SECOND AMENDED AND RESTATED LEASE AGREEMENT
(Clearwater Health & Rehabilitation)
THIS SECOND AMENDED AND RESTATED LEASE AGREEMENT (the "Lease") is made and
entered into as of the 1st day of October 1, 1998, effective as of the
Commencement Date, by and between EBT Healthcare Properties, L.P., a Delaware
limited partnership (hereinafter referred to as the "Lessor") and Centennial
HealthCare Properties Corporation, a Georgia corporation, formerly known as
WelCare International Properties Corporation, a Georgia corporation (hereinafter
referred to as the "Lessee").
W I T N E S S E T H :
WHEREAS, Lessor is the owner of that certain real property, more
particularly described on Exhibit "A" attached hereto and incorporated herein by
reference, improved with a 60-bed nursing home facility known as Clearwater
Health & Rehabilitation (the "Facility"), together with Lessor's easements and
appurtenances in adjoining and adjacent land, highways, roads, streets, lanes,
whether public or private, reasonably required for the installation,
maintenance, operation and service of sewer, water, gas, power, and other
utility lines and for driveways and approaches to and from abutting highways for
the use and benefit of the above-described parcel of real estate, together with
that certain personal property, fixtures, equipment and supplies used in
connection with such real estate and improvements (the "Premises");
WHEREAS, Lessor and Lessee entered into that certain Lease Agreement dated
as of October 1, 1993, whereby Lessor agreed to lease to Lessee the Premises
(the "Original Lease"); and
WHEREAS, Lessor and Lessee entered into that certain Amended and Restated
Lease Agreement dated as of July 6, 1994, whereby Lessor and Lessee agreed to
amend and restate the Original Lease in its entirety; and
WHEREAS, Lessor and Lessee desire to amend and restate the Amended and
Restated Lease Agreement in its entirety as provided in this Lease.
NOW THEREFORE, in consideration of Ten Dollars ($10.00) in hand paid by
each party to the other, the mutual promises herein contained and other good and
valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the parties do hereby agree as follows:
1. Ownership. Lessor is the owner of the Facility which is located on the
Premises.
2. Term. The term of this Lease shall be deemed to have commenced on the 1st day
of October, 1993 (the "Commencement Date"), and shall end on the 30th day of
September, 2006 unless sooner terminated, and Lessee is hereby granted an option
to extend this Lease for two (2) additional five (5) year periods on the same
terms as provided in this Lease; provided, however, that at the time of such
election to extend, unless Lessee and Lessor shall have otherwise agreed in
writing upon the rent to be paid during the extension term(s), Lessee shall
provide Lessor with a letter from a third-party appraiser reasonably acceptable
to Lessor stating that the Base Rent (as hereinafter defined) and any other sums
payable under this Lease constitute a fair market rental rate for the Premises
(the "Fair Rental Rate"). Lessee shall pay the reasonable fees and charges of
such appraiser. If the Fair Rental Rate is greater than or less than the Base
Rent at the time of the extension of this Lease, then the Lessee can either (i)
elect not to extend this Lease, or (ii) pay as Base Rent an amount equal to the
Fair Rental Rate. Lessee must notify the Lessor in writing of its election to
exercise any of the renewal extensions at least three (3) months prior to the
expiration of the then current lease term. Lessor and Lessee agree that they
both shall be bound by the appraiser's determination of the Fair Rental Rate to
the extent herein indicated.
3. Rental Payments.
A. Base Rent. Lessee shall pay to Lessor the amounts set forth on Exhibit "B" as
rent for the Premises in arrears upon the last day of each and every month
during the term of this Lease (the "Base Rent").
B. Additional Rent. Lessee shall pay to Lessor, monthly in arrears,
$127.00 for each 1/8% that the LIBOR Rate (as hereinafter defined) exceeds
7.475% as additional rent (the "Additional Rent"). Further, the Base Rent shall
be reduced $127.00 for each 1/8% that the LIBOR Rate decreases below 7.475% (the
"Base Rent Reduction"). The Additional Rent and the Base Rent Reduction shall be
calculated based on the LIBOR Rate on the first calendar day of each month
during the Lease Term (the "Rate Adjustment Date"). The LIBOR Rate shall mean
the average of London Interbank Offered Rates for a term of one month (the "One
Month LIBOR"), as reasonably determined by Lessor or its Mortgagee as of each
Rate Adjustment Date. The One Month LIBOR (in U.S. dollar deposits) will be
obtained from the appropriate Bloomberg display page available at the close of
business announced on the last business day of the month, for every month
covered by the Lease Term. In the event that Bloomberg ceases publication, or
ceases to publish the One Month LIBOR, Lessor or its Mortgagee shall select a
comparable publication to determine the One Month LIBOR.
C. Payment of Rent. Lessor and Lessee acknowledge and agree that this Lease and
all Base Rent, Base Rent Reduction, and Additional Rent (together, the "Rent")
payable hereunder may be assigned as additional collateral for a mortgage loan
or loans to Lessor. In such event, Lessor and Lessee mutually agree that, if
required by the lender (the "Mortgagee") pursuant to such mortgage loan (the
"Mortgage"), all payments of Rent shall be made to a lockbox or another account
designated by Mortgagee (a "Lockbox Account") and Mortgagee is hereby authorized
by Lessor and Lessee to debit such account each month for the amount equal to
the monthly debt service payments due pursuant to the promissory note secured by
the Mortgage. Payments so made by the Lessee shall be credited as payments of
Rent made under this Lease and shall satisfy the obligations of Lessee
hereunder, to the extent so paid. If payments of Rent are not made a Lockbox
Account for the benefit of Mortgagee, then such payments shall be made to Lessor
at Lessor's address as provided in Section 31 of this Lease or such other
address as Lessor shall specify pursuant to Section 31 at least thirty (30) days
prior to a payment date.
D. Debt Service Reserve Fund. No security deposit is required of Lessee pursuant
to this Lease except as follows. If required by Mortgagee, pursuant to the terms
of the Mortgage and this Lease, Lessor shall deposit into an account with
Mortgagee pursuant to a Debt Service reserve Escrow and Security Agreement (the
"Deposit Agreement") an amount equal to two months debt service on the Premises
to serve as a debt service reserve fund, which may increase if debt service
payments increase (the "Debt Service Reserve Fund"). The Debt Service Reserve
Fund shall be governed by the terms of the Deposit Agreement. Notwithstanding
the foregoing, if Lessee provides Lessor with additional funds to enable the
deposit of additional debt service reserves as contemplated by the Deposit
Agreement, then amounts pledged to Mortgagee as a Debt Service Reserve Fund
shall, upon repayment in full of the Mortgage or upon any release of the Debt
Service Reserve Fund (or any portion thereof) by the Mortgagee (the "Release
Date"), be deemed a security deposit of Lessee and shall be refunded to Lessee
to the extent Lessee funded such amounts.
4. Net Lease. This Lease is intended to be a net lease in that it is the
intention of the parties hereto that the Rent payable to Lessor shall not be
reduced by any cost or charge whatsoever and that all expenses and charges
related to the ownership and operation of the Premises after the date of this
Lease, whether for upkeep, maintenance; compliance with environmental, health
and safety laws (including the Americans with Disabilities Act); insurance;
taxes; utilities; federal, state and municipal requirements; and other charges
of a like nature or type or otherwise shall be paid by Lessee, subject to the
other terms of this Lease. This provision is not in derogation of specific
provisions herein, but in expansion thereof and as an indication of the general
intentions of the parties hereto.
5. Taxes and Assessments. Lessee hereby agrees to pay to the public authorities
charged with collection thereof, promptly as the same become due and payable,
all taxes, assessments, and other public charges levied upon or assessed against
the Premises and/or any building, structure, fixture or improvements now or
hereafter located thereon, or arising in respect of the occupance, use or
possession of the Premises, and which become due and payable.
6. Fuel, Utility Services. Lessee hereby agrees to pay for all fuel,
electricity, heat or power, gas and water, or any other utility charges incurred
upon the Premises after the date of this Lease.
7. Compliance with Laws. Lessee covenants that in the use and occupation of the
Premises and the buildings, structures, fixtures and improvements thereon, and
the sidewalks adjacent thereto, Lessee will comply in all material respects with
all authorities in any manner affecting the Premises or any building,
structures, fixtures and improvements thereon or the use thereof and the terms
of the Mortgage. Lessee further agrees that it will not permit any unlawful
occupation, business or trade to be conducted on the Premises, or any use to be
made thereof contrary to any law, ordinance or regulation with respect thereto.
8. Repairs, Alterations and Additions.
A. General. Lessee shall be further obliged to pay from the Gross Revenues of
the Premises any expense for repairing any improvements upon the Premises,
including, without limitation, extermination and landscaping, and Lessee shall
make all reasonable repairs and replacements necessary to maintain the Premises
and all furniture and fixtures in a reasonably good, tenantable and wholesome
condition, complying in all material respects with all applicable laws,
regulations, ordinances, licenses and requirements of all authorities having
jurisdiction over the Premises. Lessor, however, is not hereby relieved of
responsibility of maintenance assumed by it pursuant to the Mortgage. For
purposes of this Lease, "Gross Revenues" shall mean the amount equal to the sum
of all revenues received or receivable from the operation of the Facility less
contractual allowances for ▇▇▇▇▇▇▇▇ not paid or received from applicable
governmental agencies or other third party payors as determined during each
calendar year.
9. Insurance. Lessee shall maintain insurance as follows:
(a) Professional liability insurance in at least the amount of $1,000,000 per
occurrence, $2,000,000 aggregate with a $10,000,000 umbrella. All such liability
insurance shall name each of Lessor and Mortgagee as an additional insured;
(b) Liability insurance in an amount equal to at least $1,000,000 per
occurrence, $2,000,000 aggregate, with a $10,000,000 umbrella. All such
liability insurance shall name each of Lessor and Mortgagee as an additional
insured;
(c) "All-risk" coverage on the Facility, including all improvements, equipment
and inventory, in an amount not less than the replacement cost thereof, insuring
against such potential causes of loss as shall be required by Lessor, including
but not limited to loss or damage from wind, fire, ice, subsidence and, if
requested by Lessor, earthquake;
(d) Business income insurance (including rental value if the Facility is leased
in whole or part) equal to not less than twelve (12) months estimated gross
revenues less expenses not ordinarily incurred during the period of business
interruption; and
(e) Workers compensation insurance as required by the laws of the State where
the Facility is located.
Each of the policies described in (c) and (d) shall name Lessor (or, if
directed by Lessor, Mortgagee) as mortgagee and loss payee under a standard
non-contributory mortgagee and lender loss payable clause, and shall provide
that Lessor and Mortgagee shall receive not less than thirty (30) days written
notice prior to cancellation. The proceeds of either of the policies described
in (c) and (d) shall be payable by check jointly payable to Lessee and to Lessor
(or, if directed by Lessor, Mortgagee) and delivered to Lessor (or, if directed
by Lessor, Mortgagee).
Lessee appoints Lessor and Mortgagee as Lessee's attorney-in-fact to cause
the issuance of or an endorsement of any policy to bring Lessee into compliance
herewith and, at the sole option of Lessor and Mortgagee, to make any claim for,
receive payment for, and execute and endorse any documents, checks or other
instruments in payment for loss, theft, or damage covered under any such
insurance policy; however, in no event will Lessor or Mortgagee be liable for
failure to collect any amounts payable under any insurance policy. Lessee agrees
and acknowledges that the application of insurance proceeds shall be governed by
Section 4.4 of that certain Loan Agreement of even date herewith between
Mortgagee and Lessor.
If Lessor shall in any manner resume possession of the Premises, Lessor
shall thereupon become, subject to the terms of the Mortgage, the sole owner of
all insurance policies held by or required hereunder to be delivered to Lessor,
with the sole right to collect and retain all unearned premiums and dividends
thereon, and Lessee shall only be entitled to a credit, in reduction of the then
outstanding indebtedness secured hereby, in the amount of the cancellation
refund.
10. Other Operating Expenses. Lessee agrees to pay all other operational
expenses of the Premises not heretofore mentioned.
11. Surrender. Lessee agrees that, upon termination by lapse of time or
otherwise of the term hereby created, or any extension thereto, it will deliver
and surrender up to the Lessor said Premises in reasonably good condition and
repair; any damage, deterioration or destruction resulting from ordinary wear
and tear, loss by fire, casualty and causes beyond Lessee's control are
excepted.
12. Liens. Lessee will not permit any mechanic's, laborer's, or materialmen's
liens to stand against the Premises for any labor or material furnished to
Lessee or claimed to have been furnished to Lessee in connection with work of
any character performed or claimed to have been performed on the Premises by or
at the direction or sufferance of Lessee, but nothing herein contained shall in
any way prejudice the rights of Lessee to contest to final judgment or decree
any such lien. In the event of failure of Lessee to procure the discharge of any
such lien or contest such lien as above provided, by bond or any other method,
Lessor may, without further notice, procure the discharge thereof by bonding,
payment or otherwise, and all costs and expenses incurred by Lessor in obtaining
such discharge shall become due as additional Rent upon the next payment of
Rent. Lessor shall not cause any mortgage or lien other than the Mortgage and
security interests related thereto to stand against or attach to the Premises.
13. No Abatement of Rent. The partial destruction of any building on the
Premises by fire or natural elements shall not in any manner affect this Lease
or the rights and obligations of Lessee hereunder and the Rent shall not ▇▇▇▇▇,
diminish or cease during reconstruction. The Rent shall not ▇▇▇▇▇ upon
foreclosure under the Mortgage. However, should the Lessor fail to undertake to
repair, rebuild or replace any such damage or destruction within thirty (30)
days after such fire or other casualty, or shall fail to complete such work
within six (6) months, then the terms of this Lease shall expire at the option
of Lessee, after ten (10) days written notice to Lessor.
14. Damage or Destruction. If the Premises covered hereby, or any part thereof,
shall be damaged by fire or other hazard against which insurance is held, the
amounts paid by any insurance company in pursuance of the contract of insurance
to the extent of the indebtedness then remaining unpaid, shall be paid, subject
to the terms of the Mortgage, to Lessor and released only for the repairing or
rebuilding of the Premises.
15. Condemnation. If the Premises shall be condemned or taken in its entirety
for a public or quasi-public use, all compensation therefore shall be paid to
Mortgagee to be used to pay the Mortgage as provided in the Mortgage and any
remaining funds will be divided between Lessor and Lessee, and this Lease and
all obligations hereunder shall terminate as of the date of taking. If only a
portion of the Premises shall be condemned or taken for a public or quasi-public
use, any and all awards or compensation arising from such condemnation or taking
shall be paid to Mortgagee subject to the terms of the Mortgage, and this Lease
shall continue without modification, unless and except that if so much or such
portion of the Premises be taken that the taking shall materially interfere with
the efficient operation of its business by Lessee on the Premises, the judgment
of Lessee as to the materiality of such interference being conclusive, then at
any time within sixty (60) days after the taking of such portion of the
Premises, Lessee may terminate this Lease by serving upon Lessor written notice
of its intention to do so. In the event this Lease is so terminated, then any
and all awards or compensation arising from such condemnation or taking shall be
paid jointly to Lessor and Lessee subject to the terms of the Mortgage, and all
obligations hereunder shall cease as of the date of such termination and any
funds remaining after the payment of the Mortgage shall be divided between the
Lessor and Lessee. Nothing contained herein shall be construed to preclude
Lessee from prosecuting any claim directly against the condemning authority in
such condemnation proceedings for loss of business, or depreciation to, damage
to, or cost of removal of, or for the value of its leasehold interest, stock,
trade fixtures, furniture and other personal property belonging to Lessee.
16. Assignment and Subletting. Lessee may not assign or encumber this Lease or
its rights hereunder except to Mortgagee without first obtaining the written
consent of Lessor which will not be unreasonably withheld; provided, however,
that Lessee's assignment of this Lease to an affiliate of Lessee shall be valid
and binding on Lessor without Lessor's prior written consent. In such event,
Lessee shall remain liable for the payment of all Rent required to be paid
hereunder and for the performance of all terms, covenants and conditions herein
undertaken by Lessee. Lessee shall have the right to enter into subleases with
respect to the operation of the Premises or any portion thereof, at any time
during the term of this Lease without the consent of Lessor, which subleases
shall not be deemed to create a tenancy in the Premises; provided, however, that
Lessee shall remain liable for the payment of all Rent required to be paid
hereunder and for the performance of all terms, covenants, and conditions herein
undertaken by Lessee. Lessor shall not assign or encumber this Lease or its
rights hereunder without first obtaining the written consent of Lessee and
providing Lessee with a written agreement from the assignee that it will abide
by all of the terms of this Lease.
17. Holding Over. In the event Lessee continues to occupy the Premises after the
last day of the term hereby created, or after the last day of any extension of
said term, and Lessor elects to accept rent thereafter, a tenancy from month to
month only shall be created and not for any longer period without the written
concurrence of Lessor.
18. Abandonment and Reletting. If Lessee shall abandon or vacate the Premises,
except as permitted hereunder, the same may be re-let by Lessor for such rent,
and upon such terms as to it may seem fit and in accordance with Lessor's
Partnership Agreement and the Mortgage. If a sufficient sum shall not be thus
realized monthly after paying the expense of such re-letting and collecting, to
satisfy the Rent, Lessee agrees to satisfy and pay all deficiencies during each
month of the remaining period of this Lease.
19. Subrogation and Waiver. Lessor hereby waives any and all claims against
Lessee, its assignees or sub-lessee for damage or destruction of any
improvements on the Premises (whether or not resulting from the fault or
negligence of Lessee, its assignees or sub-lessee or their agents or employees)
which improvements are covered by insurance obtained by Lessee and the parties
agree that any policies of insurance obtained by Lessor will recognize this
waiver of Lessor by a good and sufficient waiver of subrogation provision;
provided, however, that nothing herein shall be construed as waiving Lessor's
right to any insurance proceeds under policies obtained by Lessee, but paid for
by Lessor.
20. Default, Termination and Damages.
A. Lessee's Default For Nonpayment of Rent. Except as otherwise provided in this
Lease, Lessee shall be in default under this Lease if it fails to pay the Rent
owed to Lessor hereunder for a period of sixty (60) days (a "Monetary Default").
B. Lessee Default For Other Than Nonpayment of Rent. Lessee shall be in default
under this Lease if it defaults on any of the covenants herein contained to be
kept by Lessee, except the payment of Rent, and such default shall continue
after written notice for a period of ninety (90) days (a "Non-monetary
Default").
C. Right to Re-enter Facility. If a Monetary Default or Non-monetary Default
shall occur and continue, Lessor shall have the immediate right, whether or not
the term of this Lease shall have been terminated to re-enter and repossess the
Premises by summary proceedings, ejectment, any other legal action or in any
lawful manner Lessor determines to be necessary or desirable. No such re-entry
or repossession of the Premises shall be construed as an election by Lessor to
terminate the term of this Lease.
D. Duty to Mitigate. At any time or from time to time after the re-entry or
repossession of the Premises pursuant to Section 20.C. hereof, whether or not
the term of this Lease shall have been terminated, Lessor, in the name of Lessee
or Lessor or otherwise and upon notice to Lessee, shall, to the extent required
by applicable state law pertaining to the duty to mitigate damages upon breach
of a lease or other contract, use such efforts to relet the Premises as is
required by such law, Lessor may collect and receive any rents payable by reason
of such reletting consistent with Section 18 hereof.
E. Continuing Duty of Lessee. No expiration or termination of the term of this
Lease pursuant to this Section or and no expiration of the term pursuant to
Section 18 hereof, by operation of law or otherwise, and no re-entry,
repossession or reletting of the Premises pursuant to Section 18 hereof or
otherwise, shall relieve Lessee of its liabilities and obligations hereunder,
all of which shall survive such expiration, termination, re-entry, repossession
or reletting.
21. Remedies Cumulative. The remedies conferred by this Lease upon Lessor and
Lessee are not intended to be exclusive, but are cumulative and in addition to
all remedies otherwise afforded by law.
22. Successors. This Lease and all covenants and agreements herein contained
shall be binding upon, apply and inure to the respective successors and assigns
of all parties to this Lease.
23. Lessor's Title. Subject to the terms of this Lease, Lessor's title is, and
always shall be, paramount to the title and interest of Lessee, and nothing
herein contained shall empower Lessee to do any act which can or shall encumber
the title of the Lessor. Provided the holder of any mortgage now or hereafter
encumbering the Premises shall provide Lessee with a non-disturbance agreement
reasonably satisfactory to Lessee, Lessee agrees to subordinate its interest in
this Lease to the Mortgage that encumbers the Premises. Nothing contained herein
shall relieve the Lessor of any obligations under the Mortgage.
24. Books and Financial Statements. Lessee shall deliver to Lessor at the end of
each fiscal year, or more often as reasonably requested by Lessor, the books of
its operations of the Facility. Lessee shall provide to Lessor the financial
statements required by the Mortgage.
25. License. Lessee at all times shall maintain in force and effect a license
from the state in which the Facility is located to operate a nursing home, and
shall at all times employ a duly qualified administrator to operate the
Facility.
26. Employees. Lessee shall have direct responsibility for recruiting, hiring,
training, promoting, assigning and discharging all operating and service
personnel necessary for the proper operation and maintenance of the Premises or
shall have direct responsibility for leasing employees for the Premises. All
employees shall be employees of the Lessee and the Premises or leased by the
Lessee and shall not be employees of the Lessor.
27. Notice of Action Against License. Notwithstanding any other provision of
this Lease to the contrary, Lessee shall inform Lessor immediately by hand
delivery, telephone, telecopy (receipt confirmed) or telegraph of any action
taken, commenced or instituted by any state or federal authority having
jurisdiction over the Premises as a health care facility to terminate or revoke
any license certification of Lessee. Such notice shall be given to Lessor at the
address set forth in Paragraph 30.A. below.
28. Surrender of Possession. Lessee shall, on or before the last day of the term
of this Lease, surrender possession of the Premises to Lessor, free and clear of
sub-tenancies not specifically agreed upon by Lessor, reasonably clean and in
reasonably good condition and repair, ordinary wear and tear excepted.
29. Quiet Enjoyment. If and so long as Lessee is not in default hereunder,
Lessor agrees that it will not interfere with the peaceful and quiet occupation
and enjoyment of the Premises by Lessee.
30. Inspection of Books and Records. Lessor and Mortgagee shall have the right,
upon reasonable notice and at reasonable times, to inspect the books and records
and accounts relating to the Facility.
31. Miscellaneous Provisions.
A. Notices. Any notice or other communication by either party to the other shall
be in writing and shall be given, and be deemed to have been duly given, if
either delivered personally or mailed, postage prepaid, by registered or
certified mail, or reputable overnight delivery service addressed as follows:
TO LESSOR:
EBT Healthcare Properties, L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
WITH A COPY TO:
▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Two Midtown Plaza, Suite 1900
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
TO LESSEE:
Centennial HealthCare Properties Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇
WITH A COPY TO:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarborough, L.L.P.
First Union Plaza - Suite 1400
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
or to such other address and to the attention of such other person or officer as
either party may from time to time designate.
B. Change of Address. Lessor and Lessee may change their address for purposes of
this Lease by giving notice thereof in accordance with the provisions set forth
for notices above.
C. Understanding and Agreements. This Lease constitutes all of the
understandings and agreements of whatever nature or kind existing between the
parties with respect to the subject matter hereof.
D. Headings. The paragraph headings contained herein are for convenience
of reference only and are not intended to define, limit or describe the scope
or intent of any provisions of this Lease.
E. Approval or Consent. Whenever, under any provision of this Lease, the
approval or consent of either party is required, the decision thereon shall be
promptly given, and such approval or consent shall not be unreasonably withheld.
F. Severability. Should any part of this Lease be declared invalid for any
reason, such decision shall not affect or impair the validity of the remaining
part or parts hereof, and this Lease shall remain in full force and effect as to
all parts not declared invalid or unenforceable as if the same had been executed
with the invalid or unenforceable portion(s) thereof eliminated.
G. Applicable Law. This Lease shall be governed by, and construed and
enforced in accordance with, the laws of Idaho (without regard to its rules
of conflicts of laws).
H. Further Assurances. Lessee shall, upon the request of Lessor, execute and
deliver any and all further documents which may be required, contemplated or
desired by Lessor in furtherance of the transactions contemplated by this Lease.
I. Amendment or Modifications. This Lease shall not be amended or
modified without the prior written consent of the parties hereto.
J. Time. Time is of the essence of this Lease.
K. Binding. This Lease shall be binding upon, and inure to the benefit
of, the parties hereto, their estates, heirs, personal representatives,
successors in interest and assigns.
L. Counterparts. This Lease may be executed in one of more counterparts, each of
which shall constitute one and the same instrument.
32. Lease Memorandum. The Original Lease is evidenced in the Records of
Clearwater County, State of Idaho, by the filing of that certain Memorandum of
Lease recorded on October 22, 1993, as Instrument Number 163900. The aforesaid
Memorandum of Lease shall continue in full force and effect (as modified hereby)
and shall memorialize and provide constructive notice of the right, title and
interest of Lessee in the Premises.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease as of the
date first set forth above.
LESSOR:
EBT HEALTHCARE PROPERTIES, L.P.,
a Delaware limited partnership
By: EBT Healthcare, Inc.,
Its General Partner
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
LESSEE:
CENTENNIAL HEALTHCARE PROPERTIES
CORPORATION, a Georgia corporation
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇
----------------------------
▇▇▇▇ ▇. ▇▇▇▇, Vice President
Exhibit B
Annual Lease Payments Monthly Lease Payments
Year 1 $182,178.00 $15,182.00
Year 2 $182,178.00 $15,182.00
Year 3 $182,178.00 $15,182.00
Year 4 $182,178.00 $15,182.00
Year 5 $182,178.00 $15,182.00
Year 6 $103,968.00 $8,664.00
Year 7 $103,968.00 $8,664.00
Year 8 $103,968.00 $8,664.00
Year 9 $103,968.00 $8,664.00
Year 10 $103,968.00 $8,664.00
Year 11 $103,968.00 $8,664.00
Year 12 $103,968.00 $8,664.00
Year 13 $103,968.00 $8,664.00
SCHEDULE 10.13
CHPC has entered into lease agreements substantially identical to
Exhibit
10.13 as follows:
1. Second Amended and Restated Lease Agreement dated October 1, 1998 with
EBT Healthcare Properties, L.P. ("EBT") for Ft. Worth, Texas facility. Material
details in which this agreement differs from Exhibit 10.13 are that the base
rent per year is $247,365 for the remaining term of this agreement, and the
"Additional Rent" payment is $317 for each 1/8% that the LIBOR Rate established
by Bloomberg exceeds 7.475% (the "Percentage Amount"). Furthermore, the Base
Rent shall be reduced $137 for each 1/8% that the LIBOR Rate decreases below
7.475%.
2. Second Amended and Restated Lease Agreement dated October 1, 1998 with
EBT for Libby, Montana facility. Material details in which this agreement
differs from Exhibit 10.13 are that the base rent per year is $108,525 for the
remaining term of this agreement, and the "Additional Rent" payment is $137 for
each 1/8% that the LIBOR Rate established by Bloomberg exceeds 5.625% (the
"Percentage Amount"). Furthermore, the Base Rent shall be reduced $137 for each
1/8% that the LIBOR Rate decreases below 5.625%.
3. Amended and Restated Lease Agreement dated October 1, 1998 with EBT for
Pinewood, Idaho facility. Material details in which this agreement differs from
Exhibit 10.13 are that the base rent per year is $279,032 for the remaining term
of this agreement, and the "Additional Rent" payment is $359 for each 1/8% that
the LIBOR Rate established by Bloomberg exceeds 5.625% (the "Percentage
Amount"). Furthermore, the Base Rent shall be reduced $359 for each 1/8% that
the LIBOR Rate decreases below 5.625%.
4. Amended and Restated Lease Agreement dated October 1, 1998 with EBT for
Union, Mississippi facility. Material details in which this agreement differs
from Exhibit 10.13 are that the base rent per year is $285,259 for the remaining
term of this agreement, and the "Additional Rent" payment is $370 for each 1/8%
that the LIBOR Rate established by Bloomberg exceeds 5.625% (the "Percentage
Amount"). Furthermore, the Base Rent shall be reduced $370 for each 1/8% that
the LIBOR Rate decreases below 5.625%.
5. Amended and Restated Lease Agreement dated October 1, 1998 with EBT for
Natchez, Mississippi facility. Material details in which this agreement differs
from Exhibit 10.13 are that the base rent per year is $348,310 for the remaining
term of this agreement, and the "Additional Rent" payment is $444 for each 1/8%
that the LIBOR Rate established by Bloomberg exceeds 5.625% (the "Percentage
Amount"). Furthermore, the Base Rent shall be reduced $444 for each 1/8% that
the LIBOR Rate decreases below 5.625%.
6. Amended and Restated Lease Agreement dated October 1, 1998 with EBT for
Winona, Mississippi facility. Material details in which this agreement differs
from Exhibit 10.13 are that the base rent per year is $441,677 for the remaining
term of this agreement, and the "Additional Rent" payment is $560 for each 1/8%
that the LIBOR Rate established by Bloomberg exceeds 5.625% (the "Percentage
Amount"). Furthermore, the Base Rent shall be reduced $560 for each 1/8% that
the LIBOR Rate decreases below 5.625%.
7. Amended and Restated Lease Agreement dated October 1, 1998 with EBT for
Franklinton, Louisiana facility. Material details in which this agreement
differs from Exhibit 10.13 are that the term of this agreement terminates on
September 30, 2004, base rent per year is $420,234 for the remaining term of
this agreement, and the "Additional Rent" payment is $522 for each 1/8% that the
LIBOR Rate established by Bloomberg exceeds 5.625% (the "Percentage Amount").
Furthermore, the Base Rent shall be reduced $522 for each 1/8% that the LIBOR
Rate decreases below 5.625%.
8. Amended and Restated Lease Agreement dated October 1, 1998 with EBT for
Bossier City, Louisiana facility. Material details in which this agreement
differs from Exhibit 10.13 are that the term of this agreement terminates on
September 30, 2004, base rent per year is $100,946 for the remaining term of
this agreement, and the "Additional Rent" payment is $127 for each 1/8% that the
LIBOR Rate established by Bloomberg exceeds 5.625% (the "Percentage Amount").
Furthermore, the Base Rent shall be reduced $127 for each 1/8% that the LIBOR
Rate decreases below 5.625%.
14
9. Amended and Restated Lease Agreement dated October 1, 1998 with EBT for
Ferriday, Louisiana facility. Material details in which this agreement differs
from Exhibit 10.13 are that the term of this agreement terminates on September
30, 2004, base rent per year is $250,648 for the remaining term of this
agreement, and the "Additional Rent" payment is $317 for each 1/8% that the
LIBOR Rate established by Bloomberg exceeds 5.625% (the "Percentage Amount").
Furthermore, the Base Rent shall be reduced $317 for each 1/8% that the LIBOR
Rate decreases below 5.625%.
10. Amended and Restated Lease Agreement dated October 1, 1998 with EBT
for McComb, Mississippi facility. Material details in which this agreement
differs from Exhibit 10.13 are that the term of this agreement terminates on
March 31, 2004, base rent per year is $479,572 for the remaining term of this
agreement, and the "Additional Rent" payment is $613 for each 1/8% that the
LIBOR Rate established by Bloomberg exceeds 5.625% (the "Percentage Amount").
Furthermore, the Base Rent shall be reduced $613 for each 1/8% that the LIBOR
Rate decreases below 5.625%.
11. Amended and Restated Lease Agreement dated October 1, 1998 with EBT
for Starkville, Mississippi facility. Material details in which this agreement
differs from Exhibit 10.13 are that the term of this agreement terminates on
September 30, 2004, base rent per year is $431,067 for the remaining term of
this agreement, and the "Additional Rent" payment is $545 for each 1/8% that the
LIBOR Rate established by Bloomberg exceeds 5.625% (the "Percentage Amount").
Furthermore, the Base Rent shall be reduced $545 for each 1/8% that the LIBOR
Rate decreases below 5.625%.