EXHIBIT 10.56
LEASE AND AGREEMENT
Between
G&L Hampden, LLC,
as Lessor
And
Hampden Nursing Homes, Inc.
as Lessee
Dated as of October 1, 1997
TABLE OF CONTENTS
Paragraph Page
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1. Lease and Premises; Title and Condition........................ 1
2. Use; Quiet Enjoyment........................................... 1
3. Terms.......................................................... 1
4. Rent........................................................... 1
5. Non-Terminability.............................................. 2
6. Taxes and Assessments; Compliance with Law..................... 3
7. Liens.......................................................... 3
8. Intentionally Omitted.......................................... 3
9. Maintenance and Repair......................................... 3
10. Alterations.................................................... 4
11. Condemnation and Casualty...................................... 4
12. Insurance...................................................... 5
13. Environmental Matters.......................................... 5
14. Operation of Nursing Home...................................... 7
Lessee to Equip Facility....................................... 7
Sufficient Personal Property................................... 7
No Removal of Personalty....................................... 7
Management Agreement........................................... 7
15. Transfer of Permits and Contracts.............................. 7
16. Assignment and Subletting...................................... 8
17. Permitted Contests............................................. 8
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18. Conditional Limitations; Default Provision.................... 8
19. Status of Parties............................................. 10
20. Notices, Demands and Other Instruments........................ 10
21. Estoppel Certificates......................................... 10
22. No Merger..................................................... 10
Surrender............................................................... 10
24. Merger, Consolidation or Sale of Assets....................... 11
25. Separability; Binding Effect; Non-Recourse.................... 11
26. Schedules..................................................... 11
Non-Recourse............................................................ 11
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Schedule A - Description of Premises; Liens and Encumbrances
Schedule B - Terms and Fixed Rent Payments
Schedule C - Purchase Prices
Location of Definitions:
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Event of Default - paragraph 18(a)
Fixed Rent - paragraph 4 & Schedule B
Improvements - paragraph 1
Mortgagee - paragraph 12
Net Proceeds - paragraph 11(a)
Payment Dates - paragraph 4 & Schedule B
Premises - paragraph 1
Primary Term - paragraph 3 & Schedule B
Termination Date - paragraph 11(b)
LEASE AND AGREEMENT, dated as of October 1, 1997 (this Lease), between G&L
Hampden, LLC, a Delaware limited liability company (Lessor), having an address
at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and Hampden Nursing
Homes, Inc., a Massachusetts corporation (herein, together with any corporation
succeeding thereto by consolidation, merger or acquisition of its assets
substantially as an entirety, called Lessee), having an address at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
1. Lease and Premises; Title and Condition. In consideration of the
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rents and covenants herein stipulated to be paid and performed by Lessee and
upon the terms and conditions herein specified, Lessor hereby leases to Lessee,
and Lessee hereby leases from Lessor, the premises (the Premises) consisting of
the land described in Schedule A, all buildings and other improvements now or
hereafter located thereon (the Improvements), and all easements, rights and
appurtenances relating thereto. The Premises are leased to Lessee in their
present condition without representation or warranty by Lessor and subject to
the rights of parties in possession, to the existing state of title, and to all
applicable legal requirements now or hereafter in effect. Lessee has examined
the Premises and title thereto and has found the same satisfactory. The Premises
will be managed on behalf of Lessee by Hampden Holding Group, Inc.
2. Use; Quiet Enjoyment. Lessee may use the Premises for nursing home
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purposes in accordance with valid, applicable permits held by Lessee and all
applicable laws, ordinances and regulations. So long as no default has occurred
and is continuing hereunder, Lessor warrants peaceful and quiet enjoyment of the
Premises by Lessee against acts of Lessor or anyone claiming through Lessor;
provided that Lessor and its agents may enter upon and examine the Premises at
reasonable times.
3. Terms. The Premises are leased for a primary term (the Primary Term),
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unless and until the term of this Lease shall expire or be terminated pursuant
to any provision hereof. The Primary Term shall commence and expire on the
dates set forth in Schedule B, and is subject to extension for up to three
renewal terms as set forth in Schedule ▇. ▇▇▇▇▇▇ shall have the option of
terminating this Lease upon five (5) business days notice to Lessee, but only if
an entity acceptable to Lessor shall have obtained all regulatory approvals
necessary to operate the Premises.
4. Rent.
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(a) Lessee covenants and agrees to pay to Lessor at its address set forth
above or such other place as may be designated in writing by Lessor, monthly
rent (the "Fixed Rent") in the amount specified on Exhibit B hereto. Lessee
shall pay all Fixed Rent to Landlord, in arrears, on or before the first day of
each and every calendar month during the Term (commencing November 1, 1997) of
this Lease without notice, by wire transfer or other electronic means (or
otherwise so there are collected funds available to Landlord on the due date).
Lessor and Lessee acknowledge that so long as the Loan (as defined in the Loan
Agreement referred to below) is outstanding, all Gross Revenues, as defined in
the Loan Agreement between Lessor and Nomura Asset Capital
Corporation ("Nomura") dated October __, 1997, shall be assigned and paid
directly to Nomura's agent bank. Lessor and Lessee acknowledge that such Gross
Revenues may in part be paid by transfer of funds by Healthpartners Funding,
L.P. or its successors as receivables lender to a Cash Collateral Account
maintained on behalf of Nomura. To the extent the amount from time to time paid
shall exceed the Rent then due and reserves required by this Lease, Lessor
agrees, subject to the terms of the Loan Agreement, to instruct Nomura and its
agent bank to promptly remit such excess, at the express irrevocable instruction
of and on behalf of Lessee, to Hampden Holding Group, Inc. Lessee agrees not to
increase the maximum amount of accounts receivable borrowing presently
authorized under its agreement with Receivables Lender and further agree not to
enter into any other accounts receivable financing without the prior written
consent of Nomura, which consent may be withheld in Nomura's sole discretion.
Lessee shall be required to maintain reserves in an amount and for such purposes
and times as are required of Lessor under the Loan, such amounts to be held as
provided in this paragraph 4(a).
(b) All amounts which Lessee is required to pay pursuant to this Lease
(other than Fixed Rent, amounts payable upon purchase of the Premises and
amounts payable as liquidated damages pursuant to Paragraph 18), together with
every fine, penalty, interest, and cost which may be added for nonpayment or
late payment thereof, shall constitute additional rent ("Additional Rent"). If
Lessee shall fail to pay any Additional Rent, Lessor shall have the right to pay
the same and shall have all rights, powers, and remedies with respect thereto as
are provided herein or by law in the case of nonpayment of Fixed Rent. Lessee
shall pay to Lessor interest at the rate of 12% per annum on all overdue Fixed
Rent from the due date thereof until paid, and on all overdue Additional Rent
paid by Lessor on behalf of Lessee from the date of payment by Lessor until
repaid by Lessee. Lessee shall perform all its obligations under this Lease at
its sole cost and expense, and shall pay all Fixed Rent and Additional Rent when
due, without notice or demand.
5. Non-Terminability.
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(a) This Lease shall not terminate, except as otherwise expressly provided
herein, nor shall Lessee be entitled to any abatement, reduction, set-off,
counterclaim, defense or deduction with respect to any Fixed Rent, Additional
Rent or other sum payable hereunder, nor shall the obligations of Lessee
hereunder be affected, by reason of: any damage to or destruction of the
Premises (subject to paragraph 11 hereof); any taking of the Premises or any
part thereof by condemnation or otherwise (subject to paragraph 11 hereof); any
prohibition, limitation, restriction or prevention of Lessee's use, occupancy or
enjoyment of the Premises, or any interference with such use, occupancy or
enjoyment by any Person; any eviction by paramount title or otherwise; any
default by Lessor hereunder or under any other agreement; any action of any
governmental authority; or any other cause whether similar or dissimilar to the
foregoing. The parties intend that the obligations of Lessee hereunder shall be
separate and independent covenants and agreements and shall continue unaffected
unless such obligations shall have been modified or terminated pursuant to an
express provision of this Lease.
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(b) Lessee shall remain obligated under this Lease in accordance with its
terms and shall not take any action to terminate, rescind or avoid this Lease,
notwithstanding any bankruptcy, insolvency, reorganization, liquidation,
dissolution or other proceeding affecting Lessor or any assignee of Lessor or
any action with respect to this Lease which may be taken by any trustee,
receiver or liquidator or by any court. Lessee waives all rights to terminate
or surrender this Lease, or to any abatement or deferment of Fixed Rent,
Additional Rent or other sums payable hereunder.
6. Taxes and Assessments; Compliance with Law.
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(a) Lessee shall pay or cause to be paid: (i) all taxes, assessments,
levies, fees, water and sewer rents and charges, and all other governmental
charges, general and special, ordinary and extraordinary, foreseen and
unforeseen, which are, at any time prior to or during the term hereof, imposed
or levied upon or assessed against (A) the Premises, (B) any Fixed Rent,
Additional Rent or other sum payable hereunder or (C) this Lease or the
leasehold estate hereby created, or which arise in respect of the operation,
possession or use of the Premises; (ii) all gross receipts or similar taxes
imposed or levied upon, assessed against or measured by any Fixed Rent,
Additional Rent or other sum payable hereunder; (iii) all sales, use or similar
taxes at any time levied, assessed or payable on account of the acquisition,
leasing or use of the Premises; and (iv) all charges for utilities serving the
Premises. Lessee shall not be required to pay any franchise, estate,
inheritance, transfer, income or similar tax of Lessor (other than any tax
referred to in clause (ii) above) unless such tax is imposed, levied or assessed
in substitution for any other tax, assessment, charge or levy which Lessee is
required to pay pursuant to this paragraph 6(a). If any such assessment may
legally be paid in installments, Lessee may pay such assessment in
installments. Notwithstanding the foregoing, Lessor's sole remedy for breach of
this paragraph shall be to terminate this Lease and shall not be to collect
money from Lessee.
(b) Lessee shall comply with (i) all laws, rules, regulations or statutes
applicable to Lessee or the use of the Premises, and (ii) all contracts
(including without limitation insurance policies), agreements (including without
limitation management agreements) and restrictions applicable to the operation
of the Premises.
7. Liens. Lessee covenants that it shall not create any charge, lien,
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security interest or encumbrance upon the Premises or any Fixed Rent, Additional
Rent or other sum payable hereunder.
8. Intentionally Omitted.
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9. Maintenance and Repair. (a) Lessee will maintain the Premises or
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cause the Premises to be maintained in good repair and condition, except for
ordinary wear and tear, and will make all structural and non-structural,
foreseen and unforeseen and ordinary and extraordinary changes and repairs which
may be required in Lessor's sole judgment to keep the Premises in good repair
and condition. Lessor shall not be required to maintain, repair or rebuild the
Improvements or to maintain the Premises nor pay for the cost of any such
maintenance, repair or rebuilding, and
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Lessee waives the right to make repairs at the expense of Lessor.
Notwithstanding the foregoing, Lessor's sole remedy for breach of this paragraph
shall be to terminate this Lease.
(b) Lessee shall permit Lessor and Lender, so long as the loan contemplated
by the Loan Agreement is outstanding, and the authorized representatives of each
to enter the Premises during normal business hours upon one day's advance notice
(except in emergency situations when Lessor and its agents may enter without
notice) for the purpose of inspecting the Premises. Lessor, and as long as such
loan is outstanding, Lender, may enter the Premises for the purposes of
performing work necessary to prevent waste, loss, damage or deterioration to or
in connection with the Premises and of performing any act which Lessee is
required to perform or cause to be performed under any provision of this Lease
and which Lessee has failed to perform.
10. Alterations. Subject to the terms of the Loan Agreement and the other
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Loan Documents referred to therein, and subject to the prior written approval of
Lessee, which approval will not be unreasonably withheld, delayed or
conditioned, Lessor may, at its expense, make additions to and alterations of
the Improvements, construct additional Improvements and make substitutions and
replacements for the Improvements, provided that such work shall be
expeditiously completed in a good and workmanlike manner and in compliance with
all applicable legal requirements and the requirements of any insurance policy
required to be maintained by Lessor hereunder All such additions, alterations,
additional Improvements, substitutions and replacements shall be and remain part
of the realty and the property of Lessor and shall be subject to this Lease.
Lessee shall have no right to make alterations to the Premises.
11. Condemnation and Casualty.
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(a) Subject to the terms of the Loan Agreement and the other Loan Documents
referred to therein, Lessee hereby irrevocably assigns to Lessor any award,
compensation or insurance payment to which Lessee may become entitled by reason
of its interest in the Premises (i) if the Premises are damaged or destroyed by
fire or other casualty or (ii) if the use, occupancy or title of the Premises or
any part thereof is taken, requisitioned or sold in, by or on account of any
actual or threatened eminent domain proceeding or other action by any person
having the power of eminent domain. Lessor is hereby authorized and empowered
in the name and on behalf of Lessee to appear in any such proceeding or action,
to negotiate, prosecute and adjust any claim for any award, compensation or
insurance payment on account of such damage, destruction, taking, requisition or
sale, and to collect any such award, compensation or insurance payment. Lessee
shall be entitled to participate in any such proceeding, action, negotiation,
prosecution or adjustment. All amounts paid in connection with any such damage,
destruction, taking, requisition or sale shall be applied pursuant to this
paragraph 11, and all such amounts (minus the expense of collecting such amount)
are herein called the Net Proceeds. Lessor shall take all appropriate action in
connection with each such proceeding, action, negotiation, prosecution and
adjustment and shall pay all expenses thereof, including the cost of Lessor's
participation therein out of proceeds and awards.
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(b) Subject to the terms of the Loan Agreement and the other Loan Documents
referred to therein, if an occurrence of the character referred to in clause (i)
or (ii) of paragraph 11(a) shall affect all or a substantial portion of the
Premises and shall render the Premises unsuitable for restoration or continued
use and occupancy in Lessee's business, then Lessee may, not earlier than 20
days nor later than 40 days after such occurrence, deliver to Lessor notice of
its intention to terminate this Lease on the next Payment Date (the Termination
Date) which occurs not less than 20 days after the delivery of such notice.
This Lease shall terminate on the Termination Date except with respect to
obligations and liabilities of Lessee hereunder, actual or contingent, which
have arisen on or prior to the Termination Date, upon payment by Lessee of all
Fixed Rent, Additional Rent, and other sums then due and payable hereunder to
and including the Termination Date, and the Net Proceeds shall belong to Lessor.
(c) Subject to the terms of the Loan Agreement and the other Loan Documents
referred to therein, if, after an occurrence of the character referred to in
clause (i) or (ii) of paragraph 11(a), Lessee does not give notice of its
intention to terminate this Lease, then this Lease shall continue in full
effect, and Lessor shall repair any damage to the Premises caused by such event
in conformity with the requirements of paragraph 10 so as to restore the
Premises (as nearly as practicable, but in all event restoring the number of
licensed beds to the number of such beds immediately prior to such occurrence)
to the condition and market value thereof immediately prior to such occurrence.
Any Net Proceeds remaining after final payment has been made for such work shall
be retained by Lessor. In the event of any temporary requisition, this Lease
shall remain in full effect for the remainder of the term hereof, and Lessee
shall be entitled to receive the entire Net Proceeds payable during the
remainder of the term hereof by reason of such requisition. If the cost of any
repairs required to be made by Lessee pursuant to this paragraph 11(c) shall
exceed the amount of such Net Proceeds, the deficiency shall be paid by Lessor.
12. Insurance.
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Lessee will maintain insurance of the character and in the amount required
by any first mortgagee of the Premises, provided that Lessor's sole remedy for
breach of this paragraph is to terminate this Lease and not to collect money
from Lessee.
13. Environmental Matters. Lessee (i) shall comply, and cause the
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Premises to comply, with all Environmental Laws (as hereinafter defined)
applicable to Lessee and its operations (including the making of all submissions
to governmental authorities required by Environmental Laws and the carrying out
of any remediation program specified by such authority); (ii) shall not install
or permit the installation on the Premises of any surface impoundments,
underground storage tanks, or asbestos-containing materials except in compliance
with Environmental Laws; and (iii) shall cause any alterations of the Premises
to be done in a way so as to not expose, in violation of any applicable law, the
persons working on or visiting the Premises to Hazardous Materials and in
connection with any such alterations shall remove any Hazardous Materials
present upon the Premises which are not in compliance with Environmental Laws or
which present a danger to persons working on or visiting the Premises in
violation of any applicable law. Notwithstanding the
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foregoing, Lessor's sole remedy for a breach of this paragraph shall be to
terminate this Lease and not to collect money from Lessee.
"Environmental Laws" means the Resource Conservation and Recovery Act of
1976, as amended, 42 U.S.C. (S)(S) 6901, et seq. (RCRA), the Comprehensive
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Environmental Response, Compensation and Liability Act of 1980, as amended by
the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. (S)(S) 9601,
et seq. (CERCLA), the Toxic Substance Control Act, as amended, 15 U.S.C. (S)(S)
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2601, et seq., the Federal Insecticide, Fungicide, and Rodenticide Act, as
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amended, 7 U.S.C. (S)(S) 136, et seq., and all applicable federal, state and
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local environmental laws, ordinances, rules and regulations, as any of the
foregoing may have been or may be from time to time amended, supplemented or
supplanted, and any other federal, state or local laws, ordinances, rules and
regulations, now or hereafter existing relating to regulations or control of
Hazardous Material or materials. The term "Hazardous Materials" as used in this
Lease shall mean substances defined as "hazardous substances," "hazardous
materials," "hazardous wastes," or "toxic substances" in any applicable federal,
state or local statute, rule, regulation, or determination, including but not
limited to the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, 42 U.S.C. (S)(S) 9601, et seq.; the Hazardous Materials
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Transportation Act of 1976, 42 U.S.C. (S)(S) 1801, et seq.; the Resource,
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Conservation and Recovery Act of 1976, 42 U.S.C. (S)(S) 6901, et seq.; and
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asbestos, PCBs, radioactive substances, methane, volatile hydrocarbons,
petroleum or petroleum-derived substances or wastes, radon, industrial solvents,
or any other material as may be specified in applicable law or regulations.
Lessee shall notify Lessor in writing, promptly upon Lessee's learning
thereof, of any:
(i) notice or claim to the effect that Lessee is or may be liable to any
person as a result of the release or threatened release of any
Hazardous Material into the environment from the Premises;
(ii) notice that Lessee is subject to investigation by any governmental
authority evaluating whether any remedial action is needed to
respond to the release or threatened release of any Hazardous
Material into the environment from the Premises; and
(iii) notice that the Premises are subject to an environmental lien.
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14. Operation of Nursing Home.
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Lessee to Equip Facility. Lessee, without expense to Lessor, shall
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install, affix, assemble or place, or cause to be installed, affixed, assembled
or placed, on the Premises sufficient items of personal property to enable the
operation of the Premises in accordance with the requirements of this Lease as a
nursing home, and such personal property and replacements thereof shall be at
all times the property of Lessor. Notwithstanding the foregoing, Lessee shall
have no liability under this paragraph and Lessor's sole remedy for breach of
this paragraph shall be to terminate this Lease.
Sufficient Personal Property. Lessee shall maintain or cause to be
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maintained, without expense to Lessor, during the entire Term, the personal
property in good order and repair and shall provide without expense to Lessor
all necessary replacements thereof, as may be necessary in order to operate the
Premises in compliance with all applicable legal requirements and insurance
requirements and otherwise in accordance with customary practice in the industry
for prudent operation of a nursing home. In addition, Lessee shall furnish all
replacements of obsolete items of the personal property necessary in Lessor's
sole judgment during the Term, all without expense to Lessor. Notwithstanding
the foregoing, Lessor's sole remedy for breach of this paragraph shall be to
terminate this Lease.
No Removal of Personalty. Lessee shall not remove from the Premises any
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personal property (whether now owned or hereafter acquired).
Management Agreement. At all times during the Term of this Lease, Lessee
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will have a management agreement ("Management Agreement") with a third party
approved by Lessor (the "Manager") to operate and manage the Premises. Under
such agreement, the Manager shall assume and Lessee shall look to the Manager
for performance of all obligations of Lessee under this Lease, and Lessee shall
have no further obligation to Lessor for same. It shall be Lessor's
responsibility to determine that all of Lessee's obligations hereunder have been
assumed by the Manager. Lessor and Lessee acknowledge that the Manager will be
entitled to all profit from the Premises. Lessee shall have no liability to
Lessor, and Lessor shall have no claim against Lessee, as a result of the
failure of the Manager to perform any of its obligations under the Management
Agreement.
15. Transfer of Permits and Contracts. Lessee agrees to cooperate with
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Lessor, at Lessor's expense, to cause the permit and licenses necessary to
operate a nursing home at the Premises to be assigned to Lessor's designee. In
connection with the expiration or any earlier termination of this Lease, upon
any request made from time to time by Lessor, Lessee shall (a) promptly and
diligently use its best reasonable efforts to (i) transfer and assign all
permits and contracts necessary or desirable for the operation of the Premises
as a nursing home to Lessor's designee and/or (ii) at Lessor's expense, arrange
for the transfer or assignment of such permits and contracts to the Lessor's
designee, all to the extent the same may be transferred or assigned under
applicable law and (b) cooperate in every respect (and to the fullest extent
possible but without expense to Lessee) and assist the Lessor's designee in
obtaining such permits and contracts (whether by transfer, assignment, or
otherwise). Such efforts and cooperation on the part of the Lessee shall
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include, without limitation, the execution, delivery and filing with appropriate
governmental authorities, accreditation bodies, and third-party payors of any
applications, petitions, statements, notices, requests, assignments, and other
documents or instruments requested by the Lessor, all without expense to Lessee.
Furthermore, Lessee shall not take any action or refrain from taking any action
which would defer, delay or jeopardize the process of Lessor or its designee
obtaining said permits and contracts (whether by transfer, assignment,
allocation to another facility, or otherwise). Without limiting the foregoing,
Lessee shall not transfer or relocate any of said permits or contracts to any
location other than the Premises. The provisions of this paragraph shall
survive the expiration or earlier termination of this Lease.
Lessee hereby appoints Lessor as its attorney-in-fact, with full power of
substitution to take such actions, in the event that the Lessee fails to comply
with any request made by Lessor hereunder, as Lessor (in its sole absolute
discretion) may deem necessary or desirable to effectuate the intent of this
paragraph. The power of attorney conferred on the Lessor by the provisions of
this paragraph, being coupled with an interest, shall be irrevocable and shall
not be affected by any disability or incapacity which Lessee may suffer and
shall survive the same. Such power of attorney is provided solely to protect
the interests of Lessor and shall not impose any duty on Lessor to exercise any
such power and neither Lessor nor such attorney-in-fact shall be liable for any
act, omission, error in judgment, or mistake of law, except as the same may
result from its gross negligence or willful misconduct.
16. Assignment and Subletting. Except for the pledge to Lender described
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in the Loan Agreement, Lessee shall not assign, sublease, pledge, mortgage or
otherwise transfer or encumber this Lease. Lessor may assign this Lease only so
long as the Lease is assigned along with any sums due to Lessee hereunder. Any
assignee of Lessor shall, as a condition of such assignment, expressly assume
all of Lessor's obligations hereunder.
17. Permitted Contests. Lessor shall not be required, nor shall Lessee
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have any right, to pay, discharge or remove any tax, assessment, levy, fee,
rent, charge, lien or encumbrance, or to comply with any legal requirement
applicable to the Premises or the use thereof, so long as Lessor shall contest
the existence, amount or validity thereof, and as long as Lessee has no
liability therefor.
18. Conditional Limitations; Default Provision.
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(a) Any of the following occurrences or acts shall constitute an Event of
Default under this Lease: (i) if Lessee shall (1) fail to pay any Fixed Rent,
Additional Rent or other sum required to be paid by Lessee hereunder and such
failure shall continue for 5 days after notice to Lessee of such failure, or (2)
fail to observe or perform any other provision hereof and such failure shall
continue for 15 days after notice to Lessee of such failure (provided, that in
the case of any such default which cannot be cured by the payment of money and
cannot with reasonable diligence be cured within such 15-day period, if Lessee
shall commence promptly to cure the same and thereafter prosecute the curing
thereof with reasonable diligence, the time within which such default may be
cured shall be extended for such period as is necessary to complete the curing
thereof with
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reasonable diligence); or (ii) if Lessee shall file a petition in
bankruptcy or for reorganization or for an arrangement pursuant to any federal
or state bankruptcy law or any similar federal or state law, or shall be
adjudicated a bankrupt or become insolvent or shall make an assignment for the
benefit of creditors or shall admit in writing its inability to pay its debts
generally as they become due, or if a petition or answer proposing the
adjudication of Lessee as a bankrupt or its reorganization pursuant to any
federal or state bankruptcy law or any similar federal or state law shall be
filed in any court and Lessee shall consent to or acquiesce in the filing
thereof or such petition or answer shall not be discharged or denied within 90
days after the filing thereof; or (iii) if a receiver, trustee or liquidator of
Lessee or of all or substantially all of the assets of Lessee or of the Premises
or Lessee's estate therein shall be appointed in any proceeding brought by
Lessee, or if any such receiver, trustee or liquidator shall be appointed in any
proceeding brought against Lessee and shall not be discharged within 90 days
after such appointment, or if Lessee shall consent to or acquiesce in such
appointment; (iv) any representation of Lessee contained in the Purchase and
Sale Agreement dated as of October 1, 1997 between Lessee, as seller, and
Lessor, as purchaser, shall have been materially adversely false at the date it
was made; or (v) if Lessee shall fail to operate a nursing home on the Premises
for a period of 10 consecutive days.
(b) If an event of default shall have happened and be continuing, Lessor
shall have the right as its sole and exclusive remedy to give Lessee notice of
Lessor's intention to terminate the term of this Lease immediately. Upon the
giving of such notice, the term of this Lease and the estate hereby granted
shall expire and terminate on such date as fully and completely and with the
same effect as if such date were the date herein fixed for the expiration of the
term of this Lease, and all rights of Lessee hereunder shall expire and
terminate, and Lessee shall have no further liability hereunder.
(c) If an event of default shall have happened and be continuing, Lessor
shall have the immediate right, whether or not the term of this Lease shall have
been terminated pursuant to paragraph 18(b), to re-enter and repossess the
Premises by summary proceedings, ejectment or in any manner Lessor determines to
be necessary or desirable and the right to remove all persons and property
therefrom. Lessor shall be under no liability by reason of any such re-entry,
repossession or removal. No such re-entry or repossession of the Premises shall
be construed as an election by Lessor to terminate the term of this Lease unless
a notice of such intention is given to Lessee pursuant to paragraph 18(b), or
unless such termination is decreed by a court of competent jurisdiction.
(d) At any time or from time to time after the re-entry or repossession of
the Premises pursuant to paragraph 18(c), whether or not the term of this Lease
shall have been terminated pursuant to paragraph 18(b), Lessor may (but shall be
under no obligation to) relet the Premises for the account of Lessee, in the
name of Lessee or Lessor or otherwise, without notice to Lessee, for such term
or terms and on such conditions and for such uses as Lessor, in its absolute
discretion, may determine. Lessor may collect and receive any rents payable by
reason of such reletting. Lessor shall not be liable for any failure to relet
the Premises or for any failure to collect any rent due upon any such reletting.
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19. Status of Parties.
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Lessor and Lessee agree that the relationship created hereby between
Lessor, on the one hand, and Lessee and Manager, on the other hand, is that of
landlord and tenant, respectively, and that neither is acting as agent for or as
a partner, joint venturer, employer or employee of the other. At no time during
the term of this Lease shall Landlord have physical possession or control of the
Premises of the right or obligation to provide, either directly or indirectly,
services to any occupant of the Premises, nor shall Landlord realize increased
receipts or suffer an increase in expenditures as a result of the successful or
unsuccessful operation, respectively, of the Premises. Lessee and Manager shall
at no time act or be deemed to be acting in the capacity as agent of Lessor for
any purpose.
20. Notices, Demands and Other Instruments. All notices, demands,
--------------------------------------
designations, certificates, requests, offers, consents, approvals and other
instruments given pursuant to this Lease shall be in writing and shall be
validly given when mailed by prepaid registered or certified mail, (a) if to
Lessor, addressed to Lessor at its address set forth above, and (b) if to
Lessee, addressed to Lessee at its address set forth above. Lessor and Lessee
each may from time to time specify any address in the United States as its
address for purposes of this Lease by giving 10 days' notice to the other party.
21. Estoppel Certificates. Lessee will, from time to time, upon 10 days'
---------------------
prior request by Lessor, execute, acknowledge and deliver to Lessor a
certificate of Lessee stating that this Lease is unmodified and in full effect
(or, if there have been modifications, that this Lease is in full effect as
modified, and setting forth such modifications) and the dates to which Fixed
Rent, Additional Rent and other sums payable hereunder have been paid, and
either stating that to the knowledge of the signer of such certificate no
default exists hereunder or specifying each such default of which the signer has
knowledge. Any such certificate may be relied upon by any prospective mortgagee
or purchaser of the Premises.
22. No Merger. There shall be no merger of this Lease or of the leasehold
---------
estate hereby created with the fee estate in the Premises by reason of the fact
that the same person acquires or holds, directly or indirectly, this Lease or
the leasehold estate created or any interest herein or in such leasehold estate
as well as the fee estate in the Premises or any interest in such fee estate.
23. Surrender. Upon the expiration or termination of the term of this
---------
Lease, Lessee shall immediately surrender the Premises and possession thereof to
Lessor. Lessee shall remove from the Premises on or prior to such expiration or
termination all property situated thereon which is not owned by Lessor, and
shall repair any damage caused by such removal. Property not so removed shall
become the property of Lessor, and Lessor may cause such property to be removed
from the Premises and disposed of. If Lessee remains in possession of the
Premises after the expiration of the Primary Term, such occupancy shall
constitute a month-to-month tenancy at a rent equal to 110% of the Rent payable
during the Primary Term, and shall be terminable by Lessor on 30 days notice.
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24. Merger, Consolidation or Sale of Assets. During the term of this
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Lease, there shall be no merger of Lessee into another corporation,
consolidation of Lessee with one or more other corporations or sale or other
disposition of all or substantially all the assets of Lessee to one or more
other entities that the surviving entity or transferee of assets, as the case
may be without Lessor's prior written consent, which may be withheld in Lessor's
sole discretion.
25. Separability; Binding Effect; Non-Recourse. Each provision hereof
------------------------------------------
shall be separate and independent and the breach of any such provision by Lessor
shall not discharge or relieve Lessee from its obligations to perform each and
every covenant to be performed by Lessee hereunder. If any provision hereof or
the application thereof to any person or circumstance shall to any extent be
invalid or unenforceable, the remaining provisions hereof, or the application of
such provision to persons or circumstances other than those as to which it is
invalid or unenforceable, shall not be affected thereby, and each provision
hereof shall be valid and shall be enforceable to the extent permitted by law.
All provisions contained in this Lease shall be binding upon, inure to the
benefit of, and be enforceable by, the respective successors and assigns of
Lessor and Lessee to the same extent as if each such successor and assign were
named as a party hereto. This Lease may not be changed, modified or discharged
except by a writing signed by Lessor and Lessee and consented to Mortgagee (if
any). No liability of either Lessor or Lessee hereunder shall be asserted
against any officer, director, shareholder, member or manager or Lessor or
Lessee. This Lease shall be governed by the laws of the Commonwealth of
Massachusetts.
26. Schedules. The following are Schedules A and B referred to in this
---------
Lease, which Schedules are hereby incorporated by reference herein.
27. Non-Recourse. None of the officers, directors, shareholders,
-------------
consultants or members of either party shall be personally liable for any
obligation under this Lease.
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SCHEDULE A
Description of the Premises
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SCHEDULE B
Terms and Fixed Rent
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The Primary Term shall commence as of October __, 1997 and end at midnight
on October 31, 2002, subject to Lessor's option to terminate the term pursuant
to paragraph 3 of the Lease. Lessee shall have the right, upon notice given at
least 90 and not more than 120 days prior to the end of the current term of this
Lease, to extend the term hereof for up to three additional terms of five years
each, in all cases subject to Lessor's option to terminate the term pursuant to
paragraph 3 of the Lease.
Fixed rent for the period ending October 31, 1997 shall be $225,000.00.
Fixed Rent for each calendar month thereafter shall be $225,000.00, and
shall be prorated in the case of partial months ending after November 30, 1997.
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IN WITNESS WHEREOF, Lessor and Lessee have each caused this Lease to be
duly executed and delivered, and Lessee has caused its corporate seal to be
hereunto affixed and attested, all as of the date first above written.
G & L Hampden, LLC
as Lessor
By: G&L Hampden, Inc., Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Senior Vice President
Hampden Nursing Homes, Inc.,
as Lessee
By: ------------------------------------
President
Attest:------------------------
Secretary
(Acknowledgments)
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