GROUND LEASE AGREEMENT between FLOYD HEALTHCARE MANAGEMENT, INC., d/b/a FLOYD MEDICAL CENTER, as Landlord and ROME LTH PARTNERS, LP, as Tenant dated December 18, 2009
Exhibit 10.4
between
▇▇▇▇▇
HEALTHCARE MANAGEMENT, INC., d/b/a ▇▇▇▇▇ MEDICAL CENTER,
as
Landlord
and
ROME LTH
PARTNERS, LP,
as
Tenant
dated
December 18, 2009
THIS
GROUND LEASE AGREEMENT (this “Lease”) is made and
entered into effective as of the 18th day of
December, 2009 (the “Effective Date”), by
and between ▇▇▇▇▇ HEALTHCARE MANAGEMENT, Inc., d/b/a ▇▇▇▇▇ Medical Center, a
Georgia non-profit corporation, (“Landlord”), and ROME
LTH PARTNERS, LP, a Texas limited partnership (“Tenant”).
WITNESSETH:
WHEREAS,
pursuant to that certain Lease, Transfer and Reversion Agreement between The
Hospital Authority of ▇▇▇▇▇ County and ▇▇▇▇▇ Healthcare Management, Inc., dated
December 17, 1996, as such document subsequently has been amended, (the
“Medical Center Master
Lease”) Landlord is the holder of a long-term leasehold interest in a
tract of real property located in Rome, ▇▇▇▇▇ County, Georgia, which is more
particularly described on Exhibit A-1
attached hereto and made a part hereof (the “Medical Center
Land”). The Hospital Authority of ▇▇▇▇▇ County, Georgia, (the
“Hospital
Authority”) joins this Lease for those limited purposes set forth in the
Joinder attached to this Lease;
WHEREAS,
Landlord currently operates a hospital known as the ▇▇▇▇▇ Medical Center (the
“Medical
Center”) on the Medical Center Land; and
WHEREAS,
Tenant desires to lease from Landlord a portion of the Medical Center Land more
particularly described on Exhibit A-2,
attached hereto and made a part hereof (the “LTACH Land”),
together with the Leased Property defined in Section 2.1 of this Lease, and
Landlord desires Tenant to construct a long term acute care hospital building
(the “LTACH”)
on the LTACH Land upon the terms and conditions set forth herein.
NOW,
THEREFORE, for and in consideration of the mutual covenants contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged and confessed, Landlord and Tenant agree as
follows:
ARTICLE
I
DEFINED
TERMS
Section 1.1. Defined
Terms. In addition to other terms defined in this Lease, for
all purposes of this Lease:
(a) “Additional Rent”
means any and all amounts other than Base Rent payable by Tenant to Landlord or
to any other Person as required under this Lease including, without limitation,
the Impositions.
(b) “Affiliate” means, as
to the entity in question, any person or entity that controls, is controlled by,
or is under common control with, the entity in question; and the term “control” means
possession of the power to direct or cause the direction of the management and
policies of an entity whether through ownership of voting securities, by
contract or otherwise.
(c) “Base Rent” is defined
in Section 3.1.
(d) “Building Plans” shall
mean the plans and specifications listed in Exhibit D attached
hereto and made a part thereof, as the same may be modified or supplemented in
accordance with the terms of this Lease.
(e) “Cash/Credit
Consideration” is defined in Section 16.4.
(f)
The “Commencement Date” is
defined as the earlier of (i) thirty (30) days after the Required Completion
Date or (ii) thirty (30) days after a certificate of occupancy is issued for the
Leased Property by the governmental entity having jurisdiction over such
matters.
(g) “Competitor” is
defined in Section 10.1(b).
(h) “Condemning Authority”
shall mean an authority having the power of eminent domain.
(i) “Construction Loan”
shall mean the construction loan obtained by Tenant in connection with the
construction of the LTACH Improvements.
(j) “County” means ▇▇▇▇▇
County, Georgia.
(k) “Debtor Relief Laws”
means the Bankruptcy Code of the United States, as amended, and all other
applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief laws from
time to time in effect affecting the rights of creditors generally.
(l) “Default Rate” shall
mean an annual rate of interest equal to two percent (2%) above the annual rate
of interest set by SunTrust Bank (or any successor thereto) as its “Prime Rate”
from time to time.
(m) “Event of Default” is
defined in Section 13.1(a).
(n) “▇▇▇▇▇ Healthcare Management
Sublease” shall mean the sublease entered into between Tenant and ▇▇▇▇▇
Healthcare Management, Inc.
(o) “▇▇▇▇▇ Healthcare
Subtenant” is defined as ▇▇▇▇▇ Healthcare Management, Inc., and its
successors and permitted assigns under the ▇▇▇▇▇ Healthcare Management Sublease
and this Lease.
(p) “Foreclosure” shall
mean any procedure recognized under Georgia law to foreclose the lien granted
under any Mortgage.
(q) “General Contract”
shall mean the contract between Tenant and the General Contractor for the
construction of the LTACH Improvements.
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(r) “General Contractor”
shall mean ▇▇▇▇▇▇▇▇▇ & Gorrie. Should Tenant be unable to enter
into a construction contract with ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ despite reasonable
efforts or should Tenant desire to replace the General Contractor pursuant to
the terms of its construction contract, then Tenant may seek to engage other
construction contractors; provided, however, that Tenant shall consult with
Landlord to select alternate contractors, and that any contractor to be selected
by Tenant shall have at least ten (10) years experience constructing buildings
at least comparable in size and complexity (but not necessarily use) to the
LTACH Improvements.
(s) “Guarantor” means The
Cirrus Group, LLC, a Texas limited liability company.
(t) “Hazardous Materials”
is defined in Section 15.1(a).
(u) “Hazardous Substances”
is defined in Section 15.1(a).
(v) “Impositions” is
defined in Section 6.1.
(w) “Institutional Lender”
means an insurance company, bank, credit union, trust company, pension, profit
or retirement fund or other financial institution that are in the business of
making commercial real estate loans.
(x) “Landlord Event of
Default” is defined in Section 13.2(a).
(y) “Landlord RFR” is
defined in Section 16.1.
(z) “Laws” means any
constitution, statute, code, ordinance, regulation, judicial or administrative
decision or other rule of law, whether federal, state, or local.
(aa) “Lease Year” means
with respect to the first “Lease Year,” the period commencing on the first day
of the month following the Effective Date (if the Effective Date is other than
the first day of the month) and ending twelve (12) months thereafter on the day
before the anniversary of the first day of the month following the Effective
Date (if the Effective Date is other than the first day of the month); and, with
respect to each subsequent “Lease Year,” the twelve (12) month period commencing
on the next day following the end of the previous Lease Year.
(bb) “Leased Property” is
defined in Section 2.1 to mean the LTACH Land, together with all rights,
members, and appurtenances in any manner appertaining or belonging.
(cc) “Leasehold Mortgage”
means a Mortgage granted by Tenant to a Leasehold Mortgagee, as defined
below.
(dd) “Leasehold Mortgagee”
means the person or entity holding a Leasehold Mortgage on the Tenant’s
leasehold interest, provided that, at the time of issuance of the Leasehold
Mortgage, the Leasehold Mortgagee shall: (i) not be an Affiliate of Tenant or of
an Affiliate of an Affiliate of Tenant, (ii) not be a Competitor, (iii) be an
Institutional Lender, and (iv) as of the date of issuance of the Leasehold
Mortgage be actively engaged in commercial real estate financing and have total
assets, excluding its interest in the Leasehold Mortgage, in excess of $1,000,000,000.00. Any
transferee of a Leasehold Mortgage from the initial holder of such Leasehold
Mortgagee (such initial holder being a Leasehold Mortgagee) that is not a
Competitor shall also constitute a Leasehold Mortgagee (whether or not such
transferee would have originally qualified as a Leasehold
Mortgagee).
3
(ee) “Legal Requirement” or
“Legal
Requirements” means, as the case may be, any one or more of all present
and future Laws, codes, ordinances, orders, judgments, decrees, injunctions,
rules, regulations and requirements, even if unforeseen or extraordinary, of
every duly constituted governmental authority or agency (but excluding those
which by their terms are not applicable to and do not impose any obligation on
Tenant, Landlord or the Leased Property) and all covenants, restrictions and
conditions as set forth on Exhibit B, which
may be applicable to Tenant, Landlord (with respect to the Leased Property) or
to all or any part of or interest in Leased Property, or to the use, manner of
use, occupancy, possession, operation, maintenance, alteration, repair or
reconstruction of the Leased Property, even if compliance therewith
(i) necessitates structural changes or improvements (including changes
required to comply with the Americans with Disabilities Act) or results in
interference with the use or enjoyment of the Leased Property or (ii) requires
Tenant to carry insurance other than as required by the provisions of this
Lease.
(ff) “LTACH Exclusive Parking
Rights” shall mean those certain rights of Tenant to demand and have the
exclusive use of certain parking spaces as set forth in the REA.
(gg) “LTACH Improvements”
means all of the buildings, structures, fixtures, other improvements and
completed Subtenant improvements as set forth in the Building Plans constructed
or placed upon the LTACH Land after the Effective Date and during the Term
together with the Tenant Improvements. The LTACH Improvements shall
include, without limitation, an approximately fifty-two thousand nine hundred
forty-four (52,944) square foot building for the long term acute care hospital
building containing approximately forty-five (45) private rooms (including an
intensive care unit specifically to serve the long term acute care
hospital).
(hh) “Mortgage” means a
mortgage, deed of trust, deed to secure debt, assignment of lease, security
agreement or other method of financing or refinancing.
(ii)
“Mortgagee” means the
holder or holders from time to time of a promissory note or notes executed by
Tenant evidencing a loan payable to the order of a Person and secured by a
Mortgage upon the leasehold interest of Tenant created hereby.
(jj)
“Offer Property” is
defined in Section 16.2(a).
(kk) “Permitted
Encumbrances” means Impositions, Legal Requirements, the Medical Center
Master Lease, the REA, and those covenants, restrictions, reservations,
conditions, encroachments, easements, encumbrances and other matters of title
that affect the Leased Property as of the date of this Lease as set forth on
Exhibit B
or arising during the Term of this Lease in accordance with the provisions of
this Lease.
(ll) “Person” means any
person, corporation, limited liability company, partnership (general or
limited), joint venture, association, trust, governmental entity or other
business entity or organization.
4
(mm) “Physicians” is
defined in Section 5.2(a).
(nn) “Prime Rate” is
defined as the rate announced from time to time by SunTrust Bank (or any
successor thereto) as its prime rate.
(oo) “Principal Subtenant”
is defined as The Specialty Hospital, LLC, a Georgia limited liability
company.
(pp) “Principal Subtenant
Sublease” shall mean the sublease between Tenant, as landlord, and the
Principal Subtenant, as tenant.
(qq) “Qualified Operator”
is defined in Section 10.1(b).
(rr) The
“REA” is
defined as the Declaration of Covenants, Restrictions and Easements executed by
Landlord, Tenant and the Hospital Authority and delivered as of even date
herewith and recorded in the real estate records of the Office of the Clerk of
the Superior Court of ▇▇▇▇▇ County, Georgia. A copy of the fully
executed REA is attached to this Lease as Exhibit
E.
(ss) “Realization
Proceeding” is defined as any foreclosure or other proceeding or other
transaction to enable the holder of a Leasehold Mortgage to realize the benefit
of the collateral encumbered by such Leasehold Mortgage.
(tt) “Rent” means Base Rent
and Additional Rent.
(uu) “Required Completion
Date” is defined in Section 4.3(d).
(vv) “RFR Transaction” is
defined in Section 16.2(a).
(ww) “ROFR Notice” is
defined in Section 16.2(a).
(xx) “Site Plan” means the
site plan dated December 19, 2008, and revised February 19, 2009, depicting
the LTACH Improvements and prepared by Tenant, a copy of which is attached
hereto as Exhibit C and
made a part hereof.
(yy) “Subtenants” shall
mean any and all subtenants of Tenant with respect to any portion of the LTACH
Improvements, including, but not limited to, the Principal Subtenant and ▇▇▇▇▇
Healthcare Subtenant, and each a “Subtenant.”
(zz) “Tenant’s Architect”
shall mean ▇▇▇▇ ▇▇▇▇▇▇▇▇ Associates, Inc., and other third party consultants,
subject to Landlord’s approval in its sole and absolute discretion.
(aaa) “Tenant Improvements”
is defined in Section 4.3(a).
(bbb) “Term” shall mean the
term of this Lease provided in Section 2.2, as such term may be extended from
time to time.
5
ARTICLE
II
GRANT AND TERM OF
LEASE
Section 2.1. Leasing
Clause. Subject to the terms and conditions contained in this
Lease and in consideration for the rents herein reserved and the covenants,
agreements, and stipulations herein made, Landlord hereby does lease the LTACH
Land, together with all rights, members and appurtenances in any manner
appertaining or belonging thereto (collectively, the “Leased Property”) to
Tenant and Tenant does hereby rent and take the Leased Property from Landlord,
upon and subject to the covenants and conditions hereinafter set
forth.
Section 2.2. Term of
Lease. TO HAVE AND TO HOLD the Leased Property for a term
commencing on the Effective Date and ending on March 31, 2049 (the “Expiration
Date”), unless earlier terminated as provided herein.
Section 2.3. Extension of Term of Medical
Center Master Lease. Should the term of the Medical Center
Master Lease, which expires on March 31, 2049, be extended by amendment thereto,
then subject to the terms of Section 2.4 below, the Term and the Expiration Date
hereunder shall also be extended automatically for so long as the Medical Center
Master Lease is extended by the parties thereto until the Term reaches eighty
(80) years, at which time this Lease shall expire.
Section 2.4. End of
Term.
(a) In
the event the Medical Center Master Lease terminates on its expiration date of
March 31, 2049, or any other date thereafter prior to the expiration of eighty
(80) years after the Effective Date, then Tenant shall have the right, provided
that no Event of Default shall exist under this Lease at such time, to require
that Landlord purchase the LTACH Improvements for a purchase price equal to the
value determined in accordance with Section 2.4(b). The closing shall
occur at such location in ▇▇▇▇▇ County, Georgia, as may be designated by Tenant
at a time during regular business hours on a business day to be designated by
Tenant at least one hundred twenty (120) days after the purchase price has been
determined under Section 2.4(b); provided that, if, by the date provided
for closing, the Term of the Medical Center Master Lease has been extended and
the Term of this Lease extended pursuant to Section 2.3, then the prior exercise
by Tenant of its right to require Landlord to purchase the LTACH Improvements
under this Section 2.4(a) shall be of no force or effect (it being
understood, however, that such right may be exercised again upon the subsequent
expiration of the Medical Center Master Lease prior to the date on which the
Term of this Lease reaches eighty (80) years). At the closing,
Landlord and Tenant shall execute and deliver such documents as may be
reasonably required in order to transfer and convey the LTACH Improvements to
Landlord, and Landlord shall pay to Tenant the purchase price for such
Improvements in immediately available funds.
6
(b) In
the event Tenant has the right to require Landlord to purchase the LTACH
Improvements and elects to exercise such right, the purchase price shall be
determined in accordance with the provisions of this Section
2.4(b). In the event Tenant has the right to require that Landlord
purchase the LTACH Improvements pursuant to Section 2.4(a), Tenant shall
exercise such right by delivering written notice of exercise to Landlord on any
date between ninety (90) days prior to the expiration of this Lease and ninety
(90) days following the expiration of this Lease. For a period of
thirty (30) days following the delivery of such notice to Landlord, Landlord and
Tenant shall endeavor in good faith to agree upon a value of the LTACH
Improvements. If Landlord and Tenant are able to agree upon such
value within such thirty (30) day period, then such agreed upon value shall be
the purchase price determined under this Section 2.4(b). In the event
Landlord and Tenant do not agree upon the value of the LTACH Improvements for
any reason within such thirty (30) day period, then Tenant shall obtain an
appraisal of the LTACH Improvements from an MAI appraiser selected by Tenant,
who is familiar with inpatient and acute care hospital properties in the
Southeastern United States. Upon receipt of such appraisal, Tenant
shall provide a copy of the same to Landlord. If Landlord is in
agreement with the value of the LTACH Improvements as determined in Tenant’s
appraisal, then such appraised value shall be the purchase price of the LTACH
Improvements under Section 2.4(a). In the event Landlord does not
agree with the value of the LTACH Improvements as determined in Tenant’s
appraisal, Landlord shall have a period of thirty (30) days following receipt of
Tenant’s appraisal in which to obtain a second appraisal from an MAI appraiser
selected by Landlord, who is familiar with inpatient and acute care hospital
properties in the Southeastern United States. Upon receipt of the
second appraisal, Landlord shall provide a copy of the same to
Tenant. If Landlord does not provide its appraisal to Tenant within
the time specified, then Landlord shall be presumed to have approved the value
of the LTACH Improvements as determined in Tenant’s appraisal. If the
two appraisals agree upon the value of the LTACH Improvements, then such agreed
upon value shall be the purchase price for the LTACH Improvements under Section
2.4(a). In the event the difference between the two appraisals does
not exceed five percent (5%) of the lower value of the two appraised values,
then the purchase price in Section 2.4(a) will be the average of the two values
determined in such appraisals. In the event the difference between
the two appraisals is more than five percent (5%) of the lower value, a third
MAI appraiser who is familiar with inpatient and acute care hospital properties
in the Southeastern United States shall be selected by Landlord and Tenant
jointly to appraise the LTACH Improvements. In the event Landlord and
Tenant are unable to agree upon the third MAI appraiser, then the third
appraiser who is familiar with inpatient and acute care hospital properties in
the Southeastern United States shall be selected by the Atlanta office of the
American Arbitration Association. Upon receipt of the third appraisal, Landlord
and Tenant shall both be provided copies. If two of the appraisals
establish the same value for the LTACH Improvements, then the value established
in such two appraisals will be the purchase price of the LTACH Improvements
under Section 2.4(a). If no two appraisals establish the same value,
then the value will be the average of the two appraised values that are the
closest to each other, with the third appraised value being
discarded. For purposes of the appraisals to be obtained in this
Section 2.4(b), each appraisal shall presume a lease term equal to the period
between the date of the appraisal and the remainder of an eighty (80) year term
commencing on the Effective Date. Each appraiser shall independently
and confidentially conduct the required appraisal. Tenant shall pay
the cost of the appraiser obtained by Tenant and Landlord shall pay the cost of
the appraiser obtained by Landlord. Landlord and Tenant shall split
equally the cost of designating the third appraiser and the cost of the third
appraisal in preparation of its appraisal.
(c) In
the event Tenant has the right to require Landlord to purchase the LTACH
Improvements under the terms of Section 2.4(a) and exercises such right and
Landlord does not consummate such purchase for any reason, then Tenant will have
the right to require that the Hospital Authority purchase the LTACH Improvements
under the same terms as provided in this Section 2.4. In executing
this Lease, the Hospital Authority expressly affirms its obligations under this
Section 2.4(c).
7
Section 2.5. Severability of Section
2.3.
(a) Landlord
and Tenant acknowledge and agree that Section 2.3 of this Lease shall be fully
severable. Should the provisions of Section 2.3 ever be found to be
illegal, invalid or unenforceable pursuant to the Georgia Hospital Authorities
Law or any other Legal Requirement or should Tenant request to Landlord, in
writing, that Section 2.3 of this Lease be severed, then (i) Section 2.3 shall
be deemed to be omitted from this Lease as if it never existed, (ii) this Lease
shall be construed and enforced as if Section 2.3 had never comprised a part
hereof, (iii) the remainder of this Lease shall remain in full force and effect
and shall not be affected by Section 2.3 or by its severance, and (iv) the Term
of this Lease shall be valid and in full force and effect until March 31, 2049,
at which time this Lease shall terminate. It is agreed that the
provisions of Section 2.4 shall be the sole remedy available to Tenant in the
event of any severance of Section 2.3 or in the event Section 2.3 is
otherwise unenforceable and that the rights of Tenant under Section 2.4(b)
shall be exercisable only during the one-hundred eighty (180) day period
provided in Section 2.4(b).
(b) As
a condition of the inclusion of Section 2.3 into this Lease, Tenant acknowledges
and agrees that Landlord and the Hospital Authority make no representation or
warranty, express or implied, to Tenant or to any other Person, as to the
legality, enforceability, or validity of Section 2.3 or any other provisions of
this Lease relating thereto. Tenant hereby forever waives all claims,
demands, obligations, and causes of action against and further releases Landlord
and Hospital Authority, and their Affiliates, from any and all liability
pertaining to the legality, enforceability, or validity of Section 2.3 and the
effect that Section 2.3 may have upon the legality, enforceability, or validity
of this Lease. Under no circumstances shall Landlord or Hospital
Authority be obligated to become liable for or subject to any liability,
indebtedness, cost, commitment, or obligation, whether known or unknown, fixed
or contingent, recorded or unrecorded, currently existing or hereafter arising
or otherwise because of Section 2.3 of this Lease. This Section
2.5(b) shall survive the expiration or termination of this Lease.
ARTICLE
III
RENT
Section 3.1. Annual Base
Rent. Beginning on the Commencement Date, Tenant agrees to pay
Landlord, without prior demand therefor, and without set-off or deduction, a
yearly base minimum rent in the amount of Twenty-six Thousand Four Hundred
Eighteen and No/100 Dollars ($26,418.00), payable in monthly installments, each
in the amount of Two Thousand Two Hundred One and 50/100 Dollars
($2,201.50) plus an annual parking charge in an amount pursuant to the paragraph
below (collectively, the base minimum rent and parking charge shall be defined
herein as the “Base
Rent”). In the event the Commencement Date falls on a day
other than the first day of a calendar month, then the monthly installment of
Base Rent shall be prorated for such month. In the event this Lease
expires or is terminated on a day that is other than the last day of a calendar
month, then the Base Rent for the month in which the Term expires or is
terminated shall be prorated. Tenant shall pay the Base Rent to
Landlord at Landlord’s address set forth in Section 17.5 of this Lease, or at
such other place as Landlord may from time to time designate to Tenant in
writing (in accordance with Section 17.5 of this Lease), in funds which at the
time of such payment shall be legal tender for the payment of public or private
debts in the United States of America.
8
Beginning on the Commencement Date,
Tenant shall also pay to Landlord an annual parking charge that shall be part of
the Base Rent and initially shall be equal to the product of One Hundred and
No/100 Dollars ($100.00) multiplied by the number of parking spaces which are
allocated for Tenant’s use under Section 2.2 of the REA (initially, 120 spaces),
being initially Twelve Thousand and No/100 Dollars ($12,000.00) per
year. In the event Tenant should demand the LTACH Exclusive Parking
Rights, as provided for in the REA, then from and after the date that Tenant
begins to have such exclusive parking, the amount of the parking charge that
shall be part of the Base Rent shall be increased to One Hundred Twenty-Five
Percent (125%) of the parking charge then in effect at the time that Tenant
begins to have such exclusive parking, with the amount prorated for any partial
calendar year. Both the minimum rent and the parking charge that
comprise the Base Rent shall be subject to adjustment pursuant to Section 3.5
below.
Section 3.2. Additional
Rent. From and after the Commencement Date, Tenant hereby
agrees to pay all Additional Rent to Landlord or to such other Person as
Landlord may direct or as is required under this Lease at such time as such
Additional Rent is due and payable as required under this Lease.
Section 3.3. Late
Charge. If any installment of Base Rent is not paid within ten
(10) days after the same is due (after giving effect to any applicable notice
and/or cure periods under this Lease), Tenant shall pay to Landlord on demand,
as Additional Rent, a late charge equal to three percent (3%) on such overdue
installment of Base Rent.
Section 3.4. Interest. In
addition to the late charge provided in Section 3.3, if Tenant shall fail to
make payment of any installment of Base Rent or any Additional Rent within ten
(10) days after the date when each such payment is due (after giving effect to
any applicable notice and/or cure periods under this Lease), Tenant shall pay to
Landlord interest at a rate equal to the Default Rate on the amount unpaid
computed from the date such payment of Base Rent or Additional Rent was due up
to and including the date of payment.
Section 3.5. Adjustment to Base
Rent. The initial amount of Base Rent is set forth in Section
3.1 above. On the fifth (5th)
anniversary of the Commencement Date, and on every fifth (5th)
anniversary of the Commencement Date thereafter, the Base Rent shall increase by
ten percent (10%) over the Base Rent then in effect.
9
ARTICLE
IV
GOVERNMENTAL APPROVALS;
BUILDING PLANS; CONSTRUCTION OF IMPROVEMENTS; ALTERATIONS; LANDLORD APPROVAL;
EASEMENTS
Section 4.1. Site Plan
Approvals. Landlord and Tenant expressly approve the Site Plan
attached hereto as Exhibit C and made a
part hereof for all purposes. Tenant agrees not to materially modify
or amend the Site Plan without Landlord’s prior written approval, such approval
not to be unreasonably withheld, delayed or conditioned.
Section 4.2. Building
Plans. Landlord and Tenant have approved the Building Plans
except as provided below. Any changes in the Building Plans during
the initial construction of the LTACH Improvements which (i) are made to the
exterior of the LTACH Improvements, (ii) are made to the two-story
connector between the LTACH Improvements and the main hospital building and
(iii) are made to the interior of the LTACH Improvements that materially affect
the access to the two-story connector from the LTACH Improvements shall require
the approval of Landlord, such approval not to be unreasonably withheld, delayed
or conditioned. Any other change to the Building Plans shall not
require the approval of Landlord under this Lease. In the event
Landlord does not respond to any requested change within five (5) days after
drawings and other materials pertaining to the proposed change have been
delivered to Landlord, such proposed change shall be deemed
approved. Any approval by Landlord of the Building Plans will not in
any way be construed or deemed to constitute a representation or warranty by
Landlord as to the adequacy or sufficiency of the Building Plans or the
improvements to which they relate, for any reason, purpose or condition, but
such approval will merely be the consent of Landlord as may be required
hereunder. Notwithstanding the foregoing, changes in the Building
Plans which, in the determination of Tenant, must be made in order to
accommodate any Legal Requirements, shall not require Landlord’s prior written
approval, but Tenant shall provide Landlord with a copy of such change and
explanation of the basis for the change.
Section 4.3. Construction of
Improvements.
(a) Tenant
covenants and agrees, at its sole expense, to construct, or cause to be
constructed, with all commercially reasonable due diligence the LTACH
Improvements in a good and workmanlike manner and substantially in accordance
with the Site Plan and the Building Plans, subject to the terms of Section 4.2
or changes to accommodate reasonably unforeseeable conditions. The
LTACH Improvements shall include interior partitions, interior mechanical,
plumbing, electric, finishes and other tenant improvements required to produce
completed space ready for use and occupancy in accordance with the Site Plan and
the Building Plans (such partitions, finishes and other tenant improvements
being, collectively, the “Tenant
Improvements”), to the extent provided in the Building
Plans. The LTACH Improvements shall be constructed by the General
Contractor; provided that Tenant reserves the right to replace the General
Contractor under the circumstances provided in the agreement between Tenant and
the General Contractor and subject to the limitations set forth in Section
1.1(r). In addition to the other insurance requirements set forth in
this Lease, from the commencement of construction until completion of the LTACH
Improvements, Tenant shall maintain or cause its contractors to maintain,
general liability and other types of insurance meeting the requirements of Exhibit H attached
hereto and made a part hereof.
10
(b) In
the event Tenant fails to commence construction of the LTACH Improvements on or
before January 15, 2010, then either party, by written notice to the other sent
prior to the commencement of construction, may terminate this Lease effective on
the date such written notice is received by the other
party. Notwithstanding anything to the contrary contained herein, the
provisions of Article XI of this Lease shall not apply to a termination of this
Lease pursuant to this Section 4.3(b). Construction of the LTACH
Improvements shall be deemed commenced upon Tenant’s delivery to General
Contractor of a notice to proceed with construction. The date on
which construction is to be commenced shall be extended on a day-for-day basis
by any delay due to unforeseeable causes beyond Tenant’s reasonable control and
without Tenant’s fault or gross negligence, including, but not limited to, acts
of God, fires, floods, strikes, war, terrorist activity, changes in the Site
Plan or Building Plans ordered by Landlord or its employees, agents or
representatives or any governmental authority, delays caused by Landlord (either
in its capacity as landlord under this Lease or as tenant under the ▇▇▇▇▇
Healthcare Management Sublease) or its employees, agents or representatives or
any governmental authority, unusually severe weather conditions not reasonably
foreseeable, and delays caused by the tenant under the Principal Subtenant
Sublease, but excluding delays caused by the acts or omissions of Tenant’s
contractors, subcontractors, material or equipment suppliers (except to the
extent that Landlord refuses to accept substitute materials), architects or
engineers, or the failure or inability of Tenant to provide sufficient capital
and/or secure adequate financing to fund costs of construction in excess of
those funds to be obtained under the Construction Loan. Landlord
shall diligently and promptly respond to all of Tenant’s and its contractors’
inquiries regarding the construction of the LTACH Improvements so as not to
delay the completion of the LTACH Improvements.
(c) Tenant
covenants and warrants to Landlord that (i) all materials and equipment
furnished will be new, unless otherwise specified, (ii) the LTACH
Improvements will be of good quality, free from faults and defects, and
(iii) the LTACH Improvements will be in full compliance with all applicable
Legal Requirements. Without limiting the generality of the foregoing,
if within one (1) year after the date of substantial completion of all of the
LTACH Improvements, or within such longer period of time as may be prescribed by
law or the terms of any applicable special warranty required by the Site Plan
and Building Plans, any of such LTACH Improvements or any part or element
thereof is found to be defective or not in accordance with the Site Plan and
Building Plans, Tenant shall correct or cause the same to be corrected promptly
after receipt of written notice from Landlord to do so, unless Landlord has
previously given Tenant a written acceptance of such condition.
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(d) In
the event the LTACH Improvements are not substantially completed in substantial
accordance with the Site Plan and Building Plans by February 28, 2011, (the
“Required Completion
Date”), then Landlord may thereafter, upon one hundred twenty (120) days
written notice to Tenant, at Landlord’s option, purchase the LTACH Improvements
and terminate this Lease; provided, however, this right
and option shall terminate if Tenant substantially completes construction of the
LTACH Improvements substantially in accordance with the Site Plan and Building
Plans within ninety (90) days after delivery of such written notice to Tenant
(the “Completion Cure
Date”). Landlord may exercise the foregoing option by
delivering written notice thereof within thirty (30) days after the Required
Completion Date. Time shall be of the essence in delivering such
notice. If Landlord does not deliver notice exercising its right to
purchase the LTACH Improvements within the thirty (30) day period provided, then
Landlord’s right to purchase the LTACH Improvements under this Section 4.3(d)
shall irrevocably terminate. The LTACH Improvements shall be
substantially complete when such improvements are completed substantially in
accordance with the Site Plan and Building Plans and a certificate of occupancy
for the LTACH Improvements by the appropriate governmental authority has been
issued and a copy thereof has been delivered to Landlord. The
substantial completion of the LTACH Improvements shall be determined in
accordance with the General Contract. The Required Completion Date
shall be extended on a day-for-day basis by any delay due to reasonably
unforeseeable causes beyond Tenant’s control and without Tenant’s fault or
negligence, specifically including within such causes or delay beyond Tenant’s
control, but not limited to, acts of God, fires, floods, strikes, war, terrorist
activity, changes in the Site Plan and Building Plans ordered by Landlord
(either in its capacity as Landlord hereunder or as tenant under the ▇▇▇▇▇
Hospital Management Sublease), its employees, agents or representatives or any
governmental authority, delays caused by Landlord, its employees, agents or
representatives or any governmental authority, unusual weather conditions not
reasonably anticipatable, and delays caused by the tenant under the Principal
Subtenant Sublease, and specifically including delays caused by the acts or
omissions of Tenant’s contractors, subcontractors, material or equipment
suppliers, architects or engineers, but excluding the
failure or inability of Tenant to provide sufficient capital to fund costs of
construction.
(e) The
purchase price for the purchase of the LTACH Improvements pursuant to the option
set forth in Section 4.3(d) shall be equal to the amount of the following costs
incurred by Tenant through and including the date Landlord closes the purchase
of the LTACH Improvements: (a) all amounts actually paid to third
party contractors, material and equipment suppliers, architects, engineers and
other consultants which have been incurred in connection with the design and
construction of the LTACH Improvements (including without limitation all amounts
paid to acquire the rights to utilize the Building Plans, payments and/or
reimbursements made in the ordinary course or otherwise reasonably required in
connection with the design and construction of the LTACH Improvements); (b) any
amounts that are owed by Tenant as retainage under any construction contract;
(c) amounts paid as fees, reimbursements and other costs required to close the
loan to finance the construction of the LTACH Improvements; (d) any fees
required to be paid to equity investors at the initial closing; and (e) any
amount owing to third parties in connection with the construction of the LTACH
Improvements which have not been paid and any other costs or expenses that were
incurred in connection with the construction of the LTACH Improvements and
financed with the proceeds of any construction loan obtained by Tenant from a
financial institution in connection with the development of the LTACH Land,
including any other capital contributed by the Tenant; provided that
[1] any fees or other compensation paid to any Affiliate of Tenant shall
either (i) be as provided in the development budget approved by the
Leasehold Mortgagee providing the construction financing, with a copy of the
same being provided to Landlord upon approval of the same by the Leasehold
Mortgagee, or (ii) otherwise be in amounts consistent with amounts that
would have been payable to third parties in arms length transactions for the
services rendered or other items provided by such Affiliates, and [2] such
purchase price shall not include any amounts in excess of budgeted amounts for
work required as a result of the gross negligence or willful misconduct of
Tenant. At closing, Landlord shall either assume the obligations of
Tenant under the General Contract, contract with Tenant’s Architect and any
other contracts which Tenant has entered into with respect to the design and/or
construction of the LTACH Improvements which have not been fully performed or
pay to Tenant at closing such amount as shall be required in order to terminate
such contracts (whether such termination is through the exercise of a
termination right in such contract or by negotiation with the parties to such
contracts). Any amounts payable with respect to such contracts shall
be included in the purchase price. Landlord may exercise the
foregoing option by delivering written notice within the time provided in
Section 4.3(d); provided, however, this right
and option shall terminate if Tenant achieves substantial completion of the
LTACH Improvements substantially in accordance with the Building Plans before
the later of (x) the Completion Cure Date or (y) delivery of such notice to
Tenant. The closing of such purchase shall take place on the date
which is thirty (30) days after the date the purchase option is exercised as
provided above, unless such day is a Saturday, Sunday, or legal holiday, in
which event the closing shall be on the next business day
thereafter. At least ten (10) days prior to the closing, Tenant shall
furnish Landlord with a detailed breakdown of the amounts that are included in
the calculation of such purchase price. Such purchase price shall be
paid in full at the closing of such purchase, although Landlord may, at its
option, use all or any portion of such purchase price as may be necessary to
discharge any mortgages or other liens affecting the LTACH Land. Any
mechanic’s or materialmen’s lien claims not released at closing may be bonded in
accordance with applicable legal requirements. In the event that,
after giving effect to any bonding, the aggregate amount required to pay and
discharge all such mortgages or liens exceeds such purchase price, Tenant shall
pay all such additional sums and obtain full releases and discharges of any such
mortgages or other liens at closing. At the closing, Tenant shall
execute a termination of this Lease and a quit claim deed for the LTACH
Improvements to Landlord and return the LTACH Land to Landlord, free and clear
of all Mortgages and other encumbrances whatsoever, excepting real estate taxes
not yet due and payable and other Permitted Encumbrances.
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(f) The
following are conditions precedent to Tenant’s obligations to construct the
LTACH Improvements:
(i) Tenant
shall have received all governmental permits and approvals necessary or
appropriate for the development and construction of the LTACH Improvements, all
of which shall be on terms and conditions approved by both Tenant and Landlord
(whose approval shall not be unreasonably withheld, conditioned or delayed),
including, but not limited to (A) all approvals required under Legal
Requirements; (B) all permits and approvals necessary for the commencement of
construction of the LTACH Improvements; and (C) tap permits or connections for
water and sanitary sewer service to the LTACH Land; provided, that Tenant shall be
required to use commercially reasonable efforts to diligently pursue the receipt
of such governmental permits and approvals.
(ii) Tenant
and Landlord shall have reasonably determined the location and boundaries of the
LTACH Land, which shall be consistent with Exhibit A-2.
(iii) Tenant
shall have prepared or caused to be prepared using reasonable diligence and
Landlord shall have approved, in writing, the Site Plan, survey (which shall be
delivered to Landlord contemporaneously with the delivery of such survey to
Tenant’s lender), and metes and bounds description for the LTACH
Land.
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(iv) Tenant
shall have obtained using reasonable diligence and approved, in its reasonable
discretion, a commitment for title insurance.
Section 4.4. Alterations. At
any time during the Term (after the completion of the initial LTACH
Improvements), Tenant, at its sole expense, may make interior, exterior and
structural alterations and additions to any portion of the LTACH Improvements;
provided, that (i) with respect
to any alterations made to the exterior of the LTACH Improvements, made to the
two-story connector between the LTACH Improvements and the main hospital
building or are made to the interior of the LTACH Improvements that materially
affect access to the two-story connector from the LTACH Improvements, Tenant
shall first obtain Landlord’s prior written consent, which shall not be
unreasonably withheld, conditioned or delayed and (ii) the additions and
alterations shall be constructed expeditiously with good materials in a good and
workmanlike manner and in accordance with all Legal Requirements. In
the event any consent is requested, such consent shall be presumed except to the
extent disapproved in writing by written notice delivered to Tenant within
thirty (30) days after the date of delivery of the written request for such
consent to Landlord. All alterations and additions made in accordance
with this Section shall become part of the LTACH Improvements and shall remain
the property of Tenant during the Term.
Section 4.5. Zoning and
Permits. To the extent not previously obtained, Tenant, at its
sole cost and expense shall be responsible for and shall obtain all governmental
permits and approvals necessary or appropriate for the construction of the LTACH
Improvements including, but not limited to, (i) all approvals required under
land use laws and ordinances, (ii) all required planning and zoning approvals,
(iii) all required building permits and approvals, and (iv) tap permits or
connections for water and sanitary sewer services to the Leased
Property. Landlord agrees, upon Tenant’s request to cooperate and
assist Tenant in Tenant’s efforts to secure any necessary approvals or permits
and to join in applications for zoning matters, building permits, certificates
of occupancy, and all other applications for licenses, permits and approvals for
which the signature of Landlord or the owner is required by applicable
law.
Section 4.6. Surrender of LTACH
Improvements. All LTACH Improvements (with the exception only
of movable trade fixtures, furniture, furnishings, or other personal property
owned by Tenant or any Subtenant) shall be surrendered to and become the
absolute property of Landlord upon the expiration or earlier termination of the
Term, whether by expiration of time or otherwise as provided
herein.
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Section 4.7. Mechanic’s and Materialmen’s
Liens. Tenant will not create or permit to be created or to
remain, and will promptly discharge, at its sole cost and expense, any lien,
encumbrance or charge upon the LTACH Land, any part thereof or upon Tenant’s
leasehold interest, which arises out of the use or occupancy of the LTACH Land
by Tenant (other than any Leasehold Mortgage arising in accordance with the
terms of this Lease) or by reason of any labor or materials furnished or claimed
to have been furnished to Tenant or by reason of any construction, addition,
alteration or repair of any part of the LTACH Land. If any such lien
is filed against the LTACH Land, Tenant shall, within sixty (60) days after
notice of the filing thereof, cause such lien to be released or discharged with
respect to the LTACH Land by payment or bonding (provided that, no new bond will
be required if the claim arises by, through or under any subcontractor or
material supplier of the General Contractor and the General Contractor has
provided a payment bond). Nothing contained in this Lease shall be
construed as constituting the consent or request of Landlord, expressed or
implied, to or for the performance by any contractor, laborer, materialman, or
vendor of any labor or services or for the furnishing of any materials for any
construction, alteration, addition, repair or demolition of or to the Leased
Property, or any part thereof. Notice is hereby given that Landlord
will not be liable for any labor, services or materials furnished or to be
furnished to Tenant, or to anyone holding the Leased Property or any part
thereof through or under Tenant, and that no mechanic’s or other liens for any
such labor, services or materials shall attach to or affect the interest of
Landlord in and to the Leased Property. After prior written notice to
Landlord, Tenant shall not be required to discharge or remove any lien referred
to in this Section so long as Tenant (or any Subtenant, the General Contractor
or any direct subcontractor of the General Contractor) shall contest, in good
faith and at its expense, the existence, the amount or the validity thereof or
the amount of the damages caused thereby by appropriate proceedings which shall
operate during the pendency thereof to prevent (i) the collection of, or other
realization upon, the lien so contested, (ii) the sale, forfeiture or loss of
any of the Leased Property, any Base Rent or any Additional Rent to satisfy the
same, (iii) any interference with the use or occupancy of any of the Leased
Property, and (iv) any interference with the payment of any Base Rent or any
Additional Rent. In no event shall Tenant pursue any contest with
respect to any lien that exposes Landlord to any defeasance of its interest in
the Leased Property. Tenant agrees that each such contest shall be
promptly and diligently prosecuted to a final conclusion, except that Tenant
shall have the right to attempt to settle or compromise such contest through
negotiations. Tenant shall indemnify and hold Landlord harmless
against any and all losses, judgments, decrees and costs (including reasonable
attorneys’ fees and expenses) in connection with any such contest and shall,
promptly after the final determination of such contest, fully pay and discharge
the amounts which shall be levied, assessed, charged or imposed or be determined
to be payable therein or in connection therewith, together with all penalties,
fines, interest, costs and expenses thereof or in connection therewith, and
perform all acts the performance of which shall be ordered or decreed as a
result thereof.
Section 4.8. Landlord
Approval. Landlord has an interest in assuring that the LTACH
Improvements shall complement the Medical Center and all present and future
development on the Medical Center Land and the buildings, structures,
landscaping and related improvements located thereon. Therefore,
Landlord shall have the right to approve any plans and designs of any new
construction on the LTACH Land or any exterior modifications or additions to the
buildings, improvements and landscaping situated on the LTACH Land, including,
without limitation, the LTACH Improvements, which approval shall not be
unreasonably withheld conditioned or delayed; provided, that in no
event shall the LTACH Improvements contain a long term acute care hospital of
more than approximately sixty-one thousand five hundred (61,500) square feet
unless a larger long term acute care hospital is consented to by Landlord, which
consent may be given or withheld at Landlord’s sole and absolute
discretion. Any approval requested by Tenant from Landlord shall be
deemed given except to the extent disapproved by Landlord in written notice from
Landlord received by Tenant within thirty (30) days after Landlord’s receipt of
Tenant’s request.
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Section 4.9. Pedestrian Connection
Hallway. Tenant acknowledges and agrees that Tenant shall
construct a pedestrian connection hallway on the LTACH Land between the main
hospital building of the Medical Center and the LTACH, as provided on the Site
Plan and the Building Plans. Tenant shall be responsible for the cost
in connection with the construction of the pedestrian connection hallway in
accordance with the Site Plan and Building Plans. The costs for
maintenance and insurance of such hallway shall be the responsibility of Tenant
in accordance with the provisions of the REA, which provides for easement rights
in favor of the Landlord to cross through the lobby and interior hallways of the
LTACH to reach the pedestrian connection hallway and other buildings on the
Medical Center Land. Tenant shall, at all times throughout the Term,
operate and maintain the pedestrian connection hallway in a state of good
condition and repair, suitable for use for pedestrian ingress and egress as set
forth herein, including, without limitation, maintenance and repair of surfaces,
removal of all paper, debris, rubbish, filth, and refuse, and the provision of
utility services.
Section 4.10. Easements. Landlord
and Tenant agree that the REA provides for appropriate easements, covenants, and
restrictions for utilities, parking on the Medical Center Land, and other
matters. Landlord shall have the right to grant similar easements,
leases, and licenses to others for the use of parking areas on the Medical
Center Land as shall be determined, as and to the extent provided in the
REA.
Nothing
contained herein shall be construed or deemed to constitute a dedication,
express or implied, of any real property to or for any public use or purpose
whatsoever. In connection with the use and enjoyment of the rights
granted and declared herein for the benefit of Tenant, Tenant shall comply with
all Legal Requirements.
Section 4.11. Expansion
Space. From the period commencing January 15, 2010, and
expiring on January 14, 2013, Landlord may request in writing that Tenant
construct an expansion to the LTACH Improvements of up to fifty thousand four
hundred forty-one (50,441) square feet on three (3) floors of the LTACH
Improvements (the “Expansion Space”) and leasing of such Expansion Space to one
or more proposed users (collectively, the “Expansion Space
Users”). Landlord will be responsible for providing proposed
Expansion Space Users who will occupy the entire Expansion Space.
All
Expansion Space Users and the terms and conditions of the subleases covering the
Expansion Space (collectively, the “Expansion Space Subleases”), together with
any guarantors of any Expansion Space Users and the terms and conditions of any
guaranties of Expansion Space Subleases which may be required by Tenants, must
be acceptable to Tenant in Tenant’s sole and absolute discretion. In
any event, all Expansion Space Subleases must be triple-net, inclusive of the
share of each premises in the Expansion Space of any capital expenditures
required to operate and maintain the LTACH Improvements. Prior to any
request that Tenant undertakes to construct the Expansion Space, (i) Landlord
shall obtain and provide to Tenant the consent of the Hospital Authority under
the Medical Center Master Lease for the construction of the Expansion Space, and
(ii) Landlord shall provide to Tenant such consent for the construction of the
Expansion Space that may be required under the REA, both of which consents shall
be in form and substance acceptable to Tenant in Tenant’s sole and absolute
discretion. The items required under the foregoing provisions of this
paragraph are herein collectively called the “Expansion Space Precondition
Documents.” Upon receipt and approval of the Expansion Space
Precondition Documents, Tenant will seek such financing as is required in order
to finance the construction of the Expansion Space.
16
Landlord
recognizes that Tenant’s existing lender will have a lien on the Expansion Space
under its existing mortgage or deed of trust. Therefore, the existing
lender will likely be approached by Tenant to provide financing for the
Expansion Space. If Tenant cannot obtain financing from the existing
lender, Tenant will seek other financing in order to refinance the existing debt
owed to existing lender and obtain construction financing for the construction
of the Expansion Space in the LTACH Improvements. Landlord
acknowledges that, if the business terms and economics of such refinancing are
less favorable to Tenant than the existing indebtedness with the existing
lender, Landlord agrees to make Tenant financially whole in such amounts and
manner as may be required by the circumstances, as Tenant may
determine.
If the
terms of the refinancing relative to the new debt for the construction of the
Expansion Space are such that such new debt (and/or preferred return on any
equity funding) would not be adequately provided by the income stream from the
Expansion Space Subleases, Landlord acknowledges that the Expansion Space
Subleases will have to be modified or amended in such manner as to provide an
income stream under such Expansion Space Subleases as will be capable of meeting
the proposed debt service for such new debt. If Tenant fails to
approve any of the Precondition Documents or if Tenant cannot obtain financing
for the construction of the Expansion Space, then Landlord will have the right
to deliver a written notice to Tenant (the “Landlord Purchase Notice”) setting
forth Landlord’s desire to purchase the LTACH Improvements from
Tenant. The date of delivery of the Landlord Purchase Notice is
herein called the “Landlord Purchase Notice Delivery Date.” Tenant
may also deliver to Landlord a written notice (the “Tenant Purchase Notice”)
advising Landlord that the terms and conditions under which the Expansion Space
could be constructed are not satisfactory to Tenant. In the event of
the delivery of the Tenant Purchase Notice, Landlord will have thirty (30) days
from the receipt of the Tenant Purchase Notice to deliver the Landlord Purchase
Notice. Failure to deliver the Landlord Purchase Notice within such
thirty (30) day period will constitute a waiver of any purchase right that
Landlord may have under this Section. In the event Landlord delivers
the Landlord Purchase Notice in accordance with this Section, then Landlord and
Tenant agree that they will in good faith negotiate a price and terms of sale in
order for Tenant to sell the LTACH Improvements to Landlord during a period of
sixty (60) days, following the Landlord Purchase Notice Delivery Date, provided
that, the parties agree that neither party has any obligation to buy or sell the
LTACH Improvements. Further, in the event Landlord and Tenant are not
able to agree upon the terms of such sale and consummate the same within such
sixty (60) day period, then neither party shall have any further obligation to
negotiate or pursue the sale of the LTACH Improvements by Tenant to
Landlord.
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ARTICLE
V
USE OF LEASED
PROPERTY
Section 5.1. Use of Leased
Property.
(a) The
Leased Property shall be used subject to and in accordance with this
Article V. So long as the Principal Subtenant Sublease remains
in effect, the portion of the LTACH Improvements leased thereunder shall be used
only (i) as a licensed long term acute care hospital facility and (ii) for such
other uses as may be necessary, incidental, profitable or complimentary for such
use, subject to the restrictions contained in Section 5.2. So long as
any portion of the LTACH Improvements is leased to ▇▇▇▇▇ Healthcare Management,
Inc., or its Affiliate, successor or assign, such premises may be utilized for
any purposes permitted under the applicable ▇▇▇▇▇ Healthcare Management
Sublease. Upon expiration or earlier termination of the Principal
Subtenant Sublease, the portions of the LTACH that were subject to the Principal
Subtenant Sublease as well as any other portions of the LTACH Improvements not
subleased to ▇▇▇▇▇ Healthcare Management, Inc., or its Affiliate, successor or
assign, shall not be utilized for any use that is prohibited by this Lease or
the REA, including, by way of example and not limitation, those prohibited uses
and restrictions set forth in Section 5.2 below. Tenant may request
in writing Landlord’s interpretation of a proposed use of the Leased Property to
determine if it is Landlord’s opinion that such a proposed use would be in
violation of the uses precluded in this Article V. Landlord
shall advise Tenant in writing within ten (10) days of receipt of Tenant’s
request if in Landlord’s opinion such proposed use would create a violation of
the uses precluded by this Article V. If Landlord advises that
the proposed use would be in violation, then the proposed use shall be precluded
on the Leased Property. If Landlord fails to timely respond then the
proposed use shall be deemed to be permitted under this Lease.
(b) In
no event shall the Leased Property be used for any purpose which would
constitute a public or private nuisance or waste or which would violate any of
the provisions of any Permitted Encumbrances, (including, without limitation,
the Medical Center Master Lease), any Legal Requirements or any covenants or
restrictions applicable to the Leased Property. Tenant agrees that
with respect to the Permitted Encumbrances (including, without limitation, the
Medical Center Master Lease) and any such covenants or restrictions existing as
of the date of this Lease, Tenant shall observe, perform and comply with and
carry out the provisions thereof required therein to be observed and performed
by Landlord.
(c) Tenant
shall not permit any unlawful occupation, business or trade to be conducted on
the Leased Property or any use to be made thereof contrary to applicable Legal
Requirements. Tenant shall not use, occupy or permit any of the
Leased Property to be used or occupied, nor do or permit anything to be done in
or on any of the Leased Property, in a manner which would (i) make void or
voidable any insurance which Tenant is required hereunder to maintain then in
force with respect to any of the Leased Property, (ii) affect the ability of
Tenant to obtain any insurance which Tenant is required to furnish hereunder, or
(iii) cause any injury or damage to any of the LTACH Improvements except
ordinary wear and tear.
(d) Subject
to all of the provisions of this Lease, so long as no Event of Default exists
hereunder, Landlord covenants to do no act to disturb the peaceful and quiet
occupation and enjoyment of the Leased Property by Tenant; provided that
Landlord may enter upon and examine any of the Leased Property during business
hours upon reasonable notice (or at any time and without notice in case of
emergency) and exercise any rights and privileges granted to Landlord under the
provisions of this Lease and at law.
Section 5.2. Restrictions.
(a) Landlord
and Tenant acknowledge and agree that contemporaneously with execution of this
Lease, Tenant is entering into the Principal Subtenant Sublease and the ▇▇▇▇▇
Healthcare Management Sublease. The practice of medicine on the LTACH
Land shall be conducted only by physicians (“Physicians”) licensed
to engage in the private practice of medicine for the care and treatment of
human beings and other related activities incidental thereto, and for no other
purpose.
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(b) Physicians
who conduct a medical practice and related activities on the LTACH Land and any
other medical providers who conduct healthcare activities on the LTACH Land
shall not be permitted to provide any of the following services or procedures,
except for the limited purpose of serving the patients admitted to the long term
acute care hospital on the LTACH Land: (i) any form of testing for diagnostic or
therapeutic purposes, provision or operation of a laboratory (including, without
limitation, a pathology laboratory or a clinical laboratory), diagnostic imaging
services (which include, without limitation, the following testing facilities:
fluoroscopy, x-ray, plain film radiography, computerized tomography (CT)
ultrasound, radiation therapy, mammography and breast diagnostics, nuclear
medicine testing and magnetic resonance imaging), and (ii) physical therapy
services or respiratory therapy service. In no event shall any of
the services set forth above be offered and/or provided to any patient other
than an admitted patient at one of the forty-five (45) beds at the long term
acute care hospital operated pursuant to the Principal Subtenant Sublease,
except with the prior written consent of the Landlord, which may be given or
withheld at Landlord’s sole and absolute discretion.
(c) In
no event shall the LTACH Land or any part thereof be used for the following
activities without the prior written consent of Landlord, which consent may be
given or withheld in its sole and absolute discretion: (i) the operation of an
acute care general hospital, a specialty hospital (other than a long term acute
care hospital as described in Section 5.2(a) above), a rehabilitation center, an
extended care facility (other than a long term acute care hospital as described
in Section 5.2(a) above), a nursing home, an outpatient or inpatient clinic,
surgical center, emergency center, diagnostic imaging services, a laboratory, a
home health service, a birthing center, a health maintenance organization or
similar direct care provider, an ambulance service, a kidney dialysis center, or
an inhalation or physical therapy center, (ii) any purpose that is in violation
of any law, code, ordinance, zoning ordinance or condition or governmental rule
or regulation, (iii) any purpose reasonably deemed by Landlord or its insurer to
be extrahazardous on account of fire risk, (iv) any purpose that would
reasonably cause a cancellation of any insurance policy covering the Medical
Center, (v) any operation which creates a nuisance, (vi) any use that results in
any noise or sound that would be reasonably objectionable to the occupants of
the Medical Center due to intermittence, beat, frequency, shrillness, or
loudness of the noise, (vii) any use that results in any obnoxious odor, (viii)
any use that results in the use of any portion of the Leased Property for the
storage of any inflammable, combustible, or explosive fluid, or chemical
substance, other than reasonable amounts of cleaning fluids and solvents or
other materials required in the normal operations at the Leased Property, (ix)
any use that causes improper dumping, disposal, treatment, storage,
incineration, or reduction of wastes, garbage, or refuse, or (x) any retail use,
including, without limitation, any restaurant, snack bar (other than vending
machines offering beverages and light snacks), sandwich shop, gift shop,
pharmacy, entertainment facility, theater, department store, specialty retail
shop, or any other similar use; provided that, any
determination under the foregoing clauses (iii), (iv), (v), (vi), (vii) and
(viii) shall take into account and not preclude those activities which are in
the normal course of operating a long term acute care hospital
facility. Tenant shall indemnify and hold harmless Landlord against
all costs, expenses, damages, liability, or loss caused by any violation hereof
of any provision of this Article V.
19
(d) No
drugs or medicines may be dispensed on the LTACH Land to persons other than the
patients of Physicians that are admitted to the facilities on the LTACH
Land. The installation and use of any diagnostic, laboratory or
radiology equipment on the LTACH Land shall be subject to the prior written
approval of Landlord, which shall not be unreasonably withheld, and prior to the
installation of any such equipment on the LTACH Land, Landlord shall be provided
with a list of such equipment and its intended use.
ARTICLE
VI
TAXES AND
ASSESSMENTS
Section 6.1. Payment of
Taxes. Subject to the provisions of Section 6.3 hereof
relating to contests, during the Term, Tenant shall annually return or cause to
be returned the Leased Property, the LTACH Land, and the LTACH Improvements for
real estate and personal property taxes, and shall pay or cause to be paid on or
before the last day on which such may be paid without penalty, all real estate
and personal property taxes, water rents, sewer charges, other impositions, and
assessments that are levied or assessed upon the Leased Property, the LTACH
Land, and the LTACH Improvements during the Term, including, without limitation
(all of the preceding and following being herein collectively called the “Impositions”): all
taxes of every kind and nature (including real, ad valorem, and personal
property taxes) on or with respect to the LTACH Land, LTACH Improvements or
Leased Property; all charges and/or taxes imposed by any governmental body for
any easement or agreement maintained for the benefit of the LTACH Land, LTACH
Improvements or Leased Property; all general and special assessments (payable in
installments if permitted), levies, permits, inspection and license fees on or
with respect to the LTACH Land, LTACH Improvements or Leased Property; all water
and sewer rents and other utility charges on or with respect to the LTACH Land,
LTACH Improvements or Leased Property; and all other public charges and/or taxes
whether of a like or different nature, even if unforeseen or extraordinary,
imposed or assessed upon or with respect to the LTACH Land, LTACH Improvements
or Leased Property, prior to or during the Term, against Landlord, Tenant or any
of the Leased Property as a result of or arising in respect of the occupancy,
leasing, use, maintenance, operation, management, repair or possession thereof,
or any activity conducted on the LTACH Land, LTACH Improvements or Leased
Property, or the Base Rent or Additional Rent, including without limitation,
rent tax, sales tax, occupancy tax or excise tax levied by any governmental body
on or with respect to such Base Rent or Additional Rent. If received
by Landlord, Landlord shall promptly deliver to Tenant any ▇▇▇▇ or invoice with
respect to any Imposition. Nothing herein shall obligate Tenant to
pay, and the term “Impositions” shall
exclude, federal, state or local (i) transfer taxes as the result of a
conveyance by (or suffered by) Landlord (other than this Lease), (ii) franchise,
capital stock or similar taxes if any, of Landlord, (iii) income, excess profits
or other taxes, if any, of Landlord, determined on the basis of or measured by
its net income, or (iv) any estate, inheritance, succession, gift, capital levy
or similar taxes, unless the taxes referred to in clauses (ii) and (iii) above
are in lieu of or a substitute for any other tax or assessment upon or with
respect to any of the Leased Property which, if such other tax or assessment
were in effect at the commencement of the Term, would be payable by
Tenant. In the event that any assessment against any of the Leased
Property may be paid in installments, Tenant shall have the option to pay such
assessment in installments; and in such event, Tenant shall be liable only for
those installments which become due and payable during the
Term. Tenant shall prepare and file all tax reports required by
governmental authorities which relate to the Impositions. Tenant
shall deliver to Landlord copies of all settlements and notices pertaining to
the Impositions which may be issued by any governmental authority and receipts
for payments of all Impositions made during each calendar year of the Term,
within ten (10) days after payment thereof.
20
Section 6.2. Indemnity for
Impositions. Tenant will not permit any lien or judgment for
Impositions to be enforced against the LTACH Land or LTACH
Improvements. Tenant agrees to indemnify and save Landlord harmless
from the payment of Impositions and any loss, cost, expense (including court
costs and reasonable attorneys’ fees), or liability ever incurred or suffered by
Landlord as a result of Tenant’s failure to pay the Impositions or any portion
thereof in accordance with the provisions hereof.
Section 6.3. Tenant’s Right to
Contest. Tenant may in good faith and at its sole cost and
expense (in its own name or in the name of Landlord, or both, as Tenant may
determine appropriate) contest the validity or amount of (i) the Impositions,
and (ii) any other taxes, charges, assessments, or other amounts, charged or
assessed against the LTACH Land, LTACH Improvements or Leased Property in which
event the payment thereof may be deferred during the pendency of such
contest. If requested by Tenant, Landlord will join Tenant as a party
to any such contest; provided, that Landlord shall
not be obligated to incur any expense in connection
therewith. Nothing herein contained, however, shall be construed to
authorize Tenant to allow or to permit the Leased Property, or any part thereof,
to be sold by any city, state, municipal, or other governmental authority for
the non-payment of any Impositions.
Section 6.4. Allocation of Single Tax
▇▇▇▇. Landlord and Tenant shall cooperate in good faith for
purposes of taking such action as may be reasonably required to cause the taxing
authority for ▇▇▇▇▇ County, Georgia, to issue separate real and personal
property tax bills for the Leased Property, the LTACH Land, and the LTACH
Improvements separate from the remainder of Medical Center
Land. Notwithstanding the provisions of Section 6.1 above, if the
taxing authority for ▇▇▇▇▇ County, Georgia, will not issue separate real and
personal property tax bills for the Leased Property, the LTACH Land, and the
LTACH Improvements separate from the remainder of the Medical Center Land, then
Landlord shall annually return the Leased Property, the LTACH Land, and the
LTACH Improvements, and Landlord shall provide Tenant with a copy of such tax
▇▇▇▇ within twenty (20) days of Landlord’s receipt of the same. Upon
receipt of such tax ▇▇▇▇, Tenant shall tender to Landlord on or before five (5)
business days prior to the last day on which such sum may be paid to the taxing
authority at the lowest possible rate, including, if available, any discount
applicable for early payment, the funds for the portion of the tax ▇▇▇▇
applicable to the Leased Property the LTACH Land, and the LTACH Improvements
during the Term, with the amount of such reimbursement to be determined by
Landlord in the exercise of its reasonable judgment.
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ARTICLE
VII
NET
LEASE
This is a
net lease and Base Rent, Additional Rent and all other sums payable hereunder by
Tenant shall be paid, except as otherwise expressly provided herein, without
notice, demand, setoff, counterclaim, recoupment, abatement, suspension,
deferment, diminution, deduction, reduction or defense. It is
intended that the Base Rent provided for in this Lease shall be absolutely net
to Landlord throughout the Term, and accordingly, Tenant covenants and agrees to
pay, as they become due and payable and before they become delinquent, except as
otherwise expressly provided herein, all operating and capital expenses in
connection with the operation, maintenance, repair, restoration, use or
occupation of the Leased Property including, without limitation, the costs,
charges and assessments related to Impositions, utilities, insurance, and costs
payable pursuant to the REA.
ARTICLE
VIII
TITLE AND
CONDITION
Section 8.1. Title and
Condition.
(a) The
Leased Property are demised and let subject to (i) the Permitted Encumbrances
(including, without limitation, the Medical Center Master Lease), (ii) all Legal
Requirements, including any existing violation of any thereof, and (iii) the
condition of the Leased Property as of the commencement of the Term; without
representation or warranty by Landlord except as expressly set forth in this
Lease. During the Term of this Lease, Landlord shall take no action
that would materially adversely affect Tenant’s rights hereunder unless and to
the extent that Tenant has consented in writing to such action.
(b) Landlord
represents and warrants to Tenant, with the understanding that Tenant is
entering into this Lease in reliance thereon, that as of the Effective
Date:
(i) Landlord
has the full power and authority to enter into and perform this Lease according
to its terms and the individual executing this Lease on behalf of Landlord is
authorized to do so;
(ii) Landlord
has not granted to any third party the right to use or occupy any portion of the
Leased Property, and Landlord is not aware of any claim by any third party of
the right to do so;
(iii) Landlord
has not received notice of and has no knowledge of any existing or threatened
action, suit or proceeding affecting the Leased Property (including, without
limitation, proposed or threatened condemnation), in any court or before or by
any federal, state, County or municipal or other governmental
instrumentality;
(iv) Landlord
has the authority to enter this Lease and the REA in accordance with the terms
of the Medical Center Master Lease, state and federal law; and
(v) There
are no leases, rental or other contracts or agreements which are not referenced
in Exhibit B and
which burden and encumber the Leased Property.
22
(c) EXCEPT
FOR THE REPRESENTATIONS AND WARRANTIES MADE BY LANDLORD HEREIN, LANDLORD LEASES
AND WILL LEASE AND TENANT TAKES AND WILL TAKE THE LEASED PROPERTY “AS IS” AND “WITH ALL FAULTS”, AND
TENANT ACKNOWLEDGES THAT LANDLORD (WHETHER ACTING AS LANDLORD HEREUNDER OR IN
ANY OTHER CAPACITY) HAS NOT MADE AND WILL NOT MAKE, NOR SHALL LANDLORD BE DEEMED
TO HAVE MADE, ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, WITH RESPECT
TO ANY OF THE LEASED PROPERTY, INCLUDING ANY WARRANTY OR REPRESENTATION AS TO
ITS HABITABILITY, ITS FITNESS FOR USE OR PURPOSE, DESIGN OR CONDITION FOR ANY
PARTICULAR USE OR PURPOSE, AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP
THEREIN, LATENT OR PATENT, OR AS TO VALUE, COMPLIANCE WITH SPECIFICATIONS,
LOCATION, USE, CONDITION, MERCHANTABILITY, QUALITY, DESCRIPTION, DURABILITY OR
OPERATION, IT BEING AGREED THAT ALL RISKS INCIDENT THERETO ARE TO BE BORNE BY
TENANT. TENANT ACKNOWLEDGES THAT THE LEASED PROPERTY IS OF ITS
SELECTION AND TO ITS SPECIFICATIONS, AND THAT THE LEASED PROPERTY HAS BEEN
INSPECTED BY TENANT AND IS SATISFACTORY TO IT. TENANT SHALL NOT HAVE
THE RIGHT TO TERMINATE THIS LEASE DUE TO ANY CONDITION OF OR ANY LATENT OR OTHER
DEFECT IN ANY OF THE LEASED PROPERTY. IN THE EVENT OF ANY DEFECT OR
DEFICIENCY IN ANY OF THE LEASED PROPERTY OF ANY NATURE, WHETHER PATENT OR
LATENT, LANDLORD SHALL NOT HAVE ANY RESPONSIBILITY OR LIABILITY WITH RESPECT
THERETO OR FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING STRICT
LIABILITY IN TORT). THE PROVISIONS OF THIS SECTION 8.1(c) HAVE BEEN
NEGOTIATED, AND THE FOREGOING PROVISIONS ARE INTENDED TO BE A COMPLETE EXCLUSION
AND NEGATION OF ANY WARRANTIES BY LANDLORD, EXPRESS OR IMPLIED INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF HABITABILITY, WITH RESPECT TO ANY OF THE
LEASED PROPERTY, ARISING PURSUANT TO THE UNIFORM COMMERCIAL CODE OR ANY OTHER
LAW NOW OR HEREAFTER IN EFFECT OR OTHERWISE.
(d) Notwithstanding
anything to the contrary set forth in this Lease, Landlord shall be liable for
and is not released from liability for clean up of Hazardous Substances on, or
under the LTACH Land prior to the Effective Date.
(e) Tenant
acknowledges and agrees that Tenant has examined the condition of title to the
Leased Property prior to the execution and delivery of this Lease and has found
such title to be satisfactory for the purposes contemplated by this
Lease.
(f) Landlord
represents and warrants to Tenant that Landlord has received no written notice
and has no knowledge of the existence of any Hazardous Substance or Hazardous
Material on or under the LTACH Land or the Medical Center Land.
23
Section 8.2. Joinder. Hospital
Authority has executed the attached Joinder to evidence, inter alia, its
agreement to reinstate this Lease for a lease term that shall not exceed the
maximum term permitted by the Georgia Hospital Authorities Law or any other
Legal Requirement upon any termination of the Medical Center Master Lease prior
to the expiration thereof. In such event, Tenant agrees to attorn to
the Hospital Authority. Further, in such event, (i) the Hospital
Authority shall not be responsible for the return or repayment of any security
or other deposits made by Tenant with Landlord hereunder unless Landlord has
turned the same over to the Hospital Authority, and (ii) the Hospital Authority
shall not be liable or responsible for the cure or remedy of any breach,
violation, or default on the part of Landlord under this Lease that occurred
prior to termination of the Medical Center Master Lease, or of Landlord’s right
of possession of the Leased Property under the Medical Center Master
Lease. Contemporaneously with the execution of this Lease, Landlord
is executing and delivering the Recognition, Non-Disturbance and Estoppel
Agreement in the form attached hereto as Exhibit F.
ARTICLE
IX
REPAIR AND MAINTENANCE;
COMPLIANCE WITH LAWS; INSURANCE
Section 9.1. Repair and
Maintenance. Throughout the Term, Tenant, at its sole cost and
expense, shall keep and maintain all of the Leased Property, including, without
limitation, the LTACH Improvements in good repair and condition and shall make
all repairs, replacements and renewals, foreseen or unforeseen, ordinary or
extraordinary, necessary to put or maintain the Leased Property and LTACH
Improvements in such state of repair and condition, ordinary wear and tear
excepted. Landlord shall not be required to maintain, repair or
rebuild all or any part of the Leased Property and LTACH
Improvements. Tenant waives the right to (a) require Landlord to
maintain, repair or rebuild all or any part of the Leased Property and LTACH
Improvements or (b) make repairs at the expense of Landlord pursuant to any
Legal Requirements, contract, easement, covenant, condition or restriction at
any time in effect. In addition, Tenant shall keep or cause to be
kept the Leased Property and LTACH Improvements in a safe and sanitary condition
as required by all applicable Legal Requirements.
Tenant
shall keep and maintain or cause to be kept and maintained the LTACH
Improvements in a safe, clean and attractive condition consistent with the
standards of maintenance and cleanliness in effect with respect to the balance
of the Medical Center Land and shall keep the LTACH Improvements, including
those items situated on the LTACH Land, free from any accumulations of dirt,
trash and other debris. Tenant shall comply with and shall cause all
of its partners, officers, directors, employees, agents, contractors, invitees,
licensees and its sub-tenants and other occupants of any portion of the LTACH
Land to comply with all reasonable rules and regulations adopted from time to
time by Landlord relating to the use of the LTACH Land, including rules
regarding the placement of signage and landscaping.
Section 9.2. Compliance with
Laws. During the Term, Tenant shall comply with and cause the
Leased Property and LTACH Improvements to be in compliance with (i) all
Legal Requirements applicable to the Leased Property and LTACH Improvements or
the uses conducted on the Leased Property and LTACH Improvements, (ii) the
provisions of any insurance policies required to be maintained by Tenant with
respect to the Leased Property and LTACH Improvements, and (iii) the terms
of any easements, covenants, conditions and restrictions affecting the Leased
Property and LTACH Improvements which are Permitted Encumbrances or are created
after the date of this Lease. If any additions, alterations, changes,
repairs or other work of any nature, structural or otherwise shall be required
or ordered or become necessary at any time during the Term because of any of
these requirements, the entire expense of the same, irrespective of when the
same shall be incurred or become due, shall be the sole liability of
Tenant.
24
Section 9.3. Casualty
Insurance. Tenant at its sole expense shall keep all LTACH
Improvements on the Leased Property insured under the coverages listed on Exhibit
H. Tenant shall furnish to Landlord evidence of coverage and
any renewals or replacements of this insurance. Landlord shall be
named an additional insured under this policy. Notwithstanding
anything to the contrary set forth herein, Tenant shall not be required to
obtain and maintain the insurance described in this Section until immediately
prior to the termination of the builder’s risk insurance on the LTACH
Improvements described in Section 9.4 below.
Section 9.4. Builder’s Risk
Insurance. Until completion of construction of the LTACH
Improvements, Tenant at its sole expense shall maintain or cause to be
maintained builder’s risk insurance covering the construction of the LTACH
Improvements, in an amount not less than the full insurable value of the LTACH
Improvements, and materials supplied in connection with the LTACH
Improvements. Tenant shall furnish to Landlord evidence of coverage
and any renewals or replacements of this insurance. Landlord shall be
named as an additional insured under this policy. The Leasehold
Mortgagee shall be a loss payee under such builder’s risk insurance
coverage.
Section 9.5. Certificates. Upon
the full execution of this Lease, Tenant shall deliver to Landlord certificates
of the insurance required under this Lease. Each certificate shall
provide that the insurer will not cancel the policy except after thirty (30)
days prior written notice to Landlord. At least ten (10) days prior
to the expiration of each such insurance policy, Tenant shall deliver to
Landlord copies of a renewal policy or binder which shall comply with the
foregoing provisions with respect to prior notice of cancellation thereof being
given by the insurance company to Landlord. In the event of the
failure of Tenant to procure and deliver such renewal policy or policies or
binder or binders therefor within the time above prescribed, Landlord shall be
permitted to do so and the premiums charged therefor shall be borne and paid
promptly by Tenant.
Section 9.6. Liability
Insurance. Tenant agrees to maintain or cause to be maintained
at all times during the Term comprehensive general liability insurance in which
Landlord shall be named as an additional insured with limits of liability as
provided on Exhibit
H. All insurance policies required by this provision shall be
obtained by Tenant at Tenant’s expense. Said insurance policies shall
provide for at least thirty (30) days notice to Landlord before cancellation and
shall include a waiver of subrogation by the insurance
carrier. Leasehold Mortgagee shall be named as an additional
insured.
Section 9.7. Waiver of
Subrogation. Landlord and Tenant shall not be liable to the
other for loss or damage caused by fire or perils covered by insurance policies
maintained by the other party with respect to the LTACH Land or the LTACH
Improvements or any equipment or personal property contained therein, and to the
extent of such insurance, Landlord and Tenant, both on behalf of themselves and
their respective insurers, waive all rights of subrogation on account of such
loss or damage; provided, however, that this
waiver shall not be deemed operable to the extent of any reasonable “deductible”
regarding the applicable insurance coverage.
25
Section 9.8. Premiums. All
premiums and charges for all of said insurance policies shall be paid by Tenant
when due. If Tenant shall fail and neglect to make any payment when
due, Landlord may, but shall not be obligated to, make such payment or carry
such policy, and the amount of any premium paid by Landlord shall be repaid by
Tenant promptly on demand.
ARTICLE
X
ASSIGNMENT AND
SUBLETTING
Section 10.1. Right of Assignment,
Sublease or Encumbrance.
(a) Subject
to the terms of Section 10.1(b), as applicable, Tenant may freely sublease the
Leased Property or any part thereof in connection with its operation of the
LTACH Improvements, and/or assign or encumber Tenant’s leasehold interest in
this Lease or its interest in the LTACH Improvements in whole or in part at any
time without the requirement of obtaining the prior written approval of
Landlord; provided, that (i) this Lease may not be assigned to a Person that is
a Competitor without, in each instance, the prior written consent of Landlord,
which may be given or withheld in Landlord’s sole and absolute discretion,
(ii) this Lease may not be assigned by Tenant to a Person that is not a
Qualified Operator without in each instance the prior written consent of
Landlord, which may be given or withheld in Landlord’s sole and absolute
discretion, and (iii) this Lease may be assigned to an entity constituting
a Leasehold Mortgagee (without regard to any assignment of an existing Leasehold
Mortgage to such entity) or any purchaser at a foreclosure sale under a
Leasehold Mortgage provided such Leasehold Mortgagee and/or purchaser at a
foreclosure sale is not a Competitor. It is specifically agreed that
a Leasehold Mortgagee or purchaser at a foreclosure sale under a Leasehold
Mortgage need not be a Qualified Operator in order to take an assignment of this
Lease. Tenant shall not be relieved of any of its obligations under
this Lease as a result of any assignment, sublease or other transfer, except as
provided in Section 10.2.
(b) As
used herein, the term “Competitor” shall
mean (i) any Person which owns or operates a hospital facility located in either
Floyd, Polk, Chattooga, ▇▇▇▇▇▇ or ▇▇▇▇▇▇ counties, Georgia, any Affiliate of
such Person, any successor or assign of such Person or an Affiliate, or any
employee of any of the aforesaid Person or Affiliate; or (ii) HCA Health
Services of Georgia, Inc., a Georgia corporation, ▇▇▇▇▇▇▇ Park Hospital, L.L.C.,
a Georgia limited liability company, any Affiliate of either of the aforesaid
Persons, any successor or assign of either of any of the aforesaid Persons, any
employee of any of the aforesaid Persons (during the term of such employment),
or any Person that owns and/or operates the healthcare facility currently known
as the ▇▇▇▇▇▇▇ Regional Medical Center. As used herein, the term
“Qualified
Operator” shall mean any Person which has directly or indirectly owned
and/or has managed or whose direct or indirect owners, or whose principals,
managers and/or officers have owned and/or managed for a period of at least five
(5) years improved real estate utilized by others for the provision of
healthcare services which has a financial profile
consistent with investors of medical real estate.
(c) In
connection with any proposed assignment of this Lease, Tenant shall provide to
Landlord the following documentation and information:
(i) the
full name of any proposed assignee;
26
(ii) a
disclosure statement describing the ownership of the proposed assignee and the
business conducted by such assignee;
(iii) the
intended use of the space to be leased or otherwise occupied by the proposed
assignee; and
(iv) the
form of transfer documentation.
Section
10.2. Continuing Obligations of
Tenant. The making of any assignment, encumbrance or
subletting, in whole or in part, shall not operate to relieve Tenant from
Tenant’s obligations under this Lease and, notwithstanding any such assignment,
encumbrance or subletting, Tenant shall remain liable for the payment of all
Base Rent and Additional Rent and other charges and fees payable under this
Lease and for the due performance of all the covenants, agreements, terms and
provisions of this Lease to the full end of the term of this Lease, whether or
not there shall have been any prior termination of this Lease by summary
proceedings or otherwise; provided that, following Tenant’s assignment of its
entire interest in this Lease, the assigning Tenant shall be completely relieved
of any and all obligations accruing under this Lease after the date of such
assignment upon Landlord’s receipt of documentation evidencing that the party to
whom such interest in this Lease was assigned (i) has assumed in writing all
obligations of Tenant under this Lease from and after any such assignment and
(ii) is a permitted assignee under Section 10.1(a). Any
instrument of transfer under this Section 10.2 shall be expressly made subject
to this Lease (including the use restrictions herein) and all rights, interest,
estates and options of Landlord hereunder.
Section
10.3. Consent of
Landlord. Any consent by Landlord herein contained or
hereafter given to any act or acts for which Landlord’s consent is by the terms
hereof required, shall be held to apply only to the specific transaction hereby
or thereby approved.
Section
10.4. Obligations of
Assignee. Any assignee shall take this Lease subject to all
the covenants and agreements herein contained as of the date it takes
possession. In no event shall Landlord ever be required to
subordinate its leasehold estate in the Leased Property or any Mortgage or other
encumbrance upon same to any holder of any interest in, or encumbrance on, the
leasehold interest of Tenant in the Leased Property.
Section
10.5. Assignment by
Landlord. Landlord may freely assign its interest, either in
whole or in part, under this Lease and in the Leased Property, and in such event
and upon such transfer, the assigning Landlord shall be relieved of all
obligations which accrue under this Lease from and after such transfer;
provided, however, any party to whom any interest under this Lease or in the
Leased Property may be transferred shall assume all obligations of Landlord
under this Lease from and after any such transfer.
27
ARTICLE
XI
FINANCING
Section 11.1. Right to Mortgage
Leasehold. Tenant may freely pledge or grant a mortgage, deed
of trust, deed to secure debt or other assignment or pledge on Tenant’s
leasehold interest in this Lease or interest in the LTACH Improvements in whole
or in part at any time and from time to time, without the requirement of
obtaining any approval, consent or joinder of Landlord, provided that such
pledge or grant is to a Leasehold Mortgagee and provided further that Landlord
is notified prior to the closing of the creation of any such Leasehold Mortgage
or within thirty (30) days after the creation of such Leasehold
Mortgage.
Section 11.2. Notice of Leasehold
Mortgage. At any time after
Tenant has granted a Leasehold Mortgage to a Leasehold Mortgagee, Tenant shall
provide to Landlord the address to which notices are specified to be sent to the
person or entity holding the Leasehold Mortgage). It is specifically
agreed that there may be more than one Leasehold Mortgagee under this
Lease. Upon delivery to Landlord of written notice of the Leasehold
Mortgage, the Leasehold Mortgagee thereunder shall be entitled to the benefit of
all provisions of this Lease pertaining to or granting any rights to Leasehold
Mortgagee. Reference to Leasehold Mortgagee in the following Sections
of this Article XI shall mean all Leasehold Mortgagees in respect to which
notice has been provided to Landlord pursuant to this Section 11.2.
Section 11.3. Default
Notice. Landlord, upon providing Tenant any notice of (i)
default under this Lease, or (ii) a termination of this Lease, shall at the same
time provide a copy of such notice to every Leasehold Mortgagee. No
such notice by Landlord to Tenant shall be deemed to have been duly given unless
and until a copy thereof has been so provided to every Leasehold
Mortgagee. After such notice has been given to a Leasehold Mortgagee,
such Leasehold Mortgagee shall have the same period, running concurrently, after
the giving of such notice upon it for remedying any default or causing the same
to be remedied as is given Tenant after the giving of such notice to Tenant
plus, in each instance, the additional periods of time specified in Sections
11.4 and 11.5 to remedy, commence remedying, or cause to be remedied the
defaults specified in any such notice. Landlord shall accept such
performance by or at the instigation of such performance by Leasehold Mortgagee
as if the same had been done by Tenant. Tenant authorizes each
Leasehold Mortgagee to take any such action at such Leasehold Mortgagee’s option
and does hereby authorize entry upon the Leased Property by the Leasehold
Mortgagee for such purpose.
Section 11.4. Notice to Leasehold
Mortgagee.
(a) Notice. Anything
contained in this Lease to the contrary notwithstanding, if any default shall
occur that entitles Landlord to terminate this Lease, Landlord shall have no
right to terminate this Lease unless, during or following the expiration of the
period of time given Tenant to cure such default, Landlord shall notify (such
notice being herein called the “Termination Notice”)
every Leasehold Mortgagee of Landlord’s intent to so terminate at least thirty
(30) days in advance of the proposed effective date of such termination if the
nature of such default is the failure to pay a sum of money to Landlord or
pursuant to any Fee Mortgage, and at least sixty (60) days in advance of the
proposed effective date of such termination in the event of any other
default. The provisions of Section 11.5 below shall apply if, during
such thirty (30) or sixty (60) day Termination Notice period, any Leasehold
Mortgagee shall:
28
(i) Notify
Landlord of such Leasehold Mortgagee’s desire to nullify such notice;
and
(ii) Pay
or cause to be paid all Rent and other payments then due and in arrears as
specified in the Termination Notice and that may become due during such thirty
(30)-day period provided that any Leasehold Mortgagee shall not be required to
pay any amount before the same is due and owing under this Lease;
and
(iii) Comply
or in good faith, with reasonable diligence and continuity, commence to comply
with all nonmonetary requirements of this Lease then in default and reasonably
susceptible of being complied with by such Leasehold Mortgagee; provided,
however, that such Leasehold Mortgagee shall not be required during such sixty
(60)-day period to cure or commence to cure any default consisting of Tenant’s
failure to satisfy and discharge any lien, charge, or encumbrance against the
Tenant’s interest in this Lease junior in priority to the lien of the mortgage
held by such Leasehold Mortgagee.
(b) Notice
Address. Any notice to be given by Landlord to a Leasehold
Mortgagee pursuant to any provision of this Section shall be deemed properly
addressed if sent to the address specified for Leasehold Mortgagee in the notice
referred to in Section 11.2 unless notice of a change of Mortgage ownership has
been given to Landlord setting forth the address of the party or parties to whom
the Mortgage was assigned.
Section
11.5. Procedure on
Default
(a) Extension. If
Landlord shall elect to terminate this Lease by reason of any default of Tenant,
and a Leasehold Mortgagee shall have proceeded in the manner provided for by
Section 11.4 of this Section, the specified date for the termination of this
Lease as fixed by Landlord in its Termination Notice shall be extended for a
period of six (6) months, provided that such Leasehold Mortgagee shall, during
such six-month period:
(i) Pay
or cause to be paid the Rent and other monetary obligations of Tenant under this
Lease as the same become due, and continue its good faith efforts to perform all
of Tenant’s other obligations under this Lease, including during any period
during which the Leasehold Mortgagee has possession of the Leased Property, the
obligation to operate and maintain the LTACH Improvements and the Leased
Property in accordance with the standards of this Lease, excepting (A)
obligations of Tenant to satisfy or otherwise discharge any lien, charge, or
encumbrance against Tenant’s interest in this Lease junior in priority to the
lien of the mortgage held by such Leasehold Mortgagee and (B) past non-monetary
obligations then in default and not reasonably susceptible of being cured by
such Leasehold Mortgagee; and
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(ii) If
not enjoined or stayed, take steps to acquire or sell Tenant’s interest in this
Lease by Foreclosure of the Leasehold Mortgage or other appropriate means and
prosecute the same to completion with reasonable diligence.
(b) Further
Extension. If at the end of such six-month period such
Leasehold Mortgagee is complying with Section 11.5(a), this Lease shall not then
terminate; and the time for completion by such Leasehold Mortgagee of
proceedings pursuant to Section 11.5(a)(ii) above shall continue so long as
such Leasehold Mortgagee is enjoined or stayed and thereafter for so long as
such Leasehold Mortgagee proceeds to complete steps to acquire or sell Tenant’s
leasehold interest in this Lease by Foreclosure of the Leasehold Mortgage or by
other appropriate means with reasonable diligence and continuity, provided, however,
that notwithstanding anything to the contrary contained herein, all extensions
shall expire and this Lease shall terminate upon the expiration of one (1) year
following the end of such six (6)-month period referenced in Section 11.5(a)
above if any default giving rise to an extension of the term of this Lease
remains uncured at the end of such period. Nothing in this Section
11.5(b), however, shall be construed to extend this Lease beyond the Term, or to
require a Leasehold Mortgagee to continue such Foreclosure proceedings after the
default has been cured. If the default shall be cured and the Leasehold
Mortgagee shall discontinue such Foreclosure proceedings, this Lease shall
continue in full force and effect as if Tenant had not defaulted under this
Lease.
(c) Continuation. If
a Leasehold Mortgagee is complying with Section 11.5(a) and acquires the
Tenant’s leasehold interest within the time provided in Section 11.5(b), then
upon the Leasehold Mortgagee’s acquisition of Tenant’s leasehold interest herein
by such Leasehold Mortgagee, this Lease shall continue in full force and effect
as if Tenant had not defaulted under this Lease.
(d) Not
Assignment. The making of a Leasehold Mortgage as permitted by
this Section shall not be deemed to constitute an assignment or transfer of this
Lease or of the leasehold interest hereby created, nor shall any Leasehold
Mortgagee, as such, be deemed to be an assignee or transferee of this Lease or
of the leasehold interest hereby created so as to require such Leasehold
Mortgagee, as such, to assume the performance of any of the terms, covenants, or
conditions on the part of the Tenant to be performed hereunder. The
purchaser at any sale of this Lease and of the leasehold interest hereby created
in any proceedings for the Foreclosure of any Leasehold Mortgage, or the
assignee or transferee of this Lease and of the leasehold interest hereby
created under any instrument of assignment or transfer in lieu of the
Foreclosure of any Leasehold Mortgage, or any Leasehold Mortgagee or its nominee
or designee who shall acquire this Lease and the leasehold interest created
hereby, whether by Foreclosure, assignment in lieu thereof, or otherwise, or
pursuant to a New Lease (as hereinafter defined), shall be required to be a
permitted assignee under Article X of this Lease and shall not be a Competitor,
and shall be required to comply with all use restrictions and all other
provisions of this Lease and to perform all of the terms, covenants, and
conditions on the part of the Tenant to be performed hereunder from and after
the date of such purchase and assignment.
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(e) Further
Assignment. Any acquiror of the leasehold interest of Tenant
pursuant to any Realization Proceedings, or any Leasehold Mortgagee (or its
nominee or designee) who shall acquire the leasehold interest by Realization
Proceedings or otherwise, or a tenant under a New Lease [as defined in Section
11.6], may, upon acquiring Tenant’s leasehold interest, without further consent
of Landlord, sell and assign the leasehold interest on such terms and to such
persons and organizations as are acceptable to such Leasehold Mortgagee or
acquiror, provided that such assignee shall be a permitted assignee pursuant to
Article X of this Lease and shall not be a Competitor and has delivered to
Landlord its written agreement to be bound by all of the provisions of this
Lease to the same extent as the original Tenant, including any and all use
restrictions and all other provisions of this Lease.
Section 11.6. New
Lease. In the event of the termination of this Lease as a
result of Tenant’s default or in connection with any bankruptcy, insolvency or
similar proceeding involving either Landlord or Tenant, including any rejection
under Section 365 of the Bankruptcy Code, or otherwise, Landlord shall, in
addition to providing the notices of default and termination as required by
Sections 11.3 and 11.4 above, provide the Leasehold Mortgagee with written
notice that the Lease has been terminated, together with a statement of all sums
that would at the time be due under the Lease but for such termination, and of
all other defaults, if any, then known to Landlord. Landlord agrees
to enter into a new lease (herein called a “New Lease”) of the
Leased Property with such Leasehold Mortgagee, or a designee that is a permitted
assignee pursuant to Article X of this Lease and shall not be a Competitor, for
the remainder of the term of this Lease, effective as of the date of
termination, at the same Rent, and upon the terms, covenants, restrictions, and
conditions (but excluding requirements that are not applicable or that have
already been fulfilled) of this Lease, provided:
(a) Request. Such
Leasehold Mortgagee shall make written request upon Landlord for such New Lease
within sixty (60) days after the date such Leasehold Mortgagee receives notice
from Landlord of the termination of this Lease pursuant to this Article
XI.
(b) Payment. Such
Leasehold Mortgagee or its designee shall pay or cause to be paid to Landlord at
the time of the execution and delivery of such New Lease, any and all sums that
are at the time of execution and delivery thereof due pursuant to this Lease
regardless of such termination and, in addition thereto, all reasonable
expenses, including reasonable attorney’s fees, that Landlord shall have
incurred by reason of such termination and the execution and delivery of the New
Lease and that have not otherwise been received by Landlord from Tenant or other
party in interest under Tenant. Upon the execution of such New Lease,
Landlord shall allow to the tenant named therein as an offset against the sums
otherwise due under this Section 11.6 or under the New Lease, an amount
equal to the gross income derived by Landlord from the Leased Property during
the period from the date of termination of this Lease to the date of the
execution of such New Lease. In the event of a controversy as to the
amount to be paid to Landlord pursuant to this Section 11.6, the payment
obligation shall be satisfied if Landlord shall be paid the amount not in
controversy, and the Leasehold Mortgagee or its designee shall agree to pay and
additional sum ultimately determined to be due plus interest at the Prime
Rate. The parties shall cooperate to determine any disputed amount
promptly in accordance with the terms of this Lease.
(c) Other
Defaults. Such Leasehold Mortgagee or its designee shall agree
to remedy any of Tenant’s defaults of which said Leasehold Mortgagee was
notified by Landlord’s Notice of Termination and that are reasonably susceptible
of being so cured by Leasehold Mortgagee or its designee.
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(d) Priority. Any New Lease
made pursuant to this Section 11.6 shall be prior to any mortgage or other lien,
charge, or encumbrance of the Leased Property by which Tenant’s leasehold
interest was also prior to this Lease on the Effective Date, and the tenant
under such New Lease shall have the same right, title, and interest in and to
any subleases, licenses, concessions or similar rights or interests therein, and
to the Leased Property and the buildings and improvements thereon as Tenant had
under this Lease; provided, however, that Landlord shall not make any warranty
of title, express or implied, with respect to any New Lease, except for any
liens, claims or encumbrances created by Landlord or arising through Landlord as
of the Effective Date. Notwithstanding the foregoing provisions of
this Section 11.6(d), any New Lease shall, in all events, be subject to the
terms of the REA and the Medical Center Master Lease.
(e) New Lease
Priorities. If more than one Leasehold Mortgagee shall request
a New Lease pursuant to this Section 11.6, Landlord shall enter into such New
Lease with the Leasehold Mortgagee whose mortgage is prior in lien, or with the
designee of such Leasehold Mortgagee. Landlord, without liability to
Tenant or any Leasehold Mortgagee with an adverse claim, may rely upon a title
insurance policy issued by a responsible title insurance company doing business
in the county in which the Leased Property is located naming Landlord and the
Tenant under such New Lease as insureds (and paid for by such Tenant), as the
basis for determining the appropriate Leasehold Mortgagee who is entitled to
such New Lease.
Section 11.7. Leasehold Mortgagee Need Not
Cure Specified Defaults. Nothing herein contained shall
require any Leasehold Mortgagee or its designee as a condition to its exercise
of rights hereunder to cure any default of Tenant not reasonably susceptible of
being cured by such Leasehold Mortgagee or its designee in order to comply with
the provisions of Section 11.5 or as a condition of entering into the New Lease
provided for by Section 11.6 of this Section, provided, however, such Leasehold
Mortgagee shall be obligated to remedy any continuing defaults under Article V
or Article X which survive the termination of this Lease and the execution of a
New Lease.
Section 11.8. Legal
Proceedings. Landlord shall give each Leasehold Mortgagee
prompt notice of any legal proceedings between Landlord and Tenant involving
obligations under this Lease. Each Leasehold Mortgagee shall have the
right to intervene in any such proceedings and be made a party to such
proceedings, and the parties do hereby consent to such intervention; provided
that no Leasehold Mortgagee which intervenes shall be entitled to an award of
attorneys’ fees or other costs and expenses from Landlord. In the
event that the Leasehold Mortgagee shall not elect to intervene or become a
party to any such proceedings, Landlord shall give the Leasehold Mortgagee
notice of, and a copy of any order or decision made in any such proceedings,
which shall be binding on any Leasehold Mortgagee not intervening after receipt
of notice thereof.
Section 11.9. No
Merger. So long as any Leasehold Mortgage is in existence,
unless all Leasehold Mortgagees shall otherwise expressly consent in writing,
the leasehold interest to the Leased Property and the leasehold interest of
Tenant therein created by this Lease shall not merge but shall remain separate
and distinct, notwithstanding the acquisition of said leasehold interest and
said leasehold interest by Landlord or by Tenant on by a third party, by
purchase or otherwise.
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Section
11.10. Erroneous
Payments. No payments made to Landlord by a Leasehold
Mortgagee shall constitute agreement that such payment was, in fact, due under
the terms of this Lease; and a Leasehold Mortgagee having made any payment to
Landlord pursuant to Landlord’s wrongful, improper or mistaken notice or demand
shall be entitled to the return of any such payment or portion thereof provided
such Leasehold Mortgagee shall have made demand therefor not later than one (1)
year after the date of such payment.
Section
11.11. Bankruptcy. In
the event of any proceeding by either Landlord or Tenant under the United States
Bankruptcy Code (Title 11 U.S.C.) as now or hereafter in effect:
(a) Rejection by
Tenant. If the Lease is rejected in connection with a
bankruptcy proceeding by Tenant or a trustee in bankruptcy for Tenant, such
rejection shall be deemed an assignment by Tenant to the Leasehold Mortgagee (or
if there is more than one Leasehold Mortgagee, to the one highest in priority)
of the leasehold interest and all of Tenant’s interest under this Lease, in the
nature of an assignment in lieu of Foreclosure, and this Lease shall not
terminate and the Leasehold Mortgagee shall have all the rights and be charged
with all obligations of the Tenant under this Lease (as such obligations may be
affected by this Article XI), from and after the date of rejection, as if
such bankruptcy proceeding had not occurred, unless such Leasehold Mortgagee
shall reject such deemed assignment by notice in writing to Landlord within
thirty (30) days following the later of (i) rejection (or deemed rejection) of
the Lease by Tenant or Tenant’s trustee in bankruptcy; or (ii) approval of such
rejection by the bankruptcy court. If any court of competent
jurisdiction shall determine that this Lease shall have been terminated
notwithstanding the terms of the preceding sentence as a result of rejection by
Tenant or the trustee in connection with any such proceeding, the rights of any
Leasehold Mortgagee to a new lease from Landlord pursuant to Section 11.6 hereof
shall not be affected thereby.
(b) Rejection by
Landlord. If the Lease is
rejected by Landlord or by Landlord’s trustee in bankruptcy:
(i) Tenant
shall not have the right to treat this Lease as terminated except with the prior
written consent of all Leasehold Mortgagees; and the right to treat this Lease
as terminated in such event shall be deemed assigned to each and every Leasehold
Mortgagee, whether or not specifically set forth in any such Leasehold Mortgage,
so that the concurrence in writing of Tenant and each Leasehold Mortgagee shall
be required as a condition to treating this Lease as terminated in connection
with such proceeding.
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(ii) If
this Lease is not treated as terminated in accordance with Section 11.11(b)(i)
above, then this Lease shall continue in effect upon all the terms and
conditions set forth herein, including the covenant to pay Rent, and all options
to renew, but excluding requirements that are not then applicable or pertinent
to the remainder of the term hereof. Thereafter Tenant or its
successors shall be entitled to any offsets against Rent payable hereunder for
any damages arising from such rejection and any such offset properly made shall
not be deemed a default under this Lease. If Tenant shall fail to pay
to Landlord any amount previously offset within ten (10) days after a final and
nonappealable order or judgment that Tenant is required to pay such amount, then
Landlord shall have all rights and remedies (subject to all other terms and
conditions) provided in this Lease with respect to the nonpayment of
Rent. The lien of any Leasehold Mortgage then in effect shall extend
to the continuing possessory rights of Tenant following such rejection with the
same priority with respect to each such Leasehold Mortgage as it would have
enjoyed had such rejection not taken place.
(iii) If,
in any bankruptcy or similar proceeding in which Landlord is the debtor, the
Leased Property are sold or proposed to be sold free and clear of the interests
of Tenant under this Lease, each of Tenant and any Leasehold Mortgagees shall be
entitled to notice thereof, to contest such sale or proposed sale, and shall be
entitled to petition for and to receive adequate protection of their respective
interests under this Lease.
Section
11.12. Rights Against
Tenant. The rights of a Leasehold Mortgagee hereunder shall
not diminish any right or claim of Landlord against Tenant pursuant to this
Lease.
Section
11.13. Lease Amendment Requested by
Leasehold Mortgagee. In the event Tenant, at any time, seeks
to obtain or modify a Leasehold Mortgage, then Landlord agrees to amend this
Lease from time to time to the extent requested by the Leasehold Mortgagee,
provided,
however, any amendments that affect the Rent or other sums of money
payable by Tenant under this Lease, the Term of this Lease or any extension
rights under this Lease, rights of assignment or other material obligations of
Tenant under this Lease, the material rights of Landlord under this Lease or the
REA and/or the use restrictions under Article V of this Lease be satisfactory to
Landlord in its sole and absolute discretion. All reasonable expenses
incurred by Landlord in connection with any such amendment shall be paid by
Tenant.
Section
11.14. Mortgage of the
Fee. Any Mortgage that now or hereafter covers all or any part
of Landlord’s interest in the Leased Property shall be subordinate to the rights
and interests of Tenant under this Lease and of the Leasehold
Mortgage. No foreclosure of any Mortgage of Landlord’s interest in
the Leased Property shall affect Tenant or Tenant’s possession of the Leased
Property under this Lease or the Leasehold Mortgage. However, Tenant
agrees that, upon the foreclosure of any such Mortgages, or sale of the Leased
Property or any interest therein, pursuant to any such Mortgages, to attorn to
the purchaser at any such sale or foreclosure and to recognize such purchaser as
Landlord under this Lease; provided that, such purchaser agrees in writing to
recognize Tenant’s interest under this Lease. The agreement of Tenant
to attorn contained in the immediately preceding sentence shall survive any such
foreclosure sale or trustee’s sale.
Section
11.15. No Subordination of
Fee. Nothing contained in this Lease shall be or ever will be
construed as a subordination of Landlord’s leasehold interest in the Leased
Property or its reversionary interest in the LTACH Improvements to any Leasehold
Mortgage or as a subordination of the Hospital Authority’s fee interest in the
Leased Property or its reversionary interest in the LTACH Improvements to any
Leasehold Mortgage. Upon the expiration or termination of this Lease,
except as specifically otherwise provided in this Article XI, any Leasehold
Mortgage of Tenant’s interest in the Leased Property shall be null and
void.
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Section
11.16. Enforcement by
Mortgagee. The provisions of this Lease shall be expressly
enforceable by Leasehold Mortgagee and such Leasehold Mortgagee’s successor or
assign.
Section
11.17. Amendment/Cancellation. This
Lease shall not be surrendered, modified, amended or mutually cancelled by the
Landlord and Tenant without the consent of the Leasehold
Mortgagee. Notwithstanding the foregoing, this Section 11.17 shall
not apply to Landlord’s rights to terminate this Lease as a result of any Event
of Default, it being understood and agreed by Landlord and Tenant that pursuant
to Section 11.3 above, the Leasehold Mortgagee shall receive a copy of all
notices that Landlord provides to Tenant pursuant to this Lease.
ARTICLE
XII
CASUALTY AND
CONDEMNATION
Section
12.1. Casualty.
If the
LTACH Improvements shall be damaged or rendered wholly or partially untenantable
by fire or other casualty during the Term, no Rent shall ▇▇▇▇▇ during such
period, whether the LTACH Land and LTACH Improvements are tenantable or
not. Tenant shall promptly rebuild or repair the LTACH Improvements
to substantially their former condition.
Section
12.2. Condemnation.
(a) Unless
this Lease is terminated pursuant to Section 12.2(b), if a non-material portion
of the LTACH Land and LTACH Improvements shall be taken by condemnation or other
eminent domain proceedings pursuant to any law, general or special, by a
Condemning Authority, or is sold to a Condemning Authority under threat of the
exercise of that power, this Lease shall continue and there shall be no
abatement of the Rent. As used herein, the term “non-material
portion” with respect to the LTACH Land and/or LTACH Improvements shall mean any
portion, the taking of which would not materially interfere with the use of the
LTACH Improvements for the purposes contemplated under Section 5.1.
(b) If
all or a material portion of the LTACH Land and LTACH Improvements is so taken
or sold, Tenant may terminate this Lease by giving written notice to
Landlord. As used herein, the term “material portion” with respect to
the LTACH Land and LTACH Improvements shall mean such portion of the LTACH Land
and/or LTACH Improvements which, if taken, would render the balance of the LTACH
Land and LTACH Improvements reasonably incapable of being economically operated
for the purposes set forth in Section 5.1. This Lease shall then
terminate on the day following the vesting of title in the Condemning Authority,
except as provided below and except with respect to obligations and liabilities
of Landlord and Tenant under this Lease that have arisen on or before the date
of termination. Base Rent and Additional Rent and other charges under
this Lease shall be prorated as of the date of termination, and upon termination
Tenant shall satisfy and cause to be released any mortgages (including any
Mortgage), liens or other encumbrances placed or suffered to be placed on the
Leased Property and LTACH Improvements by Tenant. In the event that
Tenant shall fail to exercise its option to terminate this Lease as provided in
this subsection, or in the event that a part of the Leased Property shall be
taken under circumstances under which Tenant will have no such option, Tenant
shall be entitled to all condemnation proceeds from the Leased Property taken by
the Condemning Authority, but not those proceeds deriving from any other portion
of the Medical Center Land, and Tenant shall have the sole responsibility for
restoring the LTACH Improvements to a complete architectural unit, to the extent
reasonably feasible.
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(c) Any
award or compensation paid on account of any taking or sale described in this
Section 12.2 wherein this Lease is terminated shall be divided between Landlord
and Tenant as follows: first to Tenant for the value of Tenant’s leasehold
interest in the Leased Property taken (as determined by the condemning
authority) which amount shall be payable to any Mortgagee; next, to Tenant for
the value of the LTACH Improvements taken less the present value of Landlord’s
reversionary interest in those LTACH Improvements, and the balance to
Landlord.
ARTICLE
XIII
DEFAULT; CERTAIN RIGHTS AND
REMEDIES
Section 13.1. Default by
Tenant.
(a) The
occurrence of any one or more of the following events (any such event being
specified herein as a “failure” or “default”) shall
constitute an “Event
of Default” under this Lease: (i) a failure by Tenant to
make: (x) any payment of Base Rent which continues unremedied for a
period of ten (10) days after written notice thereof is given to Tenant by
Landlord or (y) any payment of Additional Rent or other sum herein required to
be paid by Tenant which continues unremedied for a period of thirty (30) days
after written notice thereof is given to Tenant by Landlord; or (ii) failure by
Tenant to perform and observe, or a violation or breach of, any other provision
in this Lease, with such default continuing for a period of thirty (30) days
after written notice thereof by Landlord to Tenant or, if such default is of
such a nature that it cannot reasonably be cured within such period of thirty
(30) days, as applicable, such period shall be extended for such longer time as
is reasonably necessary [but in no event to exceed a total of one (1) year] and
such extension period not to terminate any sooner than the termination of
Leasehold Mortgagee’s right to cure any such default; provided, that Tenant has
commenced to cure such default within said period of thirty (30) days, and is
actively, diligently and in good faith proceeding with continuity to remedy such
default and provided that any delay in curing such default shall not result in a
material adverse effect on the value of the Leased Property.
(b) Upon
the occurrence of any Event of Default, Landlord may terminate this Lease, and
exercise any and all other remedies available, at law or in equity to obtain
possession of the Leased Property; provided, however,
that as a condition precedent to Landlord’s right to terminate this Lease after
the occurrence of an Event of Default, Landlord shall have provided Tenant and
Leasehold Mortgagee with an additional written notice (the “Final Notice”) of
Landlord’s intent to terminate, and Tenant (or Leasehold Mortgagee, if
applicable) thereafter shall have failed to cure such Event of Default within
ninety (90) days after the delivery of such Final
Notice. Notwithstanding any action by Landlord, unless and until any
termination of this Lease, the liability of Tenant for the Base Rent and
Additional Rent shall not be relinquished, diminished, or extinguished for the
balance of the Term.
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(c) In
the event of any expiration or termination of this Lease pursuant to Section
13.1(b), Tenant shall peaceably quit and surrender the Leased Property to
Landlord and Landlord may, without further notice, enter upon, re-enter,
possess, and repossess itself thereof, by force, summary proceedings, ejectment,
or otherwise, and may dispossess and remove Tenant and all other persons and
Property from the Leased Property (without being liable for damages therefor or
deemed guilty of any manner of trespass or constructive eviction, and without
prejudice to any remedies for arrears of Rent or breach of covenant) and may
have, hold and enjoy the Leased Property and the right to receive all rental and
other income of and from the same, or may otherwise exercise any rights set
forth in this Lease. Any personalty or other property belonging to
Tenant or to any persons holding by, through, or under Tenant otherwise found
upon the Leased Property, may, at the option of Landlord, be removed therefrom
and stored in any public warehouse at the cost of and for the account of Tenant,
or may be deemed abandoned.
(d) Upon
any termination of this Lease pursuant to Section 13.1(b), Tenant shall
peaceably quit and surrender the Leased Property to Landlord and Landlord may
without further notice enter upon, re-enter, possess and repossess itself
thereof, by force, summary proceedings, ejectment or otherwise, and may
dispossess and remove Tenant and all other persons and property from the Leased
Property (without being liable for damages therefor or deemed guilty of any
manner of trespass or constructive eviction, and without prejudice to any
remedies for arrears of Rent or breach of covenant) and may have, hold and enjoy
the Leased Property and the right to receive all rental and other income of and
from the same, or may otherwise exercise any rights set forth in this
Lease. Any personalty or other property belonging to Tenant or to any
persons holding by, through, or under Tenant otherwise found upon the Leased
Property, may, at the option of Landlord, be removed therefrom and stored in any
public warehouse at the cost of and for the account of Tenant, or may be deemed
abandoned.
(e) If
any statute or rule of law governing a proceeding in which liquidated final
damages are to be proved shall validly limit the amount thereof to an amount
less than the amount above agreed upon, Landlord shall be entitled to the
maximum amount allowable under such statute or rule of law.
(f) No
right or remedy conferred upon or reserved to Landlord in this Lease is intended
to be exclusive of any other right or remedy; and each and every right and
remedy shall be cumulative and in addition to any other right or remedy
contained in this Lease. No delay or failure by Landlord to enforce
its rights under this Lease shall be construed as a waiver, modification or
relinquishment thereof. In addition to the other remedies provided in
this Lease, Landlord shall be entitled, to the extent permitted by applicable
law, to injunctive relief in case of the violation or attempted or threatened
violation of any of the provisions of this Lease, or to specific performance of
any of the provisions of this Lease.
(g) Tenant
hereby waives and surrenders for itself and all those claiming under it,
including creditors of all kinds, any right and privilege which it or any of
them may have under any present or future law to redeem any of the Leased
Property or to have a continuance of this Lease after termination of this Lease
or of Tenant’s right of occupancy or possession pursuant to any court order or
any provision hereof.
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(h) Each
of Tenant and Landlord (herein called “Paying Party”) agrees
to pay to the other party (herein called “Demanding Party”) any
and all reasonable costs and expenses (including, without limitation, attorneys’
fees) incurred by the Demanding Party in connection with any litigation or other
action instituted by the Demanding Party to enforce the obligations of the
Paying Party under this Lease, to the extent that the Demanding Party has
prevailed in any such litigation or other action. Any amount payable
by Tenant to Landlord pursuant to this Section 13.1(h) shall be due and payable
by Tenant to Landlord as Additional Rent.
(i) No
waiver by a party of any breach by the other party of any of its obligations,
agreements or covenants hereunder shall be a waiver of any subsequent breach of
any obligation, agreement or covenant nor shall forbearing by such party to seek
a remedy for any breach by the other party shall be a waiver of its rights and
remedies with respect to such subsequent breach.
Section 13.2. Default by
Landlord.
(a) The
occurrence of any one or more of the following events (any such event being
specified herein as a “failure” or “default”) shall
constitute a “Landlord
Event of Default” under this Lease: failure by Landlord to
perform and observe, or a violation or breach of, any other provision in this
Lease, with such default continuing for a period of sixty (60) days after
written notice thereof by Tenant to Landlord or, if such default is of such a
nature that it cannot reasonably be cured within such period of sixty (60) days,
as applicable, such period shall be extended for such longer time as is
reasonably necessary; provided, that Landlord has
commenced to cure such default within said period of sixty (60) days, and is
actively, diligently and in good faith proceeding with continuity to remedy such
default and provided that any delay in curing such default shall not result in a
material adverse effect on the value of Tenant’s leasehold interest in the
Leased Property.
(b) If
any Landlord Event of Default shall have occurred and shall remain uncured after
the applicable cure period, Tenant shall have the right at its option, then or
at any time thereafter, to do either one of the following without demand upon or
notice to Landlord:
(i) Tenant
may give Landlord notice of Tenant’s intention to terminate this Lease on a date
specified in such notice. At the option of Tenant, upon the date
therein specified, unless the Landlord Event of Default for which the
termination is effected has been cured by Landlord, the Term shall expire and
terminate as if such date were the date hereinabove fixed for the expiration of
the Term, but Landlord shall remain liable for all its obligations hereunder
through the date of termination; or
(ii) Tenant,
without waiving or releasing any obligation of Landlord hereunder, may (but
shall be under no obligation to) cure the Landlord Event of Default for the
account and at the expense of Landlord. All sums so paid by Tenant
and all costs and expenses (including reasonable attorneys’ fees) so incurred,
together with interest thereon at the Default Rate from the date on which such
sums or expenses are paid or incurred by Tenant, shall be paid by Landlord to
Tenant on demand. The rights of Tenant hereunder to cure and to
secure payment from Landlord in accordance with this Section shall survive the
termination of this Lease.
38
ARTICLE
XIV
INDEMNIFICATION
Section 14.1. Indemnification by
Tenant.
Tenant
shall indemnify, defend, save and hold Landlord harmless from and against any
and all liabilities, losses, or damages suffered or incurred by Landlord and
arising from the negligence or intentional wrongful act of Tenant or its
employees, officers, directors or agents. In case any action or
proceeding is brought against Landlord by reason of any such claim against which
Tenant has agreed to defend, save and hold harmless pursuant to the preceding
sentence, Tenant covenants upon notice from Landlord to defend Landlord in such
action, with the expenses of such defense paid by Tenant, and Landlord will
cooperate and assist in the defense of such action or proceeding if reasonably
requested so to do by Tenant. The obligations of Tenant under this Section 14.1
shall survive any expiration or termination of this Lease.
Section 14.2. Indemnification by
Landlord.
Landlord
shall indemnify, defend, save and hold Tenant harmless from and against any and
all liabilities, losses, or damages suffered or incurred by Tenant arising from
the negligence or intentional wrongful act of Landlord or its employees,
officers, directors or agents. In case any action or proceeding is
brought against Tenant by reason of any such claim against which Landlord has
agreed to defend, save and hold harmless pursuant to the preceding sentence,
Landlord covenants upon notice from Tenant to defend Tenant in such action, with
the expenses of such defense paid by Landlord, and Tenant will cooperate and
assist in the defense of such action or proceeding if reasonably requested so to
do by Landlord. The obligations of Landlord under this Section 14.2
shall survive any expiration or termination of this Lease.
39
ARTICLE
XV
HAZARDOUS
SUBSTANCES
Section 15.1. Hazardous
Substances.
(a) Tenant
agrees that it will not on, about, or under the Leased Property, make, treat or
dispose of any “hazardous substances”
as that term is defined in the Comprehensive Environmental Response,
Compensation and Liability Act, and the rules and regulations promulgated
pursuant thereto, as from time to time amended, 42 U.S.C. § 9601 et seq. and Resource
Conservation and Recovery Act, 42 U.S.C. § 6941 (collectively, the “Act”); but the
foregoing shall not prevent the use of any hazardous substances in accordance
with applicable Legal Requirements. Tenant covenants that it will at
all times comply with the Act and any other federal, state or local laws, rules
or regulations governing “Hazardous
Materials”. “Hazardous Materials”
as used herein shall mean all chemicals, petroleum, crude oil or any fraction
thereof, hydrocarbons, polychlorinated biphenyls (PCBs), asbestos,
asbestos-containing materials and/or products, urea formaldehyde, or any
substances which are classified as “hazardous” or “toxic” under the Act;
hazardous waste as defined under the Solid Waste Disposal Act, as amended 42
U.S.C. § 6901; air pollutants regulated under the Clean Air Act, as amended, 42
U.S.C. § 7401, et
seq.; pollutants as defined under the Clean Water Act, as amended, 33
U.S.C. § 1251, et
seq., any pesticide as defined by Federal Insecticide, Fungicide, and
Rodenticide Act, as amended, 7 U.S.C. § 136, et seq., any hazardous
chemical substance or mixture or imminently hazardous substance or mixture
regulated by the Toxic Substances Control Act, as amended, 15 U.S.C.
§ 2601, et seq.,
any substance listed in the United States Department of Transportation Table at
45 CFR 172.101; any chemicals included in regulations promulgated under the
above listed statutes; any explosives, radioactive material, and any chemical or
other hazardous substance regulated by state statutes similar to the federal
statutes listed above and regulations promulgated under such state
statutes.
(b) (i)
To the extent required by the Act and/or any federal, state or local laws, rules
or regulations governing Hazardous Materials, Tenant shall remove any hazardous
substances (as defined in the Act) and Hazardous Materials hereafter existing on
the Leased Property and whether or not arising out of or in any manner connected
with Tenant’s use or occupancy (including, without limitation, use for purposes
of the construction of leasehold improvements) of the Leased Property from and
after the date of this Lease and continuing through the end of the Term; provided, that Tenant shall not
be responsible, to the extent existing or occurring before the Effective Date
arising as the direct result of action taken by Landlord, or as a result of a
condition existing prior to the Effective Date, for (A) any of the foregoing
removal obligations, (B) the violation of any applicable federal, state or local
environmental law with respect to the Leased Property, and/or (C) the “release”
or “threatened release” of or failure to remove, as required by this Section
15.1(b)(i), hazardous substances and Hazardous Materials, all of which shall be
the responsibility of Landlord, or for any of the foregoing relating to any
hazardous substance or Hazardous Material brought or kept on or in the Leased
Property.
(ii) Tenant
shall and hereby does agree to defend, indemnify and hold Landlord, its lenders,
officers, directors, shareholders, beneficial owners, partners, members, and
employees, harmless from and against any and all causes of actions, suits,
demands or judgments of any nature whatsoever, losses, damages, penalties,
expenses, fees, claims, costs (including response and remedial costs), and
liabilities, including, but not limited to, reasonable attorneys’ fees and costs
of litigation, arising out of or in any manner connected with (i) the violation
of any applicable federal, state or local environmental law with respect to the
Leased Property, and/or (ii) the “release” or “threatened release”
of or failure to remove, as required by this Section 15.1, “hazardous substances”
(as defined in the Act) and Hazardous Materials from the Leased Property or any
portion or portions thereof, hereafter existing during the Term whether or not
arising out of or in any manner connected with Tenant’s occupancy of the Leased
Property during the Term. This indemnification shall survive the
expiration or earlier termination of this Lease but this indemnification shall
not apply if the violation, release or threatened release has migrated from, on
or under the Medical Center Land or if Tenant is not otherwise responsible under
Section 15.1(b)(i).
40
(iii) Landlord
shall and hereby does agree to defend, indemnify and hold Tenant, its lenders,
officers, directors, shareholders, beneficial owners, partners, members, and
employees, harmless from and against any and all causes of actions, suits,
demands or judgments of any nature whatsoever, losses, damages, penalties,
expenses, fees, claims, costs (including response and remedial costs), and
liabilities, including, but not limited to, reasonable attorneys’ fees and costs
of litigation, arising out of or in any manner connected with each of the
following conditions or events existing or occurring before the Effective Date
(i) the violation of any applicable federal, state or local environmental law
with respect to the Leased Property, and/or (ii) the “release” or “threatened
release” of or failure to remove hazardous substances and Hazardous Materials
from the Leased Property or any portion or portions thereof. This
indemnification shall survive the expiration or earlier termination of this
Lease.
(c) Tenant
agrees that it will not install any underground storage tank at the Leased
Property. Tenant agrees that it will not store combustible or
flammable materials on the Leased Property in violation of the Act or any other
federal, state or local laws, rules or regulations governing Hazardous
Materials.
ARTICLE
XVI
RIGHT OF FIRST
REFUSAL
Section 16.1. Principal Subtenant RFO;
Principal Subtenant RFR. It is recognized that the Principal
Subtenant has a right of first offer (the “Principal Subtenant
RFO”) and a right of first refusal (the “Principal Subtenant
RFR”) for Tenant’s leasehold estate under this Lease and the LTACH
Improvements. The Principal Subtenant RFO and Principal Subtenant RFR
shall be subordinate to the right of first refusal of Landlord (“Landlord RFR”) in
this Article XVI. Therefore, if the Principal Subtenant elects to
exercise the Principal Subtenant RFO or Principal Subtenant RFR and purchase
Tenant’s leasehold estate under this Lease and the LTACH Improvements, Landlord
shall then have the benefit of the Landlord RFR, prior to any right of the
Principal Subtenant to purchase Tenant’s leasehold estate under this Lease and
the LTACH Improvements under the Principal Subtenant RFO or Principal Subtenant
RFR, all as more particularly provided below in this
Article. However, if Landlord does not exercise the Landlord RFR,
then, subject to the terms of Section 16.2 with respect to any changes in the
offer that is subject to the Landlord RFR, the Principal Subtenant may acquire
the LTACH Improvements and Tenant’s leasehold estate under this Lease pursuant
to the Principal Subtenant RFO or Principal Subtenant
RFR. Contemporaneously with the delivery of any notice to the
Principal Subtenant initiating the Principal Subtenant RFO, Tenant shall
delivery a copy of such notice to Landlord.
Section 16.2. Right of First Refusal
Regarding Tenant’s Interest. Under the circumstances provided
in this Section 16.2, Landlord shall have the Landlord RFR as set forth in this
Section 16.2, which Landlord RFR shall terminate on the expiration or earlier
termination of this Lease. The Landlord RFR shall apply as
follows:
41
(a) If
Tenant shall receive a bona fide offer or counter offer from any third party
(including but not limited to a negotiated purchase and sale agreement between
Tenant and Principal Subtenant pursuant to the Principal Subtenant RFO) to (A)
purchase or otherwise acquire all or any portion of the LTACH Improvements
(including without limitation, the exercise by the Principal Subtenant of its
right of first offer under the Principal Subtenant Sublease), or (B) sell,
assign or transfer in one or more transactions with parties that are not direct
or indirect partners or other equity owners of Tenant or Affiliates of any
partners or other equity owners of Tenant more than fifty percent (50%) of the
ownership in Tenant (any such purchase, acquisition, transfer or sale shall
hereinafter be referred to as a “RFR Transaction”),
which offer Tenant desires to accept (or has accepted subject to Landlord RFR),
then in any such event Tenant shall promptly deliver to Landlord a written
notice (the “ROFR
Notice”) setting forth the material terms and conditions of the proposed
RFR Transaction, and if available, a copy of the proposed offer or counter offer
with respect thereto. Landlord may, by giving written notice to
Tenant within ten (10) days after Landlord’s receipt of the ROFR Notice, elect
to purchase the LTACH Land and the LTACH Improvements or other property interest
or right which is subject to the proposed RFR Transaction and described in the
ROFR Notice (which LTACH Land and LTACH Improvements or other property interest
or right is hereinafter called the “Offer Property”), on
the same terms and conditions as those set forth in the ROFR Notice except that,
notwithstanding the foregoing, Landlord shall have the greater of ninety (90)
days from the date on which the ROFR Notice is delivered to Landlord or the time
period provided in the ROFR Notice in which to close the RFR
Transaction. The failure of Landlord to exercise the Landlord RFR
with respect to any proposed RFR Transaction which is subject to the Landlord
RFR within the time provided herein shall result in an irrevocable waiver of
Landlord’s rights under this Section as to the RFR Transaction subject to the
ROFR Notice (subject to the terms of this Section regarding a change in price)
but shall not result in the termination of the Landlord RFR hereunder (i.e., the
Landlord RFR shall be a continuing right, binding upon the purchaser or
transferee of such Offer Property with respect to all subsequent proposed RFR
Transactions of the LTACH Land and the LTACH Improvements or any portion thereof
or interest therein). Notwithstanding the foregoing, in the event
that Landlord does not exercise the Landlord RFR as provided herein, Tenant
shall be free to consummate a RFR Transaction of the Offer Property to the party
specified in the ROFR Notice (or any Affiliate thereof) at a price and upon
terms no less favorable to Tenant than those so offered to Landlord pursuant to
the ROFR Notice; provided that, the
terms of the RFR Transaction may be modified by Tenant without requiring a new
ROFR Notice to Landlord unless the purchase price applicable to the Offer
Property is reduced below ninety-five percent (95%) of the price set forth in
the original ROFR Notice. If the purchase price is reduced below
ninety-five percent (95%) of the purchase price set forth in the original ROFR
Notice, then the transaction shall constitute a new RFR Transaction and be
required to be submitted under a new ROFR Notice. If Landlord elects
to exercise the Landlord RFR within the time and in the manner herein provided,
then such RFR Transaction shall be consummated on or before the date which is
the later of (i) the date specified for closing in the terms of the ROFR Notice
or (ii) ninety (90) days after the date of delivery of the ROFR Notice to
Landlord, at the price and otherwise in accordance with the terms and conditions
of such ROFR Notice applicable to Landlord as herein provided.
Section 16.3. Notwithstanding
anything to the contrary in Section 16.2, if a proposed RFR Transaction includes
property in addition to the Offer Property, Tenant shall not have the right to
include the Offer Property in such RFR Transaction unless the purchase price of
the Offer Property is specifically set forth in the offer or counteroffer which
is the subject of the ROFR Notice.
42
Section 16.4. If any
consideration to be paid to Tenant pursuant to any proposed RFR Transaction as
specified in the ROFR Notice is in a form other than cash, seller take-back
financing, cash earn-outs and/or any other form of deferred cash consideration
(collectively, “Cash/Credit
Consideration”), then if Landlord timely and properly exercises its
Landlord RFR with respect to such RFR Transaction, Landlord shall pay a purchase
price for such proposed RFR Transaction in an amount equal to the sum of the
Cash/Credit Consideration in accordance with the ROFR Notice together with an
amount equal to the present fair market value of any such non-Cash/Credit
Consideration at the time of consummation of such RFR Transaction.
Section 16.5. Limitation. The
foregoing provisions of this Article XVI shall not apply to a foreclosure sale,
or a transfer by a deed or assignment in lieu of foreclosure to a Leasehold
Mortgagee or its nominee and shall not apply to said Leasehold Mortgagee or
nominee as a seller after foreclosure if it shall be the purchaser at the
foreclosure sale, or after a deed or assignment in lieu of
foreclosure.
ARTICLE
XVII
MISCELLANEOUS
Section 17.1. Estoppel
Certificates. Landlord and Tenant shall, at any time and from
time to time upon not less than ten (10) days prior request by the other party,
or any Leasehold Mortgagee, execute, acknowledge, and deliver to the other party
a statement in writing certifying (i) that this Lease is unmodified and in
full force and effect (or if there have been any modifications, that the same is
in full force and effect as modified and stating the modifications) and, if so,
the dates to which the Rent and any other charges have been paid in advance,
(ii) that no default hereunder on the part of the Landlord or Tenant, as
the case may be, exists (except that if any such default does exist, the
certifying party shall specify such default), and/or (iii) to other
reasonable matters that may be requested by Landlord, Tenant, any existing or
proposed Leasehold Mortgagee, it being intended that any such statement
delivered pursuant to this Section 17.1 may be relied upon by any
prospective purchaser, encumbrancer, existing or prospective Leasehold
Mortgagees or any proposed assignee of the Leased Property.
Section 17.2. Release. If
requested by Landlord, Tenant shall, upon termination of this Lease, execute and
deliver to Landlord an appropriate release, in form proper for recording, of all
Tenant’s interest in the Leased Property, subject however to the rights of any
Leasehold Mortgagee under Article XI.
Section 17.3. Non-Merger. There
shall be no merger of this Lease, the leasehold interest created hereby with
Landlord’s leasehold estate or the fee estate in and to the Leased Property by
reason of the fact that this Lease, the leasehold interest created thereby or
any interest in either thereof, may be held directly or indirectly by or for the
account of any Person who shall own the Landlord’s leasehold estate or fee
estate in and to the Leased Property, or any portion thereof, and no such merger
shall occur unless and until all Persons at the time having any interest in
Landlord’s leasehold estate and the fee estate and all Persons having any
interest in this Lease, the leasehold interest including the holder of any
mortgage upon the fee estate in and to the Leased Property, shall join in a
written instrument effecting such merger.
Section 17.4. Holdover. Should
the Tenant continue to occupy the Leased Property after the expiration of the
Term or after a forfeiture incurred, whether with or against the consent of
Landlord, such tenancy shall be a tenancy from month to month and in no event a
tenancy from year to year.
43
Section 17.5. Notices. All
communications, notices and exchanges of information contemplated herein or
required or permitted to be given in connection with this Lease shall be in
writing, and shall be deemed to have been given and to be effective (i) when
delivered personally (including delivery by express or courier services), (ii)
if mailed, on the date received or, if earlier, on the fourth (4th) business day
after being deposited in the United States First Class Mail as Registered or
Certified Mail, postage prepaid, return receipt requested, or (iii) if sent by
facsimile transmission, when transmitted, with confirmation, but not later than
5:00 p.m. local time of addressee (with request for assurance of receipt in a
manner customary for communications of such type), provided that such
communications, notices and exchanges are addressed or transmitted to the other
party as follows:
|
If
to Landlord:
|
▇▇▇▇▇
Healthcare Management, Inc.
|
|
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
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▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
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|
|
Attention: President
and CEO (currently ▇▇▇▇ ▇▇▇▇▇▇▇▇)
|
|
|
With
copy to:
|
▇▇▇▇▇
Healthcare Management, Inc.
|
|
Corporate
Support Center
|
|
|
▇▇▇
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
|
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▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
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|
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Attention: General
Counsel (currently C. ▇▇▇▇ ▇▇▇▇, Esq.)
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|
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With
additional copy to:
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇ & Green, P.C.
|
|
▇▇▇
▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇
|
|
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▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
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Attention: M.
▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
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|
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If
to Tenant:
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Rome
LTH Partners, LP
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|
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
|
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▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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|
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Attention: ▇▇▇▇▇
▇. ▇▇▇▇
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|
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With
copy to:
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▇▇▇▇▇,
▇▇▇▇▇ & Aiken, L.L.P.
|
|
▇▇▇
▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
|
|
|
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
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|
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Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇, Esq.
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|
Each
party hereto shall have the right, by giving not less than five (5) days prior
written notice to the other parties hereto, to change any address of such party
for the purpose of notices under this Section 17.5.
44
Section 17.6. Successors and
Assigns. The word “Landlord” as used in
this Lease shall extend to and include any and all Persons, who at any time or
from time to time during the term of this Lease shall succeed to the interest
and estate of Landlord in the Leased Property; and all of the covenants,
agreements, conditions, and stipulations herein contained which inure to the
benefit of and are binding upon Landlord shall also inure to the benefit of and
shall be, jointly and severally, binding upon the successors, assigns, and
grantees of Landlord, and each of them, and any and all Persons who at any time
or from time to time during the term of this Lease shall succeed to the interest
and estate of Landlord in the Leased Property hereby demised. The
word “Tenant”
as used in this Lease shall extend to and include any and all Persons who at any
time or from time to time during the term of this Lease shall succeed to the
interest and estate of Tenant hereunder and all of the covenants, agreements,
conditions, and stipulations herein contained which inure to the benefit of or
are binding upon Tenant shall also inure to the benefit of and be jointly and
severally binding upon the successors, assigns, or other representatives of
Tenant, and of any and all Persons who shall at any time or from time to time
during the term of this Lease succeed to the interest and estate of Tenant
hereby created in the Leased Property.
Section 17.7. Modifications. This
Lease may be modified only by written agreement signed by Landlord and
Tenant.
Section 17.8. Descriptive
Headings. The descriptive headings of this Lease are inserted
for convenience in reference only and do not in any way limit or amplify the
terms and provisions of this Lease.
Section 17.9. No Joint
Venture. The relationship between Landlord and Tenant at all
times shall remain solely that of Landlord and Tenant and shall not be deemed a
partnership or joint venture.
Section
17.10. Partial
Invalidity. If any term or provision of this Lease or the
application thereof to any Person or circumstance shall to any extent be invalid
or unenforceable, the remainder of this Lease, or the application of such term
or provision to any Person or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each term of this
Lease shall be valid and be in force to the fullest extent permitted by
law.
45
Section
17.11. Governing
Law. This Lease is being executed and delivered, and is
intended to be performed, in the State of Georgia and the laws of such state and
of the United States shall govern the rights and duties of the parties hereto
and the validity, construction, enforcement, and interpretation
hereof. The exclusive venue for any action arising from this Lease
shall be the ▇▇▇▇▇ County, Georgia, Superior Court.
Section 17.12. Entire
Agreement. This Lease and the exhibits hereto and thereto
contain the entire agreement of the parties in respect to the matters provided
herein and all prior understandings and agreements are hereby
superseded. However, the terms of this Agreement do not supersede or
affect the terms of the REA or Medical Center Master Lease. In addition, where
there is a conflict between the terms of this Lease and the terms of any
sublease, including, by way of example and not limitation, the Principal
Subtenant Sublease or the ▇▇▇▇▇ Healthcare Management Sublease, the terms of
this Lease shall govern and control.
Section 17.13. Multiple
Counterparts. This Lease may be executed in a number of
identical counterparts, each of which constitutes an original and all of which
constitute, collectively, one agreement; provided, however, that in
making proof of this Lease, it shall not be necessary for any party hereto to
produce or account for more than one such counterpart.
Section 17.14. Time of
Essence. It is expressly agreed by the parties hereto that
time is of the essence with respect to this Lease.
Section 17.15. Memorandum of
Lease. Each of Landlord and Tenant shall execute, acknowledge
and deliver to the other a written Memorandum of this Lease to be recorded in
the ▇▇▇▇▇ County, Georgia, public land records in order to give public notice
and protect the validity of this Lease. In the event of any
discrepancy between the provisions of said recorded Memorandum of this Lease and
the provisions of this Lease, the provisions of this Lease shall
prevail. Tenant agrees to pay when due and payable any and all
charges, recording costs and taxes required in connection with the recordation
of such Memorandum of Lease.
Section 17.16. Consents and
Approvals. Except as otherwise specifically provided by the
terms of this Lease, whenever any consent or approval is required to be obtained
from or provided by any party to this Lease or any matter is required to be to
the satisfaction of such party or is subject to such party’s discretion, such
party shall not unreasonably withhold, condition or delay such consent or
approval and such matter shall be subject only to such party’s reasonable
satisfaction or discretion.
Section 17.17. Remedies. Each
party to this Lease shall be liable to the other hereto only for actual direct
damages to such other party and in no event shall either party be liable for any
special, consequential or punitive damages.
Section 17.18. No
Brokers. Landlord and Tenant each represent and warrant to the
other that they have dealt with no brokers in connection with this
transaction. Landlord and Tenant each hereby agree to indemnify and
hold harmless the other from and against any and all damages and expenses
(including reasonable attorney’s fees and expenses actually incurred) arising or
incurred by the other by reason of any claim by any broker, agent, finder, or
other Person based upon any agreement made or alleged to have been made by the
indemnifying party in connection with this Lease.
46
Section 17.19. Guaranty. Simultaneously
with Tenant’s execution and delivery of this Lease, Tenant shall cause the
Guaranty of Lease in the form attached hereto as Exhibit G to be
executed and delivered by Guarantor.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
47
IN
WITNESS WHEREOF, the parties have executed this instrument the day and year
first above written.
|
LANDLORD
|
||
|
▇▇▇▇▇
HEALTHCARE MANAGEMENT,
INC.,
d/b/a ▇▇▇▇▇ MEDICAL CENTER,
|
||
|
a
Georgia non-profit corporation
|
||
|
By:
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/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
|
Name:
|
▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
|
Title:
|
President and CEO | |
|
[CORPORATE
SEAL]
|
||
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Attest:
|
||
|
By:
|
||
|
Title:
|
||
|
TENANT:
|
||
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ROME
LTH PARTNERS, LP,
|
||
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a
Texas limited partnership
|
||
|
By:
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Rome
LTH Managers, LLC,
|
|
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a
Texas limited liability company
|
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By:
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇ | |
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▇▇▇▇▇
▇. ▇▇▇▇,
Manager
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Signature
Page to Ground Lease
JOINDER OF THE HOSPITAL
AUTHORITY OF ▇▇▇▇▇ COUNTY, GEORGIA
The
Hospital Authority of ▇▇▇▇▇ County, Georgia (the “Hospital Authority”),
a hospital authority organized and duly existing pursuant to O.C.G.A.
§ 31-7-70, et
seq., as the current owner of the fee interest in the Medical Center
Land, hereby joins in this Lease for the following purposes:
1. Approving
the execution and delivery of this Lease.
2. Acknowledging
the terms and conditions of this Lease and Landlord’s obligations with respect
to the Medical Center Land as set forth in Sections 2.4(c), 6.4, 8.2, 14.2, and
15.1(b)(iii) of this Lease, and acknowledging that Hospital Authority is making
no warranty pursuant to Section 2.5(b) of this Lease.
3. In
the event that the Medical Center Master Lease shall terminate, Hospital
Authority will reinstate the Lease for a term not to exceed the maximum term
permitted by the Georgia Hospital Authorities law or any other Legal Requirement
and recognize all of the rights of Tenant under the Lease without further
requirement for execution and delivery of any instrument to evidence the
relationship between Hospital Authority and Tenant and any Leasehold Mortgagee,
except that the term will comply with the limitations noted above in this
paragraph. However, without limiting the foregoing, upon any such
termination of the Medical Center Master Lease, Hospital Authority agrees to
execute and deliver such documentation as may be reasonably requested in order
to evidence the reinstatement of the Lease and as reasonably required by any
Leasehold Mortgagee, and to confirm the term as provided in this
paragraph. In any such event, Tenant shall attorn to Hospital
Authority with respect to any provisions of this Lease.
4. In
the event that the Medical Center Master Lease shall terminate, Hospital
Authority will ratify the REA (it being expressly stipulated and agreed that any
termination of this Lease shall not affect the REA) and recognize all of the
rights of Tenant under the REA without further requirement for execution and
delivery of any instrument to evidence the validity and effect of the
REA. However, without limiting the foregoing, upon any such
termination of the Medical Center Master Lease, Hospital Authority agrees to
execute and deliver such documentation as may be reasonably requested in order
to evidence the reinstatement of REA.
5. Without
intending to limit the foregoing, Hospital Authority expressly recognizes and
agrees to perform its obligations under Section 2.4(c) in the event
circumstances arise that would require the purchase of the LTACH Improvements by
Hospital Authority.
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Signed,
sealed and delivered in the presence of:
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THE
HOSPITAL AUTHORITY OF
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▇▇▇▇▇
COUNTY, GEORGIA
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Witness
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By:
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Name:
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Title:
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Notary
Public
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[SEAL]
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[NOTARY
SEAL]
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Attest:
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My
commission expires: ________________.
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By:
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Title:
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EXHIBIT
A-1
LEGAL DESCRIPTION OF THE
MEDICAL CENTER LAND
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TOGETHER
WITH:
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Legal
Description (Former Radiation Oncology Tract)
All that
tract or parcel of land situated, tying and being in Land ▇▇▇ ▇▇▇, ▇▇ ▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇, and 3rd Section
of ▇▇▇▇▇ County, Georgia, and being In the Third ▇▇▇▇ of the City of Some and
being ▇▇▇▇ ▇, ▇, ▇, ▇ ▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ Subdivision to the Fourth ▇▇▇▇
(Deed Book WWW, Page 372) and a portion of a now closed alley all being more
particularly described as follows:
Beginning
at a ½ inch rod placed at the intersection of the Northwesterly right of way
line of West ▇▇▇ ▇▇▇▇▇▇
(40 foot right of way) and the Southwesterly right of way line of North 4th Avenue
(40 foot right of way); and running thence South 41 degrees, 24 minutes, 44
seconds West along the Northwesterly right of way line of ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ a
distance of 297.82 feet to a ½ inch rod placed; thence North 48 degrees, 09
minutes, 24 seconds West a distance of 155.06 feet to a ¾ inch rod found; thence
North 41 degrees, 29 minutes, 59 seconds East a distance of 296.72 feet to a ½
inch rod found on the Southwesterly right ▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇;
thence South 48 degrees, 33 minutes, 45 seconds East along the Southwesterly
right of way line of North 4th Avenue,
a distance of 154.60 feet to the POINT OF BEGINNING.
Said
property is described according to a Plat prepared by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, G.R.L.S.
No.: 2376, dated December 11, 2008, entitled "Survey for The Hospital Authority
of ▇▇▇▇▇ County".
EXHIBIT
A-2
DESCRIPTION OF THE LTACH
LAND
LEASE
PARCEL DESCRIPTION
BEING A
LEASE PARCEL LYING WHOLLY WITHIN THE CAMPUS OF ▇▇▇▇▇ MEDICAL CENTER,
LOCATED IN THE THIRD ▇▇▇▇ OF THE CITY OF ROME, ▇▇▇▇▇ COUNTY, GEORGIA, AND BEING
MORE PARTICULARLY DESCRIBED AS FOLLOWS:
Commencing
at an iron pin in the southerly right-of-way margin of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Boulevard,
said iron pin being located at the point of curvature of a curve in the
intersection of the southerly right-of way margin of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Boulevard
with the westerly right-of-way margin of North Fourth Avenue; thence, with the
southerly right-of-way margin of ▇▇▇▇▇▇ ▇▇▇▇▇▇ Boulevard, North 89°02’08” West a
distance of 288.33 feet to a hole found in concrete; thence, leaving said
southerly right of-way margin, South 13°38’54” West a distance of 78.66 feet to
a point in the most northeasterly corner of the Lease Parcel to be described,
and the true and actual Point of Beginning;
Thence
South 01°00’46” West a distance of 31.00 feet to a point;
Thence
South 88°59’13” East a distance of 7.00 feet to a point;
Thence
South 01°00’47” West a distance of 37.67 feet to a point;
Thence
North 88°59’13” West a distance of 7.00 feet to a point;
Thence
South 01°00’47” West a distance of 31.00 feet to a point;
Thence
North 88°59’13” West a distance of 127.50 feet to a point;
Thence
South 01°00’47” West a distance of 23.76 feet to a point on the face of an
existing building;
Thence,
with face of said building, North 88°59’12” West a distance of 23.67 feet to a
point;
Thence,
leaving face of said building, North 01°00’47” East a distance of 23.76 feet to
a point;
Thence
North 88°59’13” West a distance of 46.02 feet to a point;
Thence
North 01°12’09” East a distance of 31.00 feet to a point;
Thence
North 88°59’13” West a distance of 7.09 feet to a point;
Thence
North 01°00’47” East a distance of 37.67 feet to a point;
Thence
South 88°59’13” East a distance of 7.00 feet to a point;
Thence
North 01°00’47” East a distance of 31.00 feet to a point;
Thence
South 88°59’13” East a distance of 197.17 feet to the Point of
Beginning.
The
parcel thus described contains 20,741.24 square feet, or 0.476 acre, more or
less.
EXHIBIT
B
PERMITTED
ENCUMBRANCES
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1.
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All
taxes subsequent to the year 2009.
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2.
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Deed
to Secure Debt from Rome LTH Partners, LP to Mutual of Omaha Bank, dated
December 18, 2009, filed for record in the Records of ▇▇▇▇▇ County,
Georgia.
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3.
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Terms,
conditions and obligations as contained in that certain Ground Lease
Agreement as evidenced by that certain Memorandum of Lease by and between
▇▇▇▇▇ Healthcare Management, Inc., and Rome LTH Partners, LP, dated
December 18, 2009, filed for record in the aforesaid Records; as
affected by that certain Recognition, Non-Disturbance and Estoppel
Agreement executed by ▇▇▇▇▇ Healthcare Management, Inc., in favor of
Mutual of Omaha Bank, dated December 18, 2009, filed for record in the
aforesaid Records.
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4.
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Terms,
conditions and obligations as contained in that certain Lease as evidenced
by that certain Memorandum of Lease by and between Hospital Authority of
▇▇▇▇▇ County, Georgia, a public body corporate and politic and ▇▇▇▇▇
Healthcare Management, Inc., dated December 18, 2009, filed for
record in the aforesaid Records; as affected by that certain Recognition,
Non-Disturbance and Estoppel Agreement executed by Hospital Authority of
▇▇▇▇▇ County in favor of Mutual of Omaha Bank, dated December 18, 2009,
filed for record December 18, 2009, recorded in aforesaid
Records.
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5.
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Conveyance
and Reservation of Access Rights by and between the Department of
Transportation, State of Georgia and Hospital Authority of ▇▇▇▇▇ County,
dated December 30, 1985, filed for record December 31, 1985, at
3:45 p.m., recorded in Deed Book 949, Page 116, aforesaid
Records.
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6.
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Declaration
of Covenants, Restrictions and Easements by ▇▇▇▇▇ Healthcare Management,
Inc., d/b/a ▇▇▇▇▇ Medical Center, a Georgia non-profit corporation, dated
as of December 18, 2009, filed for record in aforesaid
Records.
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7.
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Declaration
of Easements and Restrictions by Hospital Authority of ▇▇▇▇▇ County,
Georgia, a Georgia hospital authority, dated as of June 10, 2004,
filed for record June 18, 2004, at 11:07 a.m., recorded in Deed Book
1878, Page 902, aforesaid Records; as modified by that certain
Modification of Declaration of Easements and Restrictions by and between
Hospital Authority of ▇▇▇▇▇ County, Georgia, a Georgia hospital authority
and 330 Physicians Center, L.P., f./k/a ▇▇▇▇▇ Physicians Center, L.P., a
Georgia limited partnership, dated as of December 22, 2005, filed for
record January 4, 2006, at 11:09 a.m., recorded in Deed Book 1986,
Page 590, aforesaid Records.
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8.
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All
those easements, encroachments, yard lights, fifteen (15”) inch reinforced
concrete pipe, thirty-six (36”) inch reinforced concrete pipe, waterlines,
drop inlet, curbing and canopy as disclosed by that certain survey
entitled “ALTA/ACSM Land Title Land Survey to: Mutual of Omaha Bank,, Rome
LTH Partners, LP and First American Title Insurance Company”, prepared by
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, Inc., bearing the seal and certification of
▇▇▇▇▇▇ ▇. ▇▇▇▇, Georgia Registered Land Surveyor No. 1498, dated
November 19, 2009, last revised December 22,
2009.
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EXHIBIT
C
SITE
PLAN
EXHIBIT
D
BUILDING
PLANS
EXHIBIT
D Continued
EXHIBIT
D Continued
EXHIBIT
D Continued
EXHIBIT
D Continued
EXHIBIT
E
DECLARATION OF COVENANTS,
RESTRICTIONS AND EASEMENTS
[DOCUMENT
FOLLOWS]
EXHIBIT
F
RECOGNITION,
NON-DISTURBANCE, AND ESTOPPEL AGREEMENT
[DOCUMENT
FOLLOWS]
1
EXHIBIT
G
GUARANTY OF
LEASE
GUARANTY
IN
CONSIDERATION OF the execution and delivery of that certain Ground Lease
Agreement, dated as of December 18, 2009 (together with any amendments thereto,
hereinafter called “Lease”), by ▇▇▇▇▇ HEALTHCARE
MANAGEMENT, INC., d/b/a ▇▇▇▇▇ MEDICAL CENTER, a Georgia non-profit corporation,
the Landlord therein named (“Landlord”), to ROME LTH
PARTNERS, LP, a Texas limited partnership, the Tenant therein named ( “Tenant”), and in further
consideration of other good and valuable consideration to the undersigned, THE
CIRRUS GROUP, LLC, a Texas limited liability company (“Guarantor”), the receipt and
sufficiency of which are hereby acknowledged, Guarantor, intending to be legally
bound, hereby irrevocably and unconditionally guarantees to Landlord (i) the
full and prompt payment when due of all obligations by Tenant accruing under the
Lease up to but not on or after the CO Date (hereafter defined) [collectively,
the “Obligations”]. As
used herein, the term “CO
Date” shall mean the date on which the final certificate of occupancy
with respect to (i) the building shell of the LTACH Improvements and (ii) the
build-out of the space demised to The Specialty Hospital LLC, a Georgia limited
liability company, under the Principal Subtenant Sublease, is issued by the City
of Rome, Georgia (but not including any permit or authorization from the City of
Rome, Georgia, State of Georgia or other governmental authority pertaining to
the operation of the long-term acute care hospital to be located within the
LTACH Improvements). Should the final certificate of occupancy for
items (i) and (ii) above be issued separately, then the CO Date shall be the
date that the latter of the two final certificates of occupancy is
issued. Once the CO Date has occurred, the liability of Guarantor
under this Guaranty shall terminate with respect to all Obligations, whether or
not they have been performed and whether or not there is then existing any
default under the Lease. Further, all non-monetary Obligations of
Guarantor under this Guaranty shall be terminated as to any Obligations accruing
in the event Landlord terminates the Lease pursuant to Section 4.3(d) of the
Lease. Terms used herein with their initial letters capitalized which
have been specifically defined in the Lease shall have the same meaning herein
as in the Lease unless such terms are otherwise defined in this
Guaranty.
This
Guaranty is an absolute, irrevocable and unconditional guaranty of payment and
of performance of the Obligations. Guarantor’s liability hereunder is
direct and is independent of Tenant’s liability with respect to the Obligations,
and may be enforced without Landlord being required to resort to any other
right, remedy or security and this Guaranty shall be enforceable against
Guarantor without the necessity for any suit or proceedings on Landlord’s part
of any kind or nature whatsoever against Tenant or the joinder of Tenant in any
suit or proceeding, and without the necessity of any notice of non-payment,
non-performance or non-observance of any of the Obligations by Tenant or of any
notice of acceptance of this Guaranty or of Landlord’s intention to act in
reliance hereon or of any other notice or demand to which Guarantor might
otherwise be entitled, all of which Guarantor hereby expressly waives; and
Guarantor hereby expressly agrees that the validity of this Guaranty and the
obligations of Guarantor hereunder shall in nowise be terminated, affected or
impaired by reason of the assertion or the failure to assert by Landlord against
Tenant, of any of the rights or remedies reserved to Landlord pursuant to the
provisions of the Lease.
1
This
Guaranty shall be a continuing Guaranty, and (whether or not Guarantor shall
have notice or knowledge of any of the following) the liability and obligations
of Guarantor hereunder shall be absolute and unconditional and shall remain in
full force and effect without regard to, and shall not be released, discharged
or in any way impaired by (a) any exercise or non-exercise of any right, power,
remedy or privilege under or in respect of the Lease or this Guaranty or any
waiver, consent or approval by Landlord with respect to any of the covenants,
terms, conditions or agreements contained in the Lease or any indulgences,
forbearances or extensions of time for performance or observance allowed to
Tenant from time to time and for any length of time; (b) any bankruptcy,
insolvency, reorganization, arrangement, readjustment, composition, liquidation
or similar proceeding relating to Tenant, or its properties; (c) any limitation
on the liability or obligation of Tenant under the Lease or its estate in
bankruptcy or of any remedy for the enforcement thereof, resulting from the
operation of any present or future provision of the federal or any state
bankruptcy law or any other statute or from the decision of any court; (d) any
security provided for the Obligations; and/or (e) any sale, assignment, transfer
or conveyance (1) by Landlord of all or any portion of the Premises (as such
term is defined in the Lease) or of Landlord’s interest in the Lease, or (2) of
any ownership interest in the Landlord.
All of
Landlord’s rights and remedies under the Lease and under this Guaranty are
intended to be distinct, separate and cumulative and no such right or remedy
therein or herein mentioned is intended to be in exclusion of or a waiver of any
of the others or of any rights or remedies provided by law.
The
Guarantor hereby waives any requirement that the Landlord protect, secure,
perfect or insure any security interest or lien or any property subject thereto
or exhaust any right or take any action against any person or entity or any
collateral (including any rights relating to marshaling of assets).
The
liability and obligations of the Guarantor under this Guaranty shall be absolute
and unconditional, not subject to any reduction, limitation, impairment,
termination, defense, offset, counterclaim or recoupment whatsoever (all of
which are hereby expressly waived by the Guarantor) whether by reason of any
claim of any character whatsoever, including, without limitation, any claim of
waiver, release, surrender, alteration or compromise, or by reason of any
liability at any time to the Guarantor or otherwise, whether based upon any
obligations or any other agreements or otherwise, howsoever arising, whether out
of action or inaction or otherwise and whether resulting from default, willful
misconduct of Tenant, negligence or otherwise, and without limiting the
foregoing irrespective of (and whether or not Guarantor shall have notice or
knowledge of): (a) any amendment to the Lease; (b) the absence of any
action on the part of the Landlord to obtain payment for or performance of the
Obligations from the Tenant; (c) any insolvency, bankruptcy, reorganization or
dissolution, or any proceeding of the Tenant or the Guarantor, including,
without limitation, rejection of the guaranteed Obligations in such bankruptcy;
(d) the absence of notice or any delay in any action to enforce any Obligations
or to exercise any right or remedy against the Guarantor or the Tenant, whether
hereunder, under any Obligations or under any agreement or any indulgence,
compromise or extension granted; or (e) the termination or cessation of a
corporate relationship between Guarantor and Tenant.
2
Until
such time as all the Obligations have been fully and indefeasibly paid to
Landlord and performed in full or this Guaranty is terminated, Guarantor shall
have no rights (direct or indirect) of subrogation, contribution, reimbursement,
indemnification or other rights of payment or recovery from any person or entity
(including, without limitation, the Tenant) for any payments made by the
Guarantor hereunder, and Guarantor hereby waives and releases absolutely and
unconditionally, any such rights of subrogation, contribution, reimbursement,
indemnification and other rights of payment or recovery which it may now have or
hereafter acquire. If any amount shall be paid to the Guarantor in
violation of the preceding sentence and the Obligations shall not have been paid
in full, such amount shall be deemed to have been paid to the Guarantor for the
benefit of, and held in trust for the benefit of, the Landlord and shall
forthwith be paid to the Landlord to be credited and applied upon the
Obligations, whether matured or unmatured, in accordance with the terms of the
Lease. The Guarantor acknowledges that it will derive substantial
direct and indirect benefit from the granting, execution and delivery of the
Lease by the Landlord and that the waiver set forth in this paragraph is
knowingly made in contemplation of such benefits. The provisions of
this paragraph shall survive the payment and performance of the Obligations and
the termination of this Guaranty.
Guarantor
represents and warrants to Landlord that (a) the execution and delivery of this
Guaranty has been duly authorized by the appropriate officers of Guarantor and
does not contravene any law, or any contractual or legal restriction, applicable
to it, (b) no authorization or approval or other action by, and no notice to or
filing with, any governmental authority or regulatory body is required for its
execution, delivery and performance of this Guaranty, (c) there are no
conditions precedent to the effectiveness of this Guaranty that have not been
satisfied or waived, (d) Guarantor will, directly or indirectly, benefit from
the transaction which is the subject of the Lease, and (e) neither the
execution, delivery or performance of this Guaranty, nor compliance with the
terms and provisions hereof, conflicts or will conflict with or results or
result in a default under or a breach of any of the terms, conditions or
provisions of the limited liability company agreement of the Guarantor or of any
contract to which the Guarantor is a party or by which it is bound.
This
Guaranty shall be legally binding upon Guarantor and its successors and assigns
and shall inure to the benefit of Landlord, Landlord’s Mortgagee and the
Hospital Authority (as such term is defined in the Lease) and each of their
respective successors and assigns. Reference herein to Landlord shall
be deemed to include Landlord and its successors and
assigns. Reference herein to Tenant shall be deemed to include Tenant
and its successors and assigns. Without limiting the generality of
the foregoing, the Landlord may assign or otherwise transfer (whether as an
outright assignment or transfer or as collateral) all or any portion of its
rights and obligations under the Lease to any other person or entity (any such
person or entity, a “Landlord
Assign”) and such Landlord Assign shall thereupon become vested (on a
non-exclusive basis, as an additional beneficiary) with all the benefits in
respect thereof granted to the Landlord herein or otherwise.
3
THIS
GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATE OF GEORGIA WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF. GUARANTOR
HEREBY SUBMITS TO PERSONAL JURISDICTION IN SAID STATE AND THE FEDERAL COURTS OF
THE UNITED STATES OF AMERICA LOCATED IN SAID STATE (AND ANY APPELLATE COURTS
TAKING APPEALS THEREFROM) FOR THE ENFORCEMENT OF GUARANTOR’S OBLIGATIONS
HEREUNDER, AND WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE LAW OF ANY OTHER
STATE TO OBJECT TO JURISDICTION WITHIN SUCH STATE FOR THE PURPOSES OF SUCH
ACTION, SUIT, PROCEEDING OR LITIGATION TO ENFORCE SUCH OBLIGATIONS. GUARANTOR
HEREBY WAIVES AND AGREES NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY, (A) THAT IT IS NOT
SUBJECT TO SUCH JURISDICTION OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE
BROUGHT OR IS NOT MAINTAINABLE IN THOSE COURTS OR THAT THIS GUARANTY MAY NOT BE
ENFORCED IN OR BY THOSE COURTS OR THAT IT IS EXEMPT OR IMMUNE FROM EXECUTION,
(B) THAT THE ACTION, SUIT OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, OR
(C) THAT THE VENUE OF THE ACTION, SUIT OR PROCEEDING IS IMPROPER (BUT NOTHING
HEREIN SHALL AFFECT THE RIGHT OF LANDLORD OR ANY LANDLORD ASSIGN TO BRING ANY
ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM). IN THE EVENT ANY SUCH
ACTION, SUIT, PROCEEDING OR LITIGATION IS COMMENCED, GUARANTOR AGREES THAT
SERVICE OF PROCESS MAY BE MADE, AND PERSONAL JURISDICTION OVER GUARANTOR
OBTAINED, BY SERVICE OF A COPY OF THE SUMMONS, COMPLAINT AND OTHER PLEADINGS
REQUIRED TO COMMENCE SUCH LITIGATION UPON GUARANTOR AT GUARANTOR’S ADDRESS SET
FORTH HEREIN.
GUARANTOR
AND LANDLORD (BY ITS ACCEPTANCE OF THIS GUARANTY) HEREBY MUTUALLY WAIVE TRIAL BY
JURY IN CONNECTION WITH ANY DISPUTE ARISING HEREUNDER. The provisions
of this paragraph shall survive the payment and performance of the Obligations
and the termination of this Guaranty.
All
notices and other communications provided for hereunder shall be in writing
(including telecopier, telegraphic, telex or cable communication) and mailed,
telecopied, telegraphed, telexed, cabled or delivered to it, if to the
Guarantor, at:
The
Cirrus Group, LLC
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇
▇. ▇▇▇▇
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
Telecopy: (▇▇▇)
▇▇▇-▇▇▇▇
With a
copy to:
▇▇▇▇▇,
▇▇▇▇▇ & Aiken, L.L.P.
Attn: ▇▇▇▇▇▇
▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
Telecopy: (▇▇▇)
▇▇▇-▇▇▇▇
4
and if to
Landlord or any successor thereof or Landlord Assign at its address as may be
designated by such party in a written notice to the other party. All
such notices and other communications shall, when mailed, telecopied,
telegraphed, telexed or cabled, be effective when deposited in the mails,
telecopied, delivered to the telegraph company, confirmed by telex answerback or
delivered to the cable company, respectively.
Except
for provisions of this Guaranty which by their terms survive the termination
hereof, this Guaranty shall terminate as provided in the first paragraph of this
Guaranty.
IN
WITNESS WHEREOF, Guarantor, intending to be legally bound hereby, has caused
this Guaranty to be executed by its duly authorized officer as of December 18,
2009.
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THE
CIRRUS GROUP, LLC,
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a
Texas limited liability company
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By:
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Title:
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5
EXHIBIT
H
REQUIRED
INSURANCE
1. Casualty
Insurance. Tenant shall maintain or cause to be maintained
“all risks” coverage insurance for 100% of the replacement cost of the LTACH
Improvements. Such insurance shall name Landlord as additional
insured. Tenant shall, at Landlord's request from time to time,
provide Landlord with a current certificate of insurance throughout the Term
evidencing Tenant's compliance. Tenant shall obtain the agreement of
Tenant's insurers to notify Landlord that a policy is due to expire at least
thirty (30) days prior to such expiration. Leasehold Mortgagee
shall be named as a loss payee and any insurance proceeds shall be payable in
accordance with the terms of the Leasehold Mortgage or as otherwise provided in
the Lease. Notwithstanding anything to the contrary set forth herein,
Tenant shall not be required to obtain and maintain the insurance described in
this paragraph until immediately prior to the termination of the builder’s risk
insurance on the LTACH Improvements described in Section 9.4 of the
Lease.
2. Liability
Insurance. Tenant shall maintain or cause to be maintained
comprehensive general liability insurance with limits of liability in respect of
personal injury of at least One Million and No/100 Dollars ($1,000,000.00) for
each person and at least One Million and No/100 Dollars ($1,000,000.00) for each
occurrence, and in respect of property damage and at least a Two Million and
No/100 Dollars ($2,000,000.00) aggregate limit (each of such amounts shall be
subject to be increased from time to time as Landlord may reasonably request to
reflect declines in the purchasing power of the dollar). Said
insurance policies shall provide for at least thirty (30) days notice to
Landlord before cancellation and shall include a waiver of subrogation by the
insurance carrier. Landlord and Leasehold Mortgagee shall be named as
an additional insureds.