Exhibit 10.70
LEASE AND SECURITY AGREEMENT
This Lease and Security Agreement (this "Lease") is made and
entered into as of the 29th day of November, 1996, by and between MLD
TEXAS TRUST, a Delaware business trust ("Landlord"), and STERLING
HOUSE CORPORATION, a Kansas corporation ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord is the owner of that certain real property, all
improvements thereon and all appurtenances thereto, presently used and
licensed as a personal care facility (Type B Large) ("PCF") by the State of
Texas for sixty (60) beds, located at ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
and more specifically described in Exhibit "A" attached hereto, together with
certain of the furniture, machinery, equipment, appliances, fixtures, supplies
and other personal property used in connection therewith as more specifically
described on Exhibit "B" attached hereto ("Landlord Personal Property").
The foregoing property owned by Landlord shall be collectively referred to
in this Lease as the "Premises"; and
WHEREAS, Landlord desires to lease the Premises to Tenant, and
Tenant desires to lease the Premises from Landlord.
NOW THEREFORE, in consideration of the mutual covenants,
conditions and agreements set forth herein, Landlord hereby leases and lets
unto Tenant the Premises for the term and upon the conditions and provisions
hereinafter set forth.
1. Term.
1.1 Term. The term of this Lease shall commence on
November 29, 1996 ("Lease Commencement Date") and shall end on
December 31, 2008 (the "Initial Term") unless extended pursuant to Section
1.2 or earlier terminated in accordance with the provisions hereof. The Initial
Term and all Renewal Terms (as hereinafter defined) are referred to
collectively as the "Term".
1.2 Renewal Terms. The Term may be extended for four
(4) separate renewal terms (each a "Renewal Term") of ten (10) years each,
upon the satisfaction of all of the following terms and conditions:
1.2.1 Not more than thirty (30) days before or after
the date which is fifteen (15) months prior to the end of the then current
Term, Tenant shall give Landlord written notice that Tenant desires to
exercise its right to extend the then current Term for one (1) Renewal Term.
1.2.2 There shall be no Event of Default under this
Lease, either on the date of Tenant's notice to Landlord pursuant to Section
1.2.1 above, or on the last day of the then current Term.
1.2.3 All other provisions of this Lease shall remain
in full force and effect and shall continuously apply throughout the Renewal
Term(s).
1.2.4 It shall be a further condition of Tenant's
exercise of any of its renewal rights hereunder, that Tenant and all Affiliates
of Tenant then leasing property from Landlord or any Affiliate of Landlord
shall have previously, or simultaneous with Tenant's exercise hereunder,
exercised similar extension rights under their respective lease agreements
with Landlord or any Affiliates of Landlord (collectively, all such lease
agreements and future lease agreements with Landlord or any Affiliates of
Landlord are sometimes referred to as the "Affiliate Leases").
2. Rent. During the Initial Term and all Renewal Terms, Tenant
shall pay to Landlord an annual minimum rent ("Minimum Rent"), which
Minimum Rent shall be expressed as an annual amount but shall be paid in
advance in equal monthly installments on the first (1st) day of each calendar
month. The Minimum Rent shall be determined as follows:
2.1 Initial Term Minimum Rent. During the first Lease
Year of the Initial Term, Tenant shall pay to Landlord Minimum Rent equal
to the amount of One Hundred Fifty-One Thousand Three Hundred
Seventeen and 65/100 Dollars ($151,317.65) payable in equal monthly
installments of Twelve Thousand Six Hundred Nine and 80/100 Dollars
($12,609.80).
2.2 Annual Escalation of Minimum Rent during Term.
2.2.1 Computation of Annual Escalations.
Commencing on December 1, 1997 and continuing on each subsequent
December 1 during the Initial Term and Renewal Term, the Minimum Rent
(irrespective of any prorations made pursuant to Section 2.6 of this Lease)
shall increase to an annual amount (which, although expressed as an annual
amount, shall be payable in equal monthly installments) equal to the
Minimum Rent for the immediately preceding Lease Year multiplied by a
fraction, the numerator of which shall be the C.P.I. (as hereinafter defined)
for January 1 of the Lease Year then in effect, and the denominator of which
shall be the C.P.I. for January 1 of the immediately preceding Lease Year;
provided, however, that the product of said multiplication shall not result in
an increase of the Minimum Rent by more than two percent (2%) per year on
a cumulative basis ("Annual Multiplier"); provided, further, if the Annual
Multiplier is less than two percent (2%) in any Lease Year (a "Less Than
2% Lease Year"), then at such time as the Annual Multiplier is being
determined for each subsequent Lease Year, the Minimum Rent for each
preceding Less Than 2% Lease Year shall be retroactively recalculated such
that subsequent Annual Multipliers (whether less than or greater than 2%)
shall be first applied to increase the Annual Multiplier for each Less Than 2%
Lease Year to an amount up to, but not greater than, 2%, with such
recalculations to be made in chronological order beginning with the earliest
Less Than 2% Lease Year and continuing, so long as there is Annual
Multiplier remaining, until recalculations have been made with respect to all
Less Than 2% Lease Years. After each such recalculation has been made, the
shortfall in the Minimum Rent for the newly recalculated Less Than 2%
Lease Years shall be billed to Tenant; and Tenant shall pay such shortfall
amount to Landlord within three (3) days after written notice of such shortfall
from Landlord. Such recalculations and shortfall ▇▇▇▇▇▇▇▇ shall be made in
each Lease Year where there remain prior Less Than 2% Lease Years which
have not yet been recalculated to 2%. For purposes of example only, if the
initial Minimum Rent equals $939,120.00, and if (a) the C.P.I. increased
1.5% as of January 1, 1998, the Minimum Rent as of January 1, 1998 would
increase to $953,207.00; (b) the C.P.I. increased 1.5% as of January 1, 1999,
the Minimum Rent as of January 1, 1999 would increase to $967,505.00; (c)
the C.P.I. increased 6% as of December 1, 1999, the Minimum Rent as of
January 1, 2000 would increase to $996,602.00, which is the Minimum Rent
increased by 2% per year for three years (i.e., the average annual increases
have been 3% [1.5% + 1.5% + 6% for the three years, respectively], subject
to the 2% annual limitation), and the total shortfall amount to be billed to
Tenant would be $4,695.00 for Lease Year 1998 and $9,555.00 for Lease
Year 1999. For purposes hereof, "C.P.I." shall mean and refer to the United
States Department of Labor, Bureau of Labor Statistics Consumer Price
Index, United States Average, "All Items" (1982-84=100); provided that if
compilation of the C.P.I. is discontinued or transferred to any other
governmental department or bureau, then the index most nearly the same as
the C.P.I. shall be used as reasonably chosen by Landlord. If Landlord is
unable to determine the C.P.I. by January 1 of any Lease Year, Tenant shall
continue to pay the Minimum Rent at the rate paid for the immediately prior
Lease Year, and once the C.P.I. for January 1 of such Lease Year is
published, the new Minimum Rent (as increased by the Annual Multiplier)
shall be effective retroactively as of the first day of such Lease Year and the
aggregate amount of any additional Minimum Rent shall be paid by Tenant to
Landlord within three (3) days after written notice thereof from Landlord.
No delay by Landlord in providing notice of any such increase in Minimum
Rent shall be deemed a waiver of Landlord's right to increase the Minimum
Rent as provided hereunder.
2.2.2 "Lease Year" shall be defined as the twelve
(12) month periods commencing on January 1 of each year of the Term.
2.3 Renewal Term Minimum Rent. The Minimum Rent
for the first Lease Year in any Renewal Term shall be equal to the greater of:
2.3.1 the product of the fair market value of the
Premises on the date of Tenant's notice of exercise pursuant to Section 1.2.1
multiplied by a percentage equal to three hundred (300) basis points over the
10-year United States Treasury rate in effect on the date of Tenant's notice of
exercise pursuant to Section 1.2.1 or
2.3.2 the Minimum Rent for the immediately
preceding Lease Year (regardless of whether such immediately preceding
Lease Year is in the Initial Term or a Renewal Term) after such Minimum
Rent has been adjusted for escalation in the manner set forth in Section 2.2.1
of this Lease.
If within ten (10) days of the date of Tenant's notice of exercise pursuant to
Section 1.2.1, Landlord and Tenant are unable to agree on the fair market
value of the Premises for purposes of this calculation, such fair market value
shall be established by the appraisal process described on Exhibit "C"
attached hereto; provided, however, Landlord and Tenant agree to use good
faith and diligent efforts to agree on the fair market value of the Premises
within such ten (10) day period. Landlord and Tenant acknowledge and agree
that this Section is designed to establish a fair market Minimum Rent for the
Premises during the first Lease Year of any applicable Renewal Term.
2.4 Minimum Rent Escalations after Inception of
Renewal Term. Commencing with the second Lease Year of each Renewal Term and
every Lease Year of such Renewal Term thereafter, the Minimum
Rent shall increase by an escalation adjustment determined in the manner set
forth in Section 2.2.1 of this Lease.
2.5 Total Rent. For all purposes of calculating and paying
Minimum Rent under this Lease, the Minimum Rent payable by Tenant in
any Lease Year will not be less than the Minimum Rent paid by Tenant for
the previous Lease Year.
2.6 Proration for Partial Periods. The rent for any month
during the Term which begins or ends on other than the first or last calendar
day of a calendar month shall be prorated based on actual days elapsed.
2.7 Form for Calculating Minimum Rent. Tenant shall
accompany each installment of Minimum Rent owing in respect to a Lease
Year with Tenant's calculation of the Minimum Rent payable for such Lease
Year, which calculation shall be set forth on a form mutually approved by
Landlord and Tenant.
2.8 Absolute Net Lease. All rent payments shall be
absolutely net to the Landlord free of taxes, assessments, utility charges,
operating expenses, refurnishings, insurance premiums or any other charge
or expense in connection with the Premises. All expenses and charges,
whether for upkeep, maintenance, repair, refurnishing, refurbishing,
restoration, replacement, insurance premiums, taxes, utilities, and other
operating or other charges of a like nature or otherwise, shall be paid by
Tenant. This provision is not in derogation of the specific provisions of this
Lease, but in expansion thereof and as an indication of the general intentions
of the parties hereto. Tenant shall continue to perform its obligations under
this Lease even if Tenant claims that Tenant has been damaged by any act or
omission of Landlord. Therefore, Tenant shall at all times remain obligated
under this Lease without any right of set-off, counterclaim, abatement,
deduction, reduction or defense of any kind. Tenant's sole right to recover
damages against Landlord by reason of a breach or alleged breach of
Landlord's obligations under this Lease shall be to prove such damages in a
separate action against Landlord.
3. Taxes, Assessments and Other Charges:
3.1 Tenant's Obligations. Tenant agrees to pay and
discharge (including the filing of all required returns) any and all taxes
(including but not limited to real estate and personal property taxes, business
and occupational license taxes, ad valorem, sales, use, single business, gross
receipts, transaction privilege, rent or other excise taxes) and other
assessments levied or assessed against the Premises or any interest therein
during the Term, prior to delinquency or imposition of any fine, penalty,
interest or other cost. Tenant agrees to pay all franchise taxes of Landlord
(but excluding franchise taxes relating to the restructuring of Landlord's
liabilities) assessed or proposed for assessment, including, without limitation,
franchise taxes derived as a result of an appreciation of the fair market value
of the Premises or a change in the method of calculating franchise taxes. In
computing the amount of any franchise tax payable by Tenant, the amount
payable by Tenant shall be equitably apportioned in a manner followed by
taxing authorities. Notwithstanding the foregoing, nothing contained in this
Lease shall be construed to require Tenant to pay (1) any federal, state, or
local income tax assessed against Landlord, or (2) any tax assessed as a result
of the sale, exchange or other disposition by Landlord of the Premises or the
proceeds thereof.
3.2 Proration. At the commencement and at the end of the
Term, all such taxes and assessments shall be prorated.
3.3 Right to Protest. Landlord and/or Tenant shall have
the right, but not the obligation, to protest the amount or payment of any real
or personal property taxes or assessments levied against the Premises;
provided that in the event of any protest by Tenant, Landlord shall not incur
any expense because of any such protest, Tenant shall diligently and
continuously prosecute any such protest and notwithstanding such protest
Tenant shall pay any tax, assessment or other charge before the imposition of
any penalty or interest.
3.4 Tax Bills. Landlord shall promptly forward to Tenant
copies of all tax bills and payment receipts relating to the Premises received
by Landlord.
3.5 Other Charges. Tenant agrees to pay and discharge,
punctually as and when the same shall become due and payable without
penalty, all electricity, gas, garbage collection, cable television, telephone,
water, sewer, and other utilities costs and all other charges, obligations or
deposits assessed against the Premises during the Term.
4. Insurance.
4.1 General Insurance Requirements. All insurance
provided for in this Lease shall be maintained under valid and enforceable
policies issued by insurers of recognized responsibility, licensed and
approved to do business in the State of Texas, having a rating of not less than
"A-X" in the then most current Best's Insurance Report. Any and all policies
of insurance required under this Lease shall name the Landlord as an
additional insured and shall be on an "occurrence" basis. In addition,
Landlord shall be shown as the loss payable beneficiary under the casualty
insurance policy maintained by Tenant pursuant to Section 4.2. All policies of
insurance required herein may be in the form of "blanket" or "umbrella"
type policies which shall name the Landlord and Tenant as their interests may
appear and allocate to the Premises the full amount of insurance required
hereunder. Original policies or satisfactory certificates from the insurers
evidencing the existence of all policies of insurance required by this Lease
and showing the interest of the Landlord shall be filed with the Landlord prior
to the commencement of the Term and shall provide that the subject policy
may not be cancelled except upon not less than ten (10) days prior written
notice to Landlord. If Landlord is provided with a certificate, upon Landlord's
request Tenant shall use its best efforts to provide Landlord with a complete
copy of the insurance policy evidenced by such certificate as soon as possible
after the commencement of the Term but not later than sixty (60) days after
the commencement of the Term. Certificates of the renewal policies from the
insurers evidencing the existence thereof shall be deposited with Landlord not
less than five (5) days prior to the expiration dates of the policies. Upon
Landlord's request Tenant shall use its best efforts to deliver a copy of the
complete renewal policy to Landlord as soon as possible after the expiration
of the replaced policy but not later than sixty (60) days after the expiration
of
the replaced policy. Any claims under any policies of insurance described in
this Lease shall be adjudicated by and at the expense of the Tenant or of its
insurance carrier, but shall be subject to joint control of Tenant and Landlord.
4.2 Fire and Other Casualty. Tenant shall keep the
Premises insured against loss or damage from all causes under standard "all
risk" property insurance coverage, without exclusion for fire, lightning,
windstorm, explosion, smoke damage, vehicle damage, sprinkler leakage,
vandalism, malicious mischief or any other risks as are normally covered
under an extended coverage endorsement, in an amount that is not less than
the full insurable value of the Premises including all equipment and personal
property (whether or not Landlord Personal Property) used in the operation
of the Premises, but in no event less than One Million Five Hundred Ninety-
Five Thousand Dollars ($1,595,000.00). The term "full insurable value" as
used in this Lease shall mean the actual replacement value of the Premises
(including all improvements) and every portion thereof, including the cost of
compliance with changes in zoning and building codes and other laws and
regulations, demolition and debris removal and increased cost of
construction. In addition, the casualty insurance required under this Section
4.2 will include an agreed amount endorsement such that the insurance carrier
has accepted the amount of coverage and has agreed that there will be no co-
insurance penalty. In the event the Premises is ever reasonably deemed by
Landlord to be in an earthquake prone or flood prone area, then Tenant
agrees, within twenty (20) days after receipt of notice from Landlord, to
purchase flood and/or earthquake insurance, to keep the Premises insured
against loss or damage from flood and earthquake in an amount that is not
less than the full insurable value of the Premises including all equipment and
personal property (whether or not Landlord Personal Property) used in the
operation of the Premises, but in no event less than the amount shown above
in this Section 4.2.
4.3 Public Liability. Tenant shall maintain comprehensive
general public liability insurance coverage against claims for bodily injury,
death or property damage occurring on, in or about the Premises and the
adjoining sidewalks and passageways, such insurance to include a broad form
endorsement and to afford protection to Landlord and Tenant of not less than
One Million Dollars ($1,000,000.00) with respect to bodily injury or death to
any one person, not less than Five Million Dollars ($5,000,000.00) with
respect to any one accident, and not less than One Million Dollars
($1,000,000.00) with respect to property damage; provided, that Landlord
shall have the right at any time hereafter to require such higher limits as may
be reasonable and customary for transactions and properties similar to the
Premises.
4.4 Professional Liability Insurance. Tenant shall
maintain insurance against liability imposed by law upon Tenant for damages
on account of professional services rendered or which should have been
rendered by Tenant or any person for which acts Tenant is legally liable on
account of injury, sickness or disease, including death at any time resulting
therefrom, and including damages allowed for loss of service, in a minimum
amount of One Million Dollars ($1,000,000.00) for each claim and Five
Million Dollars ($5,000,000.00) in the aggregate.
4.5 Workers Compensation. Tenant shall comply with all legal requirements
regarding worker's compensation, including any
requirement to maintain worker's compensation insurance against claims for
injuries sustained by Tenant's employees in the course of their employment.
4.6 Boiler Insurance In the event any boilers or pressure
vessels are ever located at the Premises, Tenant shall maintain boiler and
pressure vessel insurance, including an endorsement for boiler interruption
insurance, on any fixtures or equipment which are capable of bursting or
exploding, in an amount not less than Five Million and No/100 Dollars
($5,000,000.00) for damage to property, bodily injury or death resulting from
such perils.
4.7 Business Interruption Insurance. Tenant shall
maintain, at its expense, business interruption and extra expense insurance
insuring against loss of rental value for a period of not less than one (1)
year.
4.8 Deductible Amounts. The policies of insurance which
Tenant is required to provide under this Lease will not have deductibles or
self-insured retentions in excess of Fifty Thousand Dollars ($50,000).
5. Use, Maintenance and Alteration of the Premises.
5.1 Tenant's Maintenance Obligations.
5.1.1 Tenant will keep and maintain the Premises in
good appearance, repair and condition and maintain proper housekeeping.
Tenant shall promptly make or cause to be made all repairs, interior and
exterior, structural and nonstructural, ordinary and extraordinary, foreseen
and unforeseen, necessary to keep the Premises in good and lawful order and
condition and in substantial compliance with all requirements for the
licensing of a PCF in the State of Texas or as otherwise required under all
applicable local, state and federal laws. In the event the Premises is ever
certified to participate in Medicare or Medicaid (or any successor programs,
Tenant agrees to keep the Premises in good and lawful order and condition
in compliance with all of the requirements to maintain such Medicare and/or
Medicaid certification.
5.1.2 As part of Tenant's obligations under this
Section 5.1, Tenant shall be responsible to maintain, repair and replace all
Landlord Personal Property and all Tenant Personal Property (as defined in
Section 7.1 below) in good condition, ordinary wear and tear excepted,
consistent with prudent PCF industry practice.
5.1.3 Without limiting Tenant's obligations to
maintain the Premises under this Lease, within thirty (30) days of the end of
each Lease Year starting with the end of the sixth (6th) Lease Year, Tenant
shall provide Landlord with evidence satisfactory to Landlord in the
reasonable exercise of Landlord's discretion that Tenant has in such Lease
Year spent on Upgrade Expenditures (as hereinafter defined) an annual
average amount of at least Two Hundred and No/100 Dollars ($200.00) (as
such amount shall be adjusted annually at the end of each Lease Year for
increases in the CPI) per occupant unit of the Premises. The term "Upgrade
Expenditures" is defined to mean upgrades or improvements to the Premises
which have the effect of maintaining or improving the competitive position of
the Premises in its marketplace. Non-exclusive examples of Upgrade
Expenditures are new or replacement wallpaper, tiles, window coverings,
lighting fixtures, painting, upgraded landscaping, carpeting, architectural
adornments, common area amenities and the like. It is expressly understood
that capital improvements or repairs (such as, but not limited to, repairs or
replacements to the structural elements of the walls, parking area, or the roof
or to the electrical, plumbing, HVAC or other mechanical or structural
systems in the Premises) shall not be considered to be Upgrade Expenditures.
If Tenant fails to make at least the above amount of Upgrade Expenditures,
Tenant shall promptly on demand from Landlord (but in no event more than
five [5] days) pay cash to Landlord in the amount of the applicable shortfall
in Upgrade Expenditures. Such cash shall be deposited by Landlord in its
name in such United States savings accounts or interest bearing investments
as are deemed appropriate therefor by Landlord in its reasonable discretion
from time to time and as are fully insured by an agency of the United States
of America or are issued or guaranteed by the United States of America (the
"Upgrades Reserve Account"). All interest earned on any such deposits
shall be added to such deposits and held in the Upgrades Reserve Account
until the assets thereof are required to be distributed in accordance with the
following provisions of this Section 5.1.3. No other funds shall be deposited
into or commingled with the Upgrade Reserve Account. Funds deposited in
the Upgrade Reserve Account may only be withdrawn in accordance with this
Section 5.1.3. Upon the expiration of the Term or at such other time as
Tenant shall provide the Substantiation (hereinafter defined), the assets in the
Upgrades Reserve Account (if any) shall be refunded to Tenant if Tenant has
provided adequate substantiation in writing to Landlord in reasonable detail
prior to such expiration that Tenant has satisfied all of its obligations
imposed
under the first sentence of this Section 5.1.3 for all Lease Years in the Term
(other than the first five Lease Years of the Initial Term) (the
"Substantiation"), but if Tenant has not provided the Substantiation to
Landlord prior to such expiration, all the assets of the Upgrades Reserve
Account shall be immediately paid to Landlord as additional rent upon such
expiration.
5.2 Regulatory Compliance.
5.2.1 Tenant and the Premises shall comply with all
federal, state and local licensing and other laws and regulations applicable to
the operation of a PCF. Further, Tenant shall ensure that the Premises
continue to be licensed as a PCF with a licensed capacity of sixty (60) beds
throughout the Term and at the time the Premises are returned to Landlord at
the termination thereof, all without any suspension, revocation,
decertification or limitation. Further, Tenant shall not commit any act or
omission that would in any way violate any certificate of occupancy affecting
the Premises. In the event the Premises is ever certified to participate in
Medicare or Medicaid (or any successor programs), Tenant shall ensure that
the condition of the Premises is such that the Premises could thereafter
continue to be fully certified to participate in Medicare and Medicaid (or any
successor program) throughout the remainder of the Term and at the time the
Premises are returned to Landlord at the termination thereof, all without any
suspension, revocation, decertification or limitation. Notwithstanding
anything to the contrary herein, Tenant shall be entitled to voluntarily cause
the Premises to be decertified from Medicare and/or Medicaid without
Landlord's prior written consent, unless a decertification proceeding is then
taking place in which event Tenant shall be required to obtain Landlord's
consent for such decertification.
5.2.2 During the Term, all inspection fees, costs and
charges associated with a change of any licensure or certification shall be
borne solely by Tenant. Tenant shall at its sole cost make any additions or
alterations to the Premises necessitated by, or imposed in connection with, a
change of ownership inspection survey for the transfer of operation of the
Premises from Tenant or Tenant's assignee or subtenant to Landlord or
Landlord's designee at the expiration or earlier termination of the Term in
accordance herewith.
5.3 Permitted Use. Tenant shall continuously use and
occupy the Premises during the Term, solely as a sixty (60) bed licensed PCF.
5.4 Tenant Repurchase Obligation. [INTENTIONALLY
DELETED]
5.5 No Liens; Permitted Contests. Tenant shall not cause
or permit any liens, levies or attachments to be placed or assessed against the
Premises or the operation thereof for any reason. However, Tenant shall be
permitted in good faith and at its expense to contest the existence, amount or
validity of any lien upon the Premises by appropriate proceedings sufficient
to prevent the collection or other realization of the lien or claim so contested
as well as the sale, forfeiture or loss of any of the Premises or any rent to
satisfy the same. Tenant shall provide Landlord with security satisfactory to
Landlord in Landlord's reasonable judgment to assure the foregoing. Each
contest permitted by this Section 5.5 shall be promptly and diligently
prosecuted to a final conclusion by Tenant.
5.6 Alterations by Tenant. Subject to Section 12.1
hereof, Tenant shall have the right of altering, improving, replacing,
modifying or expanding the facilities, equipment or appliances in the
Premises from time to time as it may determine is desirable for the continuing
and proper use and maintenance of the Premises under this Lease; provided,
however, that any alterations, improvements, replacements, expansions or
modifications in excess of Two Hundred Fifty Thousand Dollars
($250,000.00) in any rolling twelve (12) month period shall require the prior
written consent of the Landlord. The cost of all such alterations,
improvements, replacements, modifications, expansions or other purchases,
whether undertaken as an on-going licensing, Medicare or Medicaid (or any
successor program) or other regulatory requirement or otherwise shall be
borne solely and exclusively by Tenant (unless funded by Landlord under
Section 5.7) and shall immediately become a part of the Premises and the
property of the Landlord subject to the terms and conditions of this Lease. All
work done in connection therewith shall be done in a good and workmanlike
manner and in compliance with all existing codes and regulations pertaining
to the Premises and shall comply with the requirements of insurance policies
required under this Lease. In the event any items of the Premises have
become inadequate, obsolete or worn out or require replacement (by direction
of any regulatory body or otherwise), Tenant shall remove such items and
exchange or replace the same at Tenant's sole cost and the same shall become
part of the Premises and property of the Landlord.
5.7 Capital Improvements Funded by Landlord. In the
event Tenant desires to make a capital improvement or a related series of
capital improvements to the Premises and if Tenant desires that Landlord
fund the same, Landlord shall, in its discretion and without obligation, within
thirty (30) days of Tenants' written request therefor, consider Tenant's
request to fund such capital improvements. Each and every capital
improvement funded by Landlord under this Section shall immediately
become a part of the Premises and shall belong to Landlord subject to the
terms and conditions of this Lease. Notwithstanding anything to the contrary
herein, Landlord shall not be required to fund any capital improvements
unless expressly set forth herein.
5.8 Compliance with IRS Guidelines. Any improvement
or modification to the Premises shall satisfy the requirements set forth in
Sections 4(4).02 and .03 of Revenue Procedure 75-21, 1975-1 C.B. 715, as
modified by Revenue Procedure 79-48, 1979-2 C.B. 529. Landlord reserves
the right to refuse to consent to any improvement or modification to the
Premises if, in its judgment, such improvement or modification does not meet
the foregoing requirements.
6. Condition and Title of Premises. Tenant acknowledges that
it is presently engaged in the operation of PCFs in the State of Texas and has
expertise in the PCF industry. Tenant has thoroughly investigated the
Premises, has selected the Premises to its own specifications, and has
concluded that no improvements or modifications to the Premises are
required in order to operate the Premises for its intended use. Tenant accepts
the Premises for use as a PCF under this Lease on an "AS IS, WHERE IS,
WITH ALL FAULTS" basis and will assume all responsibility and cost for
the correction of any observed or unobserved deficiencies or violations. In
making its decision to enter into this Lease, Tenant has not relied on any
representations or warranties, express or implied, of any kind from Landlord.
Notwithstanding any other provisions of this Lease to the contrary, Tenant
accepts the Premises in their present condition, AS IS, WHERE IS, WITH
ALL FAULTS, and without any representations or warranties whatsoever,
express or implied, including, without limitation, any express or implied
representations or warranties as to the fitness, use, suitability, or
condition of
the Premises. Tenant hereby represents and warrants to Landlord that Tenant
is thoroughly familiar with the Premises and the condition thereof, that
Tenant is relying on Tenant's own personal knowledge of the condition of the
Premises, that neither Landlord nor any person or entity acting or allegedly
acting for or on behalf of Landlord or any other person or entity having or
claiming any interest in the Premises has made any representations,
warranties, agreements, statements, or expressions of opinions in any way or
manner whatsoever related to, connected with, or concerning the Premises,
the condition of the Premises, or any other fact or circumstance whatsoever
on which Tenant is relying, and, to the maximum extent not prohibited by
applicable law, Tenant hereby releases and discharges Landlord and all other
persons and entities having or claiming any interest in the Premises from all
liability, damages, costs, and expenses of every kind and nature whatsoever
in any way or manner arising out of, connected with, related to, or emanating
from the condition of the Premises at any time during the Term of this Lease.
Tenant has examined the condition of title to the Premises prior to the
execution and delivery of this Lease and has found the same to be
satisfactory.
7. Tenant Personal Property.
7.1 Tenant Personal Property. Tenant shall install, affix,
assemble or place on the Premises all items of furniture, fixtures, equipment
and supplies not included as Landlord Personal Property as Tenant reasonably
considers to be appropriate for Tenant's use of the Premises as contemplated
by this Lease (the "Tenant Personal Property"). Tenant shall provide and
maintain during the entire Term all Tenant Personal Property as shall be
necessary in order to operate the Premises in compliance with all
requirements set forth in this Lease. All Tenant Personal Property shall be
and shall remain the property of Tenant and may be removed by Tenant upon
the expiration of the Term. However, if there is any Event of Default, Tenant
will not remove the Tenant Personal Property from the Premises and will on
demand from Landlord, convey the Tenant Personal Property to Landlord by
executing a ▇▇▇▇ of sale in a form reasonably required by Landlord. In any
event, Tenant will repair all damage to the Premises caused by any removal
of the Tenant Personal Property.
7.2 Landlord's Security Interest.
7.2.1 The parties intend that if Tenant defaults under
this Lease, Landlord will control the Tenant Personal Property and the
Intangible Property (as defined in Section 7.4 below) so that Landlord or its
designee can operate or re-let the Premises intact for use as a PCF.
7.2.2 Therefore, to implement the intention of the
parties, and for the purpose of securing the payment and performance of
Tenant's obligations under this Lease, Tenant, as debtor, hereby grants to
Landlord, as secured party, a security interest in and an express contractual
lien upon, all of Tenant's right, title and interest in and to the Tenant
Personal
Property and in and to the Intangible Property and any and all products and
proceeds thereof, in which Tenant now owns or hereafter acquires an interest
or right, including any leased Tenant Personal Property. This Lease
constitutes a security agreement covering all such Tenant Personal Property
and the Intangible Property. The security interest granted to Landlord in this
Section 7.2.2 is intended by Landlord and Tenant to be subordinate to any
security interest granted in connection with the financing or leasing of all or
any portion of the Tenant Personal Property so long as the lessor or financier
of such Tenant Personal Property agrees to (a) give Landlord written notice
of any default by Tenant under the terms of such lease or financing
arrangement, (b) give Landlord a reasonable time following such notice to
cure any such default and (c) consent to Landlord's written assumption of
such lease or financing arrangement upon Landlord's curing of any defaults
thereunder. This security agreement and the security interest created herein
shall survive the termination of this Lease if such termination results from the
occurrence of an Event of Default.
7.3 Financing Statements. If required by Landlord at any
time during the Term, Tenant will execute and deliver to Landlord, in a form
reasonably satisfactory to Landlord, additional security agreements, financing
statements, fixture filings and such other documents as Landlord may
reasonably require to perfect or continue the perfection of Landlord's security
interest in the Tenant Personal Property and the Intangible Property and any
and all products and proceeds thereof now owned or hereafter acquired by
Tenant. Tenant shall pay all fees and costs that Landlord may incur in filing
such documents in public offices and in obtaining such record searches as
Landlord may reasonably require. In the event Tenant fails to execute any
financing statements or other documents for the perfection or continuation of
Landlord's security interest, Tenant hereby appoints Landlord as its true and
lawful attorney-in-fact to execute any such documents on its behalf, which
power of attorney shall be irrevocable and is deemed to be coupled with an
interest.
7.4 Intangible Property. The term "Intangible
Property" means all accounts, proceeds of accounts, rents, profits, income
or revenue derived from the use of rooms or other space within the Premises
or the providing of services in or from the Premises; documents, chattel
paper, instruments, contract rights, deposit accounts, general intangibles,
choses in action, now owned or hereafter acquired by Tenant (including any
right to any refund of any taxes or other charges heretofore or hereafter paid
to any governmental authority) arising from or in connection with Tenant's
operation or use of the Premises; all licenses and permits now owned or
hereinafter acquired by Tenant, necessary or desirable for Tenant's use of the
Premises under this Lease, including without limitation, if applicable, any
certificate of need or other similar certificate; and the right to use any trade
or other name hereafter associated with the operation of the Premises by
Tenant, excluding any name which includes "Sterling House". The word
"accounts" above shall include, without limitation and to the extent
assignable, accounts to be paid by Medicaid or Medicare (or successor
programs), if any.
8. Representations and Warranties. Landlord and Tenant do
hereby each for itself represent and warrant to each other as follows:
8.1 Due Authorization and Execution. This Lease and
all agreements, instruments and documents executed or to be executed in
connection herewith by either Landlord or Tenant were duly authorized and
shall be binding upon the party that executed and delivered the same.
8.2 Due Organization. Landlord and Tenant are duly
organized, validly existing and in good standing under the laws of the State
of their respective formations and are duly authorized and qualified to do all
things required of the applicable party under this Lease within the State of
Texas.
8.3 No Breach of Other Agreements. Neither this Lease
nor any agreement, document or instrument executed or to be executed in
connection herewith, violates the terms of any other agreement to which
either Landlord or Tenant is a party.
9. Financial, Management and Regulatory Reports.
9.1 Monthly Facility Reports. Within forty-five (45) days
after the end of each calendar month during the Term, Tenant shall prepare
and deliver monthly financial reports concerning the business conducted at
the Premises to Landlord consisting of a balance sheet and income statement
prepared in accordance with GAAP, together with census reports that indicate
(a) the average rent received by Tenant from occupants at the Premises, (b)
the number of occupants, and (c) a breakdown of payment source. These
reports will be accompanied by a statement signed by the President, Chief
Financial Officer, Principal Accounting Officer, Controller, Executive Vice
President, Development, or other officer of Tenant as approved by Landlord
in writing, certifying that said reports are true, correct, and complete in all
material respects after due inquiry.
9.2 Annual Financial Statement. On or before the earlier
of (a) one hundred twenty (120) days after each fiscal year end of Tenant
during the Term or (b) the date Tenant files its Form 10-K with the Securities
and Exchange Commission (the "SEC"), Tenant shall deliver to Landlord (y)
the annual consolidated financial statement of Tenant audited by a reputable
certified public accounting firm and (z) a copy of Tenant's Form 10-K filed
with the SEC pursuant to applicable securities laws during the Term.
Simultaneously with the filing of Tenant's Form 10-Q's with the SEC,
Tenant agrees to deliver to Landlord a copy of same.
9.3 Accounting Principles. All of the reports and
statements required hereby shall be prepared in accordance with GAAP and
Tenant's accounting principles consistently applied.
9.4 Regulatory Reports. In addition, Tenant shall within
five (5) business days of receipt thereof deliver to Landlord all federal, state
and local licensing and reimbursement certification surveys, inspection and
other reports received by Tenant as to the Premises and the operation of
business thereon, including, without limitation, state department of health
licensing surveys, Medicare and Medicaid (and successor programs)
certification surveys if applicable to the Premises or any portion thereof, and
life safety code reports. Within five (5) business days of receipt thereof,
Tenant shall give Landlord written notice of any violation of any federal, state
or local licensing or reimbursement certification statute or regulation,
including, without limitation, Medicare or Medicaid (or successor programs)
if applicable to the Premises or any portion thereof, any suspension,
termination or restriction placed upon Tenant or the Premises, the operation
of business thereon or the ability to admit patients, or any violation of any
other permit, approval or certification in connection with the Premises or its
business, by any federal, state or local authority, including, without
limitation, Medicare or Medicaid (or successor programs) if applicable to the
Premises or any portion thereof.
10. Events of Default and Landlord's Remedies.
10.1 Events of Default. The occurrence of any of the
following shall constitute an event of default on the part of Tenant hereunder
("Event of Default"):
10.1.1 Tenants's failure to pay Landlord within three (3)
calendar days after Landlord has delivered written notice to Tenant by
facsimile as provided in the last sentence of Section 15 hereof specifying
such failure, any portion of any Minimum Rent, taxes or assessments,
utilities, premiums for insurance or other charges or payments required of
Tenant under this Lease;
10.1.2 A breach by Tenant of any of the representations,
warranties or covenants in favor of Landlord as set forth in the Purchase and
Sale Agreement ("Purchase Agreement") of even date herewith between
Tenant, as seller, and Landlord, as buyer;
10.1.3 A material default by Tenant (or any Affiliate of
Tenant) ("Affiliate" being defined to mean, with respect to any person or
entity, any other person or entity which controls, is controlled by or is under
common control with the first person or entity) under any obligation other
than this Lease owed by Tenant (or any Affiliate of Tenant) to Landlord or
any Affiliate of Landlord (including without limitation any financing
agreement or any other lease or the Letter of Credit Agreement of even date
herewith pursuant to which the letter of credit referenced in Section 11
hereinbelow is maintained), which default is not cured within any applicable
cure period provided in the documentation for such obligation;
10.1.4 A judgment is, or judgments are, obtained against
Tenant in the amount of Five Hundred Thousand and No/100 Dollars
($500,000.00) or more; provided that such judgment is, or judgments are,
uninsured and remain unpaid or not released for more than thirty (30) days.
10.1.5 Any material misstatement or omission of fact in any
written report, notice or communication from Tenant to Landlord with
respect to Tenant or the Premises;
10.1.6 An assignment by Tenant of all or substantially all of
its property for the benefit of creditors;
10.1.7 The appointment of a receiver, trustee, or liquidator
for Tenant or any of the property of Tenant, if within three (3) business days
of such appointment Tenant does not inform Landlord in writing that Tenant
intends to cause such appointment to be discharged or Tenant does not
thereafter diligently prosecute such discharge to completion within sixty (60)
days after the date of such appointment;
10.1.8 The failure to deliver evidence of insurance to
Landlord as required by Section 4 after five (5) days notice of such failure
from Landlord by facsimile as provided in the last sentence of Section 15
hereof;
10.1.9 The failure to maintain insurance as required herein
without any notice, grace, or opportunity to cure rights whatsoever.
10.1.10 The filing by Tenant of a voluntary petition
under any federal bankruptcy law or under the law of any state to be
adjudicated as bankrupt or for any arrangement or other debtor's relief, or in
the alternative, if any such petition is involuntarily filed against Tenant by
any other party and Tenant does not within three (3) business days of any
such filing inform Landlord in writing of the intent by Tenant to cause such
petition to be dismissed, if Tenant does not thereafter diligently prosecute
such dismissal, or if such filing is not dismissed within ninety (90) days after
filing thereof;
10.1.11 The failure to perform or comply with any other term
or provision of this Lease (other than those provisions set forth in Sections
10.1.9 and 10.1.12) not requiring the payment of money, including, without
limitation, the failure to comply with the provisions hereof pertaining to the
use, operation and maintenance of the Premises or the breach of any
representation or warranty of Tenant in this Lease; provided, however, the
default described in this Section 10.1.11 is curable and shall be deemed
cured, if: (i) within three (3) business days of Tenant's receipt of a notice of
default from Landlord, Tenant gives Landlord notice of its intent to cure such
default; and (ii) Tenant cures such default within thirty (30) days after such
notice from Landlord, unless such default cannot with due diligence be cured
within a period of thirty (30) days because of the nature of the default or
delays beyond the control of Tenant, and cure after such thirty (30) day period
will not have a material and adverse effect upon the Premises, in which case
such default shall not constitute an Event of Default if Tenant uses its best
efforts to cure such default by promptly commencing and diligently pursuing
such cure to the completion thereof, provided, however, no such default shall
continue for more than one hundred twenty (120) days from Tenant's receipt
of a notice of default from Landlord;
10.1.12 There shall be no cure period in the event of the
breach by Tenant of (i) the provisions of Section 10.1.9 hereof, (ii) the
provisions of Section 20 hereof, or (iii) the provisions of Section 22 hereof
with respect to assignments and other related matters; and
10.1.13 All notice and cure periods provided herein shall run
concurrently with any notice or cure periods provided by applicable law.
10.2 Remedies. Upon the occurrence of an Event of
Default, Landlord may exercise all rights and remedies under this Lease and
the laws of the State of Texas available to a lessor of real and personal
property in the event of a default by its lessee, and as to the Tenant Personal
Property and the Intangible Property all remedies granted under the laws of
such State to a secured party under its Uniform Commercial Code. Without
limiting the foregoing, Landlord shall have the right to do any of the
following:
10.2.1 ▇▇▇ for the specific performance of any covenant of
Tenant under this Lease as to which Tenant is in breach;
10.2.2 Upon compliance with the requirements of applicable law,
Landlord may do any of the following: enter upon the Premises,
terminate this Lease, dispossess Tenant from the Premises and/or collect
money damages by reason of Tenant's breach, including without limitation
all rent which would have accrued after such termination and all obligations
and liabilities of Tenant under this Lease which survive the termination of the
Term;
10.2.3 Elect to leave this Lease in place and ▇▇▇ for rent
and/or other money damages as the same come due;
10.2.4 Before or after repossession of the Premises pursuant
to Section 10.2.2, and whether or not this Lease has been terminated,
Landlord shall have the right (but shall be under no obligation) to relet any
portion of the Premises to such tenant or tenants, for such term or terms
(which may be greater or less than the remaining balance of the Term), for
such rent, or such conditions (which may include concessions or free rent)
and for such uses, as Landlord, in its absolute discretion, may determine, and
Landlord may collect and receive any rents payable by reason of such
reletting. Landlord shall have no duty to mitigate damages unless required by
applicable law and shall not be responsible or liable for any failure to relet
any of the Premises or for any failure to collect any rent due upon any such
reletting. Tenant agrees to pay Landlord, immediately upon demand, all
expenses incurred by Landlord in obtaining possession and in reletting any
of the Premises, including fees, commissions and costs of attorneys,
architects, agents and brokers;
10.2.5 Sell the Tenant Personal Property and/or the Intangible
Property in a non-judicial foreclosure sale.
10.3 Receivership. Tenant acknowledges that one of the
rights and remedies available to Landlord under applicable law is to apply to
a court of competent jurisdiction for the appointment of a receiver to take
possession of the Premises, to collect the rents, issues, profits and income of
the Premises and to manage the operation of the Premises. Tenant further
acknowledges that the revocation, suspension or material limitation of the
certification of the Premises for provider status (in the event the Premises is
ever certified for such provider status) under Medicare or Medicaid (or
successor programs) and/or the revocation, suspension or material limitation
of the license of the Premises as a sixty (60) bed PCF under the laws of the
State of Texas will materially and irreparably impair the value of Landlord's
investment in the Premises. Therefore, in any of such events, and in addition
to any other right or remedy of Landlord under this Lease, Tenant hereby
consents to the appointment of such a receiver to enter upon and take
possession of the Premises, to manage the operation of the Premises, to
collect and disburse all rents, issues, profits and income generated thereby
and to preserve or replace to the extent possible the PCF license and provider
certification of the Premises or to otherwise substitute the licensee or
provider thereof. The receiver shall be entitled to a reasonable fee for its
services as a receiver. All such fees and other expenses of the receivership
estate shall be added to the monthly rent due to Landlord under this Lease.
Tenant hereby irrevocably stipulates to the appointment of a receiver under
such circumstances and for such purposes and agrees not to contest such
appointment.
10.4 Late Charges. Tenant acknowledges that the late
payment of any Minimum Rent will cause Landlord to lose the use of such
money and incur costs and expenses not contemplated under this Lease,
including, without limitation, administrative and collection costs and
processing and accounting expenses, the exact amount of which is extremely
difficult to ascertain. Therefore, if any installment of Minimum Rent is not
paid within five (5) calendar days after the due date for such rent payment,
then Tenant shall thereafter pay to Landlord on demand a late charge equal
to ten percent (10%) of the amount of any installment of Minimum Rent not
paid on the due date. Landlord and Tenant agree that this late charge
represents a reasonable estimate of such costs and expenses and is fair
compensation to Landlord for the loss suffered from such nonpayment by
Tenant.
10.5 Remedies Cumulative; No Waiver. No right or
remedy herein conferred upon or reserved to Landlord is intended to be
exclusive of any other right or remedy, and each and every right and remedy
shall be cumulative and in addition to any other right or remedy given
hereunder or now or hereafter existing at law or in equity. No failure of
Landlord to insist at any time upon the strict performance of any provision of
this Lease or to exercise any option, right, power or remedy contained in this
Lease shall be construed as a waiver, modification or relinquishment thereof
as to any similar or different breach (future or otherwise) by Tenant. A receipt
by Landlord of any rent or other sum due hereunder (including any late
charge) with knowledge of the breach of any provision contained in this
Lease shall not be deemed a waiver of such breach, and no waiver by
Landlord of any provision of this Lease shall be deemed to have been made
unless expressed in a writing signed by Landlord.
10.6 Performance of Tenant's Obligations by Landlord.
If Tenant at any time shall fail to make any payment or perform any act on its
part required to be made or performed under this Lease, then Landlord may,
without waiving or releasing Tenant from any obligations or default of
Tenant hereunder, make any such payment or perform any such act for the
account and at the expense of Tenant, and may enter upon the Premises for
the purpose of taking all such action thereon as may be reasonably necessary
therefor. No such entry shall be deemed an eviction of Tenant. All sums so
paid by Landlord and all necessary and incidental costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses)
incurred in connection with the performance of any such act by Landlord,
together with interest at the rate of the Prime Rate as reported daily by the
Wall Street Journal plus 5% (or if said interest rate is violative of any
applicable statute or law, then the maximum lawful non-usurious interest rate
allowable) from the date of the making of such payment or the incurring of
such costs and expenses by Landlord, shall be payable by Tenant to Landlord
on demand.
11. Security Deposit. Tenant shall deposit with Landlord a sum
equal to one-third (1/3) of the Minimum Rent for the Initial Term in cash
representing a security deposit against the faithful performance of the terms
and conditions contained in this Lease. Tenant shall have the right to
substitute a letter of credit for such cash deposit on terms and issued by a
financial institution acceptable to Landlord. Landlord shall not be deemed
a trustee as to such deposit and shall have the right to commingle said
security deposit with its own or other funds. Interest on any cash deposit
shall be paid by Landlord to Tenant on a quarterly basis in arrears (i) if
Landlord segregates such deposit from its general funds, at the average rate
earned in such period on Landlord's cash and cash equivalent investments,
and (ii) if Landlord does not segregate such deposit from its general funds,
at the average cost of funds for Landlord for short term borrowings for such
period.
12. Damage by Fire or Other Casualty.
12.1 Reconstruction Using Insurance. In the event of the
damage or destruction of the Premises, Tenant shall forthwith notify Landlord
and diligently repair or reconstruct the same to a like or better condition than
existed prior to such damage or destruction. Any net insurance proceeds
payable with respect to the casualty shall be used for the repair or
reconstruction of the Premises pursuant to reasonable disbursement controls
in favor of Landlord. If such proceeds are insufficient for such purposes,
Tenant shall provide the required additional funds.
12.2 Surplus Proceeds. If there remains any surplus of
insurance proceeds after the completion of the repair or reconstruction of the
Premises, such surplus shall belong to and be paid to Tenant.
12.3 No Rent Abatement. The rent payable under this
Lease shall not ▇▇▇▇▇ by reason of any damage or destruction of the Premises
by reason of an insured or uninsured casualty. Tenant hereby waives all rights
under applicable law to ▇▇▇▇▇, reduce or offset rent by reason of such damage
or destruction.
13. Condemnation.
13.1 Complete Taking. If during the Term all or
substantially all of the Premises is taken or condemned by any competent
public or quasi-public authority, then Tenant may, at Tenant's election, made
within thirty (30) days of such taking by condemnation, terminate this Lease,
and the current Minimum Rent shall be prorated as of the date of such
termination. The award payable upon such taking shall be allocated between
Landlord and Tenant as so allocated by the taking authority. In the absence
of such allocation by the taking authority, the award shall be allocated as
agreed by Landlord and Tenant. Failing such agreement within thirty (30)
days after the effective date of such taking, the award shall be allocated
between Landlord and Tenant pursuant to the appraisal procedure described
on Exhibit "C" attached hereto.
13.2 Partial Taking. In the event such condemnation
proceeding or right of eminent domain results in a taking of less than all or
substantially all of the Premises, the Minimum Rent thereto shall be abated
to the same extent as the diminution in the fair market value of the Premises
by reason of the condemnation. Such diminution in the fair market value shall
be as agreed between Landlord and Tenant, but failing such agreement within
thirty (30) days of the effective date of the condemnation such fair market
value will be determined by appraisal pursuant to Exhibit "C" attached
hereto. Landlord shall be entitled to receive and retain any and all awards for
the partial taking and damage and Tenant shall not be entitled to receive or
retain any such award for any reason.
13.3 Lease Remains in Effect. Except as provided above,
this Lease shall not terminate and shall remain in full force and effect in the
event of a taking or condemnation of the Premises, or any portion thereof,
and Tenant hereby waives all rights under applicable law to ▇▇▇▇▇, reduce or
offset rent by reason of such taking.
14. Provisions on Termination of Term.
14.1 Surrender of Possession. Tenant shall, on or before
the last day of the Term, or upon earlier termination of this Lease, surrender
to Landlord the Premises (including all patient charts and resident records
along with appropriate patient and resident consents) in good condition and
repair, ordinary wear and tear excepted.
14.2 Removal of Personal Property. If Tenant is not then
in default hereunder Tenant shall have the right in connection with the
surrender of the Premises to remove from the Premises all Tenant Personal
Property but not the Landlord Personal Property (including the Landlord
Personal Property replaced by Tenant or required by the State of Texas or any
other governmental entity to operate the Premises for the purpose set forth in
Section 5.3 above). Any such removal shall be done in a workmanlike
manner leaving the Premises in good and presentable condition and
appearance, including repair of any damage caused by such removal. At the
end of the Term or upon the earlier termination of this Lease, Tenant shall
return the Premises to Landlord with the Landlord Personal Property (or
replacements thereof) in the same condition and utility as was delivered to
Tenant at the commencement of the Term, normal wear and tear excepted.
14.3 Title to Personal Property Not Removed. Title to
any of Tenant Personal Property which is not removed by Tenant upon the
expiration of the Term shall, at Landlord's election, vest in Landlord;
provided, however, that Landlord may remove and dispose of any or all of
such Tenant Personal Property which is not so removed by Tenant, at
Tenant's expense, without obligation or accounting to Tenant.
14.4 Management of Premises. Upon the expiration or
earlier termination of the Term, Landlord or its designee, upon written notice
to Tenant, may elect to assume the responsibilities and obligations for the
management and operation of the Premises and Tenant agrees to cooperate
fully with Landlord or its designee to accomplish the transfer of such
management and operation without interrupting the operation of the
Premises. Tenant shall not commit any act or be remiss in the undertaking of
any act that would jeopardize any licensure or certification of the facility,
and
Tenant shall comply with all requests for an orderly transfer of the PCF
license, Medicare and Medicaid (or any successor program) certifications (if
any) and possession at the time of any such surrender. Upon the expiration
or earlier termination of the Term, Tenant shall promptly deliver copies of all
of Tenant's books and records relating to the Premises and its operations to
Landlord.
14.5 Correction of Deficiencies. Upon termination or
cancellation of this Lease, Tenant shall indemnify Landlord for any loss,
damage, cost or expense incurred by Landlord to correct all deficiencies of
a physical nature identified by the Texas Department of Health and/or the
Texas Department of Human Services or any other government agency or
Medicare or Medicaid (or any successor program) providers in the course of
the change of ownership inspection and audit.
15. Notices and Demands. All notices and demands, certificates,
requests, consents, approvals, and other similar instruments under this Lease
shall be in writing and shall be deemed to have been properly given upon
actual receipt thereof or within three (3) business days of being placed in the
United States certified or registered mail, return receipt requested, postage
prepaid (a) if to Tenant, addressed to Sterling House Corporation, ▇▇▇ ▇.
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Fax
No. (▇▇▇) ▇▇▇-▇▇▇▇ with a copy to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Fax No. (316)
▇▇▇-▇▇▇▇, or at such other address as Tenant from time to time may have
designated by written notice to Landlord, (b) if to Landlord, addressed to
MLD Texas Trust, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇-▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Trustee, Fax No. (▇▇▇) ▇▇▇-▇▇▇▇ with a copy to ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Fax No. (▇▇▇) ▇▇▇-▇▇▇▇, or at such address as
Landlord may from time to time have designated by written notice to Tenant.
Refusal to accept delivery shall be deemed delivery. If Tenant is not an
individual, notice may be made to any officer, general partner or principal
thereof. Notwithstanding anything to the contrary herein, any notice given
pursuant to the terms of Sections 10.1.1 or 10.1.8 hereof shall be deemed to
have been properly given upon either (a) the manner of delivery contained in
the first two (2) sentences of this Section 15 or (b) by facsimile transmission
to Sterling House Corporation, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Fax No. (316)
▇▇▇-▇▇▇▇ with a copy sent by facsimile transmission to ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Fax No. (▇▇▇) ▇▇▇-▇▇▇▇.
16. Right of Entry; Examination of Records. Landlord and its
representative may enter the Premises at any reasonable time after reasonable
notice to Tenant for the purpose of inspecting the Premises for any reason
including, without limitation, Tenant's default under this Lease, or to exhibit
the Premises for sale, lease or mortgage financing, or posting notices of
default, or non-responsibility under any mechanic's or materialman's lien law
or to otherwise inspect the Premises for compliance with the terms of this
Lease. Any such entry shall not unreasonably interfere with residents,
patients, patient care, or any other of Tenant's operations. Upon the
occurrence of any Event of Default or in the event Tenant does not exercise
its then current option to renew the Term for a Renewal Term, Landlord and
Landlord's representatives, inspectors and consultants shall have the right to
examine all contracts, books and records relating to Tenant's operations at the
Premises, including, without limitation, Tenant's financial records, during
normal business hours, if such records are maintained at the Premises; and
any records maintained in the normal course of business at some other
location shall be available for inspection by Landlord during any normal
business hours. Notwithstanding anything to the contrary herein, Landlord
shall only be entitled to inspect financial books and records and contracts
relating to the Premises.
17. Landlord May Grant Liens. Without the consent of Tenant,
Landlord may, subject to the terms and conditions set forth below in this
Section 17, from time to time, directly or indirectly, create or otherwise cause
to exist any lien, encumbrance or title retention agreement ("Encumbrance")
upon the Premises, or any portion thereof or interest therein (including this
Lease), whether to secure any borrowing or other means of financing or
refinancing or otherwise. Any such Encumbrance shall provide that it is
subject to the rights of Tenant under this Lease, and shall further provide that
so long as no Event of Default shall have occurred under this Lease, Tenant's
occupancy hereunder, including but without limitation Tenant's right of quiet
enjoyment provided in Section 18, shall not be disturbed in the event any
such lienholder or any other person takes possession of the Premises through
foreclosure proceeding or otherwise. Upon the request of Landlord, Tenant
shall subordinate this Lease to the lien of a new Encumbrance on the
Premises, on the condition that the proposed lender agrees not to disturb
Tenant's rights under this Lease so long as Tenant is not in default hereunder.
18. Quiet Enjoyment. So long as there is no Event of Default by
Tenant, Landlord covenants and agrees that Tenant shall peaceably and
quietly have, hold and enjoy the Premises for the Term, free of any claim or
other action not caused or created by Tenant (excepting, however, intrusion
of Tenant's quiet enjoyment occasioned by condemnation or destruction of
the property as referred to in Sections 12 and 13 hereof).
19. Applicable Law. This Lease shall be governed by and
construed in accordance with the internal laws of the State of Texas without
regard to the conflict of laws rules of such State.
20. Preservation of Gross Revenues.
20.1 Tenant acknowledges that a fair return to Landlord on
its investment in the Premises is dependent, in part, on Tenant's
concentration on the Premises during the Term of the PCF business of Tenant
and its Affiliates in the geographical area of the Premises. Tenant further
acknowledges that the diversion of residents and/or patient care activities
from the Premises to other facilities owned or operated by Tenant or its
Affiliates at or near the end of the Term will have a material adverse impact
on the value and utility of the Premises.
20.1.1 Therefore, Tenant agrees that during the Term,
and for a period of one (1) year thereafter, neither Tenant nor any of its
Affiliates shall, without the prior written consent of Landlord, operate, own,
participate in or otherwise receive revenues from any other facility or
institution providing services or similar goods to those provided on or in
connection with the Premises and the permitted use thereof as contemplated
under this Lease, within a three (3) mile radius of the Premises.
20.1.2 In addition, in the event Tenant does not
exercise any option to renew the Term for a Renewal Term, Tenant hereby
covenants and agrees that for a period of one (1) year prior to the expiration
or earlier termination of this Lease and for a period of one (1) year following
the expiration or earlier termination of this Lease, neither Tenant nor any of
its Affiliates shall, without prior written consent of Landlord, solicit for
hire,
hire, engage or otherwise employ any management or supervisory personnel
working on or in connection with the Premises.
20.2 Except in the ordinary course of business or as
required for medically appropriate reasons, prior to Lease termination, neither
Tenant nor any of its Affiliates will recommend or solicit the removal or
transfer of any resident or patient from the Premises to any other personal
care facility, any other nursing or health care facility, or to any senior
housing
or retirement housing facility. After Lease termination, neither Tenant nor
any of its Affiliates will recommend or solicit the removal or transfer of any
resident or patient from the Premises to any other personal care facility, any
other nursing or health care facility, or to any senior housing or retirement
housing facility.
20.3 Tenant hereby specifically acknowledges and agrees
that the temporal, geographical and other restrictions contained in this
Section 20 are reasonable and necessary to protect the business and prospects
of Landlord, and that the enforcement of the provisions of this Section 20 will
not work an undue hardship on Tenant. Tenant further agrees that in the event
either the length of time, geographical or any other restrictions, or portion
thereof, set forth in this Section 20 is overly restrictive and unenforceable in
any court proceeding, the court may reduce or modify such restrictions, but
only to the extent necessary, to those which it deems reasonable and
enforceable under the circumstances, and the parties agree that the restrictions
of this Section 20 will remain in full force and effect as reduced or modified.
Tenant further agrees and acknowledges that Landlord does not have an
adequate remedy at law for the breach or threatened breach by Tenant of the
covenants contained in this Section 20, and Tenant therefore specifically
agrees that Landlord may, in addition to other remedies which may be
available to Landlord hereunder, file a suit in equity to enjoin Tenant from
such breach or threatened breach, without the necessity of posting any bond.
Tenant further agrees, in the event that any provision of this Section 20 is
held to be invalid or against public policy, the remaining provisions of this
Section 20 and the remainder of this Lease shall not be affected thereby.
21. Hazardous Materials.
21.1 Hazardous Material Covenants. Tenant's use of the
Premises shall comply with all Hazardous Materials Laws. In the event any
Environmental Activities occur or are suspected to have occurred in violation
of any Hazardous Materials Laws or if Tenant has received any Hazardous
Materials Claim against the Premises, Tenant shall promptly obtain all
permits and approvals necessary to remedy any such actual or suspected
problem through the removal of Hazardous Materials or otherwise, and upon
Landlord's approval of the remediation plan, remedy any such problem to the
satisfaction of Landlord and all applicable governmental authorities, in
accordance with all Hazardous Materials Laws and good business practices.
21.2 Tenant Notices to Landlord. Tenant shall
immediately advise Landlord in writing of:
21.2.1 any Environmental Activities known or
believed by Tenant to be in violation of any Hazardous Materials Laws;
21.2.2 any Hazardous Materials Claims against
Tenant or the Premises;
21.2.3 any remedial action taken by Tenant in
response to any Hazardous Materials Claims or any Hazardous Materials on,
under or about the Premises in violation of any Hazardous Materials Laws;
21.2.4 Tenant's discovery of any occurrence or
condition on or in the vicinity of the Premises that materially increase the
risk
that the Premises will be exposed to Hazardous Materials; and
21.2.5 all communications to or from Tenant, any
governmental authority or any other person relating to Hazardous Materials
Laws or Hazardous Materials Claims with respect to the Premises, including
copies thereof.
21.3 Extension of Term. Notwithstanding any other
provision of this Lease, in the event any Hazardous Materials are discovered
on, under or about the Premises in violation of any Hazardous Materials Law,
the Term shall be automatically extended and this Lease shall remain in full
force and effect until the earlier to occur of the completion of all remedial
action or monitoring, as approved by Landlord, in accordance with all
Hazardous Materials Laws, or the date specified in a written notice from
Landlord to Tenant terminating this Lease (which date may be subsequent to
the date upon which the Term was to have expired).
21.4 Participation in Hazardous Materials Claims.
Landlord shall have the right to join and participate in, as a party if it so
elects, any legal proceedings or actions initiated in connection with any
Hazardous Materials Claims.
21.5 Environmental Activities shall mean the use,
generation, transportation, handling, discharge, production, treatment,
storage, release or disposal of any Hazardous Materials at any time to or from
the Premises or located on or present on or under the Premises. Nothing
contained in the foregoing or elsewhere in this Section 21 is intended to, nor
shall it, limit the liability of Tenant, if any, to Landlord with respect to any
representation or warranty given by Tenant to Landlord with respect to
Hazardous Materials or environmental matters generally as set forth in the
Purchase Agreement.
21.6 Hazardous Materials shall mean (i) any petroleum
products and/or by-products (including any fraction thereof), flammable
substances, explosives, radioactive materials, hazardous or toxic wastes,
substances or materials, known carcinogens or any other materials,
contaminants or pollutants which pose a hazard to the Premises or to persons
on or about the Premises or cause the Premises to be in violation of any
Hazardous Materials Laws; (ii) asbestos in any form which is friable; (iii)
urea formaldehyde in foam insulation or any other form; (iv) transformers or
other equipment which contain dielectric fluid containing levels of
polychlorinated biphenyls in excess of fifty (50) parts per million or any other
more restrictive standard then prevailing; (v) medical wastes and biohazards
which pose a hazard to the Premises or to persons on or about the Premises
or cause the Premises to be in violation of any Hazardous Materials Laws;
(vi) radon gas which poses a hazard to the Premises or to persons on or about
the Premises or cause the Premises to be in violation of any Hazardous
Materials Laws; and (vii) any other chemical, material or substance, exposure
to which is prohibited, limited or regulated by any governmental authority or
may or could pose a hazard to the health and safety of the occupants of the
Premises or the owners and/or occupants of property adjacent to or
surrounding the Premises, including, without limitation, any materials or
substances that are listed in the United States Department of Transportation
Hazardous Materials Table (49 CFR 172.101) as amended from time to time.
21.7 Hazardous Materials Claims shall mean any and all
enforcement, clean-up, removal or other governmental or regulatory actions
or orders threatened, instituted or completed pursuant to any Hazardous
Material Laws, together with all claims made or threatened by any third party
against the Premises, Landlord or Tenant relating to damage, contribution,
cost recovery compensation, loss or injury resulting from any Hazardous
Materials.
21.8 Hazardous Materials Laws shall mean any laws,
ordinances, regulations, rules, orders, guidelines or policies relating to the
environment, health and safety, Environmental Activities, Hazardous
Materials, air and water quality, waste disposal and other environmental
matters.
22. Assignment and Subletting. Tenant shall not, without the
prior written consent of Landlord, which may be withheld at Landlord's sole
discretion, voluntarily or involuntarily assign, mortgage, encumber or
hypothecate this Lease or any interest herein or sublet the Premises or any
part thereof. For the purposes of this Lease, a management or similar
agreement shall be considered to be an assignment of this Lease by Tenant.
Any of the foregoing acts without such consent shall be void but shall, at the
option of Landlord in its sole discretion, constitute an Event of Default giving
rise to Landlord's right, among other things, to terminate this Lease. Without
limiting the foregoing, this Lease shall not, nor shall any interest of Tenant
herein, be assigned or encumbered by operation of law without the prior
written consent of Landlord which may be withheld at Landlord's sole
discretion. Notwithstanding the foregoing, Tenant may without Landlord's
consent assign this Lease or sublet the Premises or any portion thereof to a
wholly-owned subsidiary of Tenant, provided that such subsidiary fully
assumes the obligations of Tenant under this Lease, Tenant remains fully
liable under this Lease, the use of the Premises remains unchanged, and no
such assignment or sublease shall be valid and no such subsidiary shall take
possession of the Premises until an executed counterpart of such assignment
or sublease has been delivered to Landlord. Anything contained in this Lease
to the contrary notwithstanding, Tenant shall not sublet the Premises on any
basis such that the rental to be paid by the sublessee thereunder would be
based, in whole or in part, on either the income or profits derived by the
business activities of the sublessee, or any other formula, such that any
portion of the sublease rental received by Landlord would fail to qualify as
"rents from real property" within the meaning of Section 856(d) of the U.S.
Internal Revenue Code, or any similar or successor provision thereto.
Nothing herein shall require Landlord's consent to lease agreements or rental
agreements with residents in the ordinary course of Tenant's business.
23. Indemnification. To the fullest extent permitted by law,
Tenant agrees to protect, indemnify, defend and save harmless Landlord, its
directors, officers, shareholders, agents and employees from and against any
and all foreseeable or unforeseeable liability, expense loss, costs, deficiency,
fine, penalty, or damage (including, without limitation, punitive or
consequential damages) of any kind or nature, including reasonable attorneys'
fees, from any suits, claims or demands, on account of any matter or thing,
action or failure to act arising out of or in connection with this Lease
(including, without limitation, the breach by Tenant of any of its obligations
hereunder), the Premises, or the operations of Tenant on the Premises,
including without limitation all Environmental Activities on the Premises, all
Hazardous Materials Claims or any violation by Tenant of a Hazardous
Materials Law with respect to the Premises. Upon receiving knowledge of
any suit, claim or demand asserted by a third party that Landlord believes is
covered by this indemnity, Landlord shall give Tenant notice of the matter.
Tenant shall defend Landlord against such matter at Tenant's sole cost and
expense with legal counsel reasonably satisfactory to Landlord. In the event
Tenant chooses legal counsel that is not reasonably satisfactory to Landlord,
Landlord may elect to defend the matter with its own counsel at Tenant's
expense.
24. Holding Over. If Tenant shall for any reason remain in
possession of the Premises after the expiration or earlier termination of this
Lease, such possession shall be a month-to-month tenancy during which time
Tenant shall pay as rental each month, one hundred fifty percent (150%) of
the aggregate of the monthly Minimum Rent payable with respect to the last
Lease Year plus all additional charges accruing during the month and all
other sums, if any, payable by Tenant pursuant to the provisions of this Lease
with respect to the Premises. Nothing contained herein shall constitute the
consent, express or implied, of Landlord to the holding over of Tenant after
the expiration or earlier termination of this Lease, nor shall anything
contained herein be deemed to limit Landlord's remedies pursuant to this
Lease or otherwise available to Landlord at law or in equity.
25. Estoppel Certificates. Tenant shall, at any time upon not less
than five (5) days prior written request by Landlord, execute, acknowledge
and deliver to Landlord or its designee a statement in writing, executed by an
officer or general partner of Tenant, certifying that this Lease is unmodified
and in full force and effect (or, if there have been any modifications, that
this
Lease is in full force and effect as modified, and setting forth such
modifications), the dates to which Minimum Rent and additional charges
hereunder have been paid, certifying that no default by either Landlord or
Tenant exists hereunder or specifying each such default and as to other
matters as Landlord may reasonably request.
26. Conveyance by Landlord. If Landlord or any successor
owner of the Premises shall convey the Premises in accordance with the
terms hereof, Landlord or such successor owner shall thereupon be released
from all future liabilities and obligations of Landlord under this Lease arising
or accruing from and after the date of such conveyance or other transfer as to
the Premises and all such future liabilities and obligations shall thereupon be
binding upon the new owner.
27. Waiver of Jury Trial. Landlord and Tenant hereby waive any
rights to trial by jury in any action, proceedings or counterclaim brought by
either of the parties against the other in connection with any matter
whatsoever arising out of or in any way connected with this Lease, including,
without limitation, the relationship of Landlord and Tenant, Tenant's use and
occupancy of the Premises, or any claim of injury or damage relating to the
foregoing or the enforcement of any remedy hereunder.
28. Attorneys' Fees. If Landlord or Tenant brings any action to
interpret or enforce this Lease, or for damages for any alleged breach hereof,
the prevailing party in any such action shall be entitled to reasonable
attorneys' fees and costs as awarded by the court in addition to all other
recovery, damages and costs.
29. Severability. In the event any part or provision of the Lease
shall be determined to be invalid or enforceable, the remaining portion of this
Lease shall nevertheless continue in full force and effect.
30. Counterparts. This Lease may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same agreement.
31. Binding Effect. Subject to the provisions of Section 22 above,
this Lease shall be binding upon and inure to the benefit of Landlord and
Tenant and their respective heirs, personal representatives, successors in
interest and assigns.
32. Waiver and Subrogation. Landlord and Tenant hereby waive
to each other all rights of subrogation which any insurance carrier, or either
of them, may have as to the Landlord or Tenant by reason of any provision
in any policy of insurance issued to Landlord or Tenant, provided such waiver
does not thereby invalidate the policy of insurance.
33. No Recordation of Lease. The parties hereto agree that
neither this Lease nor any memorandum, affidavit, or any other instrument
regarding this Lease shall be recorded affecting title to the Premises;
provided, however, Landlord shall be permitted to file financing statements
to perfect its security interests created by this Lease.
34. Incorporation of Recitals and Attachments. The recitals and
exhibits, schedules, addenda and other attachments to this Lease are hereby
incorporated into this Lease and made a part hereof.
35. Titles and Headings. The titles and headings of sections of
this Lease are intended for convenience only and shall not in any way affect
the meaning or construction of any provision of this Lease.
36. Nature of Relationship; Usury Savings Clause. The parties
intend that their relationship shall be that of lessor and lessee only. Nothing
contained in this Lease shall be deemed or construed to constitute an
extension of credit by Landlord to Tenant, nor shall this Lease be deemed to
be a partnership or venture agreement between Landlord and Tenant.
Notwithstanding the foregoing, in the event any payment made to Landlord
hereunder is deemed to violate any applicable laws regarding usury, the
portion of any payment deemed to be usurious shall be held by Landlord to
pay the future obligations of Tenant as such obligations arise and, in the event
Tenant discharges and performs all obligations hereunder, such funds will be
reimbursed to Tenant upon the expiration of the Term. No interest shall be
paid on any such funds held by Landlord.
37. Joint and Several. If more than one person or entity is the
Tenant hereunder, the liability and obligations of such persons or entities
under this Lease shall be joint and several.
38. Survival of Representations, Warranties and Covenants.
All of the obligations, representations, warranties and covenants of Tenant
under this Lease shall survive the expiration or earlier termination of the
Term.
39. Interpretation. Both Landlord and Tenant have been
represented by counsel and this Lease has been freely and fairly negotiated.
Consequently, all provisions of this Lease shall be interpreted according to
their fair meaning and shall not be strictly construed against any party.
40. Sale of Premises by Landlord. In the event Landlord ever
determines that it desires to sell the Premises, Landlord agrees not to market
or sell the Premises without first complying with the provisions of this
Section 40.
40.1 Prior to making any agreement to sell the Premises,
Landlord shall select one (1) qualified appraiser to determine the fair market
value of the Premises as of a date selected by Landlord (hereinafter
designated "Determination Date"); such appraiser must meet the following
qualifications: (i) such appraiser shall be a MAI Appraiser; and (ii) such
appraiser shall not otherwise be disqualified from exercising independent
judgment as to the fair market value determination to be made. Such
appraiser shall be required to prepare a written report (hereinafter designated
"First Appraisal") as to the Premises' fair market value (hereinafter
designated "Appraised Value") as of the Determination Date and the First
Appraisal shall satisfy the professional standards applicable to an MAI
Appraiser for appraisal reports. The First Appraisal must be completed and
issued within thirty (30) days of the Determination Date. For purposes
hereof, "MAI Appraiser" shall mean an appraiser licensed or otherwise
qualified to do business in the State of Texas and who has substantial
experience in performing appraisals of facilities similar to the Premises and
is certified as a member of the American Institute of Real Estate Appraisers
or certified as a SRPA by the Society of Real Estate Appraisers, or, if such
organizations no longer exist or certify appraisers, such successor
organization or such other organization as is approved by Landlord.
40.2 Upon completion of the First Appraisal, Landlord shall
determine whether it is still interested in selling the Premises for cash at a
purchase price equal to or higher than the Appraised Value, and if Landlord
is still interested, Landlord shall deliver a written notice to Tenant
(hereinafter designated "Landlord's Original Notice") advising Tenant that
Landlord desires to sell the Premises for cash at the Appraised Value or a
higher price. A complete copy of the First Appraisal must be provided to
Tenant simultaneous with the delivery of Landlord's Original Notice.
40.3 Tenant shall have thirty (30) days from the date the
Landlord's Original Notice is delivered to Tenant (hereinafter designated
"Original Notice Delivery Date") in which to deliver to Landlord a written
offer (hereinafter designated "Tenant's Original Offer") to purchase the
Premises for cash at a purchase price equal to the Appraised Value and upon
the Agreed Terms (as hereinafter defined). Any offer by Tenant to purchase
the Premises must include the following terms (herein designated "Agreed
Terms"): (i) Tenant shall pay all costs related to obtaining any environmental
assessment reports (hereinafter collectively designated "Environmental
Reports") related to the Premises; (ii) Tenant shall pay all costs of obtaining
any survey of the Premises; (iii) Landlord shall pay the base premium for
Form T-1 Owner Policy of Title Insurance for the Premises providing
coverage to Tenant comparable to the title insurance policy (hereinafter
designated "Title Insurance") obtained for Landlord in respect to Landlord's
purchase of the Premises (with the exception in such Owner Policy of Title
Insurance relating to discrepancies, conflicts, or shortages in area or boundary
lines, or any encroachments, or protrusions, or any overlapping of
improvements shall be deleted at Tenant's expense to the extent permitted by
the then existing regulations of the State Board of Insurance), and in this
regard, Landlord shall be entitled to select the title insurance agency to close
the sale of the Premises and through which the Title Insurance is to be issued
(hereinafter designated "Title Company"); (iv) each party shall pay for the
attorneys' fees and costs which that party incurs; (v) Tenant and Landlord
shall equally share all other closing costs; (vi) there shall not be any
contingencies or conditions whatsoever to Tenant's obligation to purchase the
Premises; (vii) Tenant shall pay Landlord the full purchase price equal to the
Appraised Value (or Secondary Price or Successive Price, as applicable) for
the Premises in cash at closing; (viii) Tenant shall deposit cash with the Title
Company equal to ten percent (10%) of the Appraised Value (or the
Secondary Price or Successive Price, as applicable) as an ▇▇▇▇▇▇▇ money
deposit (hereinafter designated "▇▇▇▇▇▇▇ Money"), which ▇▇▇▇▇▇▇ Money
shall be nonrefundable and shall be paid to Landlord in the event Tenant fails
to perform its obligations under Tenant's Original Offer (provided that such
▇▇▇▇▇▇▇ Money shall be applied towards the purchase price of the Premises
if the purchase closes); (ix) the sale of the Premises shall be on an "AS IS,
WHERE IS, WITH ALL FAULTS" basis with no representations or
warranties of Landlord whatsoever; (x) the conveyance shall be by special
warranty deed; and (xi) the closing of the sale and purchase of the Premises
must occur within one hundred twenty (120) days after the Original Notice
Delivery Date.
40.4 In the event Tenant does not timely deliver a Tenant's
Original Offer to Landlord within such thirty (30) day period, Tenant shall be
conclusively deemed to have forfeited any right to purchase the Premises
pursuant to the Landlord's Original Notice; and Landlord shall become
entitled to market and sell the Premises in accordance with the provisions of
Section 40.5 hereof. In the event Tenant timely delivers a Tenant's Original
Offer to Landlord within such thirty (30) day period, Tenant and Landlord
shall each deliver to the Title Company duplicate signed counterparts of the
Tenant's Original Offer (executed by duly authorized representatives of the
Tenant and Landlord, respectively) and Tenant shall pay the ▇▇▇▇▇▇▇ Money
to the Title Company within forty-eight (48) hours of such acceptance.
40.5 In the event Landlord becomes entitled to market
and/or sell the Premises pursuant to this Section 40.5, Landlord shall be free
for a period of two hundred forty (240) days from the Original Notice
Delivery Date to advertise, list for sale, solicit offers, negotiate contracts
for
the sale of, and sell (hereinafter collectively designated "Sale Activity") the
Premises at the applicable Appraised Value or higher price, and in the event
the Premises is not sold within such two hundred forty (240) day period but
is subject to a Pending Contract, Landlord shall continue to be free to sell the
Premises upon the terms set forth in the Pending Contract. For purposes of
this Section 40.5, the term "Pending Contract" means a bona fide written
contract providing for (i) the sale of the Premises by Landlord to a Person
other than a Person affiliated with Landlord at a sale price at least equal
to the
Appraised Value and (ii) a date for the closing of such sale that is scheduled
to occur within ninety (90) days of the date of such contract. In the event
Landlord does not sell the Premises in accordance with the preceding
provisions of this Section 40.5, Landlord may either:
(a) cease its efforts to sell the Premises (subject to Landlord's
right to again seek to market and/or sell the Premises on such other occasions
as Landlord may determine in its sole and absolute discretion, provided
Landlord again complies with the provisions of this Section 40 upon each
such other occasion); or
(b) deliver a written notice (hereinafter designated "Landlord's
Secondary Notice") to Tenant advising Tenant that Landlord desires to sell
the Premises for cash (i) at a price less than the Appraised Value determined
under the First Appraisal as determined by Landlord in its sole and absolute
discretion or (ii) at the fair market value of the Premises as determined by an
appraisal conducted in the same manner as the First Appraisal (hereinafter
designated "Secondary Appraisal"), with either of such prices being herein
designated "Secondary Price"; and in the event a Secondary Appraisal is
conducted, a complete copy of the written report prepared in connection with
the Secondary Appraisal shall be provided to Tenant simultaneously with the
delivery of the Landlord's Secondary Notice. Upon delivery of a Landlord's
Secondary Notice, Tenant and Landlord shall have the same rights as set forth
in Sections 40.3, 40.4 and 40.5 hereof as though such Landlord's Secondary
Notice was a Landlord's First Notice, including, but not limited to, (i) Tenant
making an offer to purchase the Premises for cash at the Secondary Price and
upon the Agreed Terms, and (ii) Landlord having the right to engage in Sale
Activity at the Secondary Price or a higher price.
In the event the Landlord delivers a Landlord's Secondary Notice but the
same does not result in the sale of the Premises in the manner contemplated
above, Landlord may either:
(c) cease its efforts to sell the Premises (subject to Landlord's
right to again seek to market and/or sell the Premises on such other
occasions as Landlord may determine in its sole and absolute discretion,
provided Landlord again complies with the provisions of this Section 40 upon
each such other occasion); or
(d) deliver a written notice (hereinafter designated "Landlord's
Successive Notice") to Tenant advising Tenant that Landlord desires to sell
the Premises for cash (i) at a price less than the Secondary Price as
determined by Landlord in its sole and absolute discretion or (ii) at the fair
market value of the Premises as determined by an appraisal conducted in the
same manner as the First Appraisal and Secondary Appraisal (hereinafter
designated "Successive Appraisal"), with either of such prices being herein
designated "Successive Price"; and in the event a Successive Appraisal is
conducted, a complete copy of the written report prepared in connection with
the Successive Appraisal shall be provided to Tenant simultaneously with the
delivery of the Landlord's Successive Notice. Upon delivery of a Landlord's
Successive Notice, Tenant and Landlord shall have the same rights as set
forth in Sections 40.3, 40.4 and 40.5 hereof as though such Landlord's
Successive Notice was a Landlord's Secondary Notice, including, but not
limited to, (i) Tenant making an offer to purchase the Premises for cash at the
Successive Price and upon the Agreed Terms, and (ii) Landlord having the
right to engage in Sale Activity at the Successive Price or a higher price.
In the event the Landlord delivers a Landlord's Successive Notice but the
same does not result in the sale of the Premises in the manner contemplated
above, Landlord may repeat the procedures set forth in this Section 40.5 and
on each occasion of repeating such procedures adopt a new price at which the
Premises may be sold for cash, whether to Tenant pursuant to an written offer
made by Tenant at such new price (and upon the Agreed Terms) or to a
Person not affiliated with Landlord at such new price.
[FOLLOWING PAGE IS SIGNATURE PAGE]
Landlord and Tenant have executed this Lease as of the date first
indicated above.
LANDLORD:
MLD TEXAS TRUST, a
Delaware business trust
By:_______________________________________
Name:____________________________________
Title: Trustee
TENANT:
STERLING HOUSE
CORPORATION, a Kansas
corporation
By:_______________________________________
Name:____________________________________
Title:
____________________________________
EXHIBIT "A"
[ATTACH LEGAL DESCRIPTION]
EXHIBIT "B"
[ATTACH DESCRIPTION OF LANDLORD PERSONAL PROPERTY]
EXHIBIT "C"
APPRAISAL PROCESS
If Landlord and Tenant are unable to agree upon the Fair Market
Value of the Premises within any relevant period provided in this Lease, each
shall within ten (10) days after written demand by the other select one MAI
Appraiser to participate in the determination of fair market value. For all
purposes under this Lease, the fair market value of the Premises shall be the
fair market value of the Premises unencumbered by this Lease. Within ten
(10) days of such selection, the MAI Appraisers so selected by Landlord and
Tenant shall select a third MAI Appraiser ("Third MAI Appraiser"). The
three (3) selected MAI Appraisers shall each determine the fair market value
of the Premises within thirty (30) days of the selection of the third appraiser.
To the extent consistent with sound appraisal practices as then existing at the
time of any such appraisal, and if requested by Landlord, such appraisal, shall
be made on a basis consistent with the basis on which the Premises was
appraised at the time of its acquisition by Landlord. The fees and expenses
of any MAI Appraiser retained pursuant to this Exhibit shall be borne by the
party retaining such MAI Appraiser, with the exception of the Third MAI
Appraiser whose fees and expenses shall be borne by the Landlord and
Tenant equally.
In the event either Landlord or Tenant fails to select a MAI Appraiser
within the time period set forth in the foregoing paragraph, the MAI
Appraiser selected by the other party shall alone determine the fair market
value of the Premises in accordance with the provisions of this Exhibit and
the fair market value so determined shall be binding upon Landlord and
Tenant.
In the event the MAI Appraisers selected by Landlord and Tenant are
unable to agree upon a third MAI Appraiser within the time period set forth
in the first paragraph of this Exhibit, either Landlord or Tenant shall have the
right to apply at Tenant's expense to the presiding judge of the court of
original trial jurisdiction in the county in which the Premises is located to
name the third MAI Appraiser.
Within five (5) days after completion of the third MAI Appraiser's
appraisal, all three MAI Appraisers shall meet and a majority of the MAI
Appraisers shall attempt to determine the fair market value of the Premises.
If a majority are unable to determine the fair market value at such meeting,
the three appraisals shall be added together and their total divided by three.
The resulting quotient shall be the fair market value of the Premises. If,
however, either or both of the low appraisal or the high appraisal are more
than ten percent (10%) lower or higher than the middle appraisal, any such
lower or higher appraisal shall be disregarded. If only one appraisal is
disregarded, the remaining two appraisals shall be added together and their
total divided by two, and the resulting quotient shall be such fair market
value. If both the lower appraisal and higher appraisal are disregarded as
provided herein, the middle appraisal shall be such fair market value. In any
event, the result of the foregoing appraisal process shall be final and binding.
"MAI Appraiser" shall mean an appraiser licensed or otherwise
qualified to do business in the State of Texas and who has substantial
experience in performing appraisals of facilities similar to the Premises and
is certified as a member of the American Institute of Real Estate Appraisers
or certified as a SRPA by the Society of Real Estate Appraisers, or, if such
organizations no longer exist or certify appraisers, such successor
organization or such other organization as is approved by Landlord.
TABLE OF CONTENTS
Page
1. Term 1
1.1 Term 1
1.2 Renewal Terms 1
2. Rent 2
2.1 Initial Term Minimum Rent 2
2.2 Annual Escalation of Minimum Rent during Term 2
2.3 Renewal Term Minimum Rent 4
2.4 Minimum Rent Escalations after Inception of Renewal Term
4
2.5 Total Rent 4
2.6 Proration for Partial Periods 4
2.7 Form for Calculating Minimum Rent 4
2.8 Absolute Net Lease 4
3. Taxes, Assessments and Other Charges 5
3.1 Tenant's Obligations 5
3.2 Proration 5
3.3 Right to Protest 5
3.4 Tax Bills 5
3.5 Other Charges 6
4. Insurance 6
4.1 General Insurance Requirements 6
4.2 Fire and Other Casualty 6
4.3 Public Liability 7
4.4 Professional Liability Insurance 7
4.5 Workers Compensation 7
4.6 Boiler Insurance 7
4.7 Business Interruption Insurance 7
4.8 Deductible Amounts 8
5. Use, Maintenance and Alteration of the Premises 8
5.1 Tenant's Maintenance Obligations 8
5.2 Regulatory Compliance 9
5.3 Permitted Use 10
5.4 Tenant Repurchase Obligation 10
5.5 No Liens; Permitted Contests 10
5.6 Alterations by Tenant 10
5.7 Capital Improvements Funded by Landlord 11
5.8 Compliance with IRS Guidelines 11
6. Condition and Title of Premises 11
7. Tenant Personal Property 12
7.1 Tenant Personal Property 12
7.2 Landlord's Security Interest 12
7.3 Financing Statements 13
7.4 Intangible Property 13
8. Representations and Warranties 13
8.1 Due Authorization and Execution 13
8.2 Due Organization 14
8.3 No Breach of Other Agreements 14
9. Financial, Management and Regulatory Reports 14
9.1 Monthly Facility Reports 14
9.2 Annual Financial Statement 14
9.3 Accounting Principles 14
9.4 Regulatory Reports 15
10. Events of Default and Landlord's Remedies 15
10.1 Events of Default 15
10.2 Remedies 17
10.3 Receivership 18
10.4 Late Charges 18
10.5 Remedies Cumulative; No Waiver 18
10.6 Performance of Tenant's Obligations by Landlord 19
11. Security Deposit 19
12. Damage by Fire or Other Casualty 19
12.1 Reconstruction Using Insurance 19
12.2 Surplus Proceeds 19
12.3 No Rent Abatement 20
13. Condemnation 20
13.1 Complete Taking 20
13.2 Partial Taking 20
13.3 Lease Remains in Effect 20
14. Provisions on Termination of Term 20
14.1 Surrender of Possession 20
14.2 Removal of Personal Property 20
14.3 Title to Personal Property Not Removed 21
14.4 Management of Premises 21
14.5 Correction of Deficiencies 21
15. Notices and Demands 21
16. Right of Entry; Examination of Records 22
17. Landlord May Grant Liens 22
18. Quiet Enjoyment 23
19. Applicable Law 23
20. Preservation of Gross Revenues 23
21. Hazardous Materials 24
21.1 Hazardous Material Covenants 24
21.2 Tenant Notices to Landlord 24
21.3 Extension of Term 25
21.4 Participation in Hazardous Materials Claims 25
21.5 Environmental Activities 25
21.6 Hazardous Materials 25
21.7 Hazardous Materials Claims 26
21.8 Hazardous Materials Laws 26
22. Assignment and Subletting 26
23. Indemnification 27
24. Holding Over 27
25. Estoppel Certificates 27
26. Conveyance by Landlord 27
27. Waiver of Jury Trial 28
28. Attorneys' Fees 28
29. Severability 28
30. Counterparts 28
31. Binding Effect 28
32. Waiver and Subrogation 28
33. No Recordation of Lease 28
34. Incorporation of Recitals and Attachments 28
35. Titles and Headings 28
36. Nature of Relationship; Usury Savings Clause 28
37. Joint and Several 29
38. Survival of Representations, Warranties and Covenants 29
39. Interpretation 29
40. Sale of Premises by Landlord 29
EXHIBITS
EXHIBIT A - LEGAL DESCRIPTION
EXHIBIT B - LANDLORD PERSONAL PROPERTY
EXHIBIT C - APPRAISAL PROCESS
LEASE AND SECURITY AGREEMENT
by and between
MLD TEXAS TRUST,
a Delaware business trust,
as "Landlord"
and
STERLING HOUSE CORPORATION,
a Kansas corporation,
as "Tenant"
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