permit any waste in or with respect to
the Premises.
5.4 No Liens: Permitted Contests. Tenant shall not cause
or permit any liens, levies or attachments to be placed or
assessed against the Premises or the operation thereof for any
reason (expressly excluding the security interests permitted
under Section 7.2.2 hereof). However, Tenant shall be permitted
in good faith and at its expense to contest the existence, amount
or validity of any lien upon the Premises by appropriate
proceedings sufficient to prevent the collection or other
realization of the lien or claim so contested, as well as the
sale, forfeiture or loss of any of the Premises or any rent to
satisfy the same. Tenant shall provide Landlord with security
satisfactory to Landlord in Landlord's reasonable judgment to
assure the foregoing. Each contest permitted by this Section 5.4
shall be promptly and diligently prosecuted to a final conclusion
by Tenant.
5.5 Alterations by Tenant . Tenant shall have the right of
altering, improving, replacing, modifying or expanding the
facilities, equipment or appliances in the Premises from time to
time as it may determine is desirable for the continuing and
proper use and maintenance of the Premises under this Lease;
provided, however, that any structural alterations, improvements,
replacements, expansions or modifications in excess of One
Hundred Thousand Dollars ($100,000) which are not required to
comply with applicable law or the provisions of Section 5.1.3 of
this Lease shall require the prior written consent of the
Landlord, which consent shall not be unreasonably withheld. The
cost of all such alterations, improvements, replacements,
modifications, expansions or other purchases, whether undertaken
as an on-going licensing, Medicare or Medicaid (or any successor
program) or other regulatory requirement or otherwise shall be
borne solely and exclusively by Tenant and shall immediately
become a part of the Premises and the property of the Landlord
subject to the terms and conditions of this Lease. All work done
in connection therewith shall be done in a good and workmanlike
manner and in compliance with all existing codes and regulations
pertaining to the Premises and shall comply with the requirements
of insurance policies required under this Lease. In the event any
items of the Premises have become inadequate, obsolete or worn
out or require replacement (by direction of any regulatory body,
third party payor or otherwise), Tenant shall remove such items
and exchange or replace the same at Tenant's sole cost and the
same shall become part of the Premises and property of the
Landlord.
6. Condition of Premises, Option to Purchase, Renewal Term, Etc.
6.1 Condition And Title Of Premises. Tenant accepts the
Premises for use as a Nursing Home under this Lease on an "AS IS"
basis and will assume all responsibility and cost for the
correction of any observed or unobserved deficiencies or
violations. In making its decision to enter into this Lease,
Tenant has not relied on any representations or warranties,
express or implied, of any kind from Landlord other than as
expressly set forth in that certain Agreement to Lease dated
March~ 1997 between Landlord and Tenant (the "Agreement to
Lease"). Tenant has examined the condition of title to the
Premises prior to the execution and delivery of this Lease and
has found the same to be satisfactory
6.2 Option to Purchase the Premises . Provided no Event
of Default (as defined in Section 10 below) has occurred and is
continuing as of the Tenant's exercise of its option to purchase
the Premises pursuant to this Section 6.2 or at the closing date
established to consummate the purchase of the Premises pursuant
to the Tenant's exercise of such option (except as provided in
Section 6.2.2(c) below), Tenant shall have the option to purchase
the Premises upon the following terms and conditions:
6.2.1 At any time during the Initial Term before
the close of business on that date which is thirty (30) days
prior to the third (3rd) anniversary of the Commencement
Date, the Tenant may exercise its option to purchase all but
not less than all of the Premises by giving Landlord written
notice thereof.
6.2.2 The purchase price (the "Purchase Price") for
both the Premises and the Holyoke Premises (as defined in
Section 6.4 below) shall be equal to $1,500,000 (the
"Closing Payment") payable as follows plus Tenant's
assumption of the then outstanding balance of the NHI
Indebtedness (as hereinafter defined):
(a) The Tenant shall tender a portion of the Closing
Payment in an amount not less than $750,000 in cash,
with the balance of the Closing Payment to be paid to
the Landlord in the form of a purchase money promissory
note providing for the
following principal terms all as more particularly set
forth in the Promissory Note attached hereto as
Schedule 6.2.2 (the "Seller Note"):
(i) annual interest rate of 8% during the first
year thereof, and an annual interest rate of ten
percent (10%) thereafter until maturity;
(ii) payable in equal monthly installments of
principal and interest based on a ten (10) year
amortization schedule;
(iii) the outstanding balance of the Seller Note shall
be due in full on _________ 2007;
The foregoing indebtedness shall be secured by (x)
mortgages in form and substance reasonably satisfactory to
Tenant and its counsel encumbering the Premises and the
Holyoke Premises, which mortgages shall be subordinate in
all respects to the NHI Indebtedness or any other
indebtedness incurred by Tenant in substitution thereof and
(y) guaranties from Guarantor in the form attached hereto
as Schedule 6.2.2(a). The Purchase Price shall be allocated
among the Premises, the Holyoke Premises, the personal
property located thereon and certain other assets
incorporated therein as set forth in the Agreement to
Lease.
(b)All of Landlord's rights and obligations in and with respect
to the NHI Indebtedness including, in particular, and without
limitation, all so-called reserve accounts, and all rights to
receive the Additional Funds (as defined in Section 17.3 below)
shall be assigned to Tenant on the closing date set forth below,
and all obligations thereunder shall be assumed by Tenant as of
such date, all as more particularly set forth in the Assignment
and Assumption Agreement attached hereto as Schedule 6.2.2(b).
(c) If an Event of Default may be cured by the payment
of money, Tenant may exercise its option to purchase
the Premises provided that Tenant pays all
amounts necessary to cure any such Event of Default
simultaneously with the
closing of such purchase transaction, including,
without limitation, any outstanding Total Rent then
due and owing Landlord.
6.2.3 Once the Purchase Price is established pursuant to
the above, Landlord as seller and the Tenant as buyer shall
within seven (7) days after such determination establish an
escrow to consummate such purchase with Landlord's counsel on the
following terms: (i) the form of escrow instructions to be then
signed by Landlord and the Tenant and all other documents
delivered in connection with any such transfer of the Premises
shall not provide for any representations or warranties regarding
the Premises (without affecting any representations or warranties
contained in the Agreement to Lease) nor any due diligence or
other contingencies in favor of the Tenant, (ii) the Purchase
Price shall be payable as provided above and on the closing date
established by Tenant at a date prior to the third (3rd)
anniversary of the Commencement Date, (iii) the transaction costs
shall be allocated between the parties in accordance with
customary practices, (iv) at close, Landlord shall deliver title
to the Premises to the Tenant or its designee subject only to the
Permitted Exceptions (as defined below), (v) the sale escrow
instructions shall provide for a deposit equal to five percent
(5%) of the Closing Payment and shall provide that the deposit
may be retained by Landlord as liquidated damages in the event of
any breach by the Tenant of the terms of the escrow instructions
(provided, however, such liquidated damages shall relate only to
Landlord1s damages by reason of a breach of the escrow
instructions and shall in no way liquidate or limit Landlord's
damages by reason of a breach of this Lease) or in the
alternative, Landlord may elect to pursue its rights and remedies
in equity, including, without limitation, Landlord's right to ▇▇▇
for specific performance of Tenant's obligation to acquire the
Premises pursuant to this Section 6.2, and (vi) the escrow
instructions shall otherwise be in form and substance reasonably
satisfactory to Landlord and Tenant. As
used in this Lease the "Permitted Exceptions" shall consist
solely of those title matters set forth on Exhibit D hereto or
any other encumbrances (i) approved in writing by Tenant in its
sole discretion, or (ii) created by or through the acts or
omissions of Tenant including, without limitation, any tax liens
or other encumbrances resulting from Tenant's failure to fulfill
its obligations to pay all taxes and other amounts due and owing
under this Lease. In the event of a breach by Landlord of its
obligation to convey the Premises under this Section 6.2, the
Tenant shall be entitled to ▇▇▇ for specific performance thereof
or, in the alternative, immediately recover its deposit against
the Purchase Price. Moreover, in the event either party breaches
its obligations under this Section 6.2, the prevailing party in
any resulting litigation, regardless of whether the same is
prosecuted to judgment, shall be entitled to recover its
enforcement expenses, including reasonable attorney's fees and
court costs, in addition to its other damages.
6.3 Renewal Term. If the Tenant elects not to exercise
its option to purchase the Premises under Section 6.2 or if the
Tenant fails to close the escrow for any reason other than a
breach by Landlord, then the Initial Term shall automatically be
extended and renewed for an additional period of five (5) years
(the "Renewal Term"). The Additional Rent and Minimum Rent during
the Renewal Term shall be calculated as provided in Section 2.3
and determined in all events by that date which is not later than
one hundred eighty (180) days prior to the expiration of the
Initial Term.
6.4 Holyoke Lease. Notwithstanding the foregoing or any
other provision hereof, it shall be a condition of the exercise
of any of its purchase rights under this Lease that Tenant shall
have previously, or simultaneously with its exercise hereunder,
exercised similar purchase option rights under that certain lease
agreement (the "Holyoke Lease") of even date herewith between
Tenant and ▇▇▇▇▇▇▇ Nursing Home, Inc., a Massachusetts
corporation and a party to the Agreement to Lease ("▇▇▇▇▇▇▇")
with respect to that certain Nursing Home facility owned by
▇▇▇▇▇▇▇ and located in Holyoke, Massachusetts (the "Holyoke
Premises").
7. Landlord and Tenant Personal Property.
7.1 Tenant Personal Property. At its sole expense,
Tenant shall install, affix or assemble or place on the Premises
all items of furniture, fixtures, equipment and supplies not
included as Landlord Personal Property as Tenant reasonably
considers to be appropriate for Tenant's use of the Premises as
contemplated by this Lease (the "Tenant Personal Property").
Tenant shall provide and maintain during the entire Term all
Tenant Personal Property as shall be necessary in order to
operate the Premises in compliance with all requirements set
forth in this Lease. All Tenant Personal Property shall be and
shall remain the property of Tenant and may be removed by Tenant
upon the expiration of the Term. However, if there is any Event
of Default, Tenant will not remove the Tenant Personal Property
from the Premises and will on demand from Landlord, convey the
Tenant Personal Property to Landlord by executing a ▇▇▇▇ of sale
in a form reasonably required by Landlord. In any event, Tenant
will repair all damage to the Premises caused by any removal of
the Tenant Personal Property.
7.2 Landlord's Security Interest.
7.2.1 The parties intend that if Tenant defaults
under this Lease, Landlord will control the Tenant Personal
Property and the Intangible Property (as defined in Section
7.4 below) so that Landlord or its designee can operate or
re-let the Premises intact for use as a Nursing Home.
7.2.2 Therefore, to implement the intention of the
parties, and for the purpose of securing the payment and
performance of Tenant's obligations under this Lease,
Tenant, as debtor, hereby grants to Landlord, as secured
party, a security interest in and an express contractual
lien upon, all of Tenant's right, title and interest in and
to the Tenant Personal Property and, to the extent permitted
by law (subject to the obligation of Tenant to fully
cooperate in connection therewith), in and to the Intangible
Property and any and all products and proceeds thereof, in
which Tenant now owns or hereafter acquires an interest or
right, including any leased Tenant Personal Property. This
Lease constitutes a security agreement covering all such
Tenant Personal Property and the Intangible Property. The
security interest granted to Landlord in this Section 7.2.2.
is intended by Landlord and Tenant to be subordinate to (i)
the security interest granted of even date herewith in and
to Tenant's accounts receivable granted to HCFP Funding,
Inc. (the "Working Capital Lender"), and securing the
obligations of Tenant to the Working Capital Lender in an
amount not to exceed $1,000,000 in the aggregate (when taken
together with all security interests granted by Tenant in
its accounts receivable to parties other than ▇▇▇▇▇▇▇ with
respect to the Holyoke Lease), (ii) any security interest
granted in connection with the financing or leasing of all
or any portion of the Tenant Personal Property so long as
the lessor or financier of such Tenant Personal Property
agrees to give Landlord written notice of any default by
Tenant under the terms of such lease or financing
arrangement, to give Landlord a reasonable time following
such notice to cure any such default and to consent to
Landlord's written assumption of such lease or financing
arrangement upon Landlord's curing of any defaults
thereunder, and (iii) shall be subordinated in the future
with respect to any security interest granted in and to
Tenant's accounts receivable in the event Tenant enters into
a financing arrangement whereby its accounts receivable are
pledged or otherwise encumbered in an amount not to exceed
$1,000,000 in the aggregate when taken together with all
security interests granted by Tenant in its accounts
receivable as provided in clause (i) above and then in
effect. This security agreement and the security interest
created herein shall survive the termination of this Lease
if such termination results from the occurrence of an Event
of Default.
7.3 Financing Statements. If required by Landlord at any
time during the Term, Tenant will execute and deliver to
Landlord, in form reasonably satisfactory to Landlord, additional
security agreements, financing statements, fixture filings and
such other documents as Landlord may reasonably require to
perfect or continue the perfection of Landlord's security
interest in the Tenant Personal Property and the Intangible
Property and any and all products and proceeds thereof now owned
or hereafter acquired by Tenant. Tenant shall pay all fees and
costs that
Landlord may incur in filing such documents in public offices and
in obtaining such record searches as Landlord may reasonably
require. In the event Tenant fails to execute any financing
statements or other documents for the perfection or continuation
of Landlord's security interest, Tenant hereby appoints Landlord
as its true and lawful attorney-in-fact to execute any such
documents on its behalf, which power of attorney shall be
irrevocable and is deemed to be coupled with an interest.
7.4 Intangible Property . The term " Intangible Property"
means all of Tenant's accounts, proceeds of accounts, rents,
profits, income or revenue derived from the use of rooms or other
space within the Premises or the providing of services in or from
the Premises; documents, chattel paper, instruments, contract
rights, deposit accounts, general intangibles, choses in action,
now owned or hereafter acquired by Tenant (including any right to
any refund of any taxes or other charges heretofore or hereafter
paid to any governmental authority) arising from or in connection
with Tenant's operation or use of the Premises; all licenses and
permits now owned or hereafter acquired by Tenant, necessary or
desirable for Tenant's use of the Premises under this Lease,
including without limitation, if applicable, any certificate of
need or other similar certificate; and the right to use any trade
or other name now or hereafter associated with the operation of
the Premises by Tenant. The word "accounts" above shall include,
without limitation and to the extent assignable, accounts to be
paid by Medicaid or Medicare (or successor programs).
8. Representations And Warranties . Landlord and Tenant do
hereby each for itself represent and warrant to each other as
follows:
8.1 Due Authorization And Execution . This Lease and all
agreements, instruments and documents executed or to be executed
in connection herewith by either Landlord or Tenant were duly
authorized and shall be binding upon the party that executed and
delivered the same.
8.2 Due Organization. Landlord and Tenant are duly
organized, validly existing and in good standing under the laws
of the State of their respective formations and are duly
authorized and qualified to do all things required of the
applicable party under this Lease within the Commonwealth of
Massachusetts.
8.3 No Breach of Other Agreements. Neither this Lease nor
any agreement, document or instrument executed or to be executed
in connection herewith, violates the terms of any other agreement
to which either Landlord or Tenant is a party.
9. Financial. Management and Regulatory Reports.
9.1 Monthly Facility Reports. Within thirty (30) days
after the end of each calendar month during the Term, Tenant
shall prepare and deliver monthly unaudited financial reports,
reviewed and certified by Tenant's Chief Financial Officer, to
Landlord consisting of a balance sheet, income statement
(including in-patient and outpatient revenues), together with an
aged accounts receivable report and reports listing licensed
beds, average daily census, admission and
length of stay and payor mix concerning the business conducted at
the Premises. Without limitation, such reports shall clearly
state Gross Revenues for the applicable period.
9.2 Quarterly Financial Statements . Within sixty (60)
days of the end of each of the first three quarters of each
calendar year during the Term, Tenant shall deliver the
quarterly, unaudited financial statements of Tenant, reviewed and
certified by Tenant's Chief Financial Officer to Landlord,
together with (i) an aged accounts receivable report in form and
substance reasonably satisfactory to Landlord, and (ii) a
Certificate of Compliance in the form attached hereto as Exhibit
E.
9.3 Annual Financial Statements. Within ninety (90) days
of each calendar year end during the Term, Tenant shall deliver
to Landlord its audited annual financial statements, in each case
certified in a manner acceptable to Landlord by independent
certified public accountants of recognized national standing
reasonably acceptable to Landlord, together with a report by such
accountants to the effect that, in making such annual report,
such accountants have not become aware (without special
investigation) of any Event of Default, or event which, after
notice of lapse of time, would constitute an Event of Default.
Moreover, if Tenant becomes subject to any reporting requirements
of the Securities and Exchange Commission (the "SEC") or produces
audited financial statements for the SEC or any other purpose
during the Term, Tenant shall promptly deliver such audited
financial statements to Landlord.
9.4 Accounting Principles. All of the reports and
statements required hereby shall be prepared in accordance with
GAAP and Tenant's accounting principles consistently applied.
9.5 Regulatory Reports. In addition, Tenant shall within
five (5) business days of receipt thereof deliver to Landlord all
federal, state and local licensing and reimbursement
certification surveys, inspections and other reports received by
Tenant as to the Premises and the operation of business thereon,
including, without limitation, state department of health
licensing surveys, Medicare and Medicaid (and successor programs)
certification surveys and life safety code reports. Within five
(5) business days of receipt of any written notice of any
violation of any federal, state or local licensing or
reimbursement certification statute or regulation including
without limitation Medicare or Medicaid (or successor programs),
any suspension, termination or restriction placed upon Tenant or
the Premises, the operation of business thereon or the ability to
admit patients, or any violation of any other permit, approval or
certification in connection with the Premises or its business, by
any federal, state or local authority including without
limitation Medicare or Medicaid (or successor programs) Tenant
shall provide Landlord with a copy thereof.
9.6 Miscellaneous Reports. Tenant shall also deliver the
following items to
Landlord:
(a) Capital Expenditure Compliance Certificate .
Within sixty (60) days after the end of each Lease Year
following the third (3rd) Lease Year, a Certificate
certified by
Tenant's Chief Financial Officer demonstrating compliance
with the Capital Expenditure requirements of Section 5.1.3
hereof,
(b) Event of Default Notices. Promptly after Tenant
obtains actual knowledge thereof, notice of the occurrence
of any Event of Default, or event which, after notice or
lapse of time (or both), would constitute an Event of
Default, together with a statement setting forth details of
such Event of Default or event and the action that Tenant
has taken and proposes to take with respect thereto;
(c) Guarantors Reports. A current Financial
Statement of the Guarantor updated each Lease Year during
the Term of this Lease;
(d) Malpractice Matters. Promptly upon Tenant's
receipt, written notice of the filing of any medical
malpractice action against Tenant seeking damages in excess
of One Hundred Fifty Thousand and No/100 Dollars
($150,000.00);
(e) Working Capital Account. Promptly upon Tenant's
receipt, copies of the monthly bank statements for the (i)
working capital accounts, and (ii) unconditional line(s) of
credit from Working Capital Lender(s) designated for the
sole use of Tenant in connection with the Nursing Homes
located at the Premises and the Greenfield Premises, which
items are used to satisfy the working capital requirements
with respect to the NHI Indebtedness; and
(f) Other Information. Such other information about
Tenant or the Facility as Landlord may reasonably request
from time to time.
10. Events of Default and Landlord's Remedies.
10.1 Events of Default. The occurrence of any of the
following shall constitute an event of default on the part of
Tenant hereunder ("Event of Default"):
10.1.1 The failure to pay within ten (10) calendar
days of the date when due any Minimum Rent, Additional Rent,
taxes or assessments, utilities, premiums for insurance or
other charges or payments required of Tenant under this
Lease;
10.1.2 A breach of any of the representations,
warranties or covenants in favor of Landlord as set forth in
the Agreement to Lease, any guaranties or other agreements
of even date herewith relating to the transactions
contemplated hereby, which breach continues beyond any
applicable period of notice and grace, if any;
10.1.3 The occurrence of any Event of Default
under, and as defined in, the Holyoke Lease.
10.1.4 Any material misstatement or omission of
fact in any written report, notice or communication from
Tenant, or any Guarantor to Landlord with respect to Tenant,
any Guarantor, or the Premises;
10.1.5 An assignment by Tenant, or any Guarantor of
all or substantially all of its property for the benefit of
creditors;
10.1.6 The appointment of a receiver, trustee, or
liquidator for Tenant, or any Guarantor, or any of the
property of Tenant or any Guarantor, if within three (3)
business days of such appointment Tenant does not inform
Landlord in writing that such party intends to cause such
appointment to be discharged or such party does not
thereafter diligently prosecute such discharge to completion
within thirty (30) days after the date of such appointment;
10.1.7 The filing by Tenant or any Guarantor of a
voluntary petition under any federal bankruptcy law or under
the law of any state to be adjudicated as bankrupt or for
any arrangement or other debtor's relief, or in the
alternative, if any such petition is involuntarily filed
against Tenant, or Guarantor by any other party and Tenant
or Guarantor, as the case may be, does not within three (3)
business days of any such filing inform Landlord in writing
of its intent to cause such petition to be dismissed, or if
Tenant or Guarantor does not thereafter diligently prosecute
such dismissal, or if such filing is not dismissed in any
event within ninety (90) days after filing thereof,
10.1.8 The failure to perform or comply with any
other term or provision of this Lease not requiring the
payment of money, including, without limitation, the failure
to comply with the provisions hereof pertaining to the use,
operation and maintenance of the Premises or the breach of
any representation or warranty of Tenant in this Lease;
provided, however, the default described in this Section
10.1.10 is curable and shall be deemed cured, if: (i) within
three (3) business days of Tenant's receipt of a notice of
default from Landlord, Tenant gives Landlord notice of its
intent to cure such default; and (ii) Tenant cures such
default within thirty (30) days after such notice from
Landlord, unless such default cannot with due diligence be
cured within a period of thirty (30) days because of the
nature of the default or delays beyond the control of
Tenant, and cure after such thirty (30) day period will not
have a material and adverse effect upon the Premises, in
which case such default shall not constitute an Event of
Default if Tenant uses diligent efforts to cure such default
by promptly commencing and diligently pursuing such cure to
the completion thereof, provided, however, no such default
shall continue for more than one hundred twenty (120) days
from Tenant's receipt of a notice of default from Landlord;
10.1.9 There shall be no cure period in the event
of the breach by Tenant of (i) the obligation to provide
replacement policies of insurance as required in Section 4.1
above, the provisions of Section 22 below with respect to
assignments and other related matters; and
10.1.10 All notice and cure periods provided herein
shall run concurrently with any notice or cure periods
provided by applicable law.
10.1.11 Liquidated Damages . Notwithstanding the
foregoing or any other provision hereof or contained in the
Holyoke Lease to the contrary, upon the occurrence of an
Event of Default, the Tenant may elect, by written notice to
the Landlord at any time following such occurrence, to
acquire the Premises (together with the Holyoke Premises)
and pay to the Landlord, as liquidated damages, the Purchase
Price (as defined and described in Section 6.2 above)
together with any amount of Total Rent or other charges then
due under this Lease (prior to any exercise of Landlord's
remedies pursuant to Section 10.2 hereof and exclusive of
any payment obligations set forth therein) provided,
however, that if a default then exists under and with
respect to the NHI Indebtedness such that NHI will not
permit the same to be assumed by the Tenant as anticipated
under Section 6.2, then the portion of the Purchase Price
equal to the Current Indebtedness (as defined in Section
17.2 below) shall be due and payable in cash upon the
closing of such transaction. Landlord shall accept the
foregoing payments by the Tenant as liquidated damages and
Landlord's sole remedy for any such Event of Default
provided that the same is paid to the Landlord no later then
ninety (90) days following Tenant's notice, as aforesaid,
whereupon Landlord shall convey the Premises and the Holyoke
Premises to the Tenant in accordance with the applicable
provisions of Section 6.2 including, without limitation,
the provisions governing the Seller Note.
10.2 Remedies. Upon the occurrence of an Event of
Default, Landlord may exercise all rights and remedies under this
Lease and the laws of the Commonwealth of Massachusetts available
to a lessor of real and personal property in the event of a
default by its lessee, and as to the Tenant Personal Property and
Intangible Property all remedies granted under the laws of the
Commonwealth of Massachusetts to a secured party under its
Uniform Commercial Code. Without limiting the foregoing, Landlord
shall have the right to do any of the following:
10.2.1 ▇▇▇ for the specific performance of any
covenant of Tenant under this Lease as to which Tenant is in
breach:
10.2.2 Upon compliance with the requirements of
applicable law, Landlord may do any of the following: enter
upon the Premises, terminate this Lease, dispossess Tenant
from the Premises and/or collect money damages by reason of
Tenant's breach, including without limitation all rent which
would have accrued after such termination and all
obligations and liabilities of Tenant under this Lease which
survive the termination of the Term;
10.2.3 Elect to leave this Lease in place and ▇▇▇
for rent and/or other money damages as the same come due;
10.2.4 Before or after repossession of the Premises
pursuant to Section 10.2.2, and whether or not this Lease
has been terminated, Landlord shall have the right (but
shall be under no obligation) to relet any portion of the
Premises to such tenant or tenants, for such term or terms
(which may be greater or less than the remaining balance of
the Term), for such rent, on such conditions (which may
include concessions or free rent) and for such uses, as
Landlord, in its absolute discretion, may determine, and
Landlord may collect and receive any rents payable by reason
of such reletting. Landlord shall have no duty to mitigate
damages unless required by applicable law and shall not be
responsible or liable for any failure to relet any of the
Premises or for any failure to collect any rent due upon any
such reletting. Tenant agrees to pay Landlord, immediately
upon demand, all expenses incurred by Landlord in obtaining
possession and in reletting any of the Premises, including
fees, commissions and costs of attorneys, architects,
contractors, agents and brokers;
10.2.5 Sell the Tenant Personal Property in a
nonjudicial foreclosure sale pursuant to the procedures
therefor provided under the Uniform Commercial Code, as
enacted in the Commonwealth of Massachusetts.
10.2.6 For the purpose of calculating rent loss
damages payable to Landlord, Additional Rent for all periods
after an Event of Default shall be calculated based on the
higher of actual Gross Revenues or extrapolated Gross
Revenues based on Gross Revenues generated prior to the
Event of Default.
10.3 Receivership. Tenant acknowledges that one of the
rights and remedies available to Landlord under applicable law is
to secure a court-appointed receiver to take possession of the
Premises, to collect the rents, issues, profits and income of the
Premises, and to manage the operation of the Premises. Tenant
further acknowledges that the revocation, suspension or material
limitation of the certification of the Premises for provider
status under Medicare or Medicaid (or successor programs) and/or
the revocation, suspension or material limitation of the license
of the Premises as a Nursing Home under the laws of the
Commonwealth of Massachusetts will materially and irreparably
impair the value of Landlord's investment in the Premises.
Therefore, in any of such events, and in addition to any other
right or remedy of Landlord under this Lease, Tenant hereby
consents to the appointment of such a receiver to enter upon and
take possession of the Premises, to manage the operation of the
Premises, to collect and disburse all rents, issues, profits and
income generated thereby and to preserve or replace to the extent
possible the Nursing Home license and provider certification of
the Premises or to otherwise substitute the licensee or provider
thereof. The receiver shall be entitled to a reasonable fee for
its services as a receiver. All such fees and other expenses of
the receivership estate shall be added to the monthly rent due to
Landlord under this Lease. Tenant hereby irrevocably stipulates
to the appointment of a receiver under such circumstances and for
such purposes and agrees not to contest such appointment.
10.4 Late Charges . Tenant acknowledges that the late
payment of any Minimum Rent or Additional Rent will cause
Landlord to lose the use of such money and incur costs and
expenses
not contemplated under this Lease, including, without limitation,
administrative and collection costs and processing and accounting
expenses, the exact amount of which is extremely difficult to
ascertain. Therefore, if any installment of Minimum Rent or
Additional Rent is not paid within ten (10) calendar days after
the due date for such rent payment, then Tenant shall thereafter
pay to Landlord on demand a late charge equal to five percent
(5%) of the amount of any installment of Minimum Rent or
Additional Rent not paid on the due date. Landlord and Tenant
agree that this late charge represents a reasonable estimate of
such costs and expenses and is fair compensation to Landlord for
the loss suffered from such nonpayment by Tenant.
10.5 Remedies Cumulative: No Waiver. No right or remedy
herein conferred upon or reserved to Landlord or Tenant is
intended to be exclusive of any other right or remedy, and each
and every right and remedy shall be cumulative and in addition to
any other right or remedy given hereunder or now or hereafter
existing at law or in equity. No failure of Landlord or Tenant to
insist at any time upon the strict performance of any provision
of this Lease or to exercise any option, right, power or remedy
contained in this Lease shall be construed as a waiver,
modification or relinquishment thereof as to any similar or
different breach (future or otherwise) by Tenant or Landlord, as
the case may be. A receipt by Landlord of any rent or other sum
due hereunder (including any late charge) with knowledge of the
breach of any provision contained in this Lease shall not be
deemed a waiver of such breach, and no waiver by Landlord or
Tenant of any provision of this Lease shall be deemed to have
been made unless expressed in a writing signed by Landlord or
Tenant, as the case may be.
10.6 Performance of Tenant's Obligations by Landlord. If
Tenant at any time shall
fail to make any payment or perform any act on its part required
to be made or performed under this Lease, then Landlord may (but
shall be under no obligation to), without waiving or releasing
Tenant from any obligations or default of Tenant hereunder, make
any such payment or perform any such act for the account and at
the expense of Tenant, and may enter upon the Premises for the
purpose of taking all such action thereon as may be reasonably
necessary there for. No such entry shall be deemed an eviction of
Tenant. All sums so paid by Landlord and all necessary and
incidental costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) incurred in connection
with the performance of any such act by Landlord, together with
interest at the per annum rate equal to the Bank of America
reference rate plus 5% (or if said interest rate is violative of
any applicable statute or law, then the maximum interest rate
allowable) from the date of the making of such payment or the
incurring of such costs and expenses by Landlord, shall be
payable by Tenant to Landlord on demand.
11. Additional Purchase Rights and Obligations.
11.1 Purchase Obligations. Tenant shall be obligated to
purchase the Premises from Landlord upon the following
conditions:
11.1.1 At any time during the Initial Term before
the close of business on that date which is thirty (30) days
prior to the third (3rd) anniversary of the Commencement
Date, Landlord shall have the right to put the Premises
(together with the Holyoke
Premises) to the Tenant provided that Tenant has met all
requirements for the advance of the Additional Funds (as
defined in Section 17 hereof) by NHI, as evidenced by the
financial reports prepared by Tenant and submitted to
Landlord in accordance with Section 9 hereof, and provided,
further that NHI has approved the same and committed in
writing to provide such funding. If Landlord exercises such
right, Tenant shall purchase the Premises (together with
the Holyoke Premises) for the Purchase Price set forth in
Section 6.2 hereof. The Purchase Price shall be payable as
provided in Section 6.2.2 and all other terms and
conditions of the conveyance of the Premises and the
Holyoke Premises to Tenant provided in Section 6.2 shall
apply to any exercise of the Landlord's rights under this
Section 11.1.1 including, without limitation, the
provisions governing the Seller Note and Landlord's
simultaneous exercise of its similar rights under the
Holyoke Lease. At the closing of the foregoing transaction,
Tenant shall also pay to Landlord all amounts of Total Rent
and other charges then due under this Lease and cure any
Event of Default then continuing which is curable by the
payment of money.
11.1.2 At any time following the determination of
Minimum Rent for the Renewal Term in accordance with Section
2.3, through the expiration of the first Lease Year of the
Renewal Term (i.e., the eleventh (11th) Lease Year),
Landlord shall have the right to put the Premises to Tenant.
If Landlord exercises such right, Tenant shall purchase the
Premises together with the Holyoke Premises from Landlord
for a cash price equal to $1,500,000 plus the Current
Indebtedness (as defined below) as of the closing date set
forth below. Within one hundred twenty (120) days of
Landlord's exercise of its put under this Section 11.1, such
purchase shall be consummated and the Landlord shall deliver
title to the Premises to Tenant subject only to the
Permitted Exceptions. At the closing of the foregoing
transaction, Tenant shall also pay to Landlord all amounts
of Total Rent and other charges then due under this Lease
and cure any Event of Default then continuing which is
curable by the payment of money.
It shall be a condition of Landlord's exercise of any of its
rights under this Section 11.1 that simultaneously therewith
▇▇▇▇▇▇▇ shall have exercised its similar put rights under the
Holyoke Lease.
11.2 Additional Purchase Option. At anytime following
the determination of the Minimum Rent for the Renewal Term in
accordance with Section 2.3, through the expiration of the first
Lease Year of the Renewal Term (i.e. the eleventh (11th) Lease
Year), Tenant shall have the right to purchase the Premises
(together with the Holyoke Premises) from Landlord for a cash
price equal to $1,500,000 plus the Current Indebtedness as of the
closing date set forth below. Such purchase shall be consummated
and Landlord shall deliver title to the Premises to Tenant,
subject only to the Permitted Exceptions, on a date set therefor
by Tenant provided that such date shall not in any event be later
than one hundred twenty (120) days after the expiration of the
eleventh (11th) Lease Year. All other terms and conditions set
forth in Section 6.2 for such conveyance shall apply to Tenant's
exercise of its option rights under this Section 11.2, including
in particular and without limitation, that Tenant shall have
simultaneously exercised (and consummated) its similar purchase
rights under the Holyoke Lease. At the closing of the
foregoing transaction Tenant shall also pay to Landlord all
amounts of Total Rent and other charges then due under this Lease
and cure any Event of Default then continuing which is
curable by the payment of money.
12. Damage by Fire or Other Casualty.
12.1 Reconstruction Using Insurance. In the event of the
damage or destruction of the Premises, Tenant shall forthwith
notify Landlord and diligently repair or reconstruct the same to
a like or better condition than existed prior to such damage or
destruction, to the extent legally permitted to do so. Any net
insurance proceeds payable with respect to the casualty shall be
used for the repair or reconstruction of the Premises pursuant to
reasonable disbursement controls in favor of Landlord. If such
proceeds are insufficient for such purposes, Tenant shall provide
the required additional funds.
12.2 Surplus Proceeds . If there remains any surplus of
insurance proceeds after the completion of the repair or
reconstruction of the Premises, such surplus shall belong to and
be paid to Tenant provided that if any Event of Default then
exists which may be cured by the payment of money, any such
surplus insurance proceeds shall first be applied to curing any
such Event of Default.
12.3 No Rent Abatement . The rent payable under this Lease
shall not ▇▇▇▇▇ by reason of any damage or destruction of the
Premises by reason of an insured or uninsured casualty. Tenant
hereby waives all rights under applicable law to ▇▇▇▇▇, reduce or
offset rent by reason of such damage or destruction.
13. Condemnation.
13.1 Complete Taking . If during the Term all or
substantially all of the Premises is taken or condemned by any
competent public or quasi-public authority, then Tenant may, at
Tenant's election, made within thirty (30) days of such taking by
condemnation, terminate this Lease, and the current Minimum Rent
and Additional Rent shall be prorated as of the date of such
termination. The award payable upon such taking shall be
allocated as follows:
(i) first to any Minimum Rent or other charges due
Landlord hereunder;
(ii) then to the Current Indebtedness;
(iii) upon satisfaction of the Current Indebtedness,
Landlord shall receive a portion of the remainder of
such award up to a maximum of $1,500,000; and
(iv) the balance, if any, remaining shall be paid to
Tenant.
Any amounts received by Landlord pursuant to this Section
13 shall in all events be credited against the monies due
Landlord in connection with any conveyance of the Premises
under this Lease (or the Holyoke Premises under the Holyoke
Lease); and notwithstanding any provision hereof or contained in
the Holyoke Lease to the contrary, upon a taking of the Premises
under this Section 13, Tenant shall have the absolute right to
elect anytime thereafter to acquire the Holyoke Premises in
accordance with the provisions of Section 6.2 thereof.
13.2 Partial Taking. In the event such condemnation
proceeding or right of eminent domain results in a taking of less
than all or substantially all of the Premises, the Minimum Rent
and Additional Rental thereto shall be abated to the same extent
as the diminution in the fair market value of the Premises by
reason of the condemnation. Such diminution in the fair market
value shall be as agreed between Landlord and Tenant, but failing
such agreement within thirty (30) days of the effective date of
the condemnation the same will be determined by appraisal
pursuant to Exhibit "C" attached hereto. Any amounts awarded for
a partial taking under this Section 13.2 shall be allocated and
credited as provided in Section 13.1 above provided that such
award shall first be made available to Tenant and used to restore
the Premises for the Permitted Uses.
13.3 Lease Remains in Effect. Except as provided above, this
Lease shall not terminate and shall remain in full force and
effect in the event of a taking or condemnation of the Premises,
or any portion thereof, and Tenant hereby waives all rights under
applicable law to ▇▇▇▇▇, reduce or offset rent by reason of such
taking.
14. Provisions on Termination of Term.
14.1 Surrender of Possession. Tenant shall, on or before the
last day of the Term, or upon earlier termination of this Lease,
surrender to Landlord the Premises (including all patient charts
and records along with appropriate patient consents) in good
condition and repair, ordinary wear and tear excepted.
14.2 Removal of Personal Property. If Tenant is not then
in default hereunder Tenant shall have the right in connection
with the surrender of the Premises to remove from the Premises
all Tenant Personal Property but not the Landlord Personal
Property (including the Landlord Personal Property replaced by
Tenant or required by the Commonwealth of Massachusetts or any
other governmental entity to operate the Premises for the purpose
set forth in Section 5.3 above). Any such removal shall be done
in a workmanlike manner leaving the Premises in good and
presentable condition and appearance, including repair of any
damage caused by such removal. At the end of the Term or upon the
earlier termination of this Lease, Tenant shall return the
Premises to Landlord with the Landlord Personal Property (or
replacements thereof) in the same condition and utility as was
delivered to Tenant at the commencement of the Term, normal wear
and tear excepted.
14.3 Title to Personal Property Not Removed. Title to
any of Tenant Personal Property which is not removed by Tenant
upon the expiration of the Term shall, at Landlord's election,
vest in Landlord; provided, however, that Landlord may remove and
dispose at Tenant's expense
of any or all of such Tenant Personal Property which is not so
removed by Tenant without obligation or accounting to the Tenant.
14.4 Management of Premises. Upon the expiration or
earlier termination of the Term, Landlord or its designee, upon
written notice to Tenant, may elect to assume the
responsibilities and obligations for the management and operation
of the Premises and Tenant agrees to cooperate fully with
Landlord or its designee to accomplish the transfer of such
management and operation without interrupting the operation of
the Premises. Tenant shall not commit any act or be remiss in the
undertaking of any act that would jeopardize any licensure or
certification of the facility, and Tenant shall comply with all
requests for an orderly transfer of the Nursing Home license,
Medicare and Medicaid (or any successor program) certifications
and possession at the time of any such surrender. Upon the
expiration or earlier termination of the Term, Tenant shall
promptly deliver copies of all of Tenant's books and records
relating to the Premises and its operations to Landlord. In the
event Landlord elects not to assume the foregoing
responsibilities and continue the operation of the Facility upon
such expiration of the Term, Tenant shall be solely responsible
for relocating all residents of the Premises as may be required
by applicable laws then in effect.
14.5 Correction of Deficiencies . Upon termination or
cancellation of this Lease, Tenant shall indemnify Landlord for
any loss, damage, cost or expense incurred by Landlord to correct
all deficiencies of a physical nature identified by the
Massachusetts Department of Health and/or the Massachusetts
Department of Human Services or any other government agency or
Medicare or Medicaid (or any successor program) providers in the
course of the change of ownership inspection and audit.
15. Notices and Demands. All notices and demands,
certificates, requests, consents, approvals, and other similar
instruments under this Lease shall be in writing and shall be
deemed to have been properly given when sent by (a) United States
certified or registered mail, return receipt requested, postage
prepaid (b) overnight delivery service with proof of delivery, or
(c) electronic transmission with confirmation of receipt,
addressed as follows:
(a) if to Tenant, addressed to:
OASIS Healthcare, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax No. (▇▇▇)▇▇▇-▇▇▇▇
(i) Posternak, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax No.(▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as Tenant from time to time may have
designed by written notice to Landlord,
(b)
if to Landlord, addressed to:
Greenfield Associates Real Estate Trust
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Trustee
Fax No.
with a copy to:
Behar & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esquire
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or at such address as Landlord may from time to time have
designated by written notice to Tenant. Refusal to accept
delivery shall be deemed delivery. If Tenant is not an
individual, notice may be made to any officer, general partner or
principal thereof: Notice to any one co-Tenant shall be deemed
notice to all co-Tenants. All notices of any kind given or made
as aforesaid shall be deemed to have been given and received on
the second (2nd) business day following the post marked date of
the mailing thereof, or upon receipt when sent by overnight
courier service or upon confirmation of receipt if sent by
electronic transmission.
16. Right of Entry: Examination of Records. Landlord and
its representative may enter the Premises at any reasonable time
after reasonable notice to Tenant for the purpose of inspecting
the Premises for any reason including, without limitation,
Tenant's default under this Lease, or to exhibit the Premises for
sale, lease or mortgage financing, or posting notices of default,
or nonresponsibility under any mechanic's or materialman's lien
law or to otherwise inspect the Premises for compliance with the
terms of this Lease. Any such entry shall not unreasonably
interfere with patients, patient care, or any other of Tenant's
operations. During normal business hours, Tenant will permit
Landlord and Landlord's representatives, inspectors and
consultants to examine all contracts, books and records relating
to Tenant's operations at the Premises, whether kept at the
Premises or at some other location, including, without
limitation, Tenants financial records.
17. NHI Indebtedness: No Further Encumbrances, Etc.
17.1 Encumbrance. Without the written consent of
Tenant in each instance, which consent may be granted or
withheld in Tenant's sole and absolute discretion,
Landlord shall not, directly or indirectly, create or
otherwise cause to exist any lien, encumbrance or title
retention agreement ("Encumbrance") upon the Premises, or
any portion thereof or interest therein (including this
Lease), whether to secure any borrowing or other means of
financing or refinancing or otherwise with the exception of
the NHI Indebtedness (as defined below). Any such
Encumbrance allowed by the Tenant (including, in particular,
the NHI Indebtedness) shall provide that it is subject to
the rights of Tenant under this Lease, and shall further
provide that so long as no Event of Default shall have
occurred under this Lease, Tenant's rights hereunder,
including but without limitation (i) Tenant's right of quiet
enjoyment provided in Section 18, and (ii) the Tenant's
purchase options provided in Section 6.2 and Section 11.2
shall not be disturbed in the event any such lienholder or
any other person takes possession of the Premises through
foreclosure proceeding or otherwise.
17.2 NHI Indebtedness . As used in this Lease, the
"NHI Indebtedness" shall mean, collectively, all obligations
of Landlord to NHI as set forth in that certain Loan
Agreement between Landlord and NHI of even date herewith
(the "Loan Agreement") and certain other documentation
relating thereto and evidencing a loan to Landlord in the
original principal amount of $10,000,000. The principal
balance outstanding under the Loan Agreement from time to
time is sometimes referred to in this Lease as the "Current
Indebtedness".
17.3 Additional Funds. The Loan Agreement provides
for, among other matters, an additional advance of funds by
NHI up to a maximum amount of $1,000,000 (the "Additional
Funds"). Except in connection with the exercise of its put
rights under Section 11.1 hereof, Landlord agrees not to
exercise its rights to the Additional Funds and thereby
increase the NHI Indebtedness without the written consent of
Tenant, which consent may be granted or withheld in Tenant's
sole and absolute discretion.
17.4 Landlord's Contribution. On the Commencement
Date, Landlord shall contribute a portion of the proceeds of
the NHI Indebtedness to Tenant equal to the amount set forth
as the "Landlord's Contribution" in the Settlement Statement
delivered in connection with the closing of the NHI
Indebtedness for Tenant's use in connection with its Nursing
Home operations at, and anticipated improvements to, the
Premises and the Holyoke Premises (the "Landlord's
Contribution"). The Landlord's Contribution may be used in
any manner the Tenant deems necessary or advisable (so long
as the same is in compliance with all documents evidencing
the NHI Indebtedness) and may be allocated between the
Premises and the Holyoke Premises as determined by the
Tenant in its sole and absolute discretion.
18. Quiet Enjoyment. So long as there is no Event of Default
by Tenant, Landlord covenants and agrees that Tenant shall
peaceably and quietly have, hold and enjoy the Premises for the
Term, free of any claim or other action not caused or created by
Tenant (excepting, however, intrusion of Tenant's quiet enjoyment
occasioned by condemnation or destruction of the Premises as
referred to in Sections 12 and 13 hereof).
19. Applicable Law. This Lease shall be governed by and
construed in accordance with the laws of the Commonwealth of
Massachusetts without regard to the conflict of laws rules of
such state.
20. INTENTIONALLY DELETED
21. Hazardous Materials.
21.1 Hazardous Material Covenants. Tenant's use of the
Premises shall comply with all Hazardous Materials Laws. In the
event any Environmental Activities occur or are suspected to have
occurred in violation of any Hazardous Materials Laws or if
Tenant has received any Hazardous Materials Claim against the
Premises, Tenant shall, at its sole expense, promptly obtain all
permits and approvals necessary to remedy any such actual or
suspected problem through the removal of Hazardous Materials or
otherwise, and upon Landlord's approval of the remediation plan,
remedy any such problem to the satisfaction of Landlord, in
accordance with all Hazardous Materials Laws and good business
practices.
21.2 Tenant Notices to Landlord. Tenant shall promptly
advise Landlord in writing of:
21.2.1 any Hazardous Materials Claims against
Tenant or the Premises,
21.2.2 any remedial action taken by Tenant in
response to any Hazardous Materials Claims or any Hazardous
Materials on, under or about the Premises in violation of
any Hazardous Materials Laws,
21.2.3 Tenant's discovery of any occurrence or
condition on or in the vicinity of the Premises that
materially increase the risk that the Premises will be
exposed to Hazardous Materials.
21.3 Environmental Activities shall mean the use,
generation, transportation, handling, discharge, production,
treatment, storage, release or disposal of any Hazardous
Materials at any time to or from the Premises or located on or
present on or under the Premises. Nothing contained in the
foregoing or elsewhere in this Section 21 is intended to, nor
shall it, limit the liability of Tenant, if any, to Landlord with
respect to any representation or warranty given by Tenant to
Landlord with respect to Hazardous Materials or environmental
matters generally as set forth in the Hazardous Waste Indemnity
Agreement of even date herewith from Tenant and Guarantor for the
benefit of Landlord.
21.4 Hazardous Materials shall mean (i) any petroleum
products and/or by-products (including any fraction thereof),
flammable substances, explosives, radioactive materials,
hazardous or toxic wastes, substances or materials, known
carcinogens or any other materials, contaminants or pollutants
which pose a hazard to the Premises or to persons on or about the
Premises or would cause the Premises to be in violation of any
Hazardous Materials Laws; (ii)
asbestos in any form which is friable; (iii) urea formaldehyde in
foam insulation or any other form; (iv) transformers or other
equipment which contain dielectric fluid containing levels of
polychlorinated biphenyls in excess of fifty (50) parts per
million or any other more restrictive standard then prevailing;
(v) medical wastes and biohazards; (vi) radon gas; and (vii) any
other chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority or
may or could pose a hazard to the health and safety of the
occupants of the Premises or the owners and/or occupants of
Premises adjacent to or surrounding the Premises.
21.5 Hazardous Materials Claims shall mean any and all
enforcement, clean-up, removal or other governmental or
regulatory actions or orders threatened, instituted or completed
pursuant to any Hazardous Material Laws, together with all claims
made or threatened by any third party against the Premises,
Landlord or Tenant relating to damage, contribution, cost
recovery compensation, loss or injury resulting from any
Hazardous Materials.
21.6 Hazardous Materials Laws shall mean any laws,
ordinances, regulations, rules, orders, guidelines or written
policies relating to the environment, health and safety,
Environmental Activities, Hazardous Materials, air and water
quality, Waste disposal and other environmental matters.
22. Assignment and Subletting. Tenant shall not, without
the prior written consent of Landlord, which may be withheld at
Landlord's sole discretion, voluntarily or involuntarily assign
or hypothecate this Lease or any interest herein or sublet the
Premises or any part thereof. For the purposes of this Lease, a
management or similar agreement shall be considered to be an
assignment of this Lease by Tenant. Any of the foregoing acts
without such consent shall be void
but shall, at the option of Landlord in its sole
discretion, constitute an Event of Default giving rise to
Landlord's right, among other things, to terminate this Lease.
Without limiting the foregoing, this Lease shall not, nor shall
any interest of Tenant herein, be assigned or encumbered by
operation of law without the prior written consent of Landlord
which may be withheld at Landlord's sole discretion.
Notwithstanding the foregoing, (a) Tenant may without Landlord's
consent assign this Lease or sublet the Premises or any portion
thereof to a wholly-owned subsidiary of Tenant or Guarantor or to
an entity controlling, controlled by or under common control with
Tenant or Guarantor, and (b) all of the issued and outstanding
capital stock or other ownership interests (collectively,
"Ownership Interests") of Tenant may be transferred to one or
more trusts or other estate planning vehicles for the benefit of
any individual owner of the Ownership Interests and/or his
immediate family, or to members of any such individual's
immediate family directly, provided that such entity or
individual to whom this Lease is assigned fully assumes the
obligations of Tenant under this Lease, Tenant remains fully
liable under this Lease, any Guarantor remains fully liable with
respect to its guaranty of this Lease, the use of the Premises
remains unchanged, and no such assignment or sublease shall be
valid and no such subsidiary shall take possession of the
Premises until an executed counterpart of such assignment or
sublease has been delivered to Landlord. Anything contained in
this Lease to the contrary notwithstanding, Tenant shall not
sublet the Premises on any basis such that the rental to be paid
by the sublessee thereunder would be based, in whole or in part,
on either the
income or profits derived by the business activities of the
sublessee, or any other formula, such that any portion of the
sublease rental received by Landlord would fail to qualify as
"rents from real property" within the meaning of Section 856(d)
of the U.S. Internal Revenue Code, or any similar or successor
provision thereto.
22.1 For the purpose of this Lease, the transfer,
assignment, sale, hypothecation or other disposition of any
Ownership Interests of Tenant, which results in a change in the
Person (as hereinafter defined) which ultimately exerts effective
Control (as hereinafter defined) over the management of the
affairs of Tenant as of the date hereof, shall be deemed to be an
assignment of the Lease. For purposes herein, "Control" shall
mean, as applied to any individual, partnership, association,
corporation or other entity (collectively, "Person"), the
possession, directly or indirectly, of the power to direct the
management and policies of that Person, whether through
ownership, voting control, by contract or otherwise.
22.2 Notwithstanding anything to the contrary contained in
Section 22 or 22.1 or any other provision of this Lease, none of
the following shall constitute an assignment of this Lease or
require the consent of Landlord:
(i) Any initial or secondary public offering of the
Ownership Interests of Tenant.
(ii) Any initial or secondary private offering of
the Ownership Interests of Tenant, provided that after any
such offering more than fifty percent (50%) of the voting
Ownership Interests of Tenant shall be owned or controlled
by the Guarantor.
(iii) The entering into by Tenant of any joint
venture, general partnership, limited partnership, limited
liability company or other ownership entity in which Tenant
or any entity affiliated with Tenant will own more than fifty
percent (50%) of the interests therein.
23. Indemnification. Except with respect to gross
negligence or willful misconduct of Landlord (as to which no
indemnity is provided) to the fullest extent permitted by law,
Tenant agrees to protect, indemnify, defend and save harmless
Landlord, its directors, officers, trustees, shareholders,
beneficiaries, agents and employees from and against any and all
foreseeable or unforeseeable liability, expense, loss, costs,
deficiency, fine, penalty, or damage or any kind or nature,
including reasonable attorneys' fees, from any suits, claims or
demands, on account of any matter or thing, action or failure to
act arising out of or in connection with this Lease (including,
without limitation, the breach by Tenant of any of its
obligations hereunder), the Premises, or the operations of Tenant
on the Premises, including without limitation all Environmental
Activities on the Premises, all Hazardous Materials Claims, any
violation by Tenant of a Hazardous Materials Law with respect to
the Premises or any other obligation or liability of Tenant under
this Lease or otherwise with respect to Landlord. Upon receiving
knowledge of any suit, claim or demand asserted by a third party
that Landlord believes is covered by this indemnity, Landlord
shall give Tenant notice of the matter. Tenant shall defend
Landlord against such matter at
Tenant's sole cost and expense with legal counsel satisfactory to
Landlord. Landlord may elect to defend the matter with its own
counsel at Tenant's expense.
24. Holding Over. If Tenant shall for any reason remain
in possession of the Premises after the expiration or earlier
termination of this Lease, such possession shall be a month-to--
month tenancy during which time Tenant shall pay as rental each
month, the aggregate of the monthly Minimum Rent payable with
respect to the last Lease Year plus Additional Rent allocable to
the month, all additional charges accruing during the month and
all other sums, if any, payable by Tenant pursuant to the
provisions of this Lease with respect to the Premises. Nothing
contained herein shall constitute the consent, express or
implied, of Landlord to the holding over of Tenant after the
expiration or earlier termination of this Lease, nor shall
anything contained herein be deemed to limit Landlord's remedies
pursuant to this Lease or otherwise available to Landlord at law
or in equity.
25. Estoppel Certificates . Each party shall, at any time
upon not less than ten (10) business days prior written request
by the other, execute, acknowledge and deliver to such requesting
party or its designee a statement in writing, executed by an
officer or general partner, or trustee as appropriate, certifying
that this Lease is unmodified and in full force and effect (or,
if there have been any modifications, that this Lease is in full
force and effect as modified, and setting forth such
modifications), the dates to which Minimum Rent, Additional Rent
and additional charges hereunder have been paid, certifying that
no default by either Landlord or Tenant exists hereunder or
specifying each such default and as to other matters as such
party may reasonably request.
26. Waiver of Jury Trial: Etc. Landlord and Tenant
hereby waive any rights to trial by jury in any action,
proceedings or counterclaim brought by either of the parties
against the other in connection with any matter whatsoever
arising out of or in any way connected with this Lease,
including, without limitation, the relationship of Landlord and
Tenant, Tenant's use and occupancy of the Premises, or any claim
of injury or damage relating to the foregoing or the enforcement
of any remedy hereunder. In no event shall any officer,
shareholder, employee or agent of Landlord be personally liable
for any obligation of Landlord hereunder or otherwise arising in
connection with any of the foregoing and Landlord's liability for
any such matters shall in all cases be limited to its interest in
the Premises, it being the agreement of the parties that neither
Tenant, nor anyone claiming by, through or under Tenant shall be
entitled to obtain any judgment creating personal liability on
the part of Landlord or enforcing any obligations of Landlord
against any assets of Landlord other than its interest in the
Premises.
27. Severability. In the event any part or provision of
the Lease shall be determined to be invalid or enforceable, the
remaining portion of this Lease shall nevertheless continue in
full force and effect.
28. Counterparts. This Lease may be executed in any number
of counterparts, each of which shall be deemed an original, but
all of which shall constitute one and the same agreement.
29. Binding Effect. Subject to the provisions of Section
22 above, this Lease shall be binding upon and inure to the
benefit of Landlord and Tenant and their respective heirs,
personal representatives, successors in interest and assigns.
30. Waiver and Subrogation . Landlord and Tenant hereby
waive to each other all rights of subrogation which any insurance
carrier, or either of them, may have as to the other by reason of
any provision in any policy of insurance issued to Landlord or
Tenant, provided such waiver does not thereby invalidate the
policy of insurance.
31. Memorandum of Lease . Landlord and Tenant shall,
promptly upon the request of either, enter into a short form
memorandum of the Lease, in form suitable for recording under the
laws of the Commonwealth of Massachusetts in which reference to
this Lease shall be made. The party requesting such recordation
shall pay all costs and expenses of preparing and recording such
memorandum of this Lease.
32. Incorporation of Recitals and Attachments . The
recitals and exhibits, schedules, addenda and other attachments
to this Lease are hereby incorporated into this Lease and made a
part hereof.
33. Titles and Headings. The titles and headings of
sections of this Lease are intended for convenience only and
shall not in any way affect the meaning or construction of any
provision of this Lease.
34. Nature of Relationship: Usury Savings Clause. The
parties intend that their relationship shall be that of lessor
and lessee only. Nothing contained in this Lease shall be deemed
or construed to constitute an extension of credit by Landlord to
Tenant, nor shall this Lease be deemed to be a partnership or
venture agreement between Landlord and Tenant. Notwithstanding
the foregoing, in the event any payment made to Landlord
hereunder is deemed to violate any applicable laws regarding
usury, the portion of any payment deemed to be usurious shall be
held by Landlord to pay the future obligations of Tenant as such
obligations arise and, in the event Tenant discharges and
performs all obligations hereunder, such funds will be reimbursed
to Tenant upon the expiration of the Term. No interest shall be
paid on any such funds held by Landlord.
35. Joint and Several. If more than one person or entity
is the Tenant hereunder, the liability and obligations of such
persons or entities under this Lease shall be joint and several.
36. Survival of Representations, Warranties and
Covenants. All of the obligations, representations, warranties
and covenants and indemnities of Tenant under this Lease shall
survive the expiration or earlier termination of the Term.
37. Interpretation. Both Landlord and Tenant have been
represented by counsel and this Lease has been freely and fairly
negotiated. Consequently, all provisions of this Lease shall be
interpreted according to their fair meaning and shall not be
strictly construed against any party.
Executed as a Massachusetts instrument under seal as of the
date first indicated above.
TENANT:
OASIS HEALTHCARE,
By:
Name:
Its:
LANDLORD:
GREENFIELD ASSOCIATES REAL
ESTATE TRUST
By:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as
Trustee and not individually
By:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as
Trustee and not individually