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EXHIBIT 10.1
MASTER LEASE
("OMEGA NEW MASTER LEASE")
AMBERWOOD COURT, INC.
THE ARBORS HEALTH CARE CENTER, INC.
▇▇▇▇▇▇▇▇▇▇ HOUSE, INC.
▇▇▇▇▇▇▇▇▇▇▇ NURSING CENTER, INC.
LOS ▇▇▇▇▇, INC.
PUEBLO NORTE, INC.
RIO VERDE NURSING CENTER, INC.
LESSEES
AND
OMEGA HEALTHCARE INVESTORS, INC.
LESSOR
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MASTER LEASE
THIS MASTER LEASE ("Lease") is dated as of December __, 1998 and is
entered into by OMEGA HEALTHCARE INVESTORS, INC., a Maryland corporation, having
its principal office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
as Lessor, and each of the entities designated a Lessee on the signature page
hereof.
RECITALS
This Lease is made and entered into with reference to the following
recitals:
A. Capitalized terms used and not otherwise defined herein have the
respective meanings given them in Article II, below.
▇. ▇▇▇▇▇▇ and Lessees other than the Signature Subsidiaries are parties to
the leases described in EXHIBIT A attached hereto ("Existing Leases").
C. Pursuant to the Debtors' First Amended Joint Plan of Reorganization
dated October 15, 1998 entered in the United States Bankruptcy Court
for the District of Arizona in the matters of In Re: Unison HealthCare
Corporation (Case Nos. B-98-06583-PHX-GBN through B-98-06612-PHX-GBN)
and In Re: BritWill Investments-I, Inc. (Case Nos. B-98-0173-PHX-GBN
through B-98-1075-PHX-GBN)("Plan"):
1. Lessor has acquired the Signature Facilities from the
Signature Subsidiaries and Lessor, Signature and the Signature
Subsidiaries now wish the Signature Facilities to be leased to
the Lessees on the terms and conditions set forth herein;
2. The Britwill Indiana Facilities, BritWill-II November 1993
Facilities and BritWill-II December 1994 Facilities are to be
added to the Facilities covered by this Lease by amendment
hereto as and when provided by the Plan, and this Lease shall
thereupon act as an assumption (as amended and supplemented)
of the leases described in Exhibit A attached hereto
("Existing Leases");
3. The Additional Texas Facilities are to be added to the
Facilities covered by this Lease by amendment hereto as and
when provided by the Plan; and
4. This Lease shall constitute a single, unseverable lease of all
of the Facilities as and when leased hereunder.
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D. The terms and conditions of the Omega New Master Lease (as defined in
the Plan) are those hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing, and of other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties to this Lease agree as follows:
ARTICLE I
1.1 Assumption and Amendment of Existing Leases; Release of Indiana
Returned Facilities.
Upon the addition of the Britwill Indiana Facilities, BritWill-II
November 1993 Facilities and BritWill-II December 1994 Facilities to this Lease,
which shall be by an amendment or amendments hereof executed by the parties
hereto, the parties hereto agree that this Lease shall constitute an assumption
(as hereby amended and supplemented) of each of the Existing Leases, and as and
on the terms and conditions set forth in the Indiana Returned Facilities
Agreement, BritWill Indiana shall release and relinquish to Lessor any and all
right, title and interest in and to the Indiana Returned Facilities.
1.2 Leased Property
Upon and subject to the terms and conditions hereinafter set forth,
Lessor leases to Lessees the Signature Facilities.
Each Facility is demised subject to all covenants, conditions,
restrictions, easements and other matters affecting such Facility, whether or
not of record, including the Permitted Encumbrances and other matters which
would be disclosed by an inspection of the Facility or by an accurate survey
thereof.
Lessees are jointly and severally liable to Lessor for the payment of
all amounts due Lessor from, and the performance of all obligations of, any one
or more or all of the Lessees under this Lease. This Lease constitutes one
indivisible lease of all of the Facilities, and not separate leases. Except as
expressly provided herein for specific, isolated purposes (and then only to the
extent expressly otherwise stated), all provisions of this Lease apply equally
and uniformly to all the Facilities as a single unit. Neither the fact that
prior to its conveyance to Lessor title to a specific Facility was vested in a
single Lessee, nor the occupancy of a Facility by a single Lessee or the
performance by one
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Lessee of obligations under the Lease with respect to a specific Facility, shall
relieve a Lessee or any of the other Lessees of joint and several responsibility
for the payment of all amounts due under this Lease and the performance of all
obligations of Lessees required by this Lease. Payment by any Lessee of a
monetary obligation of all Lessees under this Lease, or complete performance by
any one Lessee of a nonmonetary obligation of all Lessees, shall be deemed
performance of such obligation by all Lessees.
References herein to Facilities which have not been added to the
Facilities covered by this Lease by amendment of this Lease shall have no force
or effect until such Facilities are added hereto, at which time such added
Facilities shall be leased upon the terms and conditions set forth herein.
1.3 Term. The initial term of the Lease (the "Initial Term") shall
commence upon the Effective Date and end upon the Expiration Date. Lessees have
a right to extend the Term as set forth in Article XIX of this Lease.
ARTICLE II
2.1 Definitions. For all purposes of this Lease, except as otherwise
expressly provided or unless the context otherwise requires, (i) the terms
defined in this Article have the meanings assigned to them in this Article and
include the plural as well as the singular, (ii) all accounting terms not
otherwise defined herein have the meanings assigned to them in accordance with
GAAP as at the time applicable, (iii) all references in this Lease to designated
"Articles," "Sections" and other subdivisions are to the designated Articles,
Sections and other subdivisions of this Lease, (iv) the words "herein," "hereof"
and "hereunder" and other words of similar import refer to this Lease as a whole
and not to any particular Article, Section or other subdivision, (v) the terms
"Lessee" and "Lessees" shall mean each and every Lessee unless the context in
which the term is used clearly indicates that the intended reference is to the
Lessee occupying a specific Facility and (vi) the following terms shall be
deemed to pertain only to the Signature Subsidiaries until the addition of the
Britwill Indiana Facilities, Additional Texas Facilities, BritWill-II November
1993 Facilities and BritWill-II December 1994 Facilities have been added to this
Lease, at which time such terms shall be deemed to pertain to all of the
Lessees: Lessees' Consolidated Cash Flow (EBITDARM); Lessees' Consolidated
Current Assets; Lessees' Consolidated Current Liabilities; Lessees' Consolidated
Debt Service; Lessees' Consolidated Fixed Charge Ratio; Lessees' Consolidated
Current Ratio; Lessees' Consolidated Fixed Charges; Lessees' Consolidated Net
Income; Lessees' Consolidated Tangible Net Worth; Lessees' Personal Property.
Additional Charges: As defined in Article III.
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Additional Contingent Payment. The payment required of Lessor
under Section 7.1.1 of the Plan, if any.
Additional Texas Facilities: The facilities located on the
Additional Texas Facilities Land, commonly known as Colonial Pines Healthcare,
West Place Nursing Center and South Place Nursing Center.
Additional Texas Facilities Effective Date: The date upon
which Lessor acquires fee title to the Colonial Pines Healthcare and West Place
Nursing Center Facilities and either the leasehold interest of UNHC in, or fee
title to, the South Place Nursing Center (whichever of such leasehold interest
or such fee title Lessor shall first acquire), unless a different date is
specified in the amendment hereto pursuant to which the Additional Texas
Facilities are added to this Lease.
Additional Texas Facilities Fixtures: Collectively, all
permanently affixed equipment, machinery, fixtures and other items of real
and/or personal property, including all components thereof, now and hereafter
located in, on or used in connection with, and permanently affixed to or
incorporated into the Additional Texas Facilities Leased Improvements,
including, without limitation, all furnaces, boilers, heaters, electrical
equipment, heating, plumbing, lighting, ventilating, refrigerating,
incineration, air and water pollution control, waste disposal, air-cooling and
air-conditioning systems and apparatus (other than individual units), sprinkler
systems and fire and theft protection equipment, and built-in oxygen and vacuum
systems, all of which to the greatest extent permitted by law, are hereby deemed
by the parties hereto to constitute real estate, together with all replacements,
modifications, alterations and additions thereto but specifically excluding all
items included within the category of Lessor's Personal Property.
Additional Texas Facilities Land: The real property described
in EXHIBIT K-16, EXHIBIT K-17 AND EXHIBIT K-18 attached to this Lease.
Additional Texas Facilities Leased Improvements: Collectively,
all buildings, structures, Additional Texas Facilities Fixtures and other
improvements of every kind presently situated upon the Additional Texas
Facilities Land including, but not limited to, alleyways and connecting tunnels,
sidewalks, utility pipes, conduits and lines (on-site and off-site), parking
areas and roadways appurtenant to such buildings and structures.
Additional Texas Facilities Minimum Rent. The amount by which
the Minimum Rent is to be increased pursuant to Article 6.1.1(b) of the Plan.
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Additional Texas Facilities Related Rights: Collectively, all
easements, rights and appurtenances relating to the Additional Texas Facilities
Land and the Additional Texas Facilities Leased Improvements.
Adjustment Date: January 1, 2000 and each January 1 thereafter
during the Term.
Affiliate: Any Person which, directly or indirectly, Controls
or is Controlled by or is under common Control with another Person.
Assessments: Any governmental assessment on the Facilities or
any part thereof for public or private improvements or benefits, whether or not
commenced or completed prior to the date hereof and whether or not to be
completed within the Term.
Award: As defined in Article XV.
BritWill HealthCare: BritWill HealthCare Company, a Delaware
corporation.
BritWill Indiana: BritWill Indiana Partnership, an Arizona
general partnership.
BritWill Indiana Facilities: The Facilities located on, and
inclusive of, the BritWill Indiana Land, commonly known as Wellington Manor
(Cedar Crest Health Center), Cloverleaf of Knightsville (▇▇▇▇▇ Nursing Home) and
Kendalville Manor (Kendalville Manor Healthcare).
BritWill Indiana Fixtures: Collectively, all permanently
affixed equipment, machinery, fixtures and other items of real and/or personal
property, including all components thereof, now and hereafter located in, on or
used in connection with, and permanently affixed to or incorporated into the
BritWill Indiana Leased Improvements, including, without limitation, all
furnaces, boilers, heaters, electrical equipment, heating, plumbing, lighting,
ventilating, refrigerating, incineration, air and water pollution control, waste
disposal, air-cooling and air-conditioning systems and apparatus (other than
individual units), sprinkler systems and fire and theft protection equipment,
and built-in oxygen and vacuum systems, all of which to the greatest extent
permitted by law, are hereby deemed by the parties hereto to constitute real
estate, together with all replacements, modifications, alterations and additions
thereto but specifically excluding all items included within the category of
Lessor's Personal Property.
BritWill Indiana Land: The real property described in EXHIBITS
▇-▇, ▇-▇ AND B-3.
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BritWill Indiana Leased Improvements: Collectively, all
buildings, structures, BritWill Indiana Fixtures and other improvements of every
kind presently situated upon the BritWill Indiana Land including, but not
limited to, alleyways and connecting tunnels, sidewalks, utility pipes, conduits
and lines (on-site and off-site), parking areas and roadways appurtenant to such
buildings and structures.
BritWill Indiana Related Rights: Collectively, all easements,
rights and appurtenances relating to the BritWill Indiana Land and the BritWill
Indiana Leased Improvements.
BritWill-I: BritWill Investments-I, Inc., a Delaware
corporation.
BritWill-II: BritWill Investments-II, Inc., a Delaware
corporation.
BritWill-II Facilities: The BritWill-II November 1993
Facilities and the BritWill-II December 1994 Facilities.
BritWill-II November 1993 Facilities: The Facilities located
on, and inclusive of, the BritWill-II November 1993 Land, commonly known as
Reunion Plaza, Heritage Plaza and Pine Haven.
BritWill-II November 1993 Fixtures: Collectively, all
permanently affixed equipment, machinery, fixtures and other items of real
and/or personal property, including all components thereof, now and hereafter
located in, on or used in connection with, and permanently affixed to or
incorporated into the BritWill-II November 1993 Leased Improvements, including,
without limitation, all furnaces, boilers, heaters, electrical equipment,
heating, plumbing, lighting, ventilating, refrigerating, incineration, air and
water pollution control, waste disposal, air-cooling and air-conditioning
systems and apparatus (other than individual units), sprinkler systems and fire
and theft protection equipment, and built-in oxygen and vacuum systems, all of
which to the greatest extent permitted by law, are hereby deemed by the parties
hereto to constitute real estate, together with all replacements, modifications,
alterations and additions thereto but specifically excluding all items included
within the category of Lessor's BritWill-II November 1993 Personal Property.
BritWill-II November 1993 Land: The real property described in
EXHIBITS B-4, B-5 AND B-6.
BritWill-II November 1993 Leased Improvements: Collectively,
all buildings, structures, BritWill-II November 1993 Fixtures and other
improvements of every kind presently situated upon the BritWill-II November 1993
Land including, but not limited to, alleyways and connecting tunnels, sidewalks,
utility pipes, conduits and lines (on-site and off-site), parking areas and
roadways appurtenant to such buildings and structures.
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BritWill-II November 1993 Related Rights: Collectively, all
easements, rights and appurtenances relating to the BritWill-II November 1993
Land and the BritWill-II November 1993 Leased Improvements.
BritWill-II December 1994 Facilities: The Facilities located
on, and inclusive of, the BritWill-II December 1994 Land, commonly known as Pine
Grove and Pleasant Manor.
BritWill-II December 1994 Fixtures: Collectively, all
permanently affixed equipment, machinery, fixtures and other items of real
and/or personal property, including all components thereof, now and hereafter
located in, on or used in connection with, and permanently affixed to or
incorporated into the BritWill-II December 1994 Leased Improvements, including,
without limitation, all furnaces, boilers, heaters, electrical equipment,
heating, plumbing, lighting, ventilating, refrigerating, incineration, air and
water pollution control, waste disposal, air-cooling and air-conditioning
systems and apparatus (other than individual units), sprinkler systems and fire
and theft protection equipment, and built-in oxygen and vacuum systems, all of
which to the greatest extent permitted by law, are hereby deemed by the parties
hereto to constitute real estate, together with all replacements, modifications,
alterations and additions thereto but specifically excluding all items included
within the category of Lessor's Personal Property.
BritWill-II December 1994 Land: The real property described in
EXHIBITS B-7 AND B-8.
BritWill-II December 1994 Leased Improvements: Collectively,
all buildings, structures, BritWill-II December 1994 Fixtures and other
improvements of every kind presently situated upon the BritWill-II December 1994
Land including, but not limited to, alleyways and connecting tunnels, sidewalks,
utility pipes, conduits and lines (on-site and off-site), parking areas and
roadways appurtenant to such buildings and structures.
BritWill-II December 1994 Related Rights: Collectively, all
easements, rights and appurtenances relating to the BritWill-II December 1994
Land and the BritWill-II December 1994 Leased Improvements.
BritWill HealthCare: BritWill HealthCare Company, a Delaware
corporation.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which national banks in the City of New York, New
York are authorized, or obligated, by law or executive order, to close.
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Capitalized Lease: A lease that is required to be capitalized
for financial reporting purposes in accordance with GAAP.
Commencement Date: The date on which Lessor acquired title to
the BritWill Indiana Facilities and the BritWill-II Facilities.
Condemnation, Condemnor: As defined in Article XV.
Consumer Price Index or CPI: The United States Department of
Labor, Bureau of Labor Statistics Revised Consumer Price Index for All Urban
Consumers (1982-84=100), U.S. City Average, All Items, or if said Index is not
available for the United States, then an available index reasonably selected by
Lessor for the geographical area most similar to the entire United States,
published by said bureau or its successor, or if none, by any other
instrumentality of the United States, in the order mentioned.
Control (including the correlative meanings of the terms
"Controlled by" and "under common Control with"): As used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
through the ownership of voting securities, partnership interests or other
equity interests.
Date of Taking: As defined in Article XV.
Debt: As of any date, all (a) obligations of Lessees, whether
current or long-term, that in accordance with GAAP should be included as
liabilities on Lessees' balance sheets; (b) obligations of others for which any
Lessee is liable directly or indirectly, by way of guaranty (whether by direct
guaranty, suretyship, discount, endorsement, take-or-pay agreement, agreement to
purchase or advance or keep in funds or other agreement having the effect of a
guaranty), or otherwise; (c) liabilities and obligations secured by liens of any
assets of Lessees, whether or not those liabilities or obligations are recourse
to any Lessee; and (d) liabilities of Lessees, direct or contingent, with
respect to letters of credit issued for the account of any one or more of the
Lessees or others or with respect to bankers acceptances created for any one or
more of the Lessees.
EBITDARM: Synonymous with Lessees' Consolidated Cash Flow.
Effective Date: As to the Signature Facilities, December __,
1998, and as to other Facilities added to this Lease, the Effective Date shall
be defined in the amendments pursuant to which such Facilities are added to this
Lease.
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Encumbrance: Any mortgage, deed of trust, lien, encumbrance or
title retention agreement upon the Facilities, or any portion thereof or
interest therein, securing any borrowing or other means of financing or
refinancing.
Expiration Date: The fourteenth (14th) anniversary of the last
day of the calendar month in which the Plan Effective Date falls, provided,
however, that if the Plan is not confirmed, the Expiration Date shall be
December 31, 2012.
Event of Default: As defined in Article XVI.
Excluded Facility: A facility listed on EXHIBIT C attached
hereto.
Extended Term: As defined in Article XIX.
Facility: Each of the licensed nursing facilities located on
the Land, together with the Leased Improvements, Lessor's Personal Property,
Fixtures and Related Rights that are part of such facility and the portion of
the Land on which such facility is located.
Facility Mortgage: As defined in Article XIII.
Facility Mortgagee: As defined in Article XIII.
Fair Market Rent: The rent that, at the relevant time, a
Facility would most probably command in the open market, as indicated by the
rent asked and paid at such time for facilities comparable to the Facility in
question, determined in accordance with the appraisal procedure set forth in
Article XXXIV or in such other manner as may be mutually acceptable to Lessor
and Lessees.
Fair Market Value: The fair market value of a Facility,
assuming the same is unencumbered by this Lease, determined in accordance with
the appraisal procedure set forth in Article XXXIV or in such other manner as
shall be mutually acceptable to Lessor and Lessees.
Financial Statement: For a fiscal year or other accounting
period for any Person, an audited statement of earnings and retained earnings
and of changes in financial position and profits and loss for such period and
for the period from the beginning of the respective fiscal year to the end of
such period and the related balance sheet as at the end of such period, together
with the notes thereto, all in reasonable detail and setting forth in
comparative form the corresponding figures for the corresponding period in the
preceding fiscal year, and prepared in accordance with GAAP and reported on by
qualified, certified public accountants acceptable to Lessor.
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Fixtures: The Signature Fixtures, and, when Facilities of
which they are a part are added by amendment hereto, the Additional Texas
Facilities Fixtures, BritWill Indiana Fixtures, BritWill-II November 1993
Fixtures, and BritWill-II December 1994 Fixtures.
GAAP: The generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and Statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession.
Gross Revenues: As to each Facility, the term "Gross Revenues"
shall mean all revenues received or receivable from or by reason of the
operation of the Facility, or any other use of the Facility, including without
limitation all patient revenues received or receivable for the use of or
otherwise by reason of all rooms, beds and other facilities provided, meals
served, services performed, space or facilities subleased or goods sold on the
Facility, including without limitation, and except as provided below, any
consideration received under any subletting, licensing or other arrangements
with third parties relating to the possession or use of any portion of the
Facility and all revenues received or receivable by any Lessee and any
Affiliates of Unison from the operation of any healthcare facility located
within a twenty-five (25) mile radius of the Facility (other than an Excluded
Facility); provided, however, that Gross Revenues shall not include:
(i) revenue from professional fees or charges by physicians
when and to the extent such charges are paid over to such physicians or are
accompanied by separate charges for use of the Facility or any portion thereof;
(ii) nonoperating revenues such as interest income or income
from the sale of assets not sold in the ordinary course of business;
(iii) contractual allowances for ▇▇▇▇▇▇▇▇ not paid by or
received from the appropriate governmental agencies, third party providers or
other payors;
(iv) 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;
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(v) all proper patient billing credits and adjustments
according to GAAP relating to health care accounting;
(vi) gratuities or service charges added to patients' bills or
statements which are paid over to employees of the Facilities;
(vii) amounts received by the Lessees in payment of warranty
or guaranty claims; and
(viii) refunds or credits to patients or guests customarily
deducted in accounting for the revenues of health care facilities.
To the extent that a Facility or any part thereof is subleased, Gross Revenues
from such Facility shall be calculated for all purposes of the Lease by
including the Gross Revenues of such sublessees with respect to the subleased
Facility, i.e., the Gross Revenues generated from the operations conducted on
such subleased portion of the Facility shall be included directly in Gross
Revenues and the Rent received or receivable by Lessees from or under such
subleases shall be excluded from Gross Revenues for such purpose.
Impositions: Collectively, all taxes (including, without
limitation, all capital stock and franchise taxes of Lessor, including but not
limited to the Texas Corporate Franchise Taxes, all ad valorem, sales and use,
single business, gross receipts, transaction privilege, rent or similar taxes),
assessments (including Assessments), ground rents, water, sewer or other rents
and charges, excises, tax levies, fees (including, without limitation, license,
permit, inspection, authorization and similar fees), and all other governmental
charges, in each case whether general or special, ordinary or extraordinary, or
foreseen or unforeseen, of every character in respect of the Facilities or the
business conducted thereon and/or the Rent, which at any time prior to, during
or in respect of the Term hereof may be assessed or imposed on or in respect of
or be a lien upon (i) Lessor or Lessor's interest in the Facilities, (ii) the
Facilities or any part thereof or any rent therefrom or any estate, right, title
or interest therein, or (iii) any occupancy, operation, use or possession of, or
sales from, or activity conducted on, or in connection with the Facilities or
the leasing or use of the Leased Property or any part thereof or (iv) the Rent;
PROVIDED, HOWEVER, that Imposition shall not include: (i) any tax based on gross
or net income of Lessor generally and not specifically arising in connection
with the Leased Property, but Lessees shall pay any tax hereafter imposed on any
Rent received by Lessor from Lessees, or (ii) any transfer, or net revenue tax
of Lessor or any other person, or (iii) any tax imposed with respect to the
sale, exchange or other disposition by Lessor of any portion of Leased Property
or the proceeds thereof, PROVIDED FURTHER, HOWEVER, that Imposition shall
include any tax, assessment, tax levy or charge set forth in clause (i) or (ii)
above to the extent the same is levied, assessed or imposed in lieu of any tax,
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assessment, tax levy or charge which Lessees are obligated to pay which has been
totally or partially repealed.
Improvement: One or more new buildings, or one or more
additional structures annexed to any portion of any Facility, or the expansion
of existing improvements, constructed on any parcel or portion of the Leased
Property during the Term, including the construction of a new wing or new story,
to provide beds or services not previously offered which are expected to result
in additional Gross Revenues, or the renovation of existing improvements on the
Leased Property in order to provide a functionally new facility to provide beds
or services not previously offered which are expected to result in additional
Gross Revenues.
Incremental Revenues: As to the BritWill Indiana Facilities:
The amount by which Gross Revenues for the BritWill Indiana Facilities in any
calendar year exceed Gross Revenues for the BritWill Indiana Facilities for the
immediately preceding calendar year. As to the BritWill-II November 1993
Facilities: The amount by which Gross Revenues for the BritWill-II November 1993
Facilities in any calendar year exceed Gross Revenues for the BritWill-II
November 1993 Facilities for the immediately preceding calendar year. As to the
BritWill-II December 1994 Facilities: The amount by which Gross Revenues for the
BritWill-II December 1994 Facilities in any calendar year exceed Gross Revenues
for the BritWill-II December 1994 Facilities for the immediately preceding
calendar year. As to the Additional Texas Facilities: The amount by which Gross
Revenues for the Additional Texas Facilities in any calendar year exceed Gross
Revenues for the Additional Texas Facilities for the immediately preceding
calendar year.
Indiana Returned Facilities: The Facilities designated in
EXHIBITS D-1 THROUGH EXHIBIT D-6, commonly known as English Estates, English
Senior/English Assisted Living, Capital Care Healthcare Center, Sunset Manor,
Lockerbie Healthcare Center and Parkview Manor.
Indiana Returned Facilities Agreement: The Indiana Returned
Facilities Agreement between Lessor and BritWill Indiana of even date herewith.
Initial Term: As defined in Section 1.3.
Insurance Requirements: All terms of any insurance policy
required by this Lease and all requirements of the issuer of any such policy.
Intangible Assets: The amount of (i) all unamortized debt
discounts and expenses, unamortized deferred charges, goodwill, patents,
trademarks, service marks, trade names, copyrights, organizational and
developmental expenses, unamortized
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operating rights, unamortized licenses, unamortized leasehold rights,
organizational expenses, prepaid pension costs and other intangible assets,
including any write-up resulting from a reversal of a reserve for bad debts or
depreciation and any write-up resulting from a change in methods of accounting
or inventory; and (ii) the amount of any investment in any Affiliate.
Intercreditor Agreement: An Intercreditor Agreement executed
by Lessor and a financial institution providing accounts receivable financing to
Lessees in compliance with Section 8.3.1.7.1 hereof.
Land: The Signature Land, and, when the Facilities of which
they are a part are added by amendment hereto, the BritWill Indiana Land,
Additional Texas Facilities Land, BritWill-II November 1993 Land and BritWill-II
December 1994 Land.
Lease: As defined in the Preamble.
Lease Year: Each period from and including January 1 through
the following December 31, provided, however, that if the Effective Date is any
date other than January 1, the last Lease Year shall be the period from and
including January 1 of the year in which the Term expires or the Lease is
terminated through the date of expiration or termination.
Leased Improvements: The Signature Leased Improvements, and,
when added to this Lease by amendment hereto, the Additional Texas Facilities
Leased Improvements, BritWill Indiana Leased Improvements, BritWill-II November
1993 Leased Improvements and BritWill-II December 1994 Leased Improvements.
Leased Property: The Signature Leased Property, and when the
Facilities of which they are a part are added by amendment hereto, the
Additional Texas Facilities, BritWill Indiana Facilities, BritWill-II November
1993 Facilities and BritWill-II December 1994 Facilities.
Legal Requirements: All federal, state, county, municipal and
other governmental statutes, laws, rules, orders, regulations, ordinances,
judgments, decrees and injunctions affecting the Facilities or any portion
thereof, or the construction, use or alteration thereof, whether now or
hereafter enacted and in force, including any which may (i) require repairs,
modifications or alterations in or to any portion or all of the Facilities or
(ii) in any way adversely affect the use and enjoyment thereof, and all permits,
licenses and authorizations and regulations relating thereto including, but not
limited to, those relating to existing healthcare licenses, those authorizing
the current number of licensed beds and the level of services delivered from the
Facilities, and all covenants, agreements, restrictions and encumbrances
contained in any instruments, either of record or known to any
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Lessee (other than encumbrances created by Lessor without the consent of such
Lessee), at any time in force affecting the Facilities.
Lessees: The Signature Subsidiaries, jointly and severally,
and the successors and assigns of each, and, when added to this Lease by
amendment hereto, BritWill Indiana and BritWill II, and the successors and
assigns of each.
Lessees' Consolidated Cash Flow (EBITDARM): For any period,
the sum of (i) Lessees' Consolidated Net Income for the period, plus (ii) the
sum of all amounts deducted in computing Lessees' Consolidated Net Income for
the period for (a) management fees, (b) depreciation and amortization, (c)
income taxes (or, if greater, income taxes actually paid during the period), (d)
interest on Permitted Borrowings, (e) any rent, principal, interest and other
amounts paid by BritWill-II to UNHC, (f) Minimum Rent, (g) any payments made by
BritWill-II under the New Omega Guarantee shall not be taken into account in
determining Lessees' Consolidated Cash Flow (EBITDARM).
Lessees' Consolidated Current Assets: At any date, all amounts
carried as current assets on the balance sheet of the Lessees at such date
determined in accordance with GAAP on a consolidated basis, but shall not
include: (i) any deferred tax asset included therein, and (ii) any expected
proceeds from the sale of the net assets of a discontinued business.
Lessees' Consolidated Current Liabilities: At any date, all
amounts which are or should be carried as current liabilities on the balance
sheet of the Lessees at such date determined in accordance with GAAP on a
consolidated basis, including the current portion of all Debt.
Lessees' Consolidated Debt Service: For any period, the sum of
(i) the aggregate amount of interest, including payments in the nature of
interest under Capitalized Leases, accrued by Lessees for the period in
accordance with GAAP on a consolidated basis, (ii) the aggregate amount of all
mandatory scheduled payments, prepayments and sinking fund payments with respect
to principal paid or accrued by Lessees in respect of Debt, including payments
in the nature of principal under Capitalized Leases, for the period in
accordance with GAAP on a consolidated basis, and (iii) without duplication, all
rent, interest and other amounts payable by BritWill-II to UNHC during the
period under any leases or other agreements.
Lessees' Consolidated Fixed Charge Ratio: For any period,
Lessees' Consolidated Cash Flow (EBITDARM) divided by Lessees' Consolidated
Fixed Charges.
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Lessees' Consolidated Current Ratio: At any time, Lessees'
Consolidated Current Assets divided by Lessees' Consolidated Current
Liabilities.
Lessees' Consolidated Fixed Charges: For any period, the sum
of (i) Lessees' Rent, and (ii) Lessees' Consolidated Debt Service.
Lessees' Consolidated Net Income: For any period, the net
income (or loss) of Lessees for such period in accordance with GAAP on a
consolidated basis, provided, however, that Lessees' Consolidated Net Income
shall not include:
(a) any after-tax gains or losses attributable
to returned surplus assets of any
pension-benefit plan;
(b) any extraordinary gains or nonrecurring
gains;
(c) any gains or losses realized upon the sale
or other disposition of property which is
not sold or otherwise disposed of in the
ordinary course of business;
(d) any gains or losses realized upon the sale
or other disposition of any capital stock of
any Person;
(e) any gains from the disposal of a
discontinued business;
(f) the cumulative effect on prior years of any
change in an accounting principle;
(g) the income or loss of any Person acquired by
a Lessee or an Affiliate in a pooling of
interests transaction for any period prior
to the date of such acquisition;
(h) the income from any sale of assets in which
the book value of such assets had been the
book value of any Person acquired in a
pooling-of-interests transaction prior to
the date such Person became an Affiliate of
a Lessee;
(i) the income (or loss) of any Person (other
than a subsidiary) in which a Lessee has an
ownership interest; provided, however, that
(i) Lessees' Consolidated Net Income shall
include amounts in respect of the income of
such Person when actually received in cash
by a Lessee in the form of dividends
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or similar distributions and (ii) Lessees'
Consolidated Net Income shall be reduced by
the aggregate amount of all investments,
regardless of the form thereof, made by a
Lessee in such Person for the purpose of
funding any deficit or loss of such Person;
(j) the income of any Lessee to the extent the
payment of such income is not permitted by
any law, statute, judgment, decree or
governmental order, rule or regulation
applicable to such Lessee;
(k) all amounts included in computing such net
income (or loss) in respect of the write-up
of any asset or the write-down of any Debt
at less than face value after the Effective
Date;
(l) the reduction in income tax expense
resulting from an increase in a deferred
income tax asset due to the anticipation of
future income tax benefits;
(m) the reduction in income tax expense
resulting from an increase in a deferred
income tax asset or from a decrease in a
deferred income tax liability due to the
change in a statutory tax rate.
Lessees' Consolidated Tangible Net Worth: Lessees' net worth
as determined in conformity with GAAP on a consolidated basis, less Lessees'
Intangible Assets.
Lessees' Personal Property: Personal property owned by Lessees
on the Effective Date or acquired by any Lessee during the Term and used in the
operation of one or more of the Facilities.
Lessor: Omega Healthcare Investors, Inc., a Maryland
corporation, and its successors and assigns.
Lessor's Personal Property: (i) All tangible personal property
other than Lessees' Personal Property necessary for the operation of the
Facilities for their Primary Intended Use in compliance with all licensure and
certification requirements, applicable Legal Requirements and Insurance
Requirements and otherwise in accordance with customary practice in the industry
for such use, including all such tangible personal
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property located on the Land on the Effective Date and all such tangible
personal property acquired after the Effective Date in addition to, or to
replace in whole or in part, the tangible personal property located on the Land
on the Effective Date; (ii) all other tangible personal property located at the
Leased Property other than at the Signature Facilities on the Commencement Date
and any tangible personal property acquired thereafter to replace such other
tangible personal property; (iii) all other tangible personal property located
on the Signature Land on the Effective Date, and any tangible personal property
acquired hereafter to replace such other tangible personal property; and (iv)
all tangible personal property that would be included within the foregoing
definitions of Lessor's Personal Property but for the fact that it is
temporarily in a location other than on the Land.
Letter of Credit Agreement: A written agreement between Lessor
and Lessees, if any, pursuant to which Lessees deliver one or more Letters of
Credit to Lessor to satisfy the Security Deposit requirements of this Lease.
Major Alteration: As defined in Section 10.1.
Management Agreement: The Management Agreement entered into
between Lessees and Manager in the form attached hereto as EXHIBIT E, and any
other agreement pursuant to which management of a Facility is delegated by a
Lessee to any related or unrelated Person not an employee of such Lessee.
Manager: Unison, and any other Person to which management of
the operation of a Facility is delegated with the prior written approval of
Lessor pursuant to a Management Agreement.
Minimum Rent: As set forth in EXHIBIT H.
Minimum Repurchase Price: As to each Facility, the price set
forth on EXHIBIT G attached hereto, increased by three percent (3%) on the
Adjustment Date in 1999 with respect to such Facility and thereafter, on a
compounding basis, by three percent (3%) on the Adjustment Date with respect to
such Facility in each succeeding Lease Year after 1999 until the date of
purchase by Lessees.
Net Proceeds: As defined in Section 14.1.
New Omega Guarantee: The New Omega Guarantee, executed by the
New Omega Guarantors and Lessor.
New Omega Guarantors: Unison and BritWill-II.
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Net Income: For any period, net income (or loss) for such
period in accordance with GAAP, excluding items (a) through (m) in the
definition of Lessee's Consolidated Net Income.
Notice: A notice given pursuant to Article XXXIII hereof.
Officer's Certificate: If for a corporation, a certificate
signed by an officer of the corporation authorized to do so by the bylaws of
such corporation or a resolution of the Board of Directors thereof; if for a
partnership, a certificate signed by a general partner; if for any other kind of
entity, a certificate signed by a Person having the authority to so act on
behalf of such entity.
Omega Master Lease Guarantors: Collectively, Unison,
Signature, BritWill HealthCare, BritWill, Cedar Care, Inc. and Sherwood
HealthCare Corporation, jointly and severally.
Omega Master Lease Guarantee: The Omega Master Lease Guarantee
of even date herewith, executed by the Omega Master Lease Guarantors.
Omega's Signature Facilities Investment: The sum of (a)
Thirty-Eight Million Two Hundred Thousand Dollars ($38,200,000.00), increased by
three percent (3%) on each Adjustment Date; plus (b) the Additional Contingent
Payment, if paid by Lessor prior to Lessees' payment of the purchase price for
the Signature Facilities pursuant to Section 18.3 hereof, increased by three
percent (3%) on each anniversary of the date on which Lessor paid the Additional
Contingent Payment.
Overdue Rate: The interest rate that is equal to the Prime
Rate plus five (5) percentage points, but in no event greater than the maximum
rate permitted under applicable law at the applicable time.
Payment Date: Any due date for the payment of the installments
of Minimum Rent, Additional Charges or any other sums payable under this Lease.
Permitted Borrowings: Borrowings permitted under Section
8.3.1.7.
Permitted Encumbrance: An encumbrance described on EXHIBIT F,
attached hereto.
Person: Any natural person, trust, partnership, corporation,
joint venture or other legal entity.
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Plan Effective Date: The Effective Date of the Plan, as set
forth in Section 1.66 of the Plan.
Primary Intended Use: As defined in Section 7.2.2.
Prime Lease: The lease between Athens Associates, L.P. and
UNHC with respect to South Place Nursing Center.
Prime Rate: On any date, an interest rate equal to the prime
rate published by the Wall Street Journal, but in no event greater than the
maximum rate then permitted under applicable law. If the Wall Street Journal
ceases to be in existence, or for any reason no longer publishes such prime
rate, then the Prime Rate shall be the rate of interest announced by Fleet Bank,
and if such bank no longer exists or no longer announces a prime rate of
interest, then the Prime Rate shall be the rate of interest announced by any
other major bank reasonably selected by Lessor.
Prior Leases: The lease between UNHC and BritWill-II with
respect to Colonial Pines Healthcare and West Place Nursing Center and the
sub-lessee between UNHC and BritWill-II with respect to South Place Nursing
Center.
Qualified Capital Expenditures: Expenditures capitalized on
the books of Lessees for any of the following:
Replacement of furniture, fixtures and equipment,
including refrigerators, ranges, major appliances,
bathroom fixtures, doors (exterior and interior),
central air conditioning and heating systems
(including cooling towers, water chilling units,
furnaces, boilers and fuel storage tanks) and major
replacement of siding; major roof replacements,
including major replacements of gutters, downspouts,
▇▇▇▇▇ and soffits; major repairs and replacements of
plumbing and sanitary systems; overhaul of elevator
systems; major repaving, resurfacing and sealcoating
of sidewalks, parking lots and driveways; repainting
of entire building exterior; but excluding major
alterations, renovations, additions, normal
maintenance and repairs.
Related Rights: The Signature Facilities Related Rights, and,
when the Facilities of which they are a part are added by amendment hereto, the
Additional Texas Facilities Related Rights, BritWill Indiana Related Rights, the
BritWill-II November 1993 Related Rights, and the BritWill-II December 1994
Related Rights.
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Rent: Collectively, the Minimum Rent and Additional Charges.
Rent Payment Date: As defined in Section 3.1.1.
SEC: Securities and Exchange Commission.
Security Deposit: On the Effective Date with respect to the
Signature Facilities, the sum of Nine Hundred Seven Thousand Two Hundred Fifty
Dollars ($907,250.00), which the Signature Subsidiaries shall deposit with the
Lessor at the closing of the Lessor's purchase thereof, and on the Effective
Date with respect to each other Group of Facilities (as defined in EXHIBIT H),
an amount equal to three (3) months Minimum Rent installments for such Group of
Facilities, in all cases in the form of a cash deposit or an irrevocable letter
of credit in a form acceptable to Lessor in its sole discretion, issued by a
commercial bank acceptable to Lessor in its sole discretion.
Signature: Signature HealthCare Corporation, a Delaware
corporation.
Signature Facilities: The Facilities located on the Signature
Land, commonly known as Los ▇▇▇▇▇, Rio Verde, The Arbors, Pueblo Norte,
Amberwood, ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ House.
Signature Fixtures: Collectively, all permanently affixed
equipment, machinery, fixtures and other items of real and/or personal property,
including all components thereof, now and hereafter located in, on or used in
connection with, and permanently affixed to or incorporated into the Signature
Leased Improvements, including, without limitation, all furnaces, boilers,
heaters, electrical equipment, heating, plumbing, lighting, ventilating,
refrigerating, incineration, air and water pollution control, waste disposal,
air-cooling and air-conditioning systems and apparatus (other than individual
units), sprinkler systems and fire and theft protection equipment, and built-in
oxygen and vacuum systems, all of which to the greatest extent permitted by law,
are hereby deemed by the parties hereto to constitute real estate, together with
all replacements, modifications, alterations and additions thereto but
specifically excluding all items included within the category of Lessor's
Personal Property.
Signature Land: The real property described in EXHIBIT B-9
THROUGH EXHIBIT B-15 attached to this Lease.
Signature Leased Improvements: Collectively, all buildings,
structures, Signature Fixtures and other improvements of every kind presently
situated upon the Signature Land including, but not limited to, alleyways and
connecting tunnels, sidewalks,
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utility pipes, conduits and lines (on-site and off-site), parking areas and
roadways appurtenant to such buildings and structures.
Signature Related Rights: Collectively, all easements, rights
and appurtenances relating to the Signature Land and the Signature Leased
Improvements.
Signature Subsidiaries: Amberwood Court, Inc., The Arbors
Health Care Center, Inc., ▇▇▇▇▇▇▇▇▇▇ House, Inc., ▇▇▇▇▇▇▇▇▇▇▇ Nursing Center,
Inc., Los ▇▇▇▇▇, Inc., Pueblo Norte, Inc. and Rio Verde Nursing Center, Inc.
Stub Period: As to the Signature Facilities, the period from
and including the Effective Date with respect to the Signature Facilities
through December 31, 1998, if any; as to any other Group Of Facilities (as
defined in EXHIBIT H hereto), the period from and including the Effective Date
with respect to such Group of Facilities and December 31, 1999.
Taking: A taking or voluntary conveyance during the Term of
all or part of a Facility, or any interest therein or right accruing thereto or
use thereof, as the result of, or in settlement of any condemnation or other
eminent domain proceeding affecting such Facility, whether or not the same shall
have actually been commenced.
Tangible Net Worth: Net worth as determined in conformity with
GAAP, less Intangible Assets.
Term: Collectively, the Initial Term and the Extended Term, as
the context may require, subject to earlier termination pursuant to the
provisions hereof.
UNHC: UNHC Real Estate Holdings, Ltd., a Texas limited
partnership, formerly known as BritWill Investments - Texas, Ltd., a Texas
limited partnership.
UNHC Facilities: Collectively, the healthcare facilities
commonly known as Colonial Pines Healthcare, West Place Nursing Center, South
Place Nursing Center, Four States Care Center, Heritage Oaks and Texarkana
Nursing Center.
Unavoidable Delays: Delays due to strikes, lock-outs,
inability to procure materials, power failure, acts of God, governmental
restrictions, enemy action, civil commotion, fire, unavoidable casualty or other
causes beyond the control of the Person responsible for performing an obligation
hereunder, provided that lack of funds shall not be deemed a cause beyond the
control of either party hereto.
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Unison: Unison HealthCare Corporation, a Delaware corporation
or its derivative entity, Raintree Healthcare Corporation.
Unsuitable for Its Primary Intended Use: A state or condition
of a Facility such that after repair and restoration thereof following (i)
damage or destruction as a result of a fire or other casualty, or (ii) a partial
Taking, such Facility cannot be operated on a commercially practicable basis for
its Primary Intended Use, taking into account, among other relevant factors, the
number of useable beds, the amount of square footage and the estimated revenue
affected by such damage or destruction.
ARTICLE III
3.1 Rent. Lessees shall pay to Lessor in lawful money of the United
States of America which is legal tender for the payment of public and private
debts, by wire transfer of immediately available funds, to Lessor's account
described below or at such other place or to such other Person as Lessor from
time to time may designate in a Notice, Minimum Rent and Additional Charges,
during the Term, as follows:
3.1.1 The Minimum Rent for the Leased Property is set forth in
EXHIBIT H. The Minimum Rent shall be payable in advance in equal, consecutive
monthly installments on the twelfth (12th) day of each calendar month of the
Term ("Rent Payment Date"), except that the first monthly installment of Minimum
Rent shall be payable on or before the Effective Date (Minimum Rent and all
Additional Charges shall be prorated as to any partial month at the beginning or
end of the Term) and shall be deposited with the Lessor on or before the
Effective Date. If Lessor directs a Lessee to pay any Minimum Rent or Additional
Charges to any Person other than Lessor, such Lessee shall send to Lessor,
simultaneously with such payment, a copy of the transmittal letter or invoice
and a check whereby such payment is made or such other evidence of payment as
Lessor shall reasonably require.
3.1.2 Under the procedures set forth in EXHIBIT H, the Minimum
Rent for the Brit Indiana Facilities, BritWill-II November 1993 Facilities and
BritWill-II December 1994 Facilities for any year will not be known until
sometime into that year. Lessees shall continue to pay the Minimum Rent for such
Facilities at the rate previously in effect until Lessor has given Lessees
Notice of its determination of the increased Minimum Rent for such Facilities
(but no Notice of the annual increase in the Minimum Rent for the Signature
Properties shall be required, and the Signature Subsidiaries shall begin paying
such increased Minimum Rent for the Signature Properties effective as of the
Adjustment Date therefor in each Lease Year). Upon such determination, the
Minimum Rent shall be increased effective retroactively as of the Adjustment
Date. On or before the second (2nd)
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Rent Payment Date following receipt by Lessees (other than the Signature
Subsidiaries) of Lessor's Notice of the increase, Lessees shall make such
payment to Lessor as will bring the Minimum Rent current, commencing with the
Adjustment Date for such increase through the date of any installments then due.
Thereafter, Lessees shall pay the new adjusted Minimum Rent in correspondingly
adjusted monthly installments until the next date for increase in the Minimum
Rent. The additional payment required shall bear interest at the Prime Rate from
the Adjustment Date until paid, notwithstanding the fact that the amount of the
increase is not determined as of the Adjustment Date, in order that Lessor shall
receive the economic effect of an increase in the Minimum Rent as of the
Adjustment Date. This Section 3.1.2 shall survive termination of the Lease with
respect to the increases in Minimum Rent for the Brit Indiana Facilities,
BritWill-II November 1993 Facilities and BritWill-II December 1994 Facilities,
which increase in Minimum Rent is not known or fully paid as of the date of
termination of the Lease.
3.2 Additional Charges. In addition to the Minimum Rent, Lessees shall
pay and discharge as and when due and payable all Impositions and all other
amounts, liabilities, obligations which Lessees assume or agree to pay under
this Lease. Lessees shall also pay to Lessor an annual site inspection fee of
Two Hundred and Fifty Dollars ($250.00) for each Facility under this Lease,
which fee shall be due on September 1 of each Lease Year. In the event of any
failure on the part of Lessees to pay any of those items referred to in the
previous sentences, Lessees will also promptly pay and discharge every fine,
penalty, interest and cost which may be added for non-payment or late payment of
such items referred to in this sentence and the previous sentences.
Collectively, the items referred to in the first three sentences of this Section
3.2 are referred to as the "Additional Charges".
3.3 Late Charge. If any installment of Minimum Rent or Additional
Charges owing by Lessees to Lessor under this Lease shall not be paid by the due
date, Lessees shall pay Lessor on demand, as an additional charge, a late charge
equal to five percent (5%) of the amount of such installment together with all
charges, expenses, fees or penalties imposed on Lessor by any Facility Mortgagee
for late payment.
3.4 Method of Payment of Minimum Rent. All Minimum Rent to be paid to
Lessor under this Lease shall be paid by wire transfer of immediately available
funds to the bank account designated in writing by Lessor. Lessor shall provide
Lessees with appropriate wire transfer information in a Notice from Lessor to
Lessees. Lessees shall inform Lessor of payment by sending a facsimile
transmission of Lessees' wire transfer confirmation not later than noon, Pacific
Standard or Pacific Daylight Savings Time, whichever is applicable at the time
of such payment, on each Rent Payment Date.
3.5 Net Lease.
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3.5.1 The Rent shall be paid absolutely net to Lessor, so that
this Lease shall yield to Lessor the full amount of the installments of Minimum
Rent and Additional Charges throughout the Term, subject only to any provisions
of this Lease which expressly provide for adjustment or abatement of Minimum
Rent or Additional Charges. This Lease is and shall be a "pure-net" or
"triple-net" lease, as such terms are commonly used in the real estate industry,
it being intended that Lessees jointly and severally shall be obligated to pay
all costs, expenses and charges arising out of the use, occupancy and operation
of the Facilities.
3.5.2 Lessor shall not be required to furnish any services or
facilities whatsoever to the Facilities or make any payments with respect to the
Facilities of any kind whatsoever. Although each Facility may be occupied by
only one of Lessees at any given time, Lessees jointly and severally assume the
full and sole responsibility for the condition, operation, repair, alteration,
improvement, replacement, maintenance and management of the Facilities. Absent
its negligence or willful misconduct, Lessor shall not be responsible for any
loss or damage to any property of any Lessees or of any sublessees,
concessionaires or other users or occupants of any part of the Leased Property
except for any loss or damage caused by Lessor's negligence or willful
misconduct.
3.6 Limitation on Counterclaim. If Lessor commences any proceedings for
non-payment of Rent, no Lessee shall interpose any counterclaim or cross
complaint or similar pleading of any nature or description in such proceedings
unless such Lessee would lose or waive such claim by the failure to assert it.
This shall not, however, be construed as a waiver of any Lessee's right to
assert such claims in a separate action brought by such Lessee. The covenants to
pay Rent and other amounts hereunder are independent covenants, and no Lessee
shall have any right to hold back, offset or fail to pay any Rent or other
amount by reason of the default of Lessor or for any other reason whatsoever.
ARTICLE IV
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4.1 Payment of Impositions. Subject to Article XII relating to
permitted contests, Lessees shall pay, or cause to be paid, all Impositions at
least twenty (20) days before any fine, penalty, interest or cost may be added
for non-payment, such payments to be made directly to the taxing authorities
where feasible, and will promptly, upon request, furnish to Lessor copies of
official receipts or other satisfactory proof evidencing such payments. If at
the option of the taxpayer any Imposition may lawfully be paid in installments
(whether or not interest shall accrue on the unpaid balance of such Imposition),
Lessees may exercise the option to pay the same (and any accrued interest on the
unpaid balance of such Imposition) in installments and in such event, shall pay
such installments during the Term hereof (subject to Lessees' right of contest
pursuant to the provisions of Article XII) as the same respectively become due
and before any fine, penalty, premium, further interest or cost may be added
thereto. If any provision of any Facility Mortgage requires deposits for payment
of real estate taxes or other Impositions to be made with such Facility
Mortgagee, the respective Lessees of the encumbered Facilities shall either pay
to Lessor monthly the amounts required and Lessor shall transfer the amounts to
each Facility Mortgagee, or, pursuant to written direction by Lessor, such
Lessees shall make such deposits directly with such Facility Mortgagee. Lessor,
at its expense, shall, to the extent required or permitted by applicable law,
prepare and file all tax returns and reports as may be required by governmental
authorities in respect of Lessor's net income, gross receipts, sales and use,
single business, transaction privilege, rent, ad valorem, franchise taxes and
taxes on its capital stock, and Lessees, at their expense, shall, to the extent
required or permitted by applicable laws and regulations, prepare and file all
other tax returns and reports in respect of any Imposition as may be required by
governmental authorities. If any refund shall be due from any taxing authority
in respect of any Imposition paid by Lessees, the same shall be paid over to or
retained by Lessees if no Event of Default shall have occurred hereunder and be
continuing. Any such funds retained by Lessor due to an Event of Default shall
be applied as provided in Article XVI. Lessor and Lessees shall, upon request of
the other, provide such data as is maintained by the Person to whom the request
is made with respect to the Leased Property as may be necessary to prepare any
required returns and reports. In the event governmental authorities classify any
property covered by this Lease as personal property, Lessees shall file all
personal property tax returns in such jurisdictions where it may legally so
file. Lessor, to the extent it possesses the same, and each Lessee, to the
extent it possesses the same, will provide the other party, upon request, with
cost and depreciation records necessary for filing returns for any property so
classified as personal property. If Lessor is legally required to file personal
property tax returns, Lessees will be provided with copies of assessment notices
in sufficient time for Lessees to file a protest. Lessees may, upon Notice to
and the prior written consent of Lessor, which consent shall not be unreasonably
withheld, conditioned or delayed, at Lessees' sole cost and expense protest,
appeal, or institute such other proceedings as Lessees may deem appropriate to
effect a reduction of real estate or personal property assessments and Lessor,
at Lessees' expense as aforesaid, shall cooperate with Lessees in such protest,
appeal, or other action. Lessees shall reimburse Lessor for Lessor's direct
costs of cooperating with Lessees for such protest, appeal or
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other action. ▇▇▇▇▇▇▇▇ for reimbursement by Lessees to Lessor of personal
property taxes shall be accompanied by copies of a ▇▇▇▇ therefor and payments
thereof which identify the personal property with respect to which such payments
are made. Notwithstanding the foregoing, upon termination of the Lease (other
than by reason of a Lessee's purchase of a Facility hereunder), all Impositions
applicable to the final Lease Year of the Term shall be prorated between Lessees
and Lessor as set forth in Section 4.3 hereof.
4.2 Notice of Impositions. Lessor shall give prompt Notice to Lessees
of all Impositions payable by Lessees hereunder of which Lessor at any time has
knowledge. Lessor's failure to give any such Notice shall in no way excuse or
affect Lessees' obligations hereunder to pay such Impositions, but if the only
reasonable source of Lessees' knowledge of an Imposition is Notice from Lessor,
and Lessees did not have knowledge of such Imposition in sufficient time to pay
the same as and when required by Section 4.1 hereof, notwithstanding anything to
the contrary elsewhere herein, provided such Imposition is paid within twenty
(20) Business Days after Lessees first have knowledge thereof, Lessees' failure
to pay such Imposition as and when required by Section 4.1 shall not constitute
an Event of Default or cause Lessees to be liable to Lessor for the payment to
Lessor of a Late Charge or interest with respect to the late payment of such
Imposition.
4.3 Adjustment of Impositions. Impositions imposed in respect of the
tax-fiscal period during which the Term expires or is terminated shall be
adjusted and prorated between Lessor and Lessees, whether or not such Imposition
is imposed before or after such expiration or termination, and Lessees'
obligation to pay their prorated share thereof shall survive the expiration or
termination of the Lease.
4.4 Utility Charges. Lessees will pay or cause to be paid when due all
charges for electricity, power, gas, oil, water and other utilities used in each
Facility during the Term.
4.5 Insurance Premiums. Lessees will pay or cause to be paid when due
all premiums for the insurance coverage required to be maintained pursuant to
Article XIII during the Term.
ARTICLE V
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5.1 No Termination, Abatement, etc. Except as otherwise specifically
provided in this Lease, Lessees, to the extent permitted by law, shall remain
bound by this Lease in accordance with its terms and shall neither take any
action without the consent of Lessor to modify, surrender or terminate the same,
nor seek nor be entitled to any abatement, deduction, deferment or reduction of
Rent, or setoff against the Rent, nor shall the respective obligations of Lessor
and Lessees be otherwise affected by reason of (i) any damage to, or destruction
of, any of the Facilities or any portion thereof from whatever cause or any
Taking; (ii) the lawful or unlawful prohibition of, or restriction upon,
Lessees' use of any of the Facilities, or any portion thereof, or the
interference with such use by any Person, or by reason of eviction by paramount
title; (iii) any claim which any Lessee or Lessees have or might have against
Lessor by reason of any default or breach of any warranty by Lessor under this
Lease or any other agreement between Lessor and any Lessee or Lessees, or to
which Lessor and any Lessee or Lessees are parties, (iv) any bankruptcy,
insolvency, reorganization, composition, readjustment, liquidation, dissolution,
winding up or other proceedings affecting Lessor or any assignee or transferee
of Lessor, or (v) any other cause whether similar or dissimilar to any of the
foregoing other than a discharge of all Lessees from any such obligations as a
matter of law. Lessees hereby specifically waive all rights, arising from any
occurrence whatsoever, which may now or hereafter be conferred upon it by law to
(i) modify, surrender or terminate this Lease or quit or surrender the Leased
Property or any portion thereof, or (ii) entitle Lessees to any abatement,
reduction, suspension or deferment of the Rent or other sums payable by Lessees
hereunder except as otherwise specifically provided in this Lease. The
obligations of Lessor and Lessees hereunder shall be separate and independent
covenants and agreements and the Rent and all other sums payable by Lessees
hereunder shall continue to be payable in all events unless the obligations to
pay the same shall be terminated pursuant to the express provisions of this
Lease or by termination of this Lease other than a termination by Lessor by
reason of an Event of Default.
ARTICLE VI
6.1 Ownership of the Leased Property. Lessees acknowledge that the
Leased Property is the property of Lessor and that Lessees have only the right
to the exclusive possession and use of the Leased Property upon the terms and
conditions of this Lease. Lessees will not, at any time during the Term: (i)
file any income tax return or other associated documents; (ii) file any other
document with or submit any document to any governmental body or authority;
(iii) enter into any written contractual arrangement; or (iv) release any
financial statements of any Lessee, in each case that takes a position other
than that Lessor is the owner of the Leased Property for federal, state and
local income tax purposes and that the Lease is a "true lease".
6.2 Lessor's Personal Property. Lessees shall, during the entire Term,
maintain all of Lessor's Personal Property in good order, condition and repair
as shall be necessary
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in order to operate each Facility for such Facility's Primary Intended Use in
compliance with all applicable licensure and certification requirements, in
compliance with all applicable Legal Requirements and Insurance Requirements and
otherwise in accordance with customary practice in the industry for the Primary
Intended Use. In the event that any Lessor's Personal Property requires
replacement in order to comply with the foregoing, Lessees shall replace the
same with other similar property of the same or better grade at Lessee's sole
cost and expense, and when such replacement property is placed in service with
respect to the Leased Property, it shall become Lessor's Personal Property.
Lessees shall not permit or suffer Lessor's Personal Property to be subject to
any lien, charge, encumbrance, financing statement or contract of sale or the
like. At the expiration or earlier termination of this Lease, Lessor's Personal
Property shall be surrendered to Lessor at or before the time of the surrender
of the Leased Property in as good a condition as: (i) with respect to Lessor's
Personal Property on the Leased Premises (excluding the Signature Land) as of
the Commencement Date, and (ii) with respect to the Lessor's Personal Property
on the Signature Land, on the Effective Date, or (iii) with respect to personal
property acquired to replace Lessor's Personal Property, on the date on which
such replacement personal property became Lessor's Personal Property.
6.3 Lessees' Personal Property. Subject to the provisions of Section
6.4 and Section 8.3.1.7.2, Lessees shall not, except with the prior written
consent of Lessor, permit or suffer Lessees' Personal Property to be subject to
any lien, charge, encumbrance, financing statement or contract of sale or the
like. All of Lessees' Personal Property not purchased by Lessor pursuant to
Section 36.1 hereof, or removed by Lessees within twenty (20) days following the
expiration or earlier termination of this Lease, shall be considered abandoned
by Lessees and may be appropriated, sold, destroyed or otherwise disposed of by
Lessor without giving notice thereof to Lessees and without any payment to
Lessees and without any obligation to account therefor. Lessees will, at their
expense, restore each Facility to the condition required by Section 9.1.6,
including repair of all damage to such Facility caused by the removal of
Lessees' Personal Property, whether effected by Lessees or Lessor.
6.4 Grant of Security Interest in Lessees' Personal Property and
Accounts. Each Lessee has concurrently granted to Lessor a security interest in
Lessees' Personal Property, and, subject to the Intercreditor Agreement, in its
intangible property, including its accounts, as more particularly described in
the Security Agreement of even date between Lessor as secured party and such
Lessee as debtor.
ARTICLE VII
7.1 Condition of the Leased Property.. Lessees acknowledge receipt and
delivery of possession of the Leased Property, and that Lessees have examined
and otherwise have knowledge of the condition of the Leased Property prior to
the execution
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and delivery of this Lease and have found the same to be in good order and
repair and satisfactory for their purposes hereunder. Lessees are leasing the
Leased Property "as is" in its present condition. Lessees waive any claim or
action against Lessor in respect of the condition of the Leased Property. LESSOR
MAKES NO WARRANTY OR REPRESENTATION EXPRESS OR IMPLIED, IN RESPECT OF THE LEASED
PROPERTY OR ANY PART THEREOF, EITHER AS TO ITS FITNESS FOR USE, DESIGN OR
CONDITION FOR ANY PARTICULAR USE OR PURPOSE OR OTHERWISE, AS TO THE QUALITY OF
THE MATERIAL OR WORKMANSHIP THEREIN, LATENT OR PATENT, IT BEING AGREED THAT ALL
SUCH RISKS ARE TO BE BORNE BY LESSEES. LESSEES ACKNOWLEDGE THAT THE LEASED
PROPERTY HAS BEEN INSPECTED BY LESSEES AND IS SATISFACTORY. BritWill Indiana and
BritWill-II acknowledge that they have occupied the Leased Property under the
Existing Leases, and the Signature Subsidiaries acknowledge that they have
occupied the Leased Property prior to the Effective Date, and all Lessees
acknowledge that they are satisfied as to the physical condition of the Leased
Property on the Effective Date and that Lessees are solely responsible for the
condition of the Leased Property.
7.2 Use of the Leased Property.
7.2.1 Each Lessee covenants that it will obtain and maintain
all approvals needed to use and operate the Facility it occupies under
applicable local, state and federal law, including, but not limited to,
licensure as a licensed nursing home, or, if applicable, a retirement living
facility, and Medicare or Medicaid certification.
7.2.2 Lessees shall use or cause to be used each Facility as a
licensed nursing facility or retirement living facility as designated on the
applicable EXHIBIT B-1 through B-15, and for such other uses as may be necessary
or incidental to such use (such designated use being herein referred to as the
"Primary Intended Use"). Lessees shall not use the Facilities or any portion
thereof for any other use without the prior written consent of Lessor. No use
shall be made or permitted to be made of any Facility, and no acts shall be
done, which will cause the cancellation of any insurance policy covering any
Facility or any part thereof, nor shall Lessees sell or otherwise provide to
residents or patients therein, or permit to be kept, used or sold in or about
any Facility any article which may be prohibited by law or by the standard form
of fire insurance policies, or any other insurance policies required to be
carried hereunder, or fire underwriter's regulations.
7.2.3 Lessees covenant and agree that they will continuously
operate each Facility as a provider of health care services in accordance with
its Primary Intended Use and shall maintain all required accreditation and
certifications for reimbursement and licensure.
7.2.4 Lessees shall not commit or suffer to be committed any
waste on the Leased Property nor shall Lessees cause or permit any nuisance
thereon.
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7.2.5 Lessees shall neither suffer nor permit any Facility or
any portion thereof, or Lessees' Personal Property, to be used in such a manner
as (i) shall impair Lessor's (or a Lessee's, as the case may be) title thereto
or to any portion thereof, or (ii) shall make possible a claim or claims of
adverse usage or adverse possession by the public, as such, or of implied
dedication of the Leased Property or any portion thereof.
7.3 Certain Environmental Matters.
7.3.1 Definitions. The terms defined in this Section have the
meanings assigned to them in this Section and include the plural as
well as the singular:
Clean-Up. The removal and/or remediation and/or
elimination of, or other response to, Contamination (as hereinafter
defined) to the satisfaction of all applicable governmental agencies,
in compliance with Environmental Laws (as hereinafter defined) and in
compliance with good and prudent commercial practice.
Contamination. The presence of any Hazardous
Substance (as hereinafter defined) or the existence of any injury to
health, safety or the environment or any other environmental condition
at, in, or under the Leased Property, or the Release (as hereinafter
defined) at, in, on, from or to the Leased Property, either in
violation of one or more Environmental Laws or at the time of
expiration or earlier termination of the Term of this Lease, which
would be reasonably required to be removed to insure that no
environmental matter restricts the present or future use, operation,
leasing, development, construction, alteration, refinancing or sale of
the Leased Property.
Environmental Documents: Each and every one of the
following: (i) each and every document received by Lessees or any
Affiliate from, and each and every document submitted by Lessees or any
Affiliate to, the United States Environmental Protection Agency and/or
any federal, state, county or municipal environmental health or safety
agency concerning environmental matters with respect to the condition
of the Leased Property or any portion thereof, or Lessees' operations
upon the Leased Property or any portion thereof; and (ii) each and
every review, audit, report, or other analysis concerning environmental
conditions, including, but not limited to, the disclosure of the
presence or absence of Hazardous Substances, at, in, or under or with
respect to the Leased Property or any portion thereof that have been
prepared by or on behalf of or for the benefit of Lessees.
Environmental Laws: Each and every law (including,
without limitation, common law), statute, code, ordinance, regulation,
rule, order permit, consent decree or other requirement (including, but
not limited to, consent decrees and judicial or administrative orders)
of the United States, a state (or any political
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subdivision thereof) in which any of the Leased Property is located,
and any other executive, judicial, regulatory or administrative agency,
authority, board, bureau, commission, court, arbitrator or arbitration
board, relating to health or safety or to the environment, including,
but not limited to, those applicable to the manufacture, processing,
transportation, distribution in commerce, use, generation, storage,
treatment, disposal, handling and Release of any Hazardous Substance
including medical waste, all as amended or modified from time to time,
and those applicable to pollution, contamination, injury, destruction,
loss, protection, cleanup, reclamation or restoration of the soil,
groundwater, surface water, air or other natural resources, to exposure
to pollutants, contaminants, hazardous or toxic substances, petroleum
products, materials or wastes.
Environmental Report: The environmental review, audit
and/or report relating to any portion of the Leased Property heretofore
provided by Lessees to Lessor.
Hazardous Substances: Any dangerous, toxic or
hazardous material, petroleum products, pollutant, contaminant,
chemical, waste including medical waste or substance defined, listed or
described as any of such in or governed by any Environmental Law.
Regulatory Actions: Any claim, demand, action or
proceeding brought or instigated by any governmental authority in
connection with any Environmental Law, including, without limitation,
civil, criminal and/or administrative proceedings, and whether or not
seeking costs, damages, penalties or expenses.
Release: The intentional or unintentional spilling,
leaking, dumping, pouring, emptying, seeping, disposing, discharging,
emitting, depositing, injecting, leaching, escaping, abandoning, or any
other release or threatened release, however defined, of any Hazardous
Substance.
Third Party Claims: Any claims, actions, demands or
proceedings (other than Regulatory Actions) howsoever based (including
without limitation those based on negligence, trespass, strict
liability, nuisance, toxic tort or detriment to health welfare or
property) due to Contamination, and whether or not seeking costs,
damages, penalties or expenses, brought by any Person other than a
governmental agency.
7.3.2 Prohibition Against Use of Hazardous Substances. Lessees
shall not permit, conduct or allow on any portion of the Leased
Property, the generation, introduction, presence, maintenance, use,
receipt, acceptance, treatment, manufacture, production, installation,
management, storage, disposal or release of any Hazardous Substance
except in full compliance with all Environmental Laws.
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7.3.3 Notice of Environmental Claims, Actions or
Contaminations. Lessees shall notify Lessor, in writing, immediately
upon learning of any existing, pending or threatened: (a)
investigation, inquiry, claim or action by any governmental authority
in connection with any Environmental Laws, (b) Third Party Claims, (c)
Regulatory Actions, and/or (d) Contamination of any portion of the
Leased Property.
7.3.4 Costs of Remedial Actions with Respect to Environmental
Matters. In the event that any investigation and/or Clean-Up of any
Hazardous Substance or other environmental condition on, under or with
respect to any portion of the Leased Property is required by any
Environmental Law, Lessees shall complete, at their own expense, such
investigation and/or Clean-Up or cause each such other Person
(including Lessor) as may be responsible therefor to conduct such
investigation and/or Clean-Up.
7.3.5 Delivery of Environmental Documents. Lessees shall
deliver to Lessor complete copies of any and all Environmental
Documents that may now be in or at any time hereafter come into the
possession of Lessees.
7.3.6 Environmental Audit. At Lessor's expense, Lessees shall
within thirty (30) days after the Lessor's written request therefor,
provide to Lessor a written certificate or certificates, in form and
substance satisfactory to Lessor, from an environmental firm or firms
acceptable to Lessor, which states that the Leased Property does not
contain any Hazardous Substances other than those Hazardous Substances
which in the reasonable opinion of Lessor will not materially adversely
affect either the Primary Intended Use of the Facilities or the value
of the Leased Property. All tests and samplings shall be conducted
using generally accepted and scientifically valid technology and
methodologies. Lessees shall give the engineers or environmental
consultants reasonable access to the Leased Property and to all records
in the possession of Lessees that may indicate the presence (whether
current or past) or Release of any Hazardous Substances on, in, under
or about the Leased Property. Lessees shall also provide the engineers
or environmental consultants a reasonable opportunity to interview such
persons employed in connection with the Leased Property as the
engineers or consultants deem appropriate. However, Lessor shall not be
entitled to request such certificate or certificates from Lessees
unless (a) there have been any material changes, modifications or
additions to any Environmental Laws as applied to or affecting any
portion of the Leased Property; (b) a significant change in the
condition of any portion of the Leased Property has occurred; or (c)
Lessor has another good reason for requesting such certificate or
certificates. If an environmental firm discovers any Hazardous
Substances, Lessees shall immediately report such fact to Lessor, and
Lessees shall perform all of Lessees' other obligations hereunder with
respect to such Hazardous Substances.
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7.3.7 Entry onto Leased Property for Environmental Matters. If
Lessees shall fail to provide the Environmental Audit contemplated by
Subparagraph 7.3.6 hereof within sixty (60) days of Lessor's request
therefor, Lessees shall permit Lessor from time to time, by its
employees, agents, contractors or representatives, reasonable access to
the relevant portions of the Leased Property for the purposes of
conducting such soil and chemical tests or any other environmental
investigations, examinations, or analyses (hereafter collectively
referred to as "Investigation") as Lessor may desire, provided Lessor,
and its employees, agents, contractors, consultants and/or
representatives, shall conduct any such investigation in a manner which
does not unreasonably interfere with Lessees' use of and operations on
the Leased Property (however, reasonable temporary interference with
such use and operations is permissible if the investigation cannot
otherwise be reasonably and inexpensively conducted). Other than in an
emergency, Lessor shall provide Lessees with prior notice before
entering on the Leased Property to conduct such Investigation, and
shall provide copies of any reports or results to Lessees, and Lessees
shall cooperate fully in such Investigation.
7.3.8 Environmental Matters Upon Termination of the Lease or
Expiration of the Term. Upon the expiration or earlier termination of
the Term, Lessees shall cause the Leased Property to be delivered to
Lessor free of any and all Regulatory Actions and Third Party Claims,
in compliance with all Environmental Laws with respect thereto, and in
a manner and condition that is reasonably required to ensure that the
then present use, operation, leasing, development, construction,
alteration, refinancing or sale of the Leased Property shall not be
restricted by any environmental condition existing as of the date of
such expiration or earlier termination of the Term.
7.3.9 Compliance with Environmental Laws. Lessees shall comply
with, and cause their agents, servants and employees, to comply with,
and use reasonable efforts to cause each tenant and other occupant and
user of the Leased Property, and the agents, servants and employees of
such tenants, occupants and users, to comply with each and every
Environmental Law applicable to Lessees, the Leased Property and each
such tenant, occupant or user with respect to the Leased Property.
Specifically, but without limitation:
7.3.9.1 Maintenance of Licenses and Permits. Lessees
shall obtain and maintain (and Lessees shall use reasonable
efforts to cause each tenant, occupant and user to obtain and
maintain) all permits, certificates, licenses and other
consents and approvals required by any applicable
Environmental Law from time to time with respect to Lessees,
each and
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every part of the Leased Property and/or the conduct of any
business thereat or related thereto;
7.3.9.2 Contamination. Lessees shall not cause,
suffer or permit any Contamination;
7.3.9.3 Clean-Up. If a Contamination occurs, Lessees
promptly shall Clean-Up and remove any Hazardous Substance or
cause the Clean-Up and the removal of any Hazardous Substance
and in any such case such Clean-Up and removal of the
Hazardous Substance shall be effected in strict compliance
with and in accordance with the provisions of the applicable
Environmental Laws;
7.3.9.4 Discharge of Lien. Within twenty (20) days of
the date any lien is imposed against the Leased Property or
any part thereof under any Environmental Law, Lessees shall
cause such lien to be discharged (by payment, by bond or
otherwise to the Lessor's absolute satisfaction);
7.3.9.5 Notification of Lessor. Promptly upon receipt
by Lessees of notice or discovery by Lessees of any fact or
circumstance which might result in a breach or violation of
any covenant or agreement in this Article VII, Lessees shall
notify Lessor in writing of such fact or circumstance; and
7.3.9.6 Requests, Orders and Notices. Promptly upon
receipt of any request, order or other notice relating to the
Leased Property or any part thereof under any Environmental
Law, Lessees shall forward a copy thereof to the Lessor.
7.3.10 Environmental Related Remedies. In the event of a
breach by Lessees beyond any applicable notice and/or grace period of
its covenants with respect to environmental matters, Lessor may, in its
sole discretion, do any one or more of the following (the exercise of
one right or remedy hereunder not precluding the simultaneous or
subsequent taking of any other right hereunder):
7.3.10.1 Cause a Clean-Up. Cause the Clean-Up of any
Hazardous Substance or other environmental condition on or
under the Leased Property, or both, at Lessees' cost and
expense; or
7.3.10.2 Payment of Regulatory Damages. Pay on behalf
of Lessees any damages, costs, fines or penalties imposed on
Lessees as a result of any Regulatory Actions; or
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7.3.10.3 Payments to Discharge Liens. Make any
payment on behalf of Lessees or perform any other act or cause
any act to be performed which will prevent a lien in favor of
any federal, state or local governmental authority from
attaching to the Leased Property or any part thereof or which
will cause the discharge of any lien then attached to the
Leased Property or any part thereof; or
7.3.10.4 Payment of Third Party Damages. Pay, on
behalf of Lessees, any damages, cost, fines or penalties
imposed on Lessees as a result of any Third Party Claims; or
7.3.10.5 Demand of Payment. Demand that Lessees make
immediate payment of all of the costs of such Clean-Up and/or
exercise of the remedies set forth in this Section 7.3
incurred by Lessor and not theretofore paid by Lessees as of
the date of such demand whether or not any court has ordered
the Clean-Up, and said costs shall become immediately due and
payable, without notice.
7.3.11 Environmental Indemnification. Except as otherwise
provided herein, Lessees shall and do hereby jointly and severally
indemnify, defend and hold harmless Lessor, its principals, officers,
directors, agents and employees (hereinafter, all "Indemnitees") from
each and every claim, cause of action, damage, demand, obligation,
fine, laboratory fee, liability, loss, penalty, imposition settlement,
▇▇▇▇, ▇▇▇▇ removal, litigation, judgment, proceeding, disbursement,
expense and/or cost (including without limitation the cost of each and
every Clean-Up), however defined and of whatever kind or nature, known
or unknown, foreseeable or unforeseeable, contingent or otherwise
(including, but not limited to, reasonable attorneys' fees,
consultants' fees, experts' fees and related expenses, capital,
operating and maintenance costs, incurred in connection with (i) any
investigation or monitoring of site conditions, and (ii) any Clean Up
required or performed by any federal, state or local governmental
entity or performed by any other Person because of the presence of any
Hazardous Substance, Release, threatened Release or any Contamination
on, in, under or about the Leased Property or any part thereof) which
may be asserted against, imposed on, suffered or incurred by, each and
every Indemnitee arising out of or in any way related to, or allegedly
arising out of or due to any environmental matter caused by Lessees or
occurring during Lessees' operation of the Leased Property, including,
but not limited to, any one or more of the following:
7.3.11.1 Release Damage or Liability. The disposal,
release, threatened release or the presence of or disturbance
of any Hazardous Substance on, in, at, from, under or
affecting the Leased Property or any part thereof, including,
without limitation, the presence of any Hazardous
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Substance which has come to be located in, on, at, under, or
near the Leased Property or any part thereof from another
location;
7.3.11.2 Injuries. All injuries to health or safety
(including wrongful death), or to the environment, by reason
of environmental matters relating to the condition of or
activities past or present on, at, in, or under any of the
Leased Property or any part thereof;
7.3.11.3 Violations of Law. All violations, and
alleged violations, of any Environmental Law relating to the
Leased Property or any part thereof or any activity on, in,
at, under or near any of the Leased Property or any part
thereof;
7.3.11.4 Misrepresentation. All material
misrepresentations relating to environmental matters in any
documents or materials furnished by Lessees or any Affiliate
of Lessees to Lessor and/or its representatives in connection
with the Existing Leases or this Lease;
7.3.11.5 Event of Default. Each and every Event of
Default hereunder relating to environmental matters;
7.3.11.6 Lawsuits. Any and all lawsuits brought or
threatened against any one or more of the Indemnitees,
settlements reached and governmental orders relating to any
Hazardous Substances at, on, in, under or near the Leased
Property or any part thereof, and all demands of governmental
authorities, and all policies and requirements of Lessor
disclosed in writing to Lessees, based upon or in any way
related to any Hazardous Substances at, on, in, or under the
Leased Property or any part thereof; and
7.3.11.7 Presence of Liens. All liens imposed upon
the Leased Property or any part thereof and charges imposed on
any Indemnitee in favor of any governmental entity or any
Person as a result of the presence, disposal, release or
threat of release of Hazardous Substances at, on, in, from,
under the Leased Property or any part thereof.
7.3.12 Rights Cumulative and Survival. The rights granted Lessor under
this Section are in addition to and not in limitation of any other rights or
remedies available to Lessor hereunder or allowed at law or in equity or rights
of indemnification provided to Lessor in any agreement pursuant to which Lessor
purchased a Facility or under the Existing Leases. The indemnification
obligations set forth in this Section 7.3 shall survive the expiration or
earlier termination of the Term of this Lease for a period of six (6) years.
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ARTICLE VIII
8.1 Compliance with Legal and Insurance Requirements, Instruments, etc.
Subject to Article XII relating to permitted contests, Lessees, at their
expense, will promptly (i) comply with all applicable Legal Requirements and
Insurance Requirements in respect of the use, operation, maintenance, repair and
restoration of the Leased Property and Lessees' Personal Property, whether or
not compliance therewith shall require structural changes in any of the Leased
Improvements (any such structural changes, nevertheless, being subject to
Lessor's prior written approval) or interfere with the use and enjoyment of the
Leased Property, such compliance to include, without limitation, making such
expenditures as are required to conform the Facilities to such standards as may
from time to time be required by Federal Medicare (Title 1.8) or Medicaid (Title
19) Skilled Care Nursing Programs, if applicable, and any other applicable
programs or legislation, and making such capital improvements as may from time
to time be required by any other governmental agency having jurisdiction over
the Leased Property as a condition to the continued operation of the Facilities,
approval for Medicare, Medicaid or similar programs, pursuant to present or
future laws or governmental regulation, and (ii) procure, maintain and comply
with all licenses, certificates of need, provider agreements and other
authorizations required for the use of the Leased Property and Lessees' Personal
Property then being made, and for the proper erection, installation, operation
and maintenance of the Facilities.
8.2 Legal Requirement Covenants. Lessees covenant and agree that the
Leased Property and Lessees' Personal Property shall not be used for any
unlawful purpose. Lessees shall acquire and maintain all licenses, certificates,
permits, provider agreements and other authorizations and approvals needed to
operate the Facilities in their customary manner for the Primary Intended Use
and any other use conducted on the Leased Property as may be permitted from time
to time hereunder. Lessees further covenant and agree that Lessees' use of the
Facilities and maintenance, alteration, and operation of the same, and all parts
thereof, shall at all times conform to all applicable local, state, and federal
laws, ordinances, rules, and regulations unless the same are held by a court of
competent jurisdiction to be unlawful. Lessees may, however, upon prior written
Notice to Lessor, contest the legality or applicability of any such law,
ordinance, rule or regulation, or any licensure or certification decision as
provided in Article XII. The judgment of any court of competent jurisdiction
which is final and unappealable, or final with the period within which such
judgment may be appealed having expired without appeal, or the admission of
Lessees in any action or proceeding against Lessees, whether Lessor be a party
thereto or not, that Lessees have violated any such Legal Requirements or
Insurance Requirements shall be conclusive of that fact as between Lessor and
Lessees.
8.3 Certain Covenants
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8.3.1 Certain Financial Covenants
8.3.1.1 Consolidated Tangible Net Worth of Unison. At
all times during the Term (including any Extended Term) Unison shall maintain a
Tangible Net Worth, determined on a consolidated basis, at least equal to its
Tangible Net Worth, determined on a consolidated basis, on the Effective Date
increased by fifty percent (50%) of its Net Income, determined on a consolidated
basis, if positive, in each fiscal year between the Effective Date and the date
in question, provided, however, that Unison shall not be required to maintain a
Tangible Net Worth, determined on a consolidated basis, of more than Fifty
Million Dollars ($50,000,000.00).
8.3.1.2 Lessees' Consolidated Tangible Net Worth.. At
all times during the Term (including any Extended Term), Lessees shall maintain
Tangible Net Worth, determined on a consolidated basis, at least equal to its
Tangible Net Worth, determined on a consolidated basis on the Effective Date, to
be increased by 50% of Lessees' Consolidated Net Income, if positive, in each
fiscal year between the Effective Date and the date in question, provided,
however, that Lessees shall not be required to maintain a Consolidated Tangible
Net Worth of more than Five Million Dollars ($5,000,000).
8.3.1.3 Lessees' Consolidated Current Ratio.
Beginning January 1, 2000 and thereafter at all times during the Term (including
any Extended Term), Lessees shall maintain Lessees' Consolidated Current Ratio
of at least 1.2.
8.3.1.4 Lessees' Consolidated Fixed Charge Ratio. At
all times during the Term (including any Extended Term), Lessees shall maintain
a Lessees' Consolidated Fixed Charge Ratio of at least 1.4.
8.3.1.5 Limitation of Distributions. In or with
respect to Lease Year 2000 and any subsequent Lease Year, after the first year
of the Term and excluding the distribution of the proceeds of Omega's Signature
Facilities Investment, Lessees shall not pay or distribute to their shareholders
or any Affiliate in the form of dividends, fees for management in excess of
those Lessees are required by the terms of the Management Agreement to pay, or
for any other services or reimbursements for shareholder expenditures or
overhead on behalf of Lessees unless (A) after any and all such payments and
distributions (i) Lessees' Consolidated Tangible Net Worth equals or exceeds the
amount required by Section 8.3.1.2 above, and (ii) Lessees' Consolidated Current
Ratio is at least 1.2, and (B) Lessees have maintained, for the four (4)
calendar quarters immediately preceding any such payments and distributions, a
Lessees' Consolidated Fixed Charge Ratio of at least 1.4.
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8.3.1.6 Minimum Capital Expenditures. Lessees shall
make Qualified Capital Expenditures of at least Three Hundred ($300.00) Dollars
per-licensed-bed for the improvement of each Facility during the Lease Year
beginning January 1, 1999, and thereafter throughout the Term, in each Lease
Year Lessees shall make Qualified Capital Expenditures for the improvement of
each Facility of at least such amount increased annually in proportion to
increases in the CPI. At least annually, at the request of Lessor, Lessor and
Lessees shall review capital expenditures budgets and mutually agree on
modifications, if any, to such budgets as may be required by changed
circumstances and the changed conditions of the Leased Property. If Lessor and
Lessees are unable to come to agreement on such modifications., the parties
shall resolve any such dispute in accordance with Article XXXVII hereof.
8.3.1.7 Borrowings.
8.3.1.7.1 Accounts Receivable. Lessees (or
any one or more of them) shall not increase their borrowings under a line of
credit secured by any of their accounts receivable unless, at the time of
borrowing under such line of credit, Lessees' Consolidated Fixed Charge Ratio
for the preceding four (4) calendar quarters on a pro forma basis, adding into
the Fixed Charges the estimated payments on the accounts receivable financing,
exceeded 1.55.
8.3.1.7.2 Equipment Financing. The aggregate
amount of principal and interest due from Lessees on any equipment financing,
including equipment leases and chattel financing of any sort, shall not exceed
Fifty Thousand Dollars ($50,000.00) in the first year of the Term, Forty
Thousand Dollars ($40,000.00) in the second Lease Year or Thirty Thousand
Dollars ($30,000) in the third or any succeeding Lease Year.
8.3.1.7.3 Guarantees by Lessees. Lessees
shall not jointly or severally guarantee any Debt of any Affiliate or third
party except (i) the New Omega Guarantee and (ii) such guarantees of payment to
vendors to the Facilities and trade creditors of Lessees as may be required of
Lessees in the ordinary course of business.
8.3.1.7.4 Other Borrowings. Except as
provided in subsections 8.3.1.7.1, 8.3.1.7.2 and 8.3.1.7.3, Lessees shall not
jointly or severally borrow any money or incur any Debt other than Debt to
Lessor, Debt to trade creditors in the ordinary course of business, and Debt
required for the issuance of title or other insurance for the Leased Property.
8.4 Covenants Regarding Kendalville. With respect to the
Leased Property in Kendalville, Lessees agree not to take, or permit to be taken
on their behalf, any action which any Lessee knows or should know would
adversely affect the federal income tax exemption of the interest paid on any
revenue bonds issued to finance the
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Leased Property in Kendallville ("Bonds"); and Lessees will take, or require to
be taken on their behalf, any and all affirmative acts reasonably required to
continue the exemption from taxation of said interest. Lessor shall reasonably
cooperate with Lessees in complying with their obligations under this Section.
Upon the written request of Lessees, Lessor may give its written consent to any
capital expenditure for the Leased Property in Kendallville not otherwise
permitted hereunder, provided that Lessor, in its sole discretion, determines
that such consent and such expenditures will not adversely affect the exemption
from federal income taxation of the interest paid on the Bonds. Lessees further
agree to furnish Lessor upon written request a written statement of the total
amount of such capital expenditures incurred by it or any related person.
8.5 Management Agreement; Amendments. With the approval of
Lessor, Lessees have entered into a Management Agreement with Manager in the
form attached hereto as EXHIBIT E. No material modifications to such Management
Agreement, and no other Management Agreement, shall be entered into without
Lessor's prior written approval, in its sole discretion, of the terms thereof.
The maximum management fee payable to any Manager as to any Facility shall not
exceed six percent (6%) of such Facility's Gross Revenues, without the written
consent of the Lessor. Lessees shall not amend, modify, renew, replace or
otherwise change the terms of any Management Agreement for any Facility without
the prior written consent of the Lessor, which Lessor may arbitrarily withhold,
and without a satisfactory subordination by the Manager thereunder of its right
to receive any management fee to the obligation of Lessees to pay the Minimum
Rent and Additional Charges hereunder.
8.6 Other Healthcare Facilities. Neither Lessees nor any
Affiliate shall own, operate or manage any healthcare facility within a twenty
five (25) mile radius of any Facility, other than an Excluded Facility.
8.7 Continuous Operations. Lessees agree and covenant that
they will continuously operate all of the Facilities as providers of healthcare
and related ancillary services in accordance with the Primary Intended Use of
the Facilities and agree to maintain all necessary certificates for
reimbursement, licensure and accreditation.
8.8 No Other Business. Lessees shall not jointly or severally
engage in any business or businesses other than the leasing and operation of the
Facilities and, in the case of BritWill-II only, the leasing and operation of
the UNHC Facilities.
8.9 Separateness. Each Lessee shall:
a. Establish and maintain one or more offices
through which their business shall be
conducted separate and apart from that of
Unison or any other Affiliates of Unison.
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b. Maintain records and books of account
separate from those of Unison and any other
Affiliates of Unison.
c. Not commingle assets, funds or accounts with
those of Unison or any other Affiliates of
Unison.
d. Conduct its own business in its own names
and not in the name of Unison or the names
of any other Affiliates of Unison.
e. Maintain financial statements separate from
Unison (although the same may be maintained
in compliance with GAAP on a consolidated
basis with Unison and other Affiliates of
Unison).
f. Pay its liabilities out of its own funds,
jointly or severally, including salaries of
its employees, and not from funds of Unison
or any other Affiliates of Unison.
g. Maintain an arm's length relationship with
Unison and any and all of Unison's other
Affiliates.
h. Except as provided in Section 8.3.1.7.3
above, not guarantee or become obligated for
the debts of Unison or any other entity,
including any Affiliate, or hold out its
credit, jointly or severally, as being
available to satisfy the obligations of
others.
i. Use stationery, invoices and checks and
maintain a telephone number and, if
maintaining a telecopier, maintain a
telecopier number, separate from Unison and
any of Unison's other Affiliates.
j. Not pledge its assets, jointly or severally,
for the benefit of Unison or any other
entity, including any Affiliate.
k. Hold itself out as an entity separate from
Unison and any other Unison Affiliates.
l. On and at all times after the ninetieth
(90th) day following the Effective Date have
a Board of Directors which has at least one
"Independent Director".
m. At all times cause its Board of Directors to
hold appropriate meetings (or act by
unanimous consent) to authorize all
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appropriate corporate actions, and in
authorizing such actions, to observe all
formalities.
ARTICLE IX
9.1 Maintenance and Repair.
9.1.1 Lessees, at their expense, will keep the Leased Property
and Lessees' Personal Property in good order and repair (whether or not the need
for such repairs occurs as a result of Lessees' use, any prior use, the elements
or the age of the Leased Property or any portion thereof, or any cause whatever
except the act or negligence of Lessor), and, except as otherwise provided in
Article XIV, with reasonable promptness, make all necessary and appropriate
repairs thereto of every kind and nature, whether interior or exterior,
structural or non-structural, ordinary or extraordinary, foreseen or unforeseen
or arising by reason of a condition whether or not existing prior to the
commencement of the Term (concealed or otherwise). Lessees shall make the
capital improvements to the Leased Property agreed to in annual capital budgets
to be prepared by Lessees for each Facility and submitted to Lessor by December
1 of the Lease Year preceding the Lease Year to which such budgets are to apply,
provided, however, that such budgets shall not limit or restrict Lessees'
ability or obligation to make all necessary repairs with respect to
extraordinary or unforeseen conditions.
9.1.2 Lessees shall do or use its best efforts to cause others
to do all shoring of the Leased Property or adjoining property (whether or not
owned by Lessor) or of the foundations and walls of the Leased Improvements, and
every other act necessary or appropriate for the preservation and safety
thereof, by reason of or in connection with any subsidence, settling or
excavation or other building operation upon the Leased Property or any part
thereof or upon adjoining property, whether or not Lessor shall, by any legal
requirements, be required to take such action or be liable for the failure to do
so. All repairs shall, to the extent reasonably achievable, be at least
equivalent in quality to the original work, and, subject to the provisions of
paragraph 9.1.5, whereby reason of age or condition, such repairs cannot be made
to the quality of the original work, the property to be repaired shall be
replaced. Lessees will paint the exterior of the Leased Improvements not less
than every ten (10) years and will maintain an internal painting program that
results in the interior of each of the Facilities being repainted at least every
three (3) years. Lessees will not take or omit to take any action the taking or
omission of which might materially impair the value or the usefulness of the
Leased Property or any part thereof for the Primary Intended Use.
It is the intention of these provisions that the
level of maintenance of each of the Facilities shall be not less than that which
would be provided by an operator of first class nursing homes or retirement
living facilities making use of the Facilities for the Primary Intended Use. At
all times Lessees shall maintain, operate and otherwise manage
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the Facilities on a quality basis and in a manner consistent with the standards
of the highest quality of other first class nursing homes and retirement living
facilities in the market areas in which the Facilities are located.
9.1.3 Lessor shall not under any circumstances be required to
build or rebuild any improvements on the Leased Property or any part thereof, or
to make any repairs, replacements, alterations, restorations or renewals of any
nature or description to any Leased Property or any part thereof, whether
ordinary or extraordinary, structural or non-structural, foreseen or unforeseen,
or upon any adjoining property, whether to provide lateral or other support for
the Leased Property or ▇▇▇▇▇ a nuisance affecting the Leased Property, or
otherwise, or to make any expenditure whatsoever with respect thereto, in
connection with this Lease, or to maintain the Leased Property in any way.
Lessees hereby waive, to the extent permitted by law, the right to make repairs
at the expense of Lessor pursuant to any law in effect on the Effective Date or
hereafter enacted.
9.1.4 Nothing contained in this Lease and no action or
inaction by Lessor shall be construed as (i) constituting the consent or request
of Lessor, expressed or implied, to any contractor, subcontractor, laborer,
materialman or vendor to or for the performance of any labor or services or the
furnishing of any materials or other property for the construction, alteration,
addition, repair or demolition of or to the Leased Property or any part thereof,
or (ii) giving Lessees any right, power or permission to contract for or permit
the performance of any labor or services or the furnishing of any materials or
other property in such fashion as would permit the making of any claim against
Lessor in respect thereof or to make any agreement that may create, or in any
way be the basis for any right, title, interest, lien, claim or other
encumbrance upon the estate of Lessor in the Leased Property, or any portion
thereof. Lessor shall have the right to give, record and post, as appropriate,
notices of non-responsibility under any mechanics' lien laws now or hereafter
existing.
9.1.5. Lessees shall, from time to time, replace with other
operational equipment or parts or property (the "Replacement Property") any of
the Fixtures or Lessor's Personal Property (the "Replaced Property") which shall
have (i) become worn out, obsolete or unusable for the purpose for which it is
intended, (ii) been Taken in Condemnation, in which event Lessees shall be
entitled to that portion of any Award made therefor, or (iii) been lost, stolen,
damaged or destroyed; provided, however, that the Replacement Property shall (1)
be in good operating condition, (2) have a value at the time of replacement and
useful life at least equal to the value and estimated useful life of the
Replaced Property as of the Commencement Date on the BritWill Indiana and
BritWill-II Leased Property, or the Effective Date, as to the Signature Leased
Property (as adjusted for inflation) for Replaced Property specified in
Subparagraph 9.1.5(i), or have a value and useful life at the time of
replacement at least equal to the value and estimated useful life of the
Replaced Property immediately prior to the time that the Replaced Property
specified in Subparagraphs 9.1.5 (ii) and 9.1.5 (iii) was so taken, lost,
stolen, damaged or destroyed,
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and (3) be suitable for a use which is the same or similar to that of the
Replaced Property. Lessees shall repair at their sole cost and expense all
damage to the Leased Property caused by the removal of Replaced Property or
other personal property of Lessees or the installation of Replacement Property.
All Replacement Property shall become the property of Lessor and shall become a
part of the Fixtures or Lessor's Personal Property, as the case may be, to the
same extent as the Replaced Property had been. Lessees shall promptly advise
Lessor of all such Replacement Property, and if so requested by Lessor in
writing, Lessees shall promptly cause to be executed and delivered to Lessor an
invoice, ▇▇▇▇ of sale or other appropriate instrument evidencing the transfer or
assignment to Lessor of all estate, right, title and interest (other than the
leasehold estate created hereby) of Lessees or any other Person in and to the
Replacement Property, free from all liens and other exceptions to title, and
Lessees shall pay all taxes, fees, costs and other expenses that may become
payable as a result thereof. At the expiration of the Term or the sooner
termination of this Lease, all of the Facilities shall be in good operating
condition, ordinary wear and tear excepted.
9.1.6 Except for those Facilities purchased by one or more of
the Lessees pursuant to the provisions of this Lease, Lessees will, upon the
expiration or prior termination of the Term, vacate and surrender each Facility
to Lessor in the condition in which it existed when possession of such Facility
was originally delivered to a Lessee by Lessor under an Existing Lease or this
Lease, except as repaired, rebuilt, restored, altered or added to as permitted
or required by the provisions of this Lease, ordinary wear and tear excepted.
9.2 Encroachments, Restrictions, etc.
9.2.1 If any of the Leased Improvements shall at any time
encroach upon any property, street or right-of-way adjacent to a Facility, or
shall violate the agreements or conditions contained in any lawful restrictive
covenant or other agreement affecting any Facility, or any part thereof, or
shall impair the rights of others under any easement or right-of-way to which
any Facility is subject, then promptly upon the request of Lessor or at the
behest of any Person affected by any such encroachment, violation or impairment,
Lessees shall, at their expense, subject to their right to contest the existence
of any encroachment, violation or impairment as provided in Article XII and in
such case, in the event of an adverse final determination, either (i) obtain
valid and effective waivers or settlements of all claims, liabilities and
damages resulting from each such encroachment, violation or impairment, whether
the same shall affect Lessor or Lessees or (ii) make such changes in the Leased
Improvements, and take such other actions, as Lessees in the good faith exercise
of their judgment deem reasonably practicable, to remove such encroachment, and
to end such violation or impairment, including, if necessary, the alteration of
any of the Leased Improvements, and in any event take all such actions as may be
necessary in order to be able to continue the operation of the Leased
Improvements for the Primary Intended Use substantially in the manner and to the
extent
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the Leased Improvements were operated prior to the assertion of such
violation, impairment or encroachment. Lessees shall in no event have any claim
or offset with respect to any such violation, impairment or encroachment. Any
such alteration shall be made in conformity with the applicable requirements of
Article X.
9.2.2 Encroachments described in title insurance commitments
or surveys delivered to Lessor in connection with the Existing Leases or in
connection with the Signature Leased Property at or prior to the Effective Date
of this Lease, and not objected to by Lessor within a reasonable time after such
delivery, shall be excluded from the encroachments described in Section 9.2(1)
above.
ARTICLE X
10.1 Construction of Major Alterations to Leased Property. Without the
prior written consent of Lessor, which consent shall not be unreasonably
withheld, conditioned or delayed by Lessor, and the prior written consent of any
Facility Mortgagee, if required under any Facility Mortgage, Lessees shall make
no alterations or repairs to any Facility costing in excess of One Hundred
Thousand Dollars ($100,000.00), and no alterations or repairs which will
materially increase or decrease the number of beds or enlarge or reduce the size
of any Facility (hereinafter, any such alteration or repair is referred to as a
"Major Alteration"). Lessor agrees that it will not withhold or delay its
consent to any proposed Major Alteration if such Major Alteration is required by
this Lease or by any Legal Requirement. Lessees agree that Lessor's consent to
any Major Alteration will not be deemed unreasonably withheld if such change
will, in Lessor's judgment, reasonably exercised, alter the purpose or character
or detract from the value or operating efficiency of the Facility, or impair the
revenue producing capability of the Facility, or adversely affect the ability of
Lessees to comply with this Lease.
Prior to commencement of any Major Alteration, Lessees shall
submit to Lessor in writing a proposal describing the Major Alteration in detail
and providing Lessor with plans and specifications therefor and such other
information as Lessor may reasonably request. Lessor's consent shall be in
writing. Any consent or withholding of consent by Lessor shall be by Notice
within thirty (30) days after receipt by Lessor of such documents and
information as Lessor may reasonably require, Notice of which requirements shall
be sent to Lessees by Lessor within fifteen (15) days after Lessees' request.
No alteration shall be made which would tie in or connect
any Leased Improvements on the Leased Property with any other improvements on
property adjacent to the Leased Property (and not part of the land covered by
this Lease) including, without limitation, tie-ins of buildings or other
structures or utilities, unless Lessees shall have
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obtained the prior written approval of Lessor, which approval in Lessor's sole
discretion may be granted or withheld.
10.2 Payment for Improvements. In the event that Lessees wish to
request Lessor to consider paying for a proposed alteration or addition that
Lessees consider an Improvement, Lessees shall give Notice of their designation
of such alteration or addition as an Improvement not later than the date on
which Lessees deliver copies of the plans and specifications for such alteration
and addition pursuant to Section 10.3 below. Such Notice shall include
reasonable detail as to the estimated costs of constructing such Improvement and
Lessees' estimate of the projected increases in Gross Revenues of the Facility
attributable to the Improvement. Lessees shall furnish to Lessor such additional
information concerning the proposed Improvement as Lessor shall reasonably
require. Within fifteen (15) business days following Lessor's receipt of Notice
of designation and, if requested, any additional information concerning the
proposed Improvement, without any obligation to pay for such Improvement Lessor
shall notify Lessees of the portion of the actual cost of the proposed
Improvement, if any, for which Lessor is willing to reimburse Lessees, and the
increase to the Minimum Rent that Lessor would require, based upon Lessor's then
current rate of return. In the event that Lessor and Lessees agree on the
reimbursement amount and the increase in Minimum Rent, then Lessor shall
purchase such Improvements from Lessees, free and clear from all liens, for the
amount agreed to by Lessor and Lessees, or, if less, Lessees' actual
out-of-pocket costs in constructing such Improvement, and Lessees shall pay the
increased Minimum Rent to Lessor for the remainder of the Term (including any
Extended Term). The date for such purchase shall be the date agreed upon by
Lessor and Lessees within thirty (30) days following the date of Lessee's Notice
of completion of the Improvement to Lessor. Lessees shall pay all costs,
including but not limited to sales tax, associated with such transfer.
Lessor shall have no obligation whatsoever to reimburse Lessees for
Improvements or for alterations or additions which are not Improvements if the
Lease expires or is terminated prior to the date on which Lessor has committed
in writing to purchase the Improvements. Lessor shall have no obligation to
reimburse Lessees for the cost of any Improvement if Lessor and Lessees cannot
agree on the cost of the Improvement as a result of an Event of Default or on
the increase in the Minimum Rent on account of such Improvement. The increase in
Minimum Rent shall commence on the date on which Lessor reimburses Lessees for
the Improvement pursuant to this Section 10.2.
10.3 Construction of Alterations and Additions to the Leased Property.
Lessees shall not make or permit to be made any alterations or improvements
(whether or not the same constitute Improvements or additions of or to the
Leased Property or any part thereof) unless and until Lessees shall have caused
plans and specifications therefor to have been prepared, at Lessees' expense, by
a licensed architect and shall have obtained Lessor's written approval thereof
and the approval of any Facility Mortgagee. If the estimated cost of the
alteration or addition is more than Twenty Five Thousand Dollars
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($25,000) but less than One Hundred Thousand Dollars ($100,000), Lessees shall
give Lessor at least fifteen (15) Business Days notice of such planned
alteration or addition in advance of the commencement of construction. Such
notice shall be accompanied by a copy of the plans and specifications. If the
estimated cost of the alteration or addition exceeds One Hundred Thousand
Dollars ($100,000), Lessees shall deposit with Lessor an amount equal to the
estimated cost of the alterations or addition. Lessor shall retain and disburse
the amount so deposited in the same manner as is provided for insurance proceeds
in Section 14.8 of this Lease. If such deposit is reasonably determined by
Lessor at any time to be insufficient for the completion of the addition or
alteration, Lessees shall immediately deposit with Lessor any deficiency, to be
held and disbursed by Lessor as provided for in Section 14.8 of this Lease. If
such approvals are granted, Lessees shall cause the work described in such
approved plans and specifications to be performed, at its expense, promptly, and
in a first class, workmanlike manner by a licensed general contractor and in
compliance with all applicable governmental and Insurance Requirements and Legal
Requirements and the standards set forth in this Lease, which improvements shall
in any event constitute a complete architectural unit in keeping with the
character of the affected Facility and the area in which the affected Facility
is located, and which will not diminish the value of the affected Facility or
change the Primary Intended Use of such Facility. Each and every such
improvement, alteration or addition shall immediately become a part of the
Leased Property and shall belong to Lessor subject to the terms and conditions
of this Lease. Lessees shall have no claim against Lessor at any time in respect
of the cost or value of any such improvement, alteration or addition. There
shall be no adjustment in the Minimum Rent by reason of any such improvement,
alteration or addition.
10.4 Salvage. All materials which are scrapped or removed in connection
with the making of either Major Alterations or non-Major Alterations permitted
under this Article X, or repairs required by Article IX, shall be or become the
property of Lessees.
10.5 Abandonment of Demolition or Construction. If, after having
commenced demolition in connection with any Major or non-Major Alteration or
construction of any Major or non-Major Alteration, Lessees shall abandon the
demolition and/or construction or shall fail to complete such demolition and/or
construction within a reasonable time after the commencement thereof (due
consideration being given to Unavoidable Delays) either of such events shall
constitute an Event of Default and Lessor shall thereupon become entitled to
exercise its remedies under Article XVI.
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ARTICLE XI
11. Liens. Subject to the provisions of Article XII relating to
permitted contests, Lessees will not directly or indirectly create or allow to
remain and will promptly discharge at their expense any lien, encumbrance,
attachment, title retention agreement or claim upon the Leased Property or any
attachment, levy, claim or encumbrance in respect of the Rent, not including,
however, (i) this Lease, (ii) the matters, if any, set forth in EXHIBIT F, (iii)
restrictions, liens and other encumbrances which are consented to in writing by
Lessor and any Facility Mortgagee, (iv) liens for those taxes of Lessor which
Lessees are not required to pay hereunder, (v) liens for Impositions or for sums
resulting from noncompliance with Legal Requirements so long as (a) the same are
not yet payable, or (b) such liens are in the process of being contested as
permitted by Article XII, (vi) liens of mechanics, laborers, materialmen,
suppliers or vendors for sums either disputed or not yet due, provided (a) the
payment of such sums shall not be postponed for more than sixty (60) days after
the completion of the work or the occurrence of the act giving rise to such
lien, and (b) if any such liens are in the process of being contested as
permitted by Article XII, such reserve or other appropriate provisions as shall
be required by law or generally accepted accounting principles shall have been
made therefor, and (vii) any liens which are the responsibility of Lessor
pursuant to the provisions of Article XXI of this Lease.
ARTICLE XII
12.1 Permitted Contests. Lessees, on their own or on Lessor's behalf
(or in Lessor's) name, but at Lessees' sole cost and expense, may contest, by
appropriate legal proceedings conducted in good faith and with due diligence,
the amount or validity of any Imposition or any Legal Requirement or Insurance
Requirement or any lien, attachment, levy, encumbrance, charge or claim, or any
encroachment or restriction burdening the Leased Property as provided in Section
9.2, ("Claims") not otherwise permitted by Article XI, by appropriate legal
proceedings in good faith and with due diligence (but this shall not be deemed
or construed in any way as relieving, modifying or extending Lessees' covenants
to pay or their covenants to cause to be paid any such charges at the time and
in the manner as in this Article provided), on condition, however, that such
legal proceedings shall not operate to relieve Lessees from their obligations
hereunder and shall not cause the sale of the Leased Property, or any part
thereof, to satisfy the same or cause Lessor or Lessees to be in default under
any encumbrance or in violation of any Legal Requirements or Insurance
Requirements upon the Leased Property or any interest therein. Upon request of
Lessor, Lessees shall either (i) provide a bond, letter of credit or other
assurance reasonably satisfactory to Lessor that all Claims which may be
assessed against the Leased Property together with interest and penalties, if
any, thereon will be paid, or (ii) deposit within the time otherwise required
for payment with a bank or trust company selected by Lessor as trustee, as
security for the payment of such Claims, money in an amount sufficient to pay
the same, together with interest and penalties in connection
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therewith and all Claims which may be assessed against or become a Claim on the
Leased Property, or any part thereof, in said legal proceedings. Lessees shall
furnish Lessor and any lender of Lessor and any other party entitled to assert
or enforce any Legal Requirements or Insurance Requirements with evidence of
such deposit within five (5) days of the same. Lessor agrees to join in any such
proceedings if the same be required to legally prosecute such contest of the
validity of such Claims; provided, however, that Lessor shall not thereby be
subjected to any liability for the payment of any costs or expenses in
connection with any such proceedings; and Lessees covenant to indemnify and save
harmless Lessor from any such costs or expenses, including but not limited to
attorneys' fees incurred in any arbitration proceeding, trial, appeal and
post-judgment enforcement proceedings. Lessees shall be entitled to any refund
of any Claims and such charges and penalties or interest thereon which have been
paid by Lessees or paid by Lessor and for which Lessor has been fully
reimbursed. In the event that Lessees fail to pay or satisfy the requirements or
conditions of any Claims when due or to provide the security therefor as
provided in this paragraph and to diligently prosecute any contest of the same,
Lessor may, upon thirty (30) days advance written Notice to Lessees, pay such
charges or satisfy such claims together with any interest and penalties and the
same (or the cost thereof) shall be repayable by Lessees to Lessor forthwith as
Additional Charges. Should Lessor reasonably determine that the giving of such
Notice would risk loss to the Leased Property or cause damage to Lessor, then
Lessor shall give such written Notice as is practical under the circumstances.
12.2 Lessor's Requirement for Deposits Following Default. Upon and at
any time after an Event of Default under this Lease, Lessor, in its sole
discretion, shall be entitled to require Lessees to pay monthly a prorata
portion of the amounts required to comply with the Insurance Requirements, any
Imposition and any Legal Requirements, and when such obligations become due,
Lessor shall pay them (to the extent of the deposit) upon Notice from Lessees
requesting such payment. In the event that sufficient funds have not been
deposited to cover the amount of the obligations due at least thirty (30) days
in advance of the due date, Lessees shall forthwith deposit the same with Lessor
upon written request from Lessor. Lessor shall not be obligated to pay Lessees
any interest on any deposit so held by Lessor. Upon an Event of Default under
the Lease, any of the funds remaining on deposit may be applied under the Lease,
in any manner and on such priority, as determined by the Lessor and without
Notice to Lessees.
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ARTICLE XIII
13.1 General Insurance Requirements. During the Term of this Lease,
Lessees shall at all times keep the Leased Property, and all property located in
or on the Leased Property, including Lessor's Personal Property and Lessees'
Personal Property, insured with the kinds and amounts of insurance described
below. This insurance shall be written for each Facility by companies authorized
to do insurance business in the state in which such Facility is located. Unless
otherwise agreed by Lessor and Lessees, all such policies provided and
maintained during the Term of this Lease shall be written by companies having a
rating classification of not less than A- and a financial size category of Class
VII or above provided, however, that Lessor consents to the current insurance
policies maintained by Lessees. The policies must name Lessor as an additional
insured. Losses shall be payable to Lessor or Lessees as provided in Article
XIV. In addition, the policies shall name as an additional insured the holder of
any mortgage deed of trust or other security agreement ("Facility Mortgagee")
placed on the Leased Property by Lessor ("Facility Mortgage") by way of a
standard form of mortgagee's loss payable endorsement in use in the State and in
accordance with any such other requirements as may be established by any
Facility Mortgagee. Any loss adjustment shall require the written consent of
Lessor, Lessees and each Facility Mortgagee, which consent shall not be
unreasonably withheld by either Lessor or Lessees. Evidence of insurance shall
be deposited with Lessor and, if requested, with any Facility Mortgagee. If any
provision of any Facility Mortgage requires deposits of premiums for insurance
to be made with such Facility Mortgagee, Lessees of the encumbered Facilities
shall either pay to Lessor monthly the amounts required and Lessor shall
transfer such amounts to each Facility Mortgagee, or, pursuant to written
direction by Lessor, such Lessees shall make such deposits directly with such
Facility Mortgagee. The policies on the Leased Property, including the Leased
Improvements, Fixtures, Lessor's Personal Property and Lessees' Personal
Property shall insure against the following risks:
13.1.1 Loss or damage by fire, vandalism and malicious
mischief, extended coverage perils commonly known as "Special Risk," and all
physical loss perils normally included in such Special Risk insurance, including
but not limited to sprinkler leakage, in an amount not less than one hundred
percent (100%) of the then full replacement cost thereof (as defined below in
Section 13.2);
13.1.2 Loss or damage by explosion of steam boilers, pressure
vessels or similar apparatus, now or hereafter installed in the Facilities in
such amounts with respect to any one accident as may be requested by Lessor from
time to time;
13.1.3 Loss of rental under a rental value insurance policy
covering risk of loss during reconstruction necessitated by the occurrence of
any of the hazards described in Sections 13.1.1 or 13.1.2 (but in no event for a
period less than twelve (12) months) in an amount sufficient to prevent Lessor
and Lessees from becoming a co-insurer;
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13.1.4 Claims for personal injury or property damage under a
policy of commercial general public liability insurance with a combined single
limit per occurrence in respect of bodily injury and death and property damage
of Five Million Dollars ($5,000,000.00), which insurance shall insure
performance by Lessees of the indemnity provisions of Article XXIII of this
Lease;
13.1.5 Claims arising out of malpractice in an amount not less
than Five Million Dollars ($5,000,000.00) for each person and for each
occurrence;
13.1.6. Flood (when any portion of the Leased Property is
located in whole or in part within a designated flood plain area) and such other
hazards and in such amounts as may be customary for comparable properties in the
area;
13.1.7. During such time as any Lessee or Lessees shall be
constructing any improvements, Lessees, at their sole cost and expense, shall
carry, or cause to be carried (i) worker's compensation insurance and employers'
liability insurance covering all persons employed in connection with the
improvements in statutory limits, (ii) a completed operations endorsement to the
commercial general liability and property damage insurance policies referred to
above, (iii) builder's risk insurance, completed value form, covering all
physical loss, in an amount satisfactory to Lessor, and (iv) such other
insurance, in such amounts, as Lessor deems necessary to protect Lessor's
interest in the Leased Property from any act or omission of Lessees contractors
or subcontractors;
13.1.8. Primary automobile liability insurance with limits of
Three Million Dollars ($3,000,000) per occurrence each for owned and non-owned
and hired vehicles; and
13.1.9. If Lessees choose to carry umbrella liability coverage
to obtain the limits of liability required under this Lease, all such policies
shall provide coverage in the same manner as the primary commercial general
liability policy and shall contain no exclusions or limitations other than those
contained in the primary policy.
13.2 Replacement Cost. The term "full replacement cost" as used herein,
shall mean, as to each Facility, actual replacement cost, including an increased
cost of construction endorsement, less exclusions provided in the standard form
of fire insurance policy. In all events full replacement cost shall be an amount
sufficient that neither Lessor nor Lessees are deemed to be co-insurers of the
Facility. In the event Lessor reasonably believes that full replacement cost
(the then replacement cost less such exclusions) of a Facility has increased at
any time during the Lease Term, it shall have the right to have such full
replacement cost redetermined by the fire insurance company which is then
carrying the largest amount of fire insurance carried on the Leased Property,
hereinafter referred to as "impartial appraiser". The determination of the
impartial appraiser shall be final and binding on the parties hereto, and
Lessees shall forthwith increase, but not
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decrease, the amount of the insurance carried pursuant to this Section to the
amount so determined by the impartial appraiser, subject to the approval of any
Facility Mortgagee, as applicable. Each party shall pay one-half (1/2) of the
fee, if any, of the impartial appraiser.
13.3 Additional Insurance. In addition to the insurance described
above, Lessees shall maintain such additional insurance as may be reasonably
required from time to time by any Facility Mortgagee and shall at all times
maintain adequate worker's compensation insurance coverage for all persons
employed by Lessees on the Leased Property. Such worker's compensation insurance
shall be in accordance with the requirements of applicable local, state and
federal law.
13.4 Waiver of Subrogation. All insurance policies carried by either
party covering the Leased Property, the Fixtures, Lessor's Personal Property or
Lessees' Personal Property including without limitation, contents, fire and
casualty insurance, shall expressly waive any right of subrogation for Lessor
and Lessees on the part of the insurer against the other party. Lessees shall
pay any additional costs or charges for obtaining such waiver.
13.5 Form Satisfactory, etc. All of the policies of insurance referred
to in this Article XIII shall be written in a form satisfactory to Lessor and
any Facility Mortgagee and by insurance companies satisfactory to Lessor and any
Facility Mortgagee. The property loss insurance policies shall contain a
Replacement Cost Endorsement. Lessor agrees that it will not unreasonably
withhold its approval as to the form of the policies of insurance or as to the
insurance companies selected by Lessees. Lessees shall pay when due all of the
premiums therefor, and deliver such policies or certificates thereof to Lessor
prior to their effective date (and, with respect to any renewal policy, not less
than twenty (20) days prior to the expiration of the existing policy, a new
policy or binder shall be furnished to Lessor), and in the event of the failure
of Lessees either to effect such insurance as herein called for or to pay the
premiums therefor, or to deliver such policies or certificates thereof to Lessor
at the times required, Lessor shall be entitled, but shall have no obligation,
to effect such insurance and pay the premiums therefor when due, which premiums
shall be repayable to Lessor upon written demand therefor as Rent, and failure
to repay the same shall constitute an Event of Default within the meaning of
Section 16.1.2.
All public liability and property damage insurance shall
contain a provision that Lessor, although named as an insured, shall
nevertheless be entitled to recovery under said policies for any loss, damage,
or injury to Lessor, its servants, agents, and employees by reason of the
negligence of Lessees. Each insurer mentioned in this Article XIII shall agree,
by endorsement on the policy or policies issued by it, or by independent
instrument furnished to Lessor, that it will give to Lessor (and to any Facility
Mortgagee,
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if required by the same) at least thirty (30) days' written notice before the
policy or policies in question shall be altered, allowed to expire or canceled.
13.6 Increase in Limits. In the event that from time to time after the
Effective Date Lessor determines in its reasonable business judgment that the
limits of the personal injury or property damage - public liability insurance
then carried are insufficient, Lessor shall give Lessees Notice of acceptable
limits for such insurance; such insurance shall thereafter be carried with such
limits until further increase pursuant to the provisions of this Section.
13.7 Blanket Policy. Notwithstanding anything to the contrary contained
in this Article XIII, Lessees' obligations to carry the insurance provided for
herein may be brought within the coverage of a so-called blanket policy or
policies of insurance carried and maintained by Lessees; provided, however, that
the coverage afforded Lessor is not reduced or diminished or otherwise different
from that which would exist under a separate policy meeting all other
requirements of this Lease by reason of the use of such blanket policy of
insurance, and provided further that the requirements of this Article XIII
(including satisfaction of any Facility Mortgagee's requirements and the
approval of any Facility Mortgagee) are otherwise satisfied and provided further
that Lessees maintains specific allocations acceptable to Lessor.
13.8 No Separate Insurance.
13.8.1 Lessees shall not on their own initiative or pursuant
to the request or requirement of any third party, take out separate insurance
concurrent in form or contributing in the event of loss with that required in
this Article, to be furnished by, or which may reasonably be required to be
furnished by, Lessees, or increase the amount of any then existing insurance by
securing an additional policy or additional policies, unless all parties having
an insurable interest in the subject matter of the insurance, including in all
cases Lessor and all Facility Mortgagees, are included therein as additional
insureds and the loss is payable under said insurance in the same manner as
losses are payable under this Lease.
13.8.2 Nothing herein shall prohibit Lessees from (i) securing
insurance required to be carried hereby with higher limits of liability than
required in this Lease, (ii) securing insurance to cover risks in excess of the
liability limits of policies required to be carried in this Lease ("umbrella
policies") or (iii) insuring against risks not required to be insured pursuant
to this lease, and as to such insurance, Lessor and all Facility Mortgagees need
not be included therein as additional insureds, nor must the loss thereunder be
payable in the same manner as losses are payable under this lease except to the
extent required to avoid a default under any Facility Mortgage or any other
encumbrance. Lessees shall immediately notify Lessor of the taking out of any
such
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separate insurance or of the increasing of any of the amounts of the then
existing insurance.
ARTICLE XIV
14.1 Insurance Proceeds. All insurance proceeds, net of any costs
incurred by Lessor in obtaining such proceeds, payable by reason of any loss or
damage to the Leased Property, or any portion thereof, or to any of Lessees'
Personal Property that is integral to the operation of any Facility at the time
of the loss or damage insured under any policy of insurance required by Article
XIII of this Lease shall be paid to Lessor and held by Lessor as provided in
this Lease. If such proceeds, net of collection costs (the "Net Proceeds"), are
less than Two Hundred Fifty Thousand Dollars ($250,000.00), and, if no Event of
Default has occurred and is continuing, Lessor shall pay such Net Proceeds to
Lessees promptly upon the completion of any restoration or repair, as the case
may be, of any damage to or destruction of the Leased Property. If such Net
Proceeds equal or exceed Two Hundred Fifty Thousand Dollars ($250,000.00), and
if no Event of Default has occurred and is continuing, the Net Proceeds shall be
made available for restoration or repair, as the case may be, of any damage to
or destruction of the Leased Property, or any portion thereof, as provided in
Section 14.9; provided, however, that within fifteen (15) days of the receipt of
the Net Proceeds, Lessor and Lessees shall agree as to the portion thereof
attributable to Lessees' Personal Property (and failing such shall submit the
matter to arbitration pursuant to the provisions of this Lease) and those Net
Proceeds which the parties agree are payable by reason of any loss or damage to
Lessees' Personal Property shall be disbursed in the manner specified in Section
14.5.2.
14.2 Restoration in the Event of Damage or Destruction Covered by
Insurance.
14.2.1 If during the Lease Term a Facility is totally or
partially damaged or destroyed from a risk covered by the insurance described in
Article XIII and thereby is rendered Unsuitable for its Primary Intended Use,
Lessees shall give Lessor Notice of such damage or destruction within five (5)
Business Days of the occurrence thereof. Lessees shall, within sixty (60) days
of the occurrence, either (i) commence the restoration of the damaged Facility
to substantially the same (or better) condition it was in immediately prior to
such damage or destruction, and complete such restoration within two hundred
seventy (270) days of the occurrence, or (ii) within thirty (30) days of the
occurrence offer to purchase the damaged Facility from Lessor for a purchase
price equal to the greater of Fair Market Value thereof and the Net Proceeds,
but not less than the Minimum Repurchase Price. In the event Lessor does not
accept Lessees' offer to so purchase the damaged Facility, Lessees may either
withdraw their offer to purchase the damaged Facility and within the two hundred
seventy (270) day time limit restore the damaged Facility to substantially the
same condition (or better) as existed immediately before the damage or
destruction, or terminate the Lease as to such Facility and in the latter event
Lessor shall
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be entitled to retain the Net Proceeds, the Additional Charges attributable to
such Facility shall cease and Minimum Rent shall be reduced in accordance with
Section 14.2.3.
14.2.2 If during the Lease Term, a damaged Facility is totally
or partially destroyed from a risk covered by the insurance described in Article
XIII, but the damaged Facility is not thereby rendered Unsuitable for its
Primary Intended Use, within ninety (90) days of the occurrence Lessees shall
restore the damaged Facility to substantially the same (or better) condition as
existed immediately before the damage or destruction. Such damage or destruction
shall not terminate this Lease; provided, however, if Lessees cannot within a
reasonable time obtain all necessary government approvals, including building
permits, licenses, conditional use permits and any certificates of need, after
diligent efforts to do so, in order to be able to perform all required repair
and restoration work and to operate the damaged Facility for its Primary
Intended Use in substantially the same manner as that existing immediately prior
to such damage or destruction, Lessees shall purchase the damaged Facility for a
purchase price equal to the greater of the Net Proceeds or the Fair Market
Value, but not less than the Minimum Repurchase Price.
14.2.3 If Lessees purchase the damaged Facility, this Lease
shall terminate as to such Facility when such purchase is closed (and Rent shall
be prorated as of such date), the Additional Charges attributable to such
Facility shall cease and the Minimum Rent payable under this Lease thereafter
shall be reduced by an amount equal to the Fair Market Rent for the purchased
Facility at the time of Lessees' purchase thereof, and, provided there is no
Event of Default under this Lease and then only to the extent not previously
applied by Lessor, Lessor shall remit to Lessees all Net Proceeds being held by
Lessor pertaining to the purchased Facility.
14.3 Reconstruction in the Event of Damage or Destruction Not Covered
by Insurance. Except as provided in Section 14.7 below, if a Facility is totally
or partially destroyed from a risk not covered by the insurance described in
Article XIII (and Lessor is not responsible for such destruction), Lessees shall
give Lessor Notice of such damage or destruction within five (5) Business Days
of the occurrence thereof. Whether or not such damage or destruction renders the
Facility Unsuitable for Its Primary Intended Use, Lessees at their option shall
restore the Facility to substantially the same condition it was in immediately
before such damage or destruction and such damage or destruction shall not
terminate this Lease. If Lessees fail to commence the restoration within thirty
(30) days of the occurrence or if Lessees fail to complete the restoration
within two hundred seventy (270) days of the occurrence, Lessees shall be deemed
to have elected to purchase the damaged Facility for the Minimum Repurchase
Price. Lessees shall complete the purchase within two hundred seventy (270) days
of the occurrence. In any such purchase, Lessees shall receive a credit for the
portion of any Net Proceeds retained by Lessor and, upon Lessees completion of
such purchase, the Lease shall terminate as to the damaged Facility and the
Minimum Rent shall be reduced as set forth in Section 14.2.3, above.
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14.4 Restoration of Lessees' Personal Property. If Lessees are required
or elect to restore a damaged Facility, they shall also concurrently remove or
restore any of Lessees' Personal Property.
14.5 Restoration of Lessee's Property Other than Lessees' Personal
Property.
14.5.1 If Lessees are required or elect to restore any
Facility as provided in Sections 14.2 or 14.3, Lessees shall either (i) restore
all alterations and improvements made by Lessees voluntarily without having been
required by this Lease to do so, and all Lessees' Personal Property used by
Lessees in the conduct of the Primary Intended Use of the Facility to be
restored, or (ii) replace such alterations and improvements and Lessees'
Personal Property with improvements and personal property of the same or better
quality and utility in the operation of such Facility; provided, however, if no
Event of Default shall have occurred and be continuing, Lessees shall not be
required to restore or replace any such voluntary alterations or improvements or
Lessees' Personal Property to any extent beyond the book value of Lessees'
Personal Property needed to re-equip such Leased Property in accordance with the
terms of this Lease if failure to do so will not adversely affect the amount of
Gross Revenues of the Facility; and provided further that in all events Lessees
shall make such restoration and repairs as may be necessary to keep in full
force and effect all licenses and certifications relating to such Facility.
14.5.2 In the event Lessees elect under Section 14.5.1 not to
restore or replace any such voluntary alterations or improvements and/or any
Lessee's Personal Property beyond that needed to re-equip such Leased Property
in accordance with the terms of this Lease, Lessees shall so advise Lessor in
writing, and Lessor shall within five (5) days of Lessor's receipt of said
notice, remit to Lessees the portion of the Net Proceeds, plus any accrued
interest thereon, attributable to the items which Lessees have elected not to
restore or replace. In the event Lessees elect to restore or replace any such
voluntary alterations or improvements and/or Lessees' Personal Property beyond
that needed to re-equip the damaged Facility in accordance with the terms of
this Lease, Lessees shall so advise Lessor in writing and Lessor shall disburse
said proceeds in the manner specified in Section 14.1 or 14.8, as appropriate,
in light of the amount of Net Proceeds at issue.
14.6 No Abatement of Rent. This Lease shall remain in full force and
effect and Lessees' obligation to pay the Rent shall remain unabated during any
period required for repair and restoration, unless and until this Lease shall
terminate pursuant to this Article XIV.
14.7 Damage Near End of Term. Notwithstanding any provisions of Section
14.2 or 14.3 to the contrary, if damage to or destruction of a Facility occurs
during the last twelve (12) months of the Term, including any Extended Term as
to which Lessees have exercised their option prior to the occurrence of such
damage or destruction, and if such damage or destruction cannot be fully
repaired and restored within six (6) months following
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the date of loss, Lessees shall either (i) promptly commence and thereafter
proceed diligently to restore the damaged facility to substantially the same (or
better) condition as existed immediately before the damage or destruction or
(ii) by written notice to Lessor within thirty (30) days of the occurrence of
such damage or destruction, elect to purchase the facility from Lessor for a
purchase price which shall be the greater of the Minimum Repurchase Price or the
Net Proceeds. If Lessees fail to promptly commence and diligently proceed to
complete the restoration within the time limits specified in this Section 14.7,
Lessees shall be deemed to have elected to purchase the damaged facility for the
greater of the Net Proceeds or the Minimum Repurchase Price. Lessees shall
complete the purchase within one hundred and eighty (180) days of the date of
loss. In any such purchase, Lessees shall receive a credit for any portion of
the Net Proceeds retained by Lessor, the Additional Charges attributable to such
Facility shall cease and Minimum Rent shall be reduced in accordance with
Section 14.2.3.
14.8 Waiver. Except as provided elsewhere in this Lease, Lessees hereby
waive any statutory or common law rights of termination which may arise by
reason of any damage to or destruction of any Facility.
14.9 Procedure for Disbursement of Insurance Proceeds Equal to or
Greater Than Two Hundred Fifty Thousand Dollars ($250,000). In the event Lessees
restore or repair the Facility pursuant to any Subsection of this Article XIV
and if the Net Proceeds equal or exceed Two Hundred Fifty Thousand Dollars
($250,000), the restoration or repair shall be performed in accordance with the
following procedures:
(i) The restoration or repair work shall be done pursuant to
plans and specifications approved by Lessor (which approval shall not be
unreasonably withheld, conditioned or delayed), and Lessees shall cause to be
prepared and presented to Lessor a certified construction statement, acceptable
to Lessor, showing the total cost of the restoration or repair; to the extent
such cost exceeds the Net Proceeds, the amount of such excess cost shall be
paid, in cash, by Lessees, to Lessor, before any disbursement is made by Lessor
pursuant hereto (which insurance proceeds and such funds paid to Lessor are
hereinafter called the "Construction Funds").
(ii) The Construction Funds shall be made available to Lessees
upon request, no more frequently than monthly, as the restoration and repair
work progresses pursuant to certificates of an architect acceptable to Lessor,
which certificates shall be in form and substance reasonably acceptable to
Lessor and subject to a ten (10%) percent holdback until the architect certifies
that the work is fifty percent (50%) complete after which, so long as there is
no Event of Default under this Lease and so long as the architect certifies work
is proceeding in accordance with schedule and budget, there shall be no further
retainage; any funds paid by Lessees to Lessor to pay all excess costs shall be
disbursed prior to disbursement of any insurance proceeds; the architect shall
be selected by Lessees, but shall be in the judgment of Lessor, reasonably
exercised, highly qualified
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in the design and construction of nursing homes, or of the type of property for
which the retainage or repair work is being done.
(iii) There shall be delivered to Lessor, with such
certificates, sworn statements and conditional lien waivers in an amount at
least equal to the amount of the previous disbursement of Construction Funds
paid out to Lessees pursuant to each architect's certificate and dated as of the
date of the current disbursement.
(iv) There shall be delivered to Lessor such other evidence as
Lessor may reasonably request, from time to time, during the restoration and
repair, as to the progress of the work, compliance with the approved plans and
specifications, the cost of restoration and repair and the total amount needed
to complete the restoration and repair.
(v) There shall be delivered to Lessor such other evidence as
Lessor may reasonably request, from time to time, showing that there are no
liens against the Leased Property arising in connection with the restoration and
repair and that the cost of such restoration and repair at least equals the
total amount of Construction Funds then disbursed to Lessees hereunder.
(vi) If such Construction Funds are at any time determined by
Lessor not to be adequate for completion of the restoration and repair, Lessees
shall immediately pay any deficiency to Lessor to be held and disbursed as
Construction Funds and prior to any other funds then held by Lessor for
disbursement pursuant hereto.
(vii) Construction Funds may be disbursed by Lessor to Lessees
or to the persons entitled to receive payment thereof from Lessees, and such
disbursement in either case may be made directly or through a third party escrow
agent, such as, but not limited to, a title insurance company, or its agent, all
as Lessor may determine in its sole discretion. Any excess Construction Funds
shall be paid to Lessees upon completion of the restoration or repair.
(viii) In the event Lessees at any time shall fail to promptly
and fully perform the conditions and covenants set out in subparagraphs (i)
through (vi) above, and such failure is not corrected within ten (10) Business
Days of Notice thereof, or in the event during the restoration or repair an
Event of Default occurs hereunder, Lessor may, at its option, immediately cease
making any further payments to Lessees for such restoration and repair.
14.10 Insurance Proceeds Paid to Facility Mortgagee. Notwithstanding
anything herein to the contrary, in the event that any Facility Mortgagee is
entitled to any Net Proceeds, or any portion thereof, under the terms of any
Facility Mortgage, such Net Proceeds shall be applied, held and/or disbursed in
accordance with the terms of the Facility Mortgage. In the event that the
Facility Mortgagee elects to apply the Net
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Proceeds to the indebtedness secured by the Facility Mortgage, Lessees shall
either (i) restore the Facility to substantially the same (or better) condition
as existed immediately before the damage or destruction, in which event Lessor
shall make available to Lessees for such purpose, as and when the Net Proceeds
would have been made available hereunder, an amount equal to the Net Proceeds,
or (ii) offer to acquire the Leased Property from Lessor for a purchase price
equal to the Minimum Repurchase Price, in each case within the time periods
provided for in this Lease, in which event Lessees shall receive a credit
against the Minimum Purchase Price equal to the amount of Net Proceeds applied
to pay such Facility Mortgage. If Lessees fail to make such election, or if
Lessees elect not to restore, or if Lessees fail to commence or complete the
restoration within the time limits specified in this Article XIV, then Lessees
shall be deemed to have elected to purchase the Leased Property for the Minimum
Repurchase Price.
ARTICLE XV
15.1 Condemnation Article Definitions
15.1.1 "Award" means all compensation, sums or anything of
value awarded, paid or received on a total or partial condemnation.
15.1.2 ."Condemnation" means (i) the exercise of any
governmental power, whether by legal proceedings or otherwise, by a Condemnor,
and (ii) a voluntary sale or transfer by Lessor to any Condemnor, either under
threat of condemnation or while legal proceedings for condemnation are pending.
15.1.3 "Condemnor" means any public or quasi-public
authority, or private corporation or individual, having the power of
condemnation.
15.1.4 "Date of Taking" means the date the Condemnor has the
right to possession of the Leased Property being condemned.
15.2 Parties Rights and Obligations. If during the Term there is any
Taking of all or any part of the Leased Property or any interest in this Lease
by Condemnation, the rights and obligations of the parties shall be determined
by this Article XV.
15.3 Total Taking. If title to the fee of the whole of a Facility shall
be taken or condemned by any Condemnor, this Lease shall cease and terminate as
to such Facility as of the Date of Taking by said Condemnor. If title to the fee
of less than the whole of a Facility shall be so taken or condemned, which
nevertheless renders such Facility Unsuitable for Its Primary Intended Use,
Lessees and Lessor shall each have the option by written Notice to the other, at
any time prior to the taking of possession by, or the date of vesting of title
in, such Condemnor, whichever first occurs, to terminate this Lease as
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to such Facility as of the date so determined. Upon such date so determined, if
such Notice has been given, this Lease shall thereupon cease and terminate as to
such Facility. In either of such events, Minimum Rent shall be reduced by an
amount equal to the Fair Market Rent for such Facility as of the date the Lease
shall have been so terminated as aforesaid. In the event of any such
termination, the provisions of Section 15.7 shall apply and the Additional
Charges attributable to such Facility shall cease.
15.4 Allocation of Portion of Award. The total Condemnation Award made
with respect to all or any portion of a Facility or for loss of Rent, or for
loss of business, shall be solely the property of and payable to Lessor.
Nothing contained in this lease shall be deemed to create any
additional interest in Lessees, or any right in Lessees to an award for the
value of the unexpired Term, for any so-called "bonus value" to Lessees of this
lease or for any loss of goodwill. Any Award made for the Taking of Lessees'
Personal Property, or for removal and relocation expenses of Lessees in any such
proceedings shall be the sole property of, and be payable to Lessees. In any
Condemnation proceedings, Lessor and Lessees shall seek their own Awards in
conformity herewith, at their own expense.
15.5 Partial Taking. If title to the fee of less than the whole of a
Facility shall be so taken or condemned, Lessees shall give Lessor Notice of
such partial Taking or Condemnation within five (5) Business Days of the
occurrence thereof. If such Facility is still suitable for its Primary Intended
Use, or if Lessees or Lessor shall be entitled, but shall not elect, to
terminate this Lease as provided in Section 15.3 hereof, Lessees, at their own
cost and expense, shall with all reasonable dispatch restore the untaken portion
of any Leased Improvements so that such Leased Improvements shall constitute a
complete architectural unit of the same general character and condition (as
nearly as may be possible under the circumstances) as the Leased Improvements
existing immediately prior to such Condemnation or Taking. Lessees shall
commence the restoration of the Facility within sixty (60) days of the partial
Taking, and shall complete the restoration within one hundred eighty (180) days
of such partial Taking. Lessor shall contribute to the cost of restoration such
portion of the Award as is made therefor, if any, together with severance and
other damages awarded for taken Leased Improvements; provided, however, the
amount of such contribution shall not exceed such cost. As long as no Event of
Default has occurred hereunder, if the Award is in an amount less than Two
Hundred Fifty Thousand Dollars ($250,000.00), Lessor shall pay the same to
Lessees upon completion of such restoration. As long as no Event of Default has
occurred hereunder, if the Award is in an amount more than Two Hundred Fifty
Thousand Dollars ($250,000.00), Lessor shall make the Award available to Lessees
in the same manner as is provided in Section 14.9 for Net Proceeds in excess of
Two Hundred Fifty Thousand Dollars ($250,000.00). The Minimum Rent shall not be
reduced by reason of such partial Taking. If Lessees fail to make the election
or if Lessees elect not to restore, or if Lessees fail to commence or complete
the restoration within the time limits specified in this Section 15.5, then
Lessees
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shall be deemed to have elected to purchase the Leased Property for the Minimum
Repurchase Price. Lessees shall complete the purchase within one hundred eighty
(180) days of the such partial Taking. In any such purchase, Lessees shall
receive a credit for the portion of any Award retained by Lessor and Minimum
Rent shall be reduced as set forth in Section 15.3 hereof and the Additional
Charges attributable to such Facility shall cease..
15.6 Temporary Taking. The Taking of a Facility, or any part thereof,
by military or other public authority shall constitute a Taking by Condemnation
only when the use and occupancy by the Condemnor has continued for longer than
six (6) months. During any such six (6) month period all the provisions of this
Lease shall remain in full force and effect. In the event of any temporary
Taking as in this Section 15.6 described, the entire amount of any Award made
for such Taking allocable to the Term of this Lease, whether paid by way of
damages, rent or otherwise, shall be paid to Lessees provided Lessees are not
then in default. Lessees covenant that upon the termination of any such period
of temporary use or occupancy as set forth in this Section 15.6, they will, at
their sole cost and expense restore the affected Facility as nearly as may be
reasonably possible to the condition existing immediately prior to such Taking.
If any temporary Taking continues for longer than six (6) months, such Taking
shall be considered a Total Taking governed by Section 15.3.
15.7 Condemnation Awards Paid to Facility Mortgagee. Notwithstanding
anything herein to the contrary, in the event that any Facility Mortgagee is
entitled to any Award, or any portion thereof, under the terms of any Facility
Mortgage such Award shall be applied, held and/or disbursed in accordance with
the terms of the Facility Mortgage. In the event that the Facility Mortgagee
elects to apply the Award to the indebtedness secured by the Facility Mortgage,
(i) if the Award represents an Award for Partial Condemnation as described in
Section 15.5 above, Lessees shall restore the Leased Property (as nearly as
possible under the circumstances) to a complete architectural unit of the same
general character and condition as the Leased Property existing immediately
prior to such Taking, or (ii) if the Award represents an Award for a Total
Taking as described in Section 15.3 above, Lessees shall pay to Lessor an amount
equal to the Minimum Repurchase Price and Lessor shall transfer its portion of
the Award and its interest in the Leased Property to Lessees. In any such
restoration or purchase Lessees shall receive a credit for any portion of any
Award applied to the indebtedness secured by the Facility Mortgage.
ARTICLE XVI
16.1 Events of Default. If any one or more of the following events
(individually, an "Event of Default") shall occur:
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16.1.1 If Lessees shall fail to pay any Rent when the same
becomes due and payable and such failure is not cured within
a period of ten (10) Business Days after Notice thereof from
Lessor, provided that Lessees shall be entitled to such
Notice and may avail themselves of such cure period no more
than two (2) times in any calendar year; or
16.1.2 If any Lessee or Omega Master Lease Guarantor shall:
(i) admit in writing its inability to pay its debts
generally as they become due,
(ii) file a petition in bankruptcy or a petition to
take advantage of any insolvency law,
(iii) make a general assignment for the benefit of
its creditors,
(iv) consent to the appointment of a receiver of
itself or of the whole or any substantial part of its
property, or
(v) file a petition or answer seeking reorganization
or arrangement under the Federal bankruptcy laws or
any other applicable law or statute of the United
States of America or any State thereof, or
16.1.3 If any Lessee or Omega Master Lease Guarantor shall,
on a petition in bankruptcy filed against it, be adjudicated
a bankrupt or have an order for relief thereunder entered
against it or a court of competent jurisdiction shall enter
an order or decree appointing, without the consent of such
Lessee or Omega Master Lease Guarantor, a receiver of any
Lessee or any Omega Master Lease Guarantor or of the whole
or substantially all of the property of any Lessee, or
approving a petition filed against any Lessee or Omega
Master Lease Guarantor seeking reorganization or arrangement
of such Lessee or Omega Master Lease Guarantor under the
federal bankruptcy laws or any other applicable law or
statute of the United States of America or any state
thereof, and such judgment, order or decree shall not be
vacated or set aside or stayed within sixty (60) days from
the date of the entry thereof, or
16.1.4 If any Lessee or Omega Master Lease Guarantor shall
be finally liquidated or dissolved, or shall begin
proceedings toward such liquidation or dissolution, or shall
have filed against it a petition or other proceeding to
cause it to be liquidated or dissolved and such proceeding
be not dismissed within thirty (30) days thereafter or
shall, in any manner, permit the sale or divestiture of
substantially all of its assets, or
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16.1.5 If the estate or interest of any Lessee in the Leased
Property or any part thereof shall be levied upon or
attached on any proceeding and the same shall not be vacated
or discharged within thirty (30) days after commencement
thereof (unless such Lessee shall be contesting such lien or
attachment in good faith in accordance with Article XII
hereof), or
16.1.6 If, except as a result of damage, destruction or a
partial or complete Condemnation, Lessees voluntarily cease
operations in any Facility for a period in excess of ten
(10) Business Days, or
16.1.7 If any representation or warranty made in writing to
Lessor by any Lessee proves to be untrue when made in any
material respect which materially and adversely affects
Lessor, and is not cured within twenty (20) days after
Notice from Lessor thereof, detailing with specificity the
nature of the untrue representation or warranty, or, if not
susceptible of being cured within the twenty (20) days, if
Lessees have not commenced to cure the same within twenty
(20) days after notice thereof and thereafter diligently
proceeded to cure such default and completed such cure prior
to the time that the same causes a default in any Facility
Mortgage and prior to the time that the same results in
civil or criminal penalties to Lessor, any Lessee, any
Affiliates of either or to the Facility, or
16.1.8 If any Lessee shall have its license to operate a
Facility as a provider of health care services in accordance
with its Primary Intended Use suspended or revoked, or an
order is imposed suspending such Lessee's right to operate
or accept patients, which order is not immediately stayed
and promptly cured, or any governmental agency having
jurisdiction takes any action of which Lessor or any officer
of any Lessee has knowledge, or notifies any Lessee in
writing of its intent to take any action to de-license or
de-certify any Facility, or terminate or suspend any
Lessee's Medicare provider agreements or Medicaid
participation agreements relating to any Facility, or
16.1.9 If any Lessee or Omega Master Lease Guarantor shall
default, or permit a default, of any material obligations of
such Lessee or Omega Master Lease Guarantor under any
material agreement between Lessor and any Lessee or Omega
Master Lease Guarantor, which default is not waived or cured
within the applicable cure period, provided, however, that
notwithstanding anything to the contrary elsewhere in this
Lease, a default by the New Omega Guarantors under the New
Omega Guarantee shall not constitute an Event of Default
under this Lease, or
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16.1.10 If a Guarantee Default should occur under the Omega
Master Lease Guarantee or any other guaranty of this Lease
given to Lessor to secure performance of any term or
provision of this Lease, or
16.1.11 If Lessees shall transfer, by means not expressly
provided for in this Lease, the operational control or
management of any Facility without the written consent of
the Lessor first had and obtained, or a Transfer shall occur
with the meaning of Section 24.2 of this Lease with respect
to any Lessee or to the voting stock of BritWill HealthCare,
which Transfer is not a Permitted Transfer, or
16.1.12 A default shall occur under any other material
contract (which, in the case of a payment default, involves
a sum in controversy of at least One Hundred Thousand
Dollars ($100,000.00) affecting any Lessee or any Affiliate
of any Lessee (provided, however, for such purpose the
Persons which Control Unison shall not be considered
Affiliates of Lessee), including without limitation the
lease between BritWill-II and UNHC, which default (a) is not
waived or cured within the shorter of (i) the cure or grace
period provided in such material contract and (ii) the
thirty (30) day period following the Notice described in
Section 16.1.17 below, and (b) Lessor elects to treat as an
Event of Default hereunder, or
16.1.13 A default shall occur under any Letter of Credit
Agreement (if applicable), or the Security Deposit
provisions of this Lease, or a default shall occur under the
terms of the Security Agreement, and such default is not
waived or cured within any applicable cure period and Lessor
elects to treat such default as an Event of Default
hereunder, or
16.1.14 Lessees fail to purchase a Facility if and as
required pursuant to Articles 14 and 15 of this Lease, or
16.1.15 Lessees fail to comply with the financial covenants
required by Sections 8.3.1.2 through 8.3.1.7 of this Lease,
or Unison fails to maintain the Consolidated Tangible Net
Worth required by Section 8.3.1.1 of this Lease, and such
failure is not cured within a period of the lesser of (i)
thirty (30) days after Notice thereof from Lessor or (ii)
fifteen (15) days following the date of delivery to Lessor
of a financial statement of Lessees or of Unison, or an
Officer's Certificate of Lessees or of Unison, showing or
stating that there is a default with respect to such
financial covenants with respect to Lessees or Consolidated
Tangible Net Worth requirements with respect to Unison, or
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16.1.16 A default shall occur pursuant to any other
agreement hereafter entered into between any Lessee and
Lessor or any agreement entered into between any Affiliate
of a Lessee and any Affiliate of Lessor and such default is
not waived or cured within any applicable cure period
(provided, however, that for such purpose, the Persons which
Control Unison shall not be considered Affiliates of Lessee
and the Persons which Control Lessor shall not be considered
Affiliates of Lessor )including without limitation the
Indiana Returned Facilities Note (as defined in the Plan),
but excluding the New Omega Guarantee, if Lessor elects to
treat such default as an Event of Default hereunder, or
16.1.17 If any Lessee shall fail to observe or perform any
other term, covenant or condition of this Lease and such
failure is not cured by Lessees within a period of thirty
(30) days after Notice thereof from Lessor detailing with
specificity the nature of the default, unless such failure
cannot with due diligence be cured within a period of thirty
(30) days, in which case such failure shall not be deemed to
continue if Lessees proceed promptly and with due diligence
to cure the failure and diligently complete the curing
thereof and complete such cure prior to the time that the
same shall cause a default in any Facility Mortgage and
prior to the time that the same shall result in civil or
criminal penalties to Lessor, Lessees, any Affiliates of
either or any Facility, or
16.1.18 If Lessees or any Omega Master Lease Guarantor shall
fail to deliver to Lessor a Financial Statement, financial
report or Officer's Certificate as and when required by
Article XXV hereof within a period of ten (10) Business Days
after Notice from Lessor to Lessees or such Omega Master
Lease Guarantor, as the case may be, that such Financial
Statement, financial report or Officer's Certificate has not
been received as and when so required,
Lessor may terminate this Lease by giving Lessees not less than ten (10) days'
Notice (referred to in this Section as a "Notice of Termination") and, as
provided herein, the Term shall terminate and all rights of Lessees under this
Lease shall cease. The Notice of Termination shall be in lieu of and not in
addition to any notice required by the laws of the State as a condition to
bringing an action for possession of the Leased Premises or to recover damages
under this Lease. In addition to Lessor's right to terminate this Lease, Lessor
shall have all rights set forth in this Lease and available to Lessor at law and
in equity as a result of Lessees' breach of this Lease.
Notwithstanding anything herein into the contrary, upon the
occurrence of an Event of Default as set forth in Section 16.1.11, Lessor may
terminate this Lease immediately without prior Notice of any kind.
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Lessees will, to the extent permitted by law, pay as
Additional Charges all costs and expenses incurred by or on behalf of Lessor,
including, without limitation, reasonable attorneys' fees and expenses (whether
or not litigation is commenced, and if litigation is commenced, including fees
and expenses incurred in appeals and post-judgment proceedings) as a result of
any default of Lessees hereunder.
No Event of Default (other than a failure to make payment of
money) shall be deemed to exist under Section 16.1 during any time the curing
thereof is prevented by an Unavoidable Delay, provided that upon the cessation
of such Unavoidable Delay, Lessees shall remedy such default without further
delay.
An Event of Default with respect to any Facility is an Event
of Default as to all of the Facilities. An Event of Default occurring with
respect to any Lessee is an Event of Default as to all Lessees.
16.2 Certain Remedies. If an Event of Default shall have occurred,
whether or not this Lease has been terminated pursuant to Section 16.1, Lessees
shall, to the extent permitted by law, if required by Lessor so to do,
immediately surrender to Lessor the Leased Property pursuant to the provisions
of Sections 9.1.6 and 16.1 and quit the same and Lessor may enter upon and
repossess the Leased Property by reasonable force, summary proceedings,
ejectment or otherwise, and may remove Lessees and all other persons and any and
all personal property from the Leased Property subject to rights of any
residents or patients and to any requirement of law. In addition to all other
remedies set forth or referred to in this Article XVI, Lessor shall have the
right, upon the occurrence of any circumstances described in Sections 16.1.8
above, to suspend the Management Agreement as to the affected Facility or all
Facilities and to retain a manager of the affected Facility or all Facilities at
the expense of Lessees, such manager to serve for such term as Lessor reasonably
determines is necessary under the circumstances. The expense of the new manager
to be paid by Lessees shall not exceed the greater of the management fee paid
under the Management Agreement or 5% of such Facility's Gross Revenues.
16.3 Damages. Neither (i) the termination of this Lease pursuant to
Section 16.1, (ii) the repossession of the Leased Property, (iii) the failure of
Lessor to relet the Leased Property, (iv) the reletting of all or any portion
thereof, nor (v) the failure of Lessor to collect or receive any rentals due
upon such any reletting, shall relieve Lessees of their liability and
obligations hereunder, all of which shall survive any such termination,
repossession or reletting.
(A) In the event of any such termination, Lessees shall forthwith pay
to Lessor all Rent due and payable with respect to the Leased Property
to and including the date of such termination and, thereafter Lessees
shall forthwith pay to Lessor, at
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Lessor's option as and for liquidated and agreed current damages for
Lessee's default the sum of:
(i) the worth at the time of award of any unpaid Rent which
had been earned at the time of termination,
(ii) the worth at the time of award of the amount by which
the unpaid Rent which would have been earned from the date
of termination until the date of the award, if the Lease had
not been terminated, exceeds the amount of such rental loss
that Lessees prove could have been reasonably avoided,
(iii) the worth at the time of award of the amount by which
the unpaid Rent for the balance of the Term after the time
of award, if the Lease had not been terminated, exceeds the
amount of such rental loss that Lessee proves could be
reasonably avoided, and
(iv) any other amount necessary to compensate Lessor for all
damages proximately caused by Lessee's failure to perform
its obligations under this Lease and which in the ordinary
course of things would be likely to result therefrom.
In making the above determinations, (i) the "worth
at the time of award" shall be determined by adding
to the applicable amounts interest, at the rate
that is the lesser of five (5) percent over the
Prime Rate or the maximum interest rate permitted
by the law of the State of Michigan, from the date
or dates on which such amount or amounts were due,
if such amounts were due before the time of the
award, and, as to amounts which would have been
payable after the time of the award, by determining
the present value of such amounts at the time of
the award by applying a discount rate equal to the
yield at the time of the award on one (1) year U.S.
Treasury Bonds, and (ii) Gross Revenues shall be
deemed to have increased four percent (4%) per year
and the CPI shall be deemed to have increased four
(4) percentage points per year during the remaining
Term of the Lease, assuming, for such purpose, that
the Lease had not been terminated.
or
(B) In the event the Lease is not terminated, Lessee's right to
possession of the Leased Property shall continue, each installment of
Rent and other sums payable by Lessees to Lessor under the Lease as the
same becomes due and payable, which Rent and other sums shall bear
interest at the rate that is the lesser of five (5)
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percent over the Prime Rate or the maximum interest rate permitted by
the law of the State of Michigan from the date when due until paid, and
Lessor may enforce, by action or otherwise, any other term or covenant
of this Lease.
16.4 Lessee's Obligation to Purchase. If an Event of Default shall have
occurred, Lessor may require Lessees to purchase all of the Leased Property by
including such requirement in the Notice of Termination (as defined in Section
16.1, above) or by separate Notice given by Lessor to Lessees at any time after
the occurrence and continuance of an Event of Default during the Term. Such
purchase by Lessees shall take place on the first Rent Payment Date occurring
not less than thirty (30) days after the date of receipt of, or such later date
that may be specified in, the Notice of Termination or separate Notice requiring
such purchase. The purchase price for the Leased Property shall be an amount
equal to the higher of the then current Fair Market Value thereof or the Minimum
Repurchase Price of the Leased Property plus all Rent then due and payable
(excluding the installment of Minimum Rent and Additional Charges due on the
purchase date) as of the date of purchase. If Lessor exercises such right, upon
payment of the purchase price Lessor shall convey the Leased Property to Lessees
or their nominee, subject to the Permitted Encumbrances and any other easements,
restrictions, liens or other matters of any kind except such encumbrances, if
any, as may have been created by the act or negligence of Lessor, on the date
specified in this Section 16.4 and this Lease shall thereupon terminate. The
purchase price paid by Lessees for the Leased Property pursuant to this Section
shall be credited against, but shall not relieve Lessees of liability for, the
damages specified in Section 16.3(A), excluding, however, all prepaid Rent or
Rent accruing after the date of the purchase of the Leased Property.
16.5 Waiver. If this Lease is terminated pursuant to Section 16.1,
Lessees waive, to the extent permitted by applicable law, (i) any right of
reentry, repossession or redesignation, (ii) any right to a trial by jury in the
event of summary proceedings to enforce the remedies set forth in this Article
XVI, and (iii) the benefit of any laws now or hereafter in force exempting
property from liability for rent or for debt.
16.6 Application of Funds. Any payments received by Lessor under any of
the provisions of this Lease during the existence or continuance of any Event of
Default (and any such payments made to Lessor rather than Lessees due to the
existence of an Event of Default) shall be applied to Lessees' obligations in
the order which Lessor may determine or as may be prescribed by applicable laws
of the states in which the Facilities are located.
16.7 General Provisions Affecting Remedies. Upon an Event of Default,
Lessor may exercise the remedies provided for herein and by law with respect to
one or more or all of Lessees and with respect to one or more or all of the
Facilities. Notwithstanding the provisions of Section 16.1 of this Lease
permitting the Lessor to terminate this Lease as to all of the Leased Property
upon the occurrence of an Event of Default pursuant to that
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Section 16.1 or otherwise proceed against Lessees, Lessor may, in its sole
discretion, elect to seek the remedies provided for in this Lease only as to the
Facility or Facilities affected by the Event of Default. Lessor's election to
seek remedies only as fewer than all Facilities on one occasion shall not
preclude Lessor from exercising any or all of its remedies under this Lease in
the event of a subsequent Event of Default affecting one or more of the
Facilities.
ARTICLE XVII
17. Lessor's Right to Cure Lessee's Default. If Lessees shall fail to
make any payment or to perform any act required to be made or performed under
this Lease, and to cure the same within the relevant time periods provided in
Section 16.1, Lessor, without further Notice to or demand upon Lessees, and
without waiving or releasing any obligation of Lessees or default, may (but
shall be under no obligation to) at any time thereafter make such payment or
perform such act for the account and at the expense of Lessees, and may, to the
extent permitted by law, enter upon any portion of the Leased Property for such
purpose and take all such action thereon as, in Lessor's sole opinion, may be
necessary or appropriate therefor. Should Lessor reasonably determine that the
giving of such Notice as is provided for in Section 16.1 would risk loss to the
Leased Property or cause damage to the Lessor, Lessor shall give such Notice as
is practical under the circumstances. No such entry shall be deemed an eviction
of Lessees. All sums so paid by Lessor and all costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses, in each case, to
the extent permitted by law) so incurred, together with the Late Charge thereon
(to the extent permitted by law) and interest, which shall accrue at the Overdue
Rate from the date on which such sums or expenses are paid or incurred by
Lessor, shall be paid by Lessees to Lessor on demand. The obligations of Lessees
and rights of Lessor contained in this Article shall survive the expiration or
earlier termination of this Lease.
ARTICLE XVIII
18. Provisions Relating to Purchase of the Leased Property; Sale by
Lessor.
18.1 General. In the event Lessees purchase any Facility from
Lessor pursuant to any of the terms of this Lease, Lessor shall, upon receipt
from Lessees of the applicable purchase price for such Facility, together with
full payment of any unpaid Rent for such Facility due and payable with respect
to any period (prorated on a per diem basis, if appropriate) ending on or before
the date of the purchase, deliver to Lessees an appropriate deed or other
conveyance conveying the entire interest of Lessor in and to such Facility to
Lessees unencumbered by any liens or encumbrances created by Lessor. All
expenses of such conveyance, including, without limitation, the cost of title
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examination, title insurance, attorneys' fees incurred by Lessor in connection
with such conveyance and release, recording fees and transfer taxes, shall be
paid by Lessees. From and after the date of purchase, the Minimum Rent shall be
reduced in accordance with the provisions of this Lease pursuant to which such
Facility was purchased, and the Additional Charges attributable to such Facility
shall cease.
18.2 Lessor's Right to Sell. Lessor shall have the right, at
any time, to sell each Facility, to any Person provided such sale is made
expressly subject to this Lease and the rights of Lessees under this Lease.
18.3 Option to Purchase. Provided no Event of Default shall
have occurred and be continuing, and no facts exist which, if not cured, with
the passage of time would constitute an Event of Default, upon the expiration of
the Initial Term, Lessees shall have the option to purchase all (but not less
than all) of the Signature Facilities subject to this Lease at the time of
purchase, upon the following terms and conditions: (a) the option to purchase
shall be exercisable only by Notice to Lessor at least one hundred and twenty
(120) days prior to the date upon which Lessees wish to close such purchase,
which date shall be specified in such Notice; (b) the purchase price shall be
the greater of (i) the Fair Market Value on the closing date of the Signature
Facilities which are to be purchased and (ii) Omega's Signature Facilities
Investment; (c) title to the Signature Facilities shall be conveyed to Lessees
or their nominee by Special Warranty Deed or Deeds in the same form as title to
the Signature Facilities was conveyed to Lessor, and Lessor shall make no other
warranties or representations concerning title to or the condition of the
Signature Facilities; (d) with the exception of prorations to account for
Effective Dates which do not occur on the first day of the calendar month,
prepaid Rent or Additional Charges allocable to the purchased Facilities there
shall be no prorations of any costs or expenses, all of which, except for the
fees and expenses of Lessor's counsel, shall be borne by Lessor; (e) the
purchase price shall be paid to Lessor by wire transfer of immediately available
funds to the account to which Rent is payable hereunder or such other account as
Lessor may specify by Notice to Lessees; (f) upon their exercise of this option
to purchase, Lessees shall be obligated to close the purchase of the Signature
Facilities on the date specified in the Notice, and their failure to do so shall
without further Notice constitute an Event of Default hereunder; and (g) upon
payment of the purchase price and delivery of the Deed or Deeds as provided
herein, this Lease shall terminate as to the Signature Facilities, the Minimum
Rent due hereunder thereafter shall be reduced by the amount of the Minimum Rent
for the Signature Facilities, and Additional Charges attributable to the
Signature Facilities shall cease.
ARTICLE XIX
19.1 Renewal. If no Event of Default shall have occurred and be
continuing, Lessees, jointly and not severally, are hereby granted the option to
renew this Lease at the
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expiration of the Initial Term with respect to all, but not less than all, of
the Facilities then subject to this Lease, for one (1) fourteen year optional
renewal term ("Extended Term"), upon giving Notice to Lessor of renewal at least
three hundred sixty-five (365) days prior to the end of the Initial Term. During
the Extended Term, all of the terms and conditions of this Lease shall continue
in full force and effect, except that the Minimum Rent during the Extended Term
shall be determined as set forth in EXHIBIT H.
19.2 Savings Provisions. If Lessees fail to exercise the foregoing
renewal option within the required time, Lessee's option to renew shall
nevertheless remain in full force and effect for a period of fifteen (15)
Business Days after Notice from Lessor subsequent to the required time setting
forth the expiration date of this Lease and advising Lessees that Notice of
renewal has not been received. The option to renew as thereby extended shall
expire on the close of business on the fifteenth (15th) Business Day after
Notice, and thereafter may not be exercised by Lessees. Lessor shall provide
such Notice to Lessees during the last Lease Year of the Initial Term.
ARTICLE XX
20.1 Holding Over. If Lessees shall for any reason remain in possession
of any portion of the Leased Property after the expiration of the Term or
earlier termination of the Term hereof, such possession shall be as a
month-to-month tenant during which time Lessees shall pay as Rent each month,
1.75 times the aggregate of (i) one-twelfth of the aggregate Minimum Rent
payable with respect to the last Lease Year of the preceding Term, (ii) all
Additional Charges accruing during the month and (iii) all other sums, if any,
payable by Lessees pursuant to the provisions of this Lease with respect to the
Leased Property. During such period of month-to-month tenancy, Lessees shall be
obligated to perform and observe all of the terms, covenants and conditions of
this Lease, but shall have no rights hereunder other than the right, to the
extent given by law to month-to-month tenancies, to continue their occupancy and
use of the Leased Property. Nothing contained herein shall constitute the
consent, express or implied, of Lessor to the holding over of Lessees after the
expiration or earlier termination of this Lease.
20.2 Indemnity. If Lessees fail to surrender the Facility in a timely
manner and in accordance with the provisions of Section 9.1.6 upon the
expiration or termination of this Lease, in addition to any other liabilities to
the Lessor accruing therefrom, Lessees shall jointly and severally indemnify and
hold Lessor, its principals, officers, directors, agents and employees harmless
from loss or liability resulting from such failure, including, without limiting
the generality of the foregoing, loss of rental with respect to any new lease in
which the rental payable thereunder exceeds any rental paid by Lessees pursuant
to this Lease and any claims by any proposed new tenant founded on such failure.
The provisions of this Section 20.2 shall survive the expiration or termination
of this Lease.
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ARTICLE XXI
21.1 Subordination. Upon written request of Lessor, a Facility
Mortgagee or the beneficiary of a deed of trust of Lessor, Lessees will
subordinate their rights pursuant to this Lease in writing (i) to the lien of
any mortgage, deed of trust or the interest of any lease in which Lessor is
lessee and to all modifications, extensions, substitutions thereof (or, at
Lessor's option, cause the lien of said mortgage, deed of trust or the interest
of any lease in which Lessor is the lessee to be subordinated to this Lease),
and (ii) to all advances made or hereafter to be made thereunder. In connection
with any such request, Lessor shall provide Lessees with a Non-Disturbance
Agreement reasonably acceptable to such mortgagee, beneficiary or lessor
providing that should such mortgagee, beneficiary or lessor acquire the Leased
Property by way of foreclosure or deed in lieu, such mortgagee, beneficiary or
lessor will not disturb Lessees' possession under this Lease and will recognize
Lessees' rights hereunder provided no Event of Default has occurred under this
Lease. Lessees agree to consent to amend this Lease as reasonably required by
any Facility Mortgagee; Lessees shall be deemed to have unreasonably withheld or
delayed their consent to changes or amendments to this Lease requested by the
holder of a mortgage or deed of trust or such similar financing instrument
encumbering Lessor's fee interest in the Leased Property if such changes do not
materially (i) alter the economic terms of this Lease, (ii) diminish the rights
of Lessees, or (iii) increase the obligations of Lessees, provided that Lessees
shall also have received the non-disturbance agreement provided for in this
Article.
21.2 Attornment. In the event any proceedings are brought for
foreclosure, or in the event of the exercise of the power of sale under any
mortgage or deed of trust made by Lessor encumbering the Leased Property, or
should a lease in which Lessor is the lessee be terminated, Lessees shall attorn
to the purchaser or lessor under such lease upon any foreclosure or deed in lieu
thereof, sale or lease termination and recognize the purchaser or lessor as
Lessor under this Lease, provided that the purchaser or lessor shall acquire and
accept the Leased Property subject to this Lease.
21.3 Lessee's Certificate. Lessees agree, upon not less than ten (10)
Business Days prior Notice by Lessor to execute, acknowledge and deliver to
Lessor, a statement in writing in substantially the same form of EXHIBIT I
hereto (with such changes thereto as shall reasonably be requested by the person
relying on such certificate) ("Lessee's Certificate"). It is intended that any
Lessees' Certificate delivered pursuant hereto may be relied upon by Lessor, any
prospective tenant or purchaser of the Premises, any mortgagee or prospective
mortgagee, or by any other party who may reasonably rely on such statement.
Lessee's failure to deliver such Lessees' Certificate within such time shall
constitute an Event of Default. In addition, upon such failure, it shall be
conclusively presumed, and shall constitute a representation and warranty by
Lessees, that (i) this
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Lease is in full force and effect without modification, and (ii) Lessor is not
in breach or default of any of its obligations under the Lease.
ARTICLE XXII
22. Risk of Loss. During the Term of this Lease, the risk of loss or of
decrease in the enjoyment and beneficial use of the Leased Property in
consequence of the damage or destruction thereof by fire, the elements,
casualties, thefts, riots, wars or otherwise, or in consequence of foreclosures,
attachments, levies or executions (other than those caused by Lessor and those
claiming from, through or under Lessor) is assumed by Lessees, and, in the
absence of gross negligence, willful misconduct or material breach of this Lease
by Lessor pursuant to Section 35.1, Lessor shall in no event be answerable or
accountable therefor nor shall any of the events mentioned in this Section
entitle Lessees to any abatement of Rent except as specifically provided in this
Lease.
ARTICLE XXIII
23. Indemnification.
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23.1 General. Notwithstanding the existence of any insurance provided
for in Article XIII, and without regard to the policy limits of any such
insurance, Lessees shall jointly and severally protect, indemnify, save harmless
and defend Lessor, its principals, officers, directors and agents and employees
from and against all liabilities, obligations, claims, damages, penalties,
causes of action, costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses), to the extent permitted by law, imposed upon or
incurred by or asserted against Lessor by reason of: (i) any accident, injury to
or death of persons or loss of or damage to property occurring on or about the
Leased Property or adjoining sidewalks, including without limitation any claims
of malpractice, (ii) any use, misuse, non-use, condition, maintenance or repair
of the Leased Property by Lessees, (iii) the failure to pay any Impositions
which are the obligations of Lessees to pay pursuant to the applicable
provisions of this Lease, (iv) any failure on the part of Lessees to perform or
comply with any of the terms of this Lease and (v) the nonperformance of any
contractual obligation, express or implied, assumed or undertaken by Lessees or
any party in privity with Lessees with respect to the Leased Property or any
business or other activity carried on with respect to the Leased Property during
the Term or thereafter during any time in which Lessees or any such other party
is in possession of the Leased Property or thereafter to the extent that any
conduct by Lessees or any such Person (or failure of such conduct thereby if the
same should have been undertaken during such time of possession and leads to
such damage or loss) causes such loss or claim. Any amounts which become payable
by Lessees under this Section shall be paid within ten (10) days after liability
therefor on the part of Lessees is determined by litigation or otherwise, and if
not timely paid, shall bear a late charge (to the extent permitted by law) at
the Overdue Rate from the date of such determination to the date of payment.
Nothing herein shall be construed as indemnifying Lessor against its own grossly
negligent acts or omissions or willful misconduct.
23.2 Indemnification With Respect to Signature Facilities. In addition
to their obligations under Section 23.1, Lessees shall indemnify and hold Lessor
harmless from and against any and all damages, losses, liabilities, costs,
actions, suits, proceedings, demands, assessments, and judgements, including,
but not limited to, reasonable and documented attorneys' fees and reasonable
costs and expenses of litigation, arising out of or in any manner related to any
of the following:
(a) Any and all obligations relating to the ownership and
operation of the Signature Facilities that exist immediately prior to
the Effective Date;
(b) Any misrepresentation of a material fact, breach of warranty
or material breach of any agreement on the part of any of the Signature
Subsidiaries under this Agreement or in any certificate furnished or to
be furnished to Lessor hereunder;
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(c) Any failure by the seller or sellers of the Signature
Facilities in connection with the sale to Lessor to comply with the
requirements of any laws or regulations relating to bulk sales or
transfers; and
(d) Any sums that are now or hereafter claimed to be due for
Medicare and Medicaid adjustments arising from the operation of any of
the Signature Facilities prior to the date of this Lease; and
(e) Any action or proceeding by any state or federal agency
seeking to revoke, withdraw or suspend any of the licenses or permits
applicable to a Signature Facility, or to terminate the participation
of any Signature Facility in either the Medicare or Medicaid Programs,
as a result of or caused by the sale of the Signature Facilities to
Lessor or the execution and delivery of this Lease by the Signature
Facilities.
For purposes of this Section 23.2, an obligation shall be deemed to
"exist" prior to the date of this Lease if it relates to events that
occurred prior to the date of this Lease even if it is not asserted
until after the date of this lease.
23.3 Lessor's Indemnification. Lessor shall indemnify, save harmless
and defend Lessees from and against all liabilities, obligations, claims,
damages, penalties, causes of action, costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) imposed upon or incurred by
or asserted against Lessees as a result of the gross negligence or willful
misconduct of Lessor.
23.4 Survival. Lessees' and Lessor's liability for a breach of the
provisions of this Article arising during the Term hereof shall survive any
termination of this Lease.
ARTICLE XXIV
24.1 General Prohibition against Assignment. No Lessee or Lessees shall
voluntarily, involuntarily or by operation of law, assign, mortgage or otherwise
encumber, all or any part of such Lessee's or Lessees' interest in this Lease or
in the Leased Property or sublet the whole or any part of the Leased Property or
enter into any agreement or arrangement under which any Facility is operated by
or licensed to be operated by an entity other than one or more of the Lessees or
Manager (any and all of which are herein referred to as a "Transfer"), except as
specifically permitted by this Lease or consented to in advance by Lessor in
writing. Unless otherwise provided herein, Lessor may arbitrarily and
unreasonably withhold its consent to any such request (or any other request
provided for in this Lease for which Lessor's consent is required) and no court
shall imply any agreement by Lessor to act in a reasonable fashion. Any such
attempted Transfer which is not specifically permitted by this Lease or
otherwise approved shall be null and void and
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of no force and effect whatsoever. In the event of any such Transfer, Lessor may
collect Rent and Additional Charges from the assignee, subtenant or other
occupant (any and all of which are herein referred to as a "Transferee") and
apply the amounts collected to the Rent and Additional Charges herein reserved,
but no Transfer or collection of Rent and Additional Charges shall be deemed to
be a waiver of Lessor's rights to enforce Lessees' covenants or the acceptance
of the Transferee as lessee, or a release of Lessees from the performance of any
covenants on the part of Lessees to be performed. Notwithstanding any Transfer,
Lessees, Omega Master Lease Guarantors and any other guarantor of this Lease
shall remain fully liable for the performance of all terms, covenants and
provisions of this Lease. Any violation of this Lease by any Transferee shall be
deemed to be a violation of this Lease by Lessees.
24.2 Corporate or Partnership Transactions. Except as provided in the
last sentence of this Section 24.2, if any Lessee, Omega Master Lease Guarantor
or Manager, if any, is a corporation, then the merger, consolidation or
reorganization of such corporation and/or the sale, issuance, or transfer,
cumulatively or in one transaction, of any voting stock, by such Lessee or Omega
Master Lease Guarantor or Manager or the stockholders of record of any of them
as of the date of this Lease, which results in a change in the Control of any
Lessee or Omega Master Lease Guarantor or Manager such that Unison does not have
direct or indirect Control of such Lessee, Omega Master Lease Guarantor or
Manager, or as a result of which any Lessee or Omega Master Lease Guarantor
which on the Effective Date is a wholly owned subsidiary of Unison, BritWill
HealthCare or Signature ceases to be such a wholly owned subsidiary, shall
constitute a Transfer of this Lease. If any Lessee, Omega Master Lease Guarantor
or Manager is a joint venture, partnership or other association, the sale,
issuance or transfer, cumulatively or in one transaction, within any five-year
period of either voting control or of a twenty percent (20%) or greater
interest, or the termination of any such joint venture, partnership or other
association, shall constitute a Transfer. Notwithstanding anything elsewhere
herein to the contrary, however, the merger, consolidation or reorganization of
Unison and/or the sale, issuance or transfer, cumulatively or in one
transaction, of any stock in Unison shall not constitute a Transfer of this
Lease.
24.3 Subordination and Attornment. Lessees shall insert in any sublease
permitted by Lessor provisions to the effect that (i) such sublease is subject
and subordinate to all of the terms and provisions of this Lease and to the
rights of Lessor hereunder, (ii) in the event this Lease shall terminate before
the expiration of such sublease, the sublessees thereunder will, at Lessor's
option, attorn to Lessor and waive any right the sublessees may have to
terminate the sublease or to surrender possession thereunder, as a result of the
termination of this Lease, and (iii) in the event the sublessee receives a
written Notice from Lessor or Lessor's assignee, if any, stating that Lessees
are in default under this Lease, the sublessee shall thereafter be obligated to
pay all rentals accruing under said sublease directly to the party giving such
Notice, or as such party may direct. All rentals received from the sublessee by
Lessor or Lessor's assignees, if any, as
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the case may be, shall be credited against the amounts owing by Lessees under
this Lease.
24.4 Sublease Limitation. Anything contained in this Lease to the
contrary notwithstanding, even if a sublease of the Facility is permitted,
Lessees shall not sublet the Leased Property on any basis such that the rental
to be paid by the sublessee thereunder would be based, in whole or in part, on
either (i) the income or profits derived by the business activities of the
sublessee, or (ii) any other formula such that any portion of the sublease
rental received by Lessor would fail to qualify as "rents from real property"
within the meaning of Section 856(d) of the Code, or any similar or successor
provision thereto. The parties agree that this paragraph shall not be deemed
waived or modified by implication, but may be waived or modified only by an
instrument in writing explicitly referring to this paragraph by number.
ARTICLE XXV
25.1 Officer's Certificates and Financial Statements. Lessees will
deliver, and as to Omega Master Lease Guarantors' Financial Statements and
reports will cause each Omega Master Lease Guarantor to deliver to Lessor:
(i) within seventy five (75) days after the end of
each Lessee's Fiscal Years, a Financial Statement for such Lessee and
separate financial statements for each Facility occupied by or under
the authority of such Lessee, in each case accompanied by an Officer's
Certificate certifying the accuracy of such Financial Statement and
Facility financial statements. The financial statements for each
Facility shall meet the reporting standards for Financial Statements,
except for principals of consolidation;
(ii) within seventy five (75) days after the end of
each Lessee's Fiscal Years, together with the Financial Statement
required by subsection (i), above, (a) an Officer's Certificate of such
Lessee stating that such Lessee is not in default in the performance or
observance of any of the terms of this Lease, or if such Lessee is in
default, specifying all such defaults, the nature thereof and the steps
being taken to remedy the same, and (b) a certificate from the
certified public accountants that prepared the Financial Statement that
nothing came to their attention during the course of their audit of
such Lessee's Financial Statement that would cause them to believe that
there was any default under the Lease;
(iii) within seventy-five (75) days after the end of
each Omega Master Lease Guarantor's Fiscal Year, a Financial Statement
for such Omega Master Lease Guarantor;
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(iv) within forty (40) days after the end of each
Lessee's fiscal quarters, quarterly financial reports for such Lessee,
together with an Officer's Certificate of such Lessee that such Lessee
is not in default of any covenant set forth in Section 8 of this Lease,
or if such Lessee shall be in default, specifying all such defaults,
the nature thereof, and the steps being taken to remedy the same;
(v) within forty (40) days after the end of each
Omega Master Lease Guarantor's fiscal quarters, quarterly financial
reports for such Omega Master Lease Guarantor;
(vi) within twenty (20) days after the end of each
month, a monthly financial report for each Facility, including a
detailed statement of income and detailed operational statistics
regarding occupancy rates, patient mix and patient rates by type for
such Facility;
(vii) within one hundred twenty (120) days after the
end of each Lessee's fiscal years or, if earlier, within fifteen (15)
days of filing, a copy of each cost report filed with the appropriate
governmental agency for each Facility;
(viii) within fifteen (15) days after they are
required to be filed with the SEC, copies of any annual or quarterly
report and of information, documents and other reports (or copies of
such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which a Lessee and any Omega Master Lease
Guarantor is required to file with the SEC pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934;
(ix) within thirty (30) days of receipt thereof by
any Lessee, copies of surveys performed by the appropriate governmental
agencies for licensing or certification purposes, and any plan of
correction thereto for any Facility;
(x) immediately, Notice of any action, proposal or
investigation by any agency or entity, or complaint to such agency or
entity, (any of which is called a "Proceeding"), known to any Lessee,
the result of which Proceeding could be to (i) revoke, suspend,
terminate, modify in a way adverse to a Lessee or fail to renew or
fully continue in effect any license or certificate or operating
authority pursuant to which a Lessee carries on any use of such
Facility, or (ii) suspend, terminate, adversely modify, or fail to
renew or fully continue in effect any cost reimbursement or cost
sharing program by any state or federal governmental agency, including
but not limited to Medicaid or Medicare or any successor or substitute
therefor, or seek return of or reimbursement for any funds previously
advanced or paid pursuant to any such program, or (iii) impose any bed
hold, limitation on patient admission or similar restriction on any
Facility, or (iv) prosecute any party with respect to the operation of
any activity on any part of the Leased Property or enjoin any party or
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seek any civil penalty in excess of One Thousand Dollars ($1,000.00) in
respect thereof;
(xi) within thirty (30) days following the end of
each calendar quarter, an Officer's Certificate setting forth the Gross
Revenues of each Facility for the calendar quarter then ended and the
Lease Year to date;
(xii) as soon as it is prepared in each Lease Year, a
capital and operating budget for each Facility for that and the
following Lease Year, which budget shall be subject to Lessor's
reasonable approval, and Lessees shall promptly notify Lessor of any
material deviation from an approved budget;
(xiii) with reasonable promptness, such other
information respecting the financial condition and affairs of Lessees
and each Facility as Lessor may reasonably request from time to time
including, without limitation, any such other information as may be
available to the administration of a Facility; and
(xiv) upon Lessor's reasonable request, such audited
year-end information and unaudited quarterly financial information
concerning the Leased Property and Lessees as Lessor shall require for
its on-going filings with the Securities and Exchange Commission, under
both the Securities Act of 1933, as amended and the Securities Exchange
Act of 1934, as amended, including, but not limited to 10-Q Quarterly
Reports, 10-K Annual Reports and registration statements to be filed by
Lessor during the Term of this Lease.
Lessor's right to the information referred to in subparagraph (xiii) shall be
subject to any prohibitions or limitations on disclosure of any such data under
applicable laws or regulations, including, without limitation, any duly enacted
"Patients' ▇▇▇▇ of Rights" or any similar legislation, including such
limitations as may be necessary to preserve the confidentiality of the
Facility-patient relationship and the physician-patient privilege. Further,
except for information which is already public, Lessor shall not disclose the
information that is subject to such prohibitions or limitations, except to its
attorneys, accountants or a Facility Mortgagee, proposed Facility Mortgagee, or
prospective purchaser or as required by judicial or administrative order and
except as permitted in Section 25.2.
25.2 Public Offering Information. Lessees specifically agree that
Lessor may include financial information and such information concerning the
operation of each Facility which does not violate the confidentiality of the
Facility-patient relationship and the physician-patient privilege under
applicable laws, in offering memoranda, prospectus or similar publications in
connection with syndications or public offerings of the Lessor's securities or
interests, and any other reporting requirements under applicable Federal and
State Laws, including those of any successor to Lessor. Lessees agrees to
provide such
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other reasonable information necessary with respect to Lessees and the Leased
Property to facilitate a public offering or to satisfy SEC or regulatory
disclosure requirements. Lessor shall provide to Lessees a copy of any such
information prepared by Lessor for publication published and Lessees shall have
a reasonable period of time (not to exceed five (5) days) after receipt of such
information to notify Lessor of any corrections.
ARTICLE XXVI
26. Lessor's Right to Inspect. Lessees shall permit Lessor and its
authorized representatives to inspect the Leased Property during usual business
hours subject to any security, health, safety or confidentiality requirements of
any governmental agency or insurance requirement relating to the Leased
Property, or imposed by law or applicable regulations.
ARTICLE XXVII
27. No Waiver. No failure by Lessor to insist upon the strict
performance of any term hereof or to exercise any right, power or remedy
consequent upon a breach thereof, and no acceptance of full or partial payment
of Rent during the continuance of any such breach, shall constitute a waiver of
any such breach or of any such term. To the extent permitted by law, no waiver
of any breach shall affect or alter this Lease, which shall continue in full
force and effect with respect to any other then existing or subsequent breach.
ARTICLE XXVIII
28. Remedies Cumulative. To the extent permitted by law, each legal,
equitable or contractual right, power and remedy of Lessor or Lessees now or
hereafter provided either in this Lease or by statute or otherwise shall be
cumulative and concurrent and shall be in addition to every other right, power
and remedy and the exercise or beginning of the exercise by Lessor or Lessees of
any one or more of such rights, powers and remedies shall not preclude the
simultaneous or subsequent exercise by Lessor or Lessees of any or all of such
other rights, powers and remedies.
ARTICLE XXIX
29. Acceptance of Surrender. No surrender to Lessor of this Lease or of
any Facility or any part thereof, or of any interest therein, shall be valid or
effective unless agreed to and accepted in writing by Lessor and no act by
Lessor or any representative
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or agent of Lessor, other than such a written acceptance by Lessor, shall
constitute an acceptance of any such surrender.
ARTICLE XXX
30.1 No Merger of Title. There shall be no merger of this Lease or of
the leasehold estate created hereby by reason of the fact that the same person,
firm, corporation or other entity may acquire, own or hold, directly or
indirectly, (i) this Lease or the leasehold estate created hereby or any
interest in this Lease or such leasehold estate and (ii) the fee estate in the
Leased Property.
30.2 No Partnership. Nothing contained in this Lease shall be deemed or
construed to create a partnership or joint venture between Lessor and Lessees or
to cause either party to be responsible in any way for the debts or obligations
of the other or any other party, it being the intention of the parties that the
only relationship hereunder is that of Lessor and Lessees.
ARTICLE XXXI
31. Conveyance by Lessor. If Lessor or any successor owner of the
Leased Property shall convey the Leased Property in accordance with the terms
hereof other than as security for a debt, and the grantee or transferee of the
Leased Property shall expressly assume all obligations of Lessor hereunder
arising or accruing from and after the date of such conveyance or transfer,
Lessor or such successor owner, as the case may be, shall thereupon be released
from all future liabilities and obligations of Lessor under this Lease arising
or accruing from and after the date of such conveyance or other transfer as to
the Leased Property and all such future liabilities and obligations shall
thereupon be binding upon the new owner.
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ARTICLE XXXII
32. Quiet Enjoyment. So long as Lessees shall pay all Rent as the same
becomes due and shall comply with all of the terms of this Lease and
substantially perform its obligations hereunder, Lessees shall peaceably and
quietly have, hold and enjoy the Leased Property for the Term hereof, free of
any claim or other action by Lessor or anyone claiming by, through or under
Lessor, but subject to all liens and encumbrances of record as of the date
hereof or hereafter provided for in this Lease or consented to by Lessees.
Except as otherwise provided in this Lease, no failure by Lessor to comply with
the foregoing covenant shall give Lessees any right to cancel or terminate this
Lease or ▇▇▇▇▇, reduce or make a deduction from or offset against the Rent or
any other sum payable under this Lease, or to fail to perform any other
obligation of Lessees hereunder. Notwithstanding the foregoing, Lessees shall
have the right, by separate and independent action to pursue any claim it may
have against Lessor as a result of a breach by Lessor of the covenant of quiet
enjoyment contained in this Section.
ARTICLE XXXIII
33. Notices. All notices, demands, requests, consents, approvals and
other communications ("Notice" or "Notices") hereunder shall be in writing and
personally served upon an Executive Officer (as defined below) of the party
being served or mailed (by registered or certified mail, return receipt
requested and postage prepaid), or delivered by national overnight delivery
service such as Federal Express or D.H.L., or sent by facsimile transmission
addressed to the respective parties, as follows:
(i) if to Lessees:
Unison HealthCare Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
ATTN: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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(ii) if to Lessor:
Omega Healthcare Investors, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
ATTN: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as a party may by Notice hereafter designate, provided,
however, that Lessees may not at any given time designate more than one entity's
name and address to which Lessor's Notices are to be sent. A Notice sent by
Lessor to the name and address set forth above for Lessees, or to such other
name and address as Lessees may hereafter designate by Notice, shall be deemed
to be a Notice to all Lessees. A Notice sent by any Lessees to Lessor shall be
deemed to be a Notice from, and binding upon, all Lessees. Notice shall be
deemed to have been given on the date of delivery if such delivery is made on a
Business Day, or if not, on the first Business Day after delivery, or if
delivery is refused, on the date delivery was first attempted, provided however
that a Notice sent by facsimile transmission shall be deemed given upon
confirmation to the sender by the recipient that such Notice was received.
"Executive Officer" shall mean the Chairman of the Board of Directors, the
President, any Vice President and the Secretary of any corporation upon which
service is to be made.
ARTICLE XXXIV
34. Appraisers. In the event that it becomes necessary to determine the
Fair Market Value of, or the Fair Market Rent for, a Facility for any purpose of
this Lease, the party required or permitted to give Notice of such required
determination shall include in the Notice the name of a Person selected to act
as appraiser on its behalf. Within ten (10) days after Notice, Lessor or
Lessees, as the case may be, shall by Notice to Lessees (or Lessor, as the case
may be) appoint a second Person as appraiser on its or their behalf. The
appraisers thus appointed, each of whom must be a member of the American
▇▇▇▇▇▇▇▇▇
▇▇
▇▇
of Real Estate Appraisers (or any successor organization thereto) and
experienced in appraising nursing home properties, shall, within forty-five (45)
days after the date of the Notice appointing the first appraiser, proceed to
appraise the Facility to determine Fair Market Value or Fair Market Rent as of
the relevant date (giving effect to the impact, if any, of inflation from the
date of their decision to the relevant date); provided, however, that if only
one appraiser shall have been so appointed, or if two appraisers shall have been
so appointed but only one such appraiser shall have made such determination
within fifty (50) days after the making of Lessees' or Lessor's request, then
the determination of such appraiser shall be final and binding upon the parties.
To the extent consistent with sound appraisal practice as then existing at the
time of any such appraisal, such appraisal shall be made on a basis consistent
with the basis on which the Facility was appraised for purposes of determining
its Fair Market Value at the time the Facility was acquired by Lessor. If two
appraisers shall have been appointed and shall have made their determinations
within the respective requisite periods set forth above and if the difference
between the amounts so determined shall not exceed ten per cent (10%) of the
lesser of such amounts, then the Fair Market Value or Fair Market Rent shall be
an amount equal to fifty percent (50%) of the sum of the amounts so determined.
If the difference between the amounts so determined shall exceed ten percent
(10%) of the lesser of such amounts, then such two appraisers shall have twenty
(20) days to appoint a third appraiser. If no such appraiser shall have been
appointed within such twenty (20) days or within ninety (90) days of the
original request for a determination of Fair Market Value or Fair Market Rent,
whichever is earlier, either Lessor or Lessees may apply to any court having
jurisdiction to have such appointment made by such court. Any appraiser
appointed by the original appraisers or by such court shall be instructed to
determine the Fair Market Value or Fair Market Rent within forty-five (45) days
after appointment of such appraiser. The determination of the appraiser which
differs most in terms of dollar amount from the determinations of the other two
appraisers shall be excluded, and fifty percent (50%) of the sum of the
remaining two determinations shall be final and binding upon Lessor and Lessees
as the Fair Market Value of, or the Fair Market Rent for, the Facility, as the
case may be. If Fair Market Rent is being determined for more than one year,
Fair Market Rent may include such annual increases, if any, as the appraisers
determine to be appropriate and shall make the assumptions as to the CPI and
Gross Revenues provided for in Section 16.3 above. This provision for
determining by appraisal shall be specifically enforceable to the extent such
remedy is available under applicable law, and any determination hereunder shall
be final and binding upon the parties except as otherwise provided by applicable
law. Lessor shall pay the fees and expenses of the appraiser appointed by it,
Lessees shall pay the fees and expenses of the appraiser appointed by them and
Lessor and Lessees shall each shall pay one-half of the fees and expenses of the
third appraiser and one-half of all other costs and expenses incurred in
connection with each appraisal.
ARTICLE XXXV
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35.1 Breach by Lessor. Lessor shall not be in breach of this Lease
unless Lessor shall fail to observe or perform any term, covenant or condition
of this Lease on its part to be performed and such failure shall continue for a
period of thirty (30) days after Notice thereof from Lessees, unless such
failure cannot with due diligence be cured within a period of thirty (30) days,
in which case such failure shall not be deemed to continue if Lessor, within
said thirty (30) day period, proceeds promptly and with due diligence to cure
the failure and diligently completes the curing thereof. The time within which
Lessor shall be obligated to cure any such failure shall also be subject to
extension of time due to the occurrence of any Unavoidable Delays.
35.2 Compliance With Facility Mortgage. Lessees covenant and agree that
they will duly and punctually observe, perform and comply with all of the terms,
covenants and conditions (including, without limitation, covenants requiring the
keeping of books and records and delivery of financial statements) of all
Facility Mortgages and that they will not directly or indirectly, do any act or
suffer or permit any condition or thing to occur, which would or might
constitute a default under any Facility Mortgage. Anything in this Lease to the
contrary notwithstanding, if the time given to Lessor by the terms of any
Facility Mortgage to perform any act or do any thing is shorter than the time
given to Lessees by this Lease to perform or do the same act or thing, then
Lessees shall perform said act or do said thing by the time specified in any
such Facility Mortgage, provided however, that Lessees shall not be deemed to be
in default under this Lease solely by reason of the shortening of any applicable
cure period permitted Lessees under Article XVI of this Lease by reason of the
requirements with respect to Facility Mortgages of Sections 16.1.7, 16.1.17, or
this Section 35.2.
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ARTICLE XXXVI
36.1. Lessor's Option to Purchase Lessees' Personal Property. Effective
on not less than ninety (90) days prior written Notice given at any time within
one hundred eighty (180) days prior to the expiration of the Initial Term or any
Extended Term of this Lease, but not later than ninety (90) days prior to such
expiration, or such shorter Notice as shall be appropriate if this Lease is
terminated prior to its expiration date, Lessor shall have the option to
purchase all (but not less than all) of Lessees' Personal Property, if any, at
the expiration or termination of this Lease, for an amount equal to the then
book value thereof (acquisition cost less accumulated depreciation on the books
of Lessees pertaining thereto), subject to, and with appropriate price
adjustments for, any obligations owing from Lessees to Lessor, all equipment
leases, conditional sale contracts, UCC-1 financing statements and other
encumbrances to which such Lessees' Personal Property is subject. Upon Lessee's
purchase of a Facility, this option shall terminate with respect to Lessees'
Personal Property in or used in connection with the purchased Facility. If
Lessor fails to notify Lessees of the exercise of such option to purchase
Lessees' Personal Property within the required time, such option shall
nevertheless remain full force and effect for a period of thirty (30) days after
Notice from Lessees subsequent to the required time advising Lessor that Notice
of purchase has not been received.
36.2 Facility Trade Names. If this Lease is terminated because of an
Event of Default, or Lessor exercises its option to purchase Lessees' Personal
Property pursuant to Section 36.1, Lessor shall be permitted to use the name
under which each Facility has done business during the Term (the "Facility Trade
Names"). Lessees shall not after any termination use any Facility Trade Name in
the same market in which the Facility is located in connection with any business
that competes with such Facility.
36.3 Transfer of Operational Control of the Facilities. If this Lease
expires without extension, or is terminated for any reason other than Lessees'
purchase as to any of the Facilities, pending a transfer of the operational
control of the Facilities to Lessor or its nominee, Lessees covenant as follows:
(i) Lessees will not effect any changes in salaries (other than
normal merit raises and the pre-announced wage increases of which Lessor has
knowledge) or employment agreements, if any, without the advance written consent
of Lessor other than customary raises to non-officers at regular review dates;
and will not hire any additional employees except in good faith in the ordinary
course of business.
(ii) Lessees will provide all necessary information requested by
Lessor or its nominee for the preparation and filing of any and all necessary
applications or notifications for any federal or state governmental authority
having jurisdiction over a change in the operational control of the Facilities,
and Lessees will use their best efforts to cause the operating healthcare
licenses to be transferred to Lessor or to nominee.
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(iii) Lessees shall use their best efforts to keep the business
and organization of the Facilities intact and to preserve for Lessor or its
nominee the good will of the suppliers, distributors, residents and others
having business relations with Lessees with respect to the Facilities.
(iv) Lessees shall engage only in transactions or other activities
with respect to the Facilities which are in the ordinary course of its business
and shall perform all maintenance and repairs reasonably necessary to keep the
Facilities in satisfactory operating condition and repair, and shall maintain
the supplies and foodstuffs at levels which are consistent and in compliance
with all health care regulations, and shall not sell or remove any personal
property except in the ordinary course of business.
(v) Lessees shall fully cooperate with Lessor or its nominee in
supplying any and all information that may be reasonably required to effect an
orderly transfer of the Facilities.
(vi) Lessees shall provide Lessor or its nominee with full and
complete information regarding the employees of the Facilities and shall
reimburse Lessor or its nominee for all outstanding accrued employee benefits,
including accrued vacation, sick and holiday pay calculated on a true accrual
basis, including all earned and a prorated portion of all unearned benefits.
(vii) Lessees shall use their best efforts to obtain the
acknowledgment and the consent of any creditor, lessor or sublessor, mortgagee,
beneficiary of a deed of trust or security agreement affecting the real and
personal properties of Lessees or any other party whose acknowledgment and/or
consent would be required because of a change in the operational control of the
Facilities and transfer of personal property, such consent to be in form, scope
and substance satisfactory to Lessor or its nominee, including, without
limitation, an acknowledgment in respect to all such contracts, leases, deeds of
trust, mortgages, security agreements, or other agreements that Lessees and all
predecessors or successors-in-interest thereto are not in default in respect
thereto, that no condition known to the consenting party exists which with the
giving of notice or lapse of time would result in such a default, and, if
requested, affirmatively consenting to the change in the operational control of
Facilities.
(viii) To more fully preserve and protect the Lessor's rights
under this Section 36.3, Lessees do hereby jointly and severally make,
constitute and appoint Lessor their true and lawful attorney-in-fact, for them
and each of them and in their names, place and stead to execute and deliver all
such instruments and documents, and to do all such other acts and things, as
Lessor may deem to be necessary or desirable to protect and preserve its rights
under this Section 36.3, including, without limitation, the preparation,
execution and filing with the Board of Health of the State or other appropriate
agency of the State or department any and all required "Letters of
Responsibility" or similar documents. Lessees further hereby grant to Lessor the
full power and authority to appoint
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one or more substitutes to perform any of the acts that Lessor is authorized to
perform hereunder, with a right to revoke such appointment of substitution at
pleasure. The power of attorney granted pursuant to this Section is coupled with
an interest and therefore is irrevocable. Any Person dealing with Lessor may
rely upon the representation of Lessor relating to any authority granted by this
power of attorney, including the intended scope of the authority, and may accept
the written certificate of Lessor that this power of attorney is in full force
and effect. Photographic or other facsimile reproductions of this executed
Agreement may be made and delivered by Lessor, and may be relied upon by any
Person to the same extent as though the copy were an original. Anyone who acts
in reliance upon any representation or certificate of Lessor, or upon a
reproduction of this Lease, shall not be liable for permitting Lessor to perform
any act pursuant to this power of attorney.
ARTICLE XXXVII
37. Arbitration. Except with respect to the payment of Rent under this
Lease, in case any controversy shall arise between the parties hereto as to any
of the requirements of this Lease or the performance thereof, which the parties
shall be unable to settle by agreement or as otherwise provided herein, such
controversy shall be determined by arbitration. Such arbitration shall be
conducted by three arbitrators selected in accordance with the procedures of the
American Arbitration Association and in accordance with its rules and
procedures. The decision of the arbitrators shall be final and binding, and
enforceable in any court of competent jurisdiction. Such decision shall set
forth in writing the basis for the decision, and in rendering such decision and
award, the arbitrators shall not add to, subtract from or otherwise modify the
provisions of this Lease. The expense of the arbitration shall be divided
between Lessor and Lessees unless otherwise specified in the award. Each party
in interest shall pay the fees and expenses of its own counsel. Such arbitration
shall be conducted in Ann Arbor, Michigan. In any such arbitration, the parties
shall be entitled to conduct discovery in the same manner as permitted under
Federal Rules of Civil Procedure 26 through 37. No provision in this Article
shall limit the right of any party to this Agreement to obtain provisional or
ancillary remedies from a court of competent jurisdiction before, after, or
during the pendency of any arbitration. The exercise of such a remedy does not
waive the right of either party to arbitration.
ARTICLE XXXVIII
38.1 Miscellaneous.
38.1.1 Survival, Choice of Law. Anything contained in this
Lease to the contrary notwithstanding, all claims against, and liabilities of,
Lessees or Lessor arising prior to any date of termination of this Lease shall
survive such termination. If any term or provision of this Lease or any
application thereof shall be invalid or unenforceable, the
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remainder of this Lease and any other application of such term or provisions
shall not be affected thereby. If any late charges provided for in any provision
of this Lease are based upon a rate in excess of the maximum rate permitted by
applicable law, the parties agree that such charges shall be fixed at the
maximum permissible rate. Neither this Lease nor any provision hereof may be
changed, waived, discharged or terminated except by an instrument in writing and
in recordable form signed by Lessor and Lessees. All the terms and provisions of
this Lease shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. The headings in this Lease are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. This Lease shall be governed by and construed in accordance with
the laws of the state of Michigan without regard to Michigan's conflict of
interest rules as to all matters other than those matters relating to the
enforcement or exercise of any remedies of Lessor under this Lease, which shall
be governed as to each Facility by the laws of the state in which such Facility
is located.
38.1.2 Limitation on Recovery. Lessees shall look solely to
Lessor's interest in the Leased Property for recovery of any judgment from
Lessor. No shareholder or officer of Lessor shall ever be personally liable for
any such judgment or for the payment of any monetary obligation to Lessees. The
foregoing provisions are not intended to, and shall not, limit any right that
Lessees might otherwise have to obtain injunctive relief against Lessor or
Lessor's successors in interest, or to bring any action not asserting any
personal liability of Lessor (original or successor), its shareholders, officers
or directors. In no event shall Lessor (original or successor) ever be liable to
Lessees for any indirect or consequential damages suffered by Lessees from
whatever cause.
38.1.3 Waivers. Lessees waive any defense by reason of any
disability of any Lessee, and waive any other defense based on the termination
of any Lessee's (including any Lessee's successor's) liability from any cause.
Lessees waive all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, and notices
of acceptance, and waive all notices of the existence, creation, or incurring of
new or additional obligations.
38.1.4 Consents. Whenever the consent or approval of Lessor or
Lessees is required hereunder, Lessor or Lessees may in their sole discretion
and without reason withhold that consent or approval unless otherwise
specifically provided.
38.1.5 Counterparts. This Lease may be executed in separate
counterparts, each of which shall be considered as original when each party has
executed and delivered to the other one or more copies of this Lease.
38.1.6 Options Personal. The renewal option granted to Lessees in
this Lease is granted solely to Lessees and is not assignable or transferrable
except in
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connection with a transfer or assignment of this Lease as permitted in Article
XXIV. Any attempt to assign or transfer such option shall be void and of no
force and effect.
38.1.7 Rights Cumulative. Except as provided herein to the
contrary, the respective rights and remedies of the parties specified in this
Lease shall be cumulative and in addition to any rights and remedies not
specified in this Lease.
38.1.8 Entire Agreement. It is understood that there are no oral
or written agreements or representations between the parties hereto affecting
this Lease and this Lease supersedes and cancels any and all previous
negotiations, arrangements, representations, brochures, agreements and
understandings, if any, between Lessor and Lessees.
38.1.9 Amendments in Writing. No provision of this Lease may be
amended except by an agreement in writing signed by Lessor and Lessees.
38.1.10 Severability. If any provision of this Lease or the
application of such provision to any person, entity or circumstance is found
invalid or unenforceable by a court of competent jurisdiction, such
determination shall not affect the other provisions of this Lease and all other
provisions of this Lease shall be deemed valid and enforceable.
38.1.11 Successors. The term "Lessor" shall mean only the owner or
owners at the time in question of fee title in the Leased Property. All rights
and obligations of Lessor and Lessees under this Lease shall extend to and bind
the respective heirs, executors, administrators and the permitted
concessionaires, successors, subtenants and assignees of the parties. Lessees
shall be bound jointly and severally by the terms, covenants and agreements
contained in this Lease.
38.1.12 Time of the Essence. Except for the delivery of possession
of the Premises to Lessees, time is of the essence of all provisions of this
lease of which time is an element.
ARTICLE XXXIX
39. Commissions. Lessor and Lessees each represent and warrant to the
other that no real estate commission, finder's fee or the like is due and owing
to any Person in connection with this lease. Lessor and Lessees each agree to
save, indemnify and hold the other harmless from and against any and all claims,
liabilities or obligations for brokerage, finder's fees or the like in
connection with this Lease or the transactions contemplated hereby, asserted by
any Person on the basis of any statement or act alleged to have been made or
taken by that party.
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ARTICLE XL
40. Memorandum of Lease. Lessor and Lessees shall, promptly upon the
request of either, enter into a short form or memorandum of this Lease, in form
suitable for recording under the laws of the state in which the Facilities are
located, in which reference to this lease, and all options contained herein,
shall be made. Lessees shall pay all costs and expenses of recording such short
form or memorandum. The form of the memorandum shall be as set forth in EXHIBIT
J.
ARTICLE XLI
41.1 Security Deposit. Concurrently with Lessees' execution of this
Lease, Lessor shall withhold a sum equal to the Security Deposit from Omega's
Signature Facilities Investment, which Lessor shall hold as security for the
full and faithful performance by Lessees of each and every term, provision,
covenant and condition of this Lease. The Security Deposit (if not a letter of
credit) shall be deposited by Lessor into an account which shall earn interest,
which interest shall remain on deposit as security hereunder and be available to
Lessor as provided in this Article. At least quarterly during each Lease Year
after the first Lease Year, provided Lessees have not caused an Event of
Default, unless otherwise agreed by Lessor and Lessees Lessor shall pay to
Lessees an amount equal to the interest earned on the Security Deposit. The
Security Deposit shall not be considered an advance payment of Rent (or of any
other sum payable to Lessor under this Lease) or a measure of Lessor's damages
in case of a default by Lessees. The Security Deposit shall not be considered as
a trust fund, and Lessees expressly acknowledge and agree that Lessor is not
acting as a trustee or in any fiduciary capacity in controlling or using the
Security Deposit. Lessor shall have no obligation to maintain the Security
Deposit separate and apart from Lessor's general and/or other funds.
41.2 Application of Security Deposit. If Lessees have caused an Event
of Default in respect of any of the terms, provisions, covenants and conditions
of the Lease, including, but not limited to, payment of any Rent and other sums
of money payable by Lessees, Lessor may, but shall not be required to, in
addition to and not in lieu of any other rights and remedies available to Lessor
use, apply or retain the whole or any part of the Security Deposit to the
payment of any sum in the Event of Default, or any other sum, including but not
limited to, any damages or deficiency in reletting the Leased Property, which
Lessor may expend or be required to expend by reason of an Event of Default.
Whenever, and as often as, Lessor has used the Security Deposit to cure an Event
of Default hereunder, Lessees shall, within ten (10) days after Notice from
Lessor, deposit additional money with Lessor sufficient to restore the Security
Deposit to the full amount originally paid. The failure of Lessees to restore
any such deficiency shall constitute a default hereunder.
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41.3 Transfer of Security Deposit. If Lessor transfers its interest
under this Lease, Lessor shall assign the Security Deposit to the new Lessor and
thereafter the transferor shall have no further liability for the return of the
Security Deposit, and Lessees agree to look solely to the new lessor for the
return of the Security Deposit. The provisions of the preceding sentence shall
apply to every transfer or assignment of Lessor's interest under this Lease.
Lessees agree that they will not assign or encumber or attempt to assign or
encumber the monies deposited as security and that Lessor, its successors and
assigns, may return the Security Deposit to the last Lessees in possession at
the last address for notice given by such Lessees and that Lessor shall
thereafter be relieved of any liability therefor, regardless of one or more
assignments of the Lease or any such actual or attempted assignment or
encumbrances of the monies held as the security deposit.
ARTICLE XLII
42.1 Continuing Liability of BritWill Indiana and Brit Will-II.
Notwithstanding the execution of this Lease, BritWill Indiana and BritWill-II
shall remain liable for the payment of any and all outstanding and unpaid
amounts payable by them, and for the performance of any and all outstanding and
unperformed obligations required of them under the Existing Leases prior to the
Effective Date, except for their obligations thereunder for the payment of
Minimum Rent prior to the Effective Date hereof, which obligations shall be
deemed satisfied as of the Effective Date.
42.2 Events of Default Under Existing Leases. Lessees warrant and
represent that except for Events of Default under the Existing Leases with
respect to the nonpayment of Minimum Rent and violations of financial covenants,
which Lessor shall not assert are Events of Default hereunder, Lessees know of
no Events of Default under the Existing Leases or of any facts existing on the
Effective Date hereof which, upon the expiration of the cure or grace period
provided under an Existing Lease, would, if continuing, have constituted an
Event of Default under an Existing Lease.
42.3 Conflict Between Existing Lease and Omega New Master Lease. In the
event of any conflict between an Existing Lease and this Lease, this Lease shall
prevail. The omission in this Lease of provisions contained in one or more of
the Existing Leases, and the addition in this Lease of provisions not contained
in the Existing Leases, is intentional.
ARTICLE XLIII
43. Additional Texas Facilities. If Lessor obtains, through foreclosure
or otherwise, fee title to the Additional Texas Facilities which are commonly
known as Colonial Pines Healthcare and West Place Nursing Center, and the
leasehold interest of UNHC in, or fee title to, the Additional Texas Facility
that is commonly known as the South
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Place Nursing Center, Lessor and Lessees agree that this Lease shall be amended
to add the Additional Texas Facilities on the terms and conditions set forth in
this Lease except for the following terms and conditions:
i. The Minimum Rent shall be increased as of the
Additional Texas Facilities Effective Date by the
addition thereto of the Additional Texas Facilities
Minimum Rent, and thereafter the Minimum Rent shall
increase effective each Adjustment Date as the
Additional Texas Facilities Minimum Rent increases as
provided in Exhibit H.
ii. Upon the Additional Texas Facilities Effective Date,
Lessees jointly and severally shall be deemed to have
assumed and agreed to pay and perform, as the case
may be, any payment or other obligations of
BritWill-II as Lessee of Colonial Pines Healthcare
and West Place Nursing Center and as sublessee of
South Place Nursing Center under the Prior Leases
which obligations were unpaid or unperformed as of
the Additional Texas Facilities Effective Date,
provided, however, that the period which Lessees
shall have hereunder to cure any failure to pay or
perform any such obligation which was unpaid or
unperformed on the Additional Texas Facilities
Effective Date before such failure becomes an Event
of Default hereunder shall begin on the date of a
Notice from Lessor specifying the nature of such
failure and such period shall be of the same duration
as the cure period which would have been granted to
Lessees by Section 16 hereof if the same failure were
to have occurred after the Additional Texas
Facilities Effective Date; and
iii. From and after the Additional Texas Facilities
Effective Date, if at any time Lessor has a leasehold
interest in, and not fee title to, South Place
Nursing Center, with respect to such Facility this
Omega New Master Lease shall constitute a sublease of
such Facility subject to the terms and conditions of
the Prime Lease, and Lessees jointly and severally
shall be deemed to have assumed and agreed to pay and
perform as and when required under the Prime Lease
all of the liabilities and obligations of Lessor as
lessee under the Prime Lease, whether or not any such
liabilities or obligations accrued prior to the
Additional Texas Facilities Date.
SIGNATURE PAGES FOLLOW
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IN WITNESS WHEREOF, the parties have executed this Lease by their duly
authorized officers as of the date first above written.
LESSOR:
Omega Healthcare Investors, Inc.,
a Maryland corporation
By: ______________________________
Name: ____________________
Title: ____________________
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LESSEES:
Amberwood Court, Inc., a Colorado corporation
By: _________________________________
Name: __________________________
Title: __________________________
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The Arbors Health Care Center, Inc.,
an Arizona corporation
By: __________________________________
Name: __________________________
Title: __________________________
▇▇▇▇▇▇▇▇▇▇ House, Inc., a Colorado
Corporation
By: __________________________________
Name: __________________________
Title: __________________________
▇▇▇▇▇▇▇▇▇▇▇ Nursing Center, Inc.,
a Colorado corporation
By: __________________________________
Name: __________________________
Title: __________________________
Los ▇▇▇▇▇, Inc., a Colorado corporation
By:___________________________________
Name: __________________________
Title: __________________________
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Pueblo Norte, Inc., a Colorado corporation
By: __________________________________________________
Name: __________________________________________
Title: __________________________________________
Rio Verde Nursing Center, Inc., a Colorado corporation
By: __________________________________________________
Name: __________________________________________
Title: __________________________________________
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List of Exhibits
Exhibit A - Existing Leases
Exhibits B-1 through B-15 - Leased Property
Exhibit C - List of Excluded Facilities
Exhibit D-1 through D-6 - Indiana Returned Facilities
Exhibit E - Management Agreement
Exhibit F - Permitted Encumbrances
Exhibit G - Purchase Price
Exhibit H - Minimum Rent
Exhibit I - Lessee's Certificate
Exhibit J - Form of Memorandum of Lease
Exhibit K - Additional Texas Facilities
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EXHIBIT A
EXISTING LEASES
1. Lease between BritWill Investments - I, Inc., Lessee, and Omega
Healthcare Investors, Inc., Lessor, dated November 1, 1992, as amended
by Agreement regarding Financial Covenants Compliance and Amendment
Agreement (signatures dated December 12, 1994) and by Amendment
Agreement-Sunquest (signatures dated August 10, 1995).
2. BritWill Investments - II, Inc., Lessee and Omega Healthcare Investors,
Inc., Lessor, dated November 30, 1993 as amended by Amendment
Agreement-Sunquest (signatures dated August 10, 1995).
3. BritWill Investments - II, Inc., Lessee and Omega Healthcare Investors,
Inc., Lessor, dated December 31, 1994 as amended by Amendment
Agreement-Sunquest (signatures dated August 10, 1995).
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EXHIBIT ▇-▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇ ▇-▇
CLOVERLEAF OF KNIGHTSVILLE
103
EXHIBIT B-3
KENDALVILLE MANOR
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EXHIBIT B-4
REUNION PLAZA
Name of Facility: Reunion Plaza
Facility Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Purchase Price:
Legal Description:
105
EXHIBIT B-5
HERITAGE PLAZA
Name of Facility: Heritage Plaza
Facility Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Purchase Price: $3,850,000
Legal Description:
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EXHIBIT B-6
PINE HAVEN
Name of Facility: Pine Haven
Facility Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Purchase Price: $2,500,000
Legal Description:
107
EXHIBIT ▇-▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇ ▇-▇
PLEASANT MANOR
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EXHIBIT B-9
LOS ▇▇▇▇▇
A portion of the East half of Section 20, and a portion of the West half of
Section 21, both Sections being in Township 21 North, Range 7 East of the Gila
and Salt River Base and Meridian, Coconino County, Arizona, described as
follows:
COMMENCING at the Southwest ▇▇▇▇▇ of the Abandonment Plat for Frisco Hills
Subdivision as recorded in ▇▇▇▇ ▇, ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
THENCE North 01(Degree)32'17" East along the West line of the said Abandonment
Plat, a distance of 60.00 feet to the POINT OF BEGINNING, being a found 1/2 inch
rebar with plastic cap marked "LS 11369"; THENCE South 87(Degree)37'05" West
(measured (M) and record (R1) per Warranty Deed Docket 904, page 470, records of
Coconino County, Arizona (Basis of Bearings) along the Westerly extension of the
Northerly right of way of University Avenue as shown on the said Abandonment
Plat and as described in that document recorded in Docket 984, page 939, records
of Coconino County, Arizona, (R3),416. 10 feet (M), 416.05 feet (R1 and R.3), to
a 1/2 inch rebar with plastic cap marked "LS 11369", being a point on the
boundary of Woodlands Village Unit One as shown on the plat thereof recorded in
▇▇▇▇ ▇, ▇▇▇ ▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (▇▇); THENCE North
01(Degree)31'16" West (M), North 01(Degree)3 2'17" West (R1), North
01(Degree)39'32" West (R2), along said boundary 416.11 feet (M), 416.05 feet
(R1), 416.01 feet (R.2), to a 1/2 inch rebar with plastic cap marked "LS 11369",
being the Southwest ▇▇▇▇▇ of ▇▇▇ ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇; THENCE
▇▇▇▇▇ ▇▇(▇▇▇▇▇▇)▇▇'▇▇" ▇▇▇▇ (▇), ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇)▇▇'▇▇" East (R1), North
87(Degree)29'22" East (R2), along the South boundary of said Lot 10, 416.00 feet
(M), 416.05 feet (R1), 416.10 feet (R2), to an aluminum cap marked "ARENCO
13010", being the Southeast ▇▇▇▇▇ of said Lot 10, being a point on the West line
of the said Abandonment Plat; THENCE ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇)▇▇'▇▇" ▇▇▇▇ (▇), ▇▇▇▇▇
▇▇(▇▇▇▇▇▇)▇▇'▇▇" East (R1), along the said West line of the Abandonment Plat
415.82 feet (M), 416.05 feet (R1), to the POINT OF BEGINNING; EXCEPT that
portion of the above described parcel described as follows:
A portion of the East half of Section 20, and a portion of the West half of
Section 21, both Sections being in Township 21 North, Range 7 East of the Gila
and Salt River Base and Meridian, Coconino County, Arizona, described as
follows:
COMMENCING at the Southwest ▇▇▇▇▇ of the Abandonment Plat for Frisco Hills
Subdivision as recorded in Case 1, Map 181, records of Coconino County,
110
Arizona; THENCE North 01(Degree)32'17" East along the West line of the said
Abandonment Plat 60.00 feet to a found 1/2 inch rebar with plastic cap marked
"LS 11369"; THENCE South 87(Degree)37'05" West (Measured (M) and Record (R1) per
Warranty Deed Docket 904, page 870, records of Coconino County, Arizona) [Basis
of Bearings] along the Westerly extension of the Northerly right of way of
University Avenue as shown on the said Abandonment Plant and as described in
that document recorded in Docket 984, page 939, records of Coconino County,
Arizona (R3), 416.10 feet (M), 416.05 feet (R1 and R3), to a 1/2 inch rebar with
plastic cap marked "LS 11369", being a point on the boundary of Woodlands
Village Unit One as shown on the plat thereof recorded in Case 4, Map 62,
records of Coconino County, Arizona (R2), being the TRUE POINT OF BEGINNING;
THENCE ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇)▇▇'▇▇" ▇▇▇▇ (▇), ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇)▇▇'▇▇" West (R1), North
01(Degree)39'32" West (R2), along said boundary 416.11 feet (M), 416.05 feet
(R1), 416.01 feet (R2), to a 1/2 inch rebar with plastic cap marked "LS 11369",
being the Southwest corner of Lot 10 of said Woodlands Village One; THENCE ▇▇▇▇▇
▇▇(▇▇▇▇▇▇)▇▇'▇▇" ▇▇▇▇ (▇), ▇▇▇▇▇ ▇▇(▇▇▇▇▇▇)▇▇'▇▇" East (R1), North
87(Degree)29'22" East (R2), along the South boundary of said Lot 10, a distance
of 111.90 feet; THENCE South 01(Degree)31'16" East, a distance of 416.03 feet to
the said Westerly extension of the Northerly right of way of University Avenue;
THENCE South 87(Degree)37'05" West (M and R1), a distance of 111.90 feet along
said Westerly extension of the Northerly right of way to the POINT OF BEGINNING.
111
EXHIBIT B-10
RIO VERDE
PARCEL 1
All that portion of the Northwest Quarter of the Southwest Quarter of Section
34, Township 16 North, Range 3 East of the Gila and Salt River Base and
Meridian, Yavapai County, Arizona, described as follows:
COMMENCING for reference at the West Quarter corner of said Section 34 from
which the center Quarter corner of said Section bears North 89(Degree)13'11"
East; THENCE North 89(Degree)13'11" East along the East-West midsection line of
said Section 34, a distance of 87.60 feet (record) 87.85 feet (calculated) to a
point; THENCE South 00(Degree)15'00" East (record) South 00(Degree)13'41" East
(calculated), a distance of 48.00 feet to a point on the Southerly right of way
line of East ▇▇▇▇▇▇ Avenue, said point also being on the Easterly right of, way
line of South ▇▇▇▇▇▇▇ Street; THENCE continuing South 00(Degree)15'00" East
along said Easterly right of way line, a distance of 354.64 feet (record) 354.61
feet (calculated) to the, TRUE POINT OF BEGINNING; THENCE continuing South
00(Degree)15'00" East along said Easterly right of way line, a distance of
340.00 feet (record) South 00(Degree)13'41" East 340.02 feet (measured) and
340.05 feet (measured) to a point from which the Northwest corner of Palatka
Acres, a subdivision as recorded in Book 10 of Maps and Plats, Page 40, records
of Yavapai County, Arizona bears South 00(Degree)15'00" East, a distance of
259.15 feet therefrom; THENCE North 89(Degree)42'40" East parallel to and 259.15
feet Northerly of the Northerly line of the said Palatka Acres, a distance of
344.04 feet (record) North 89(Degree)42'30" East 344.14 feet (measured) and
North 89(Degree)42'00" East, 344.16 feet (measured) to a point; THENCE North
00(Degree)15'00" West, a distance of 340.00 feet (record) North 00(Degree)14'28"
West, 340.06 feet (measured) and North 00(Degree)15'31" West, 340.05 feet
(measured) to a point; THENCE South 89(Degree)42'40" West parallel to and 599.15
feet Northerly of the said Northerly line of Palatka Acres, a distance of 344.04
feet (record) South 89(Degree)42'05" West, 344.06 feet (measured) and South
89(Degree)42'01"West, 344.11 feet (measured) to the TRUE POINT OF BEGINNING.
EXCEPT all oil, minerals, ores and metals of every kind, as reserved in Deed
recorded in Book 187 of Deeds, page 331, records of Yavapai County, Arizona.
112
PARCEL 2
An easement for ingress, egress and public utilities as created in Book 1536 of
Official Records, Page 685, records of Yavapai County, Arizona, lying 25 feet
North of, adjacent to and parallel with the following described centerline;
COMMENCING for reference at the West Quarter corner of Said Section 34; THENCE
89(Degree)13'11" East, along the East-West midsection line of said Section 34, a
distance of 87.60 feet to a point, said point being on the centerline of East
▇▇▇▇▇▇ Avenue; THENCE South 00(Degree)15'00" East, a distance of 48.00 feet to
the Southerly right of way line of said East ▇▇▇▇▇▇ Avenue, said point also
being on the Easterly right of way line of South ▇▇▇▇▇▇▇ Street; THENCE
continuing South 00(Degree)15'00" East, along said Easterly right of way line a
distance of 354.64 feet to the TRUE POINT OF BEGINNING; THENCE North
89(Degree)42'40" East, along the North line of the afore described parcel, a
distance of 690.14 feet to the POINT OF TERMINATION of this easement.
113
EXHIBIT B-11
THE ARBORS
Following is a description of a parcel of land in Section 31, Township 14 North,
Range 5 East of the Gila and Salt River Base and Meridian, Yavapai County,
Arizona. The parcel described is the same parcel as the parcel described in Book
2310 of Official Records, Page 990 (all Book and Page references refer to the
official records of the Yavapai County Recorder). The parcel is more
particularly described as follows:
FROM the Southeast corner of Section 31; thence North 90(Degree)00'00" West,
along the South line of the Southeast Quarter of Section 31, and along the South
line of the parcel of land described in Book 150, Page 67, 219.00 feet to the
TRUE POINT OF BEGINNING of this description; thence North 90(Degree)00'00" West,
along the South line of the Southeast Quarter of Section 31, and along the South
line of the parcel of land described in Book 150, Page 67, 329.00 feet to the
Southwest corner thereof, and to the Southeast corner of the parcel of land
described in Book 2871, Page 566; thence North 01(Degree)03'06" West, along the
West line of the parcel of land described in Book 150, Page 67, and along the
East line of the parcel of land described in Book 2871, Page 566, 275.76 feet to
the Northeast corner thereof; thence continuing North 01(Degree)03'06" West,
along the West line of the parcel of land described in Book 150, Page 67, 20.24
feet to the Northwest corner thereof; thence North 01(Degree)03'21" East, along
the West line of the parcel of land described in Book 2046, Page 746, 163.14
feet to the Northeast corner thereof, monumented with a 1/2 inch rebar; thence
South 86(Degree)30'46" East, along the Southerly line of Wood Ditch which is
described in Book 56, Page 320, 23.92 feet; thence North 69(Degree)11'00" East,
along the Southerly line of ▇▇▇▇▇ Ditch which is described in Book 56, Page 320,
266.58 feet to the Northwest corner of parcel of land described in Book 3026,
Page 499; thence South 00(Degree)03'00" East, along the West line of the parcel
of land described in Book 3026, Page 499, 106.85 feet to the Southwest corner
thereof; thence North 75(Degree)10'35" East, along the Southerly line of the
parcel of land described in Book 3026, Page 499, 260.73 feet, to the Westerly
right ▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇; thence Southerly, along the Westerly right
of way line of State Route 260, along a curve to the left, having a radius of
987.93 feet and a central angle of 08(Degree)52'20", an arc distance of 152.98
feet (chord bearing South 09(Degree)21'19" East, chord length 152.83 feet) to
the East line of the Southeast Quarter of Section 31; thence South
00(Degree)03'40" East, along the east line of the Southeast Quarter of Section
31, and along the East line of the parcel of land described in Book 150, Page
67, 148.42 feet to a point which lies 213.00 feet from the Southeast corner of
Section 31; thence North 90(Degree)00'00" West, parallel with the South line of
the Southeast Quarter of Section 31, 219.00 feet; thence South 00(Degree)03'40"
East, parallel with the East line of the Southeast of Section 31, 213.00 feet,
to the South line of the Southeast Quarter of Section 31, the TRUE POINT OF
BEGINNING of this description.
114
EXHIBIT B-12
PUEBLO NORTE
That part of the Southeast quarter of ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇, ▇▇▇▇ and Salt River Meridian, Show Low, Navajo County, Arizona, described
as follows:
COMMENCING at the South quarter corner (a found 1" O.I.P.) of said Section 4;
THENCE North 00(Degree)25'02" North along the mid-section line, a distance of
1690.42 feet; THENCE East, a distance of 198.28 feet; THENCE South
88(Degree)05'15" East (record South 88(Degree)03'06" East, 400.00 feet), a
distance of 400.09 feet to the Southeast corner of the parcel of land described
in Docket 843, page 637 being a found 1/2" I.R. w/cap - L.S. #15402 and being
the TRUE POINT OF BEGINNING; THENCE North 00(Degree)27'22" West (record North
00(Degree)24'39" West, 300.91 feet), a distance of 300.87 feet; THENCE North
87(Degree)58'08" West (record North 87(Degree)54'26" West, 373.92 feet), a
distance of 373.91 feet; THENCE along a curve to the left, concave to the
Southeast having a central angle of 92(Degree)28'06" (record central angle
92(Degree)30'13", length 40.36 feet) and a radius of 25.00 feet, a distance of
40.36 feet; THENCE South 00(Degree)26'14" East (record South 00(Degree)24'39"
East, 275.73 feet), a distance of 275.59 feet; THENCE South 88(Degree)05'15"
East (record South 88(Degree)03'06" East, 400.00 feet), a distance of 400.09
feet to the TRUE POINT OF BEGINNING.
115
EXHIBIT B-13
AMBERWOOD
Lots 13 through 16 inclusive, ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ Subdivision,
City and County of Denver,
State of Colorado
116
EXHIBIT B-14
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇, ▇▇, ▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ and County of
Denver, State of Colorado
117
EXHIBIT ▇-▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ one-half of the East one-half of the West one-half of the Northeast
one-quarter of the Northwest one-quarter of Section 25, Township 3 South, Range
69 West of the 6th Principal meridian, excepting therefrom the South 792 feet
thereof and the West 100.65 feet of the North 190 feet thereof, and the North 30
feet of the East 65 feet thereof.
County of Jefferson
State of Colorado
118
EXHIBIT C
LIST OF EXCLUDED FACILITIES
NUMBER
NAME OF FACILITY FACILITY ADDRESS OF BEDS
---------------- ---------------- -------
South Place Nursing Center ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇
West Place Nursing Center ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇
Colonial Pines Healthcare
(f/k/a ▇▇▇▇▇
Health Care Center ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ Care Center #8 E. Midway 180
Texarkana, Texas 75501
Heritage Oaks Nursing Center ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Texarkana Nursing Center ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Arkansas Manor Nursing Home ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Cornerstone Care Nursing Center ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
119
EXHIBIT D-1
"INDIANA RETURNED FACILITY"
ENGLISH ESTATES
120
EXHIBIT D-2
"INDIANA RETURNED FACILITY"
ENGLISH SENIOR LIVING/ENGLISH ASSISTED LIVING
121
EXHIBIT D-3
"INDIANA RETURNED FACILITY"
CAPITAL CARE HEALTHCARE CENTER
122
EXHIBIT D-4
"INDIANA RETURNED FACILITY"
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇ ▇-▇
"INDIANA RETURNED FACILITY"
LOCKERBIE HEALTHCARE CENTER
124
EXHIBIT D-6
"INDIANA RETURNED FACILITY"
PARKVIEW MANOR
125
EXHIBIT E
MANAGEMENT AGREEMENT
126
EXHIBIT F
PERMITTED ENCUMBRANCES
127
EXHIBIT G
PURCHASE PRICE
DATE OF COMMENCEMENT
FACILITY OF LEASE
-------- --------------------
Los ▇▇▇▇▇ Health Care Center ($5,134,409.00) December 31, 1998
Rio Verde Nursing Center ($5,031,720.00) December 31, 1998
Pueblo Norte Nursing Center ($5,647,849.00) December 31, ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Care Center ($2,977,957.00) December 31, 1998
▇▇▇▇▇▇▇▇▇▇ House ($5,237,097.00) December 31, 1998
▇▇▇▇▇▇▇▇▇▇▇ House ($5,955,914.00) December 31, 1998
Arbors Health Care Center ($8,215,054.00) December 31, 1998
128
EXHIBIT H
MINIMUM RENT
1. Exhibit H Definitions. For purposes of this Exhibit H:
a. "Group of Facilities" shall mean each of the
Additional Texas Facilities, BritWill Indiana
Facilities, BritWill-II November 1993 Facilities,
BritWill-II December 1994 Facilities and the
Signature Facilities.
b. "Market Rate Adjustment Year" shall mean each of
2006, 2011, 2016, 2021 and 2026.
c. "Annualized Stub Period Minimum Rent" shall mean,
with respect to each Group of Facilities, the product
of the Minimum Rent for the Stub Period allocated to
such Group of Facilities as set forth below divided
by the number of days in the Stub Period multiplied
by 365.
d. "Revenue Adjustment" shall mean for any Group of
Facilities an amount equal to five percent (5%) of
the Incremental Revenues for that Group of
Facilities; provided, however, that after the Minimum
Rent for the BritWill Indiana Group of Facilities has
increased to $_________, until the calendar year
2006, the Incremental Revenues for the BritWill
Indiana Group of Facilities shall be an amount equal
to three percent (3%) of the Incremental Revenues for
that Group of Facilities.
e. "CPI Adjustment" shall mean for any Group of
Facilities the Minimum Rent for such Group of
Facilities for the year then ended multiplied by a
fraction, the numerator of which is the CPI in effect
for December of that year and the denominator of
which is the CPI in effect for December of the
immediately preceding year.
2. Minimum Rent. The Minimum Rent for the BritWill Indiana Group of
Facilities, the BritWill-II November 1993 Group of Facilities and the
BritWill-II December 1994 Group of Facilities for the Stub Period shall be set
forth in the amendment or amendments pursuant to which such Groups of Facilities
are added to this Lease. Beginning January 1, 2000, the Minimum Rent for the
Facilities for each calendar year shall be the sum of (a) the Minimum Rent for
each such Group of Facilities for such year, determined as set forth below, plus
(b) the Minimum Rent for the Signature Group of Facilities for such year plus
(c) the Minimum Rent for the Additional Texas Facilities, if any.
129
Monthly installments of Minimum Rent shall increase in proportion to increases
in Minimum Rent.
3. Allocation of Minimum Rent for Computational Purposes Only. The
Minimum Rent is being allocated among the Groups of Facilities solely for the
purpose of calculating the Minimum Rent from time to time. The allocation of the
Minimum Rent does not affect the intent of the parties that this Lease
constitutes one indivisible lease of all of the Facilities, and not separate
leases. For computational purposes only, the Minimum Rent for the Stub Period
and the Annualized Stub Period Minimum Rent shall be set forth in the amendment
or amendments pursuant to which the applicable Groups of Facilities are added to
this Lease.
4. Increases in Minimum Rent for the BritWill Indiana Group of
Facilities.
(a) For the calendar year 2000, and for each calendar year
thereafter during the Term, including the Extended Term, but excluding each
Market Rate Adjustment Year, the Minimum Rent for the BritWill-Indiana Group of
Facilities shall be the sum of (i) (y) for 2000, the Annualized Stub Period
Minimum Rent for the BritWill Indiana Group of Facilities, and (z) after 2000,
the Minimum Rent for the BritWill Indiana Group of Facilities for the prior
calendar year, and (ii) the BritWill Indiana Rent Increase. The BritWill Indiana
Rent Increase for each such calendar year shall be the greater of:
(i) for 2000, three percent (3%) of the Annualized Stub Period
Minimum Rent and, in the case of all such years
thereafter, three percent (3%) of the Minimum Rent for the
prior calendar year; and
(ii) the lesser of the CPI Adjustment and the Revenue
Adjustment for the BritWill Indiana Group of Facilities.
(b) Section 3.1.2.6 of the Existing Lease with respect to the
BritWill Indiana Facilities sets forth examples which illustrate the operation
of the procedures for increases in the Minimum Rent for the BritWill Indiana
Group of Facilities pursuant to subsection (a) as of January 1 of each year
other than January 1 of a Market Rate Adjustment Year .
(c) Notwithstanding the foregoing, no adjustment pursuant to this
Paragraph 4 shall reduce the Minimum Rent for the BritWill Indiana Group of
Facilities below the Minimum Rent for the BritWill Indiana Group of Facilities
for the prior calendar year.
(d) The Minimum Rent for the BritWill Indiana Group of Facilities
for each Market Rate Adjustment Year shall be the greater of:
130
(i) the Fair Market Rent for the BritWill Indiana Group of
Facilities in such calendar year, determined by an appraisal
pursuant to Article XXXIV of this Lease, and
(ii) one hundred three percent (103%) of the Minimum Rent for
the BritWill Indiana Group of Facilities for the prior calendar
year,
provided, however, that in no event shall the Minimum Rent for the BritWill
Indiana Group of Facilities in any Market Rate Adjustment Year be more than one
hundred and ten percent (110%) of the Minimum Rent for the BritWill Indiana
Group of Facilities for the prior calendar year.
5. Increases in Minimum Rent for the BritWill-II November 1993 Group of
Facilities.
(a) For the calendar year 2000, and for each calendar year
thereafter during the Term, including the Extended Term, but excluding each
Market Rate Adjustment Year, and subject to the limitations set forth in
subsections (b) and (d) below, the Minimum Rent for the BritWill-II November
1993 Group of Facilities shall be the sum of (i) (y) for 2000, the Annualized
Stub Period Minimum Rent for the BritWill-II November 1993 Group of Facilities
and (z) after 2000, the Minimum Rent for the BritWill-II November 1993 Group of
Facilities for the prior calendar year, and (ii) the BritWill-II November 1993
Rent Increase. The BritWill-II November 1993 Rent Increase for each such
calendar year shall be the greater of (i) the CPI Adjustment and (ii) the
Revenue Adjustment for the BritWill-II November 1993 Group of Facilities.
(b) Notwithstanding subsection 5(a), the Minimum Rent for the
BritWill-II November 1993 Group of Facilities for any calendar year between 2000
and 2006 shall not exceed ____________ Dollars ($______), increased by three and
one-half percent (3-1/2%) on a cumulative, compounded basis on January 1 of each
year commencing January 1, 2001. The Minimum Rent for the BritWill-II November
1993 Group of Facilities for any calendar year following any Market Rate
Adjustment Year shall not exceed the Minimum Rent for the Market Rate Adjustment
Year increased by three and one-half percent (3-1/2%) on a cumulative,
compounded basis on January 1 of each calendar year thereafter until the next
Market Rate Adjustment Year.
(c) Section 3.1.2.5 of the Existing Lease with respect to the
BritWill-II November 1993 Facilities sets forth examples which illustrate the
operation of the procedures for increases to the Minimum Rent allocable to the
BritWill-II November 1993 Facilities, but the second example erroneously states
that on the basis of the facts therein stated, the increase in monthly
installments of Minimum Rent would be equal to the CPI Adjustment whereas such
example should state that on the basis of such facts the increase in monthly
installments of Minimum Rent would be equal to the Revenue Adjustment.
131
(d) Notwithstanding the foregoing, no adjustment pursuant to this
Paragraph 5 shall reduce the Minimum Rent for the BritWill-II November 1993
Group of Facilities below the Minimum Rent for the BritWill-II November 1993
Group of Facilities for the prior calendar year.
(e) The Minimum Rent allocable to the BritWill-II November 1993
Group of Facilities for each Market Rate Adjustment Year shall be the greater
of:
(i) the Fair Market Rent allocated to the BritWill-II November
1993 Group of Facilities in such calendar year, determined by an
appraisal pursuant to Article XXXIV of this Lease, and
(ii) one hundred three percent (103%) of the Minimum Rent
allocated to the BritWill-II November 1993 Group of Facilities for
the prior calendar year,
provided, however, that in no event shall the Minimum Rent allocated to the
BritWill-II November 1993 Group of Facilities in any Market Rate Adjustment Year
be more than one hundred and ten percent (110%) of the Minimum Rent allocated to
the BritWill-II November 1993 Group of Facilities for the prior calendar year.
6. Increases in Minimum Rent for the BritWill-II December 1994 Group of
Facilities.
(a) For the calendar year 2000, and for each calendar year
thereafter during the Term, including the Extended Term, but excluding each
Market Rate Adjustment Year, and subject to the limitations set forth in
subsections (b) and (d) below, the Minimum Rent for the BritWill-II December
1994 Group of Facilities shall be the sum of (i) (y) for 2000, the Annualized
Stub Period Minimum Rent for the BritWill-II December 1994 Group of Facilities
and (z) after 1999, the Minimum Rent for the BritWill-II December 1994 Group of
Facilities for the prior calendar year, and (ii) the BritWill-II December 1994
Rent Increase. The BritWill-II December 1994 Rent Increase for each such
calendar year shall be the greater of (i) the CPI Adjustment and (ii) the
Revenue Adjustment for the BritWill-II December 1994 Group of Facilities.
(b) Notwithstanding subsection 5(a), the Minimum Rent for the
BritWill-II December 1994 Group of Facilities for any calendar year between 2000
and 2006 shall not exceed ____________ Dollars ($______), increased by three and
one-half percent (3-1/2%) on a cumulative, compounded basis on January 1 of each
year commencing January 1, 2001. The Minimum Rent for the BritWill-II December
1994 Group of Facilities for any calendar year following any Market Rate
Adjustment Year shall not exceed the Minimum Rent for the Market Rate Adjustment
Year increased by three and
132
one-half percent (3-1/2%) on a cumulative, compounded basis on January 1 of each
calendar year thereafter until the next Market Rate Adjustment Year.
(c) Section 3.1.2.5 of the Existing Lease with respect to the
BritWill-II December 1994 Facilities sets forth examples which illustrate the
operation of the procedures for increases to the Minimum Rent allocable to the
BritWill-II December 1994 Facilities, but the second example erroneously states
that on the basis of the facts therein stated, the increase in monthly
installments of Minimum Rent would be equal to the CPI Adjustment whereas such
example should state that on the basis of such facts the increase in monthly
installments of Minimum Rent would be equal to the Revenue Adjustment.
(d) Notwithstanding the foregoing, no adjustment pursuant to this
Paragraph 5 shall reduce the Minimum Rent for the BritWill-II December 1994
Group of Facilities below the Minimum Rent for the BritWill-II December 1994
Group of Facilities for the prior calendar year.
(e) The Minimum Rent allocable to the BritWill-II December 1994
Group of Facilities for each Market Rate Adjustment Year shall be the greater
of:
(i) the Fair Market Rent allocated to the BritWill-II December
1994 Group of Facilities in such calendar year, determined by an
appraisal pursuant to Article XXXIV of this Lease, and
(ii) one hundred three percent (103%) of the Minimum Rent
allocated to the BritWill-II December 1994 Group of Facilities for
the prior calendar year,
provided, however, that in no event shall the Minimum Rent allocated to the
BritWill-II December 1994 Group of Facilities in any Market Rate Adjustment Year
be more than one hundred and ten percent (110%) of the Minimum Rent allocated to
the BritWill-II December 1994 Group of Facilities for the prior calendar year.
7. Minimum Rent For the Signature Facilities; Increases. The Minimum
Rent for the Signature Facilities for the Stub Period with respect to such
Facilities shall be Nine Thousand Nine Hundred Forty-Two Dollars Forty-Seven
Cents ($9,942.47). Beginning January 1, 1999, the Minimum Rent for the Signature
Facilities shall be Three Million Six Hundred Twenty-Nine Thousand Dollars
($3,629,000.00) per year. Thereafter, on each succeeding Adjustment Date, the
Minimum Rent for the Signature Facilities shall be increased by Ninety Thousand
Seven Hundred Dollars ($90,700.00) and the monthly installments shall be
increased accordingly, provided, however, that if any Signature Facilities are
purchased or sold pursuant to Article XVIII of this Lease, such increase in the
Minimum Rent shall be reduced in proportion to the reduction in Minimum Rent
attributable to such purchase or sale.
133
8. Minimum Rent for the Additional Texas Facilities; Increases. The
Minimum Rent for the Additional Texas Facilities for the period beginning on the
Additional Texas Facilities Effective Date and ending December 31 in the year in
which the Additional Texas Facilities Effective Date falls shall be set forth in
an amendment hereto at the time such Facilities are added to this Lease. For
each calendar year after the year in which the Additional Texas Facilities
Effective Date falls, the Minimum Rent for the Additional Texas Facilities shall
be the sum of (i) the Minimum Rent for the Additional Texas Facilities for the
prior calendar year (annualized if such year has fewer than 365 days), and (ii)
the Additional Texas Facilities Rent Increase. The Additional Texas Facilities
Rent Increase for each such calendar year shall be the greater of (i) the CPI
Adjustment and (ii) the Revenue Adjustment for the Additional Texas Facilities,
provided, however, that the Minimum Rent for the Additional Texas Facilities for
any calendar year after the year in which the Additional Texas Facilities
Effective Date falls shall not exceed the Minimum Rent for the Additional Texas
Facilities for the prior calendar year (annualized if such year has fewer than
365 days), increased by three and one-half percent (3-1/2%) on a cumulative,
compounded basis on each Adjustment Date.
134
EXHIBIT "I"
LESSEE'S CERTIFICATE
The undersigned, Lessees under that certain Master Lease (the "Omega
New Master Lease") dated _________ __ , 1998 and made with Omega Healthcare
Investors, Inc., a Maryland corporation ("Lessor"), hereby certify:
1. That they are the Lessees under the Lease; that attached hereto as
Exhibit "A" is a true and correct copy of the Omega New Master Lease; that said
Omega New Master Lease is now in full force and effect and has not been amended,
modified or assigned except as disclosed or included in Exhibit "A"; and that
said Omega New Master Lease constitutes the entire agreement between Lessor and
Lessees.
2. That there exist no defenses or offsets to enforcement of the Omega
New Master Lease; that there are, as of the date hereof, no breaches or uncured
Events of Default on the part of Lessees or defaults by Lessor thereunder; and
that Lessees have no notice or knowledge of any prior assignment, hypothecation,
subletting or other transfer of Lessor's interest in the Omega New Master Lease.
3. That the Minimum Rent for the current Lease Year under the Omega New
Master Lease is $____; all Rent which is due has been paid, and there are no
unpaid Additional Charges owing by the Lessees under the Omega New Master Lease
as of the date hereof; no Minimum Rent or other items (including without
limitation security deposit and any impound account or funds) have been paid by
Lessees in advance under the Omega New Master Lease except for the security
deposit held by Lessor [in the form of an irrevocable letter of credit] in the
amount of [*$0,000,000*] and the monthly installment of Minimum Rent that became
due on ______ .
4. That Lessees have no claim against Lessor for any security deposit,
impound account or prepaid Rent except as provided in paragraph 3 of this
Certificate.
5. That there are no actions, whether voluntary or otherwise, pending
against the undersigned under the bankruptcy laws of the United States or any
state thereof, nor have Lessees nor, to the best of Lessee's knowledge has
Lessor begun any action, or given or received any notice for the purpose of
termination of the Omega New Master Lease.
6. That there are, as of the date hereof, no breaches or uncured
defaults on the part of Lessees under any other agreement executed connection
with the Omega New Master Lease.
135
7. This Estoppel Certificate has been requested by Lessor pursuant to
Article XXI, Section 21.3 of the Omega New Master Lease and for the benefit of
__________ ("Relying Party"). The Relying Party is entitled to rely on the
statements of Lessees contained in this certificate.
8. All capitalized terms used herein and not defined herein shall have
the meanings for such terms set forth in the Omega New Master Lease.
Dated:_________________
136
EXHIBIT "J"
MEMORANDUM OF LEASE
137
EXHIBIT K-1
COLONIAL PINES
138
EXHIBIT K-2
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TABLE OF CONTENTS
ARTICLE PAGE
------- ----
ARTICLE I.....................................................................3
1.1 Assumption and Amendment of Existing Leases; Release
of Indiana Returned Facilities...................................3
1.2 Leased Property..................................................3
1.2 Term.............................................................3
ARTICLE II....................................................................4
2.1 Definitions......................................................4
ARTICLE III..................................................................19
3.1 Rent............................................................19
3.2 Additional Charges..............................................20
3.3 Late Charge.....................................................20
3.4 Method of Payment of Minimum Rent...............................21
3.5 Net Lease.......................................................21
3.6 Limitation on Counterclaim......................................21
ARTICLE IV...................................................................21
4.1 Payment of Impositions..........................................21
4.2 Notice of Impositions...........................................23
4.3 Adjustment of Impositions.......................................23
4.4 Utility Charges.................................................23
4.5 Insurance Premiums..............................................23
ARTICLE V....................................................................23
5.1 No Termination, Abatement, etc..................................23
ARTICLE VI...................................................................24
6.2 Lessor's Personal Property......................................24
6.3 Lessees' Personal Property......................................25
6.4 Grant of Security Interest in Lessees' Personal Property
and Accounts....................................................25
ARTICLE VII..................................................................25
7.1 Condition of the Leased Property................................25
7.3 Certain Environmental Matters...................................26
ARTICLE VIII.................................................................33
8.1 Compliance with Legal and Insurance Requirements, Instruments,
etc.............................................................33
8.2 Legal Requirement Covenants.....................................33
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8.3 Certain Covenants...............................................34
8.3.1 Certain Financial Covenants..............................34
8.3.1.1 Consolidated Tangible Net Worth of Unison........34
8.3.1.2 Consolidated Tangible Net Worth of Lessees.......34
8.3.1.3 Lessees' Consolidated Current Ratio..............34
8.3.1.4 Lessees' Consolidated Fixed Charge Ratio.........34
8.3.1.5 Limitation of Distributions......................34
8.3.1.6 Minimum Capital Expenditures.....................34
8.3.1.7 Borrowings..............................................35
8.3.1.7.1 Accounts Receivable............................35
8.3.1.7.2 Equipment Financing............................35
8.3.1.7.3 Guaranties by Lessees..........................35
8.3.1.7.4 Other Borrowings...............................35
8.4 Covenants Regarding Kendalville.................................35
8.5 Management Agreement; Amendments............................36
8.6 Other Healthcare Facilities.................................36
8.7 Continuous Operations.......................................36
ARTICLE IX...................................................................37
9.1 Maintenance and Repair..........................................37
9.2 Encroachments, Restrictions, etc................................40
ARTICLE X....................................................................40
10.1 Construction of Major Alterations to Leased Property...........40
10.2 Payment for Improvements.......................................41
10.3 Construction of Alterations and Additions to the Leased
Property.......................................................42
10.4 Salvage........................................................42
10.5 Abandonment of Demolition or Construction......................43
ARTICLE XI...................................................................43
11. Liens..........................................................43
ARTICLE XII..................................................................43
12.1 Permitted Contests.............................................43
12.2 Lessor's Requirement for Deposits Following Default............44
ARTICLE XIII.................................................................45
13.1 General Insurance Requirements.................................45
13.2 Replacement Cost...............................................46
13.3 Additional Insurance...........................................47
13.4 Waiver of Subrogation..........................................47
13.5 Form Satisfactory, etc.........................................47
13.6 Increase in Limits.............................................47
13.7 Blanket Policy.................................................48
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13.8 No Separate Insurance..........................................48
ARTICLE XIV..................................................................48
14.1 Insurance Proceeds.............................................48
14.2 Restoration in the Event of Damage or Destruction Covered by
Insurance......................................................49
14.3 Reconstruction in the Event of Damage or Destruction Not
Covered by Insurance...........................................50
14.4 Restoration of Lessees' Personal Property......................50
14.5 Restoration of Lessee's Property Other than Lessees' Personal
Property.......................................................50
14.6 No Abatement of Rent...........................................51
14.7 Damage Near End of Term........................................51
14.8 Waiver.........................................................51
14.9 Procedure for Disbursement of Insurance Proceeds Equal to or
Greater Than Two Hundred Fifty Thousand Dollars ($250,000).....51
14.10 Insurance Proceeds Paid to Facility Mortgagee.................53
ARTICLE XV...................................................................53
15.1 Condemnation Article Definitions...............................53
15.2 Parties Rights and Obligations.................................54
15.3 Total Taking...................................................54
15.4 Allocation of Portion of Award.................................54
15.5 Partial Taking.................................................54
15.6 Temporary Taking...............................................55
15.7 Condemnation Awards Paid to Facility Mortgagee.................55
ARTICLE XVI..................................................................56
16.1 Events of Default..............................................56
16.2 Certain Remedies...............................................60
16.3 Damages........................................................60
16.4 Lessee's Obligation to Purchase................................61
16.5 Waiver.........................................................62
16.6 Application of Funds...........................................62
16.7 General Provisions Affecting Remedies..........................62
ARTICLE XVII.................................................................62
17. Lessor's Right to Cure Lessee's Default........................62
ARTICLE XVIII................................................................63
18. Provisions Relating to Purchase of the Leased Property; Sale
by Lessor......................................................63
18.1 General...................................................63
ARTICLE XIX..................................................................63
19.1 Renewal........................................................63
19.2 Savings Provisions........................................63
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ARTICLE XX...................................................................64
20.1 Holding Over...................................................64
20.2 Indemnity......................................................64
ARTICLE XXI..................................................................64
21.1 Subordination..................................................64
21.2 Attornment.....................................................65
21.3 Lessee's Certificate...........................................65
ARTICLE XXII.................................................................65
22. Risk of Loss...................................................65
ARTICLE XXIII................................................................66
23. Indemnification................................................66
23.1 General........................................................66
23.2 Indemnification With Respect to Signature Facilities...........66
23.3 Lessor's Indemnification.......................................67
23.4 Survival.......................................................67
ARTICLE XXIV.................................................................67
24.1 General Prohibition against Assignment.........................67
24.2 Corporate or Partnership Transactions..........................68
24.3 Offer to Purchase..............................................68
24.4 Subordination and Attornment...................................68
24.5 Sublease Limitation............................................69
ARTICLE XXV..................................................................69
25.1 Officer's Certificates and Financial Statements................69
25.2 Public Offering Information....................................71
ARTICLE XXVI.................................................................72
26. Lessor's Right to Inspect......................................72
ARTICLE XXVII................................................................72
27. No Waiver......................................................72
ARTICLE XXVIII...............................................................72
28. Remedies Cumulative............................................72
ARTICLE XXIX.................................................................72
29. Acceptance of Surrender........................................72
ARTICLE XXX..................................................................72
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30.1 No Merger of Title.............................................72
30.2 No Partnership.................................................73
ARTICLE XXXI.................................................................73
31. Conveyance by Lessor...........................................73
ARTICLE XXXII................................................................73
32. Quiet Enjoyment................................................73
ARTICLE XXXIII...............................................................73
33. Notices........................................................73
ARTICLE XXXIV................................................................75
34. Appraisers.....................................................75
ARTICLE XXXV.................................................................76
35.1 Breach by Lessor...............................................76
35.2 Compliance With Facility Mortgage..............................76
ARTICLE XXXVI................................................................77
36.1.Lessor's Option to Purchase Lessees' Personal Property.........77
36.2 Facility Trade Names...........................................77
36.3 Transfer of Operational Control of the Facility................77
ARTICLE XXXVII...............................................................79
37. Arbitration....................................................79
ARTICLE XXXVIII..............................................................79
38.1 Miscellaneous..................................................79
38.1.1 Survival, Choice of Law................................79
38.1.2 Limitation on Recovery.................................80
38.1.3 Waivers................................................80
38.1.4 Consents...............................................80
38.1.5 Counterparts...........................................80
38.1.6 Options Personal.......................................80
38.1.7 Rights Cumulative......................................81
38.1.8 Entire Agreement.......................................81
38.1.9 Amendments in Writing..................................81
38.1.10 Severability..........................................81
38.1.11 Successors............................................81
38.1.12 Time of the Essence...................................81
ARTICLE XXXIX................................................................81
39. Commissions....................................................81
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ARTICLE XL...................................................................82
40. Memorandum of Lease............................................82
ARTICLE XLI..................................................................82
41.1 Security Deposit...............................................82
41.2 Application of Security Deposit................................82
41.3 Transfer of Security Deposit...................................82
ARTICLE XLII.................................................................83
42. Existing Leases................................................83
vi