Development Agreement

MASTER FUNDING AND DEVELOPMENT AGREEMENT BETWEEN MPT OPERATING PARTNERSHIP, L.P. ("MPT") AND ADEPTUS HEALTH LLC ("ADEPTUS") Dated as of JULY 29, 2014

Exhibit 10.1

 

Note: Information has been omitted from this agreement pursuant to a request for confidential treatment, and such information has been separately filed with the Securities and Exchange Commission.  The omitted information has been marked with a bracketed asterisk (“[*]”).

MASTER FUNDING AND DEVELOPMENT AGREEMENT



BETWEEN



MPT OPERATING PARTNERSHIP, L.P.



("MPT”)

AND



ADEPTUS HEALTH LLC



("ADEPTUS")








Dated as of  JULY 29, 2014

 


 

 

 

 

ARTICLE I DEFINED TERMS

1.1.

Certain Defined Terms.

1.2.

Interpretation; Terms Generally. 

12 

ARTICLE II FUNDING AND DEVELOPMENT

12 

2.1.

Funding and Development.

12 

2.2.

Selection of Real Properties.

12 

2.3.

Final Approval of Real Properties

13 

2.4

Existing Facility Acquisitions

13 

2.5

Distressed Facility Acquisitions.

13 

2.6

Commitment Fee.

13 

ARTICLE III PURCHASE AND SALE OF ASSETS; PURCHASE PRICE

14 

3.1.

Purchase and Sale of Assets. 

14 

3.2.

No Assumption of Liabilities.

14 

3.3.

Project Purchase Price. 

15 

3.4.

Taxes, Rentals, Utilities. 

15 

ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ADEPTUS PARTIES

15 

4.1.

Organization. 

15 

4.2.

Authorization; Enforcement. 

16 

4.3.

Absence of Conflicts.

16 

4.4.

Consents and Approvals. 

17 

4.5.

Financial Statements. 

17 

4.6.

No Undisclosed Liabilities; Guaranties.

17 

4.7.

Absence of Changes.

17 

4.8.

Reserved.

18 

4.9.

Taxes. 

18 

4.10.

Litigation.

18 

4.11.

Contracts, Obligations and Commitments.

18 

4.12.

Permits. 

19 

4.13.

Compliance with Law.

19 

4.14.

Brokers. 

19 

4.15.

Agreements with Affiliates and Certain Other Persons. 

20 

4.16.

Patriot Act Compliance.

20 

4.17.

Representations Complete. 

20 

ARTICLE V REPRESENTATIONS AND WARRANTIES BY MPT

21 

5.1.

Organization. 

21 

5.2.

Authorization; Enforcement, Absence of Conflicts.  .

21 

5.3.

Binding Agreement. 

21 

5.4.

Litigation. 

21 

5.5.

Brokers. 

22 

5.6.

Compliance with Law. 

22 

5.7.

Patriot Act Compliance.

22 

5.8.

Representations Complete. 

22 

ARTICLE VI PRE CLOSING COVENANTS

23 

6.1.

Intentionally Omitted.

23 

6.2.

Access; Confidentiality.

23 

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6.3.

Schedule Updates. 

24 

6.4.

Conduct of Business by Adeptus Parties

24 

6.5.

Cooperation.

25 

6.6.

Regulatory and other Authorizations, Notices and Consents.

25 

6.7.

Mutual Covenants. 

25 

ARTICLE VII CLOSING CONDITIONS

26 

7.1.

Conditions to the Obligations of Adeptus.

26 

7.2.

Conditions to the Obligations of MPT. 

26 

ARTICLE VIII CLOSINGS

28 

8.1.

Applicable Closing Dates.

28 

8.2.

Adeptus Parties' Closing Date Deliverables. 

28 

8.3.

MPT Parties' Closing Date Deliverables. 

30 

ARTICLE IX TERMINATION

31 

9.1.

Termination.

31 

9.2.

Notice and Effect. 

31 

ARTICLE X CERTAIN POST CLOSING COVENANTS

31 

10.1.

HIPAA Compliance.

31 

10.2.

Post‑Closing Access to Information. 

31 

10.3.

Real Estate Contract Indemnification.

32 

10.4.

Joinder of New Projects.

32 

ARTICLE XI INDEMNIFICATION

33 

11.1.

Adeptus Parties' Agreement to Indemnify.

33 

11.2.

MPT's Agreement to Indemnify.

34 

11.3.

Notification and Defense of Claims.

34 

11.4.

Investigations. 

35 

11.5.

Exclusive Remedy. 

35 

ARTICLE XII DISPUTE RESOLUTION

36 

12.1.

Governing Law.

36 

12.2.

Jurisdiction and Venue. 

36 

12.3.

Waiver of Jury Trial. 

36 

ARTICLE XIII MISCELLANEOUS

37 

13.1.

Assignment.

37 

13.2.

Notice. 

38 

13.3.

Calculation of Time Period. 

39 

13.4.

Captions. 

39 

13.5.

Entire Agreement; Modification. 

39 

13.6.

Schedules and Exhibits. 

39 

13.7.

Further Assurances. 

39 

13.8.

Counterparts. 

39 

13.9.

Expenses.

40 

13.10.

Public Announcements.

40 

13.11.

Right to Specific Performance.

40 

13.12.

Binding Effect; No‑Third Party Beneficiaries. 

40 

13.13.

Construction. 

41 

13.14.

Joint and Several Obligations. 

41 

 

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MASTER FUNDING AND DEVELOPMENT AGREEMENT

THIS MASTER FUNDING AND DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into as of July 29, 2014 by and between MPT OPERATING PARTNERSHIP, L.P., a Delaware limited partnership ("MPT"); and ADEPTUS HEALTH LLC, a Delaware limited liability company ("Adeptus").

W I T N E S S E T H:

WHEREAS, Adeptus, by and through its wholly-owned subsidiaries, is in the business of owning, operating and managing freestanding emergency room facilities (the "ER Business") and general acute care hospitals facilities (the "Hospital Business" and, together with the ER Business and with all related activities incident thereto, the "Business");

WHEREAS, Adeptus and MPT are parties to that certain Letter of Intent dated as of March 28, 2014 and accepted by Adeptus on March 31, 2014 (the "Letter of Intent");

WHEREAS, the Parties intend that this Agreement shall address the future acquisition, funding, development and leasing of New Projects (as herein defined), which consist of New Development Projects and Existing Facility Acquisitions (as each term is herein defined);

WHEREAS, the parties desire to provide for (a) the acquisition by affiliates of MPT (each, an "MPT Lessor") of each Real Property (as herein defined) pursuant to a Real Estate Contract or Hospital Purchase Contract (as such terms are herein defined); (b) the addition of each Real Property to the Master Lease (as herein defined), and the leasing of the same to affiliates of Adeptus (each, an "Adeptus Lessee") thereunder; (c) the funding and development of each New Development Project pursuant to a Project Development Agreement (as herein defined), with the applicable MPT Lessor having the responsibility to provide the funding for, and the applicable Adeptus Lessee and any applicable developer (each, a "Developer") being responsible for the oversight and supervision of, the development and construction of the to‑be constructed Improvements (as herein defined) necessary for the operation of each applicable Facility (as herein defined), in each case upon the terms and conditions hereafter set forth;

WHEREAS, it is the desire and intent of the parties that all obligations of Adeptus and the other Adeptus Parties (as herein defined) under and in accordance with this Agreement, the Master Lease and all other Adeptus Instruments (as herein defined) now or hereafter executed by Adeptus and other Adeptus Parties in connection with New Projects, on the one hand, and the obligations of Adeptus and its Affiliates under the 2013 Master Funding Obligation Documents (as herein defined), on the other hand, shall be cross‑defaulted, cross‑guaranteed and cross‑collateralized; and

WHEREAS, as security for certain obligations under the Master Lease, the Project Development Agreements and the other agreements entered into in connection with the New Projects, Adeptus has agreed to guarantee certain of such obligations pursuant to the Guaranty (as herein defined).

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NOW, THEREFORE, in consideration of the promises and mutual agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

ARTICLE I

DEFINED TERMS

1.1. Certain Defined Terms.  Capitalized terms used herein shall have the respective meanings ascribed to them in this Section 1.1.

"2013 Master Funding Obligation Documents" means, collectively, (a) that certain Master Funding and Development Agreement, dated as of June 11, 2013 (as amended, the "2013 Master Funding Agreement"), by and among MPT, Adeptus and certain of their respective Affiliates, (b) that certain Master Lease Agreement, dated as of August 29, 2013 (as amended, the "2013 Master Lease"), and (c) all other project development agreements, security agreements, guarantees, cost overrun guarantees and other documents, agreements, instruments, amendments and joinders executed under or in accordance with the 2013 Master Funding Agreement, in each case, as any of the same have been or may hereafter be modified, amended, restated or supplemented from time to time.

"2013 Adeptus Lessees" means the Adeptus subsidiaries which are "Lessees" under the 2013 Master Lease.

"Adeptus Buyer" means the buyer under any Real Estate Contract.

"Adeptus Damages" has the meaning set forth in Section 11.2(a).

"Adeptus Indemnified Parties" has the meaning set forth in Section 11.2(a).

"Adeptus Indemnity Period" has the meaning set forth in Section 11.2(b).

"Adeptus Instruments" means this Agreement, the Master Lease, each Project Development Agreement, each Hospital Purchase Contract, as well as all documents, agreements and instruments executed by Adeptus or any other Adeptus Party which are necessary to give effect thereto, including any necessary amendments to the 2013 Master Funding Obligation Documents as provided herein.

"Adeptus Lessees" has the meaning set forth in the recitals hereof.

"Adeptus Parties" means Adeptus, First Choice, Hospital Holdco, Adeptus Buyer, the Adeptus Lessees and, solely for the purpose of the representations, warranties and deliveries relating to any necessary amendments to the 2013 Master Funding Obligation Documents as provided herein, the 2013 Adeptus Lessees.

"Affiliate" means with respect to any Person (a) any Person that, directly or indirectly, controls or is controlled by or is under common control with such Person, (b) any other Person that owns, beneficially, directly or indirectly, 10% or more of the outstanding capital stock,

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shares or equity interests of such Person, or (c) any officer, director, employee, partner, member, manager or trustee of such Person or any Person controlling, controlled by or under common control with such Person (excluding trustees and persons serving in similar capacities who are not otherwise an Affiliate of such Person).  For the purposes of this definition, "control" (including the correlative meanings of the terms "controlled by" and "under common control with"), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, through the ownership of voting securities or otherwise.

"Agreement" has the meaning set forth in the preamble to this Agreement.

"Applicable Closing" has the meaning set forth in Section 8.1.

"Applicable Closing Date" has the meaning set forth in Section 8.1.

"Assets" shall have the meaning set forth in Section 3.1.

"Balance Sheets" has the meaning set forth in Section 4.5.

"Business" has the meaning set forth in the recitals hereof.

"Business Day" means any day, other than a Saturday or Sunday, that is neither a legal holiday observed by the federal government of the United States, nor a day on which banking institutions in New York, New York are authorized or required by law, regulation or executive order to close.

"Claim" has the meaning set forth in Section 4.11(a).

Closing Costs” shall mean the actual out‑of‑pocket costs and expenses incurred by Adeptus, MPT and/or their respective Affiliates in connection with the acquisition of each Real Property, including without limitation, transfer taxes, title and survey costs, escrow fees, attorneys’ fees, brokerage commissions and fees of third party consultants, provided that any of the foregoing included in the definition of Pursuit Costs shall not be included.

"Commitment Fee" has the meaning set forth in Section 2.3.

"Commitment Period" has the meaning set forth in Section 2.2.

"Confidentiality Agreement" has the meaning set forth in Section 6.2(b).

Cost Overrun Guaranty” means, in connection with each New Development Project, that certain Cost Overrun Guaranty in the form of Exhibit A to be executed by Adeptus in favor of MPT and the applicable MPT Lessor guaranteeing the matters described therein, as the same may be modified, amended or restated from time to time.

"Developer" has the meaning set forth in the recitals hereof.

"Development Contracts" has the meaning set forth in Section 4.11(a).

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"Direct Sale Alternative" has the meaning set forth in Section 3.1.

"Distressed Facility Acquisition" means the acquisition of an existing Hospital Facility proposed by MPT to Adeptus, when the underlying real property is currently owned by MPT or its Affiliates, in accordance with the terms of this Agreement and an asset purchase agreement with the third-party operator of such Hospital Facility.

"Distressed Facility Agreement" means, in connection with any Distressed Facility Acquisition,  an agreement to be executed by and among MPT, Adeptus, the applicable Adeptus Lessee and the applicable MPT Lessor, which shall be in form and substance mutually acceptable to Adeptus and MPT; provided, however, that MPT and Adeptus acknowledge and agree that Hospital Facilities are subject to more complex regulations and intensive oversight by governmental authorities, including, without limitation, the Joint Commission, Medicare, Medicaid and the TRICARE/CHAMPUS programs and, such agreement shall include such additional or expanded representations, warranties, covenants, conditions and deliveries as the parties deem necessary or desirable to address (a) the foregoing regulatory and oversight issues relating to Hospital Facilities and (b) the leasing and operation of Hospital Facilities, as opposed to ER Facilities.

"Earnest Money Deposits" means all deposits of earnest money made by any Adeptus Party under or pursuant to the Real Estate Contracts.

"Equity Constituents" means, with respect to any Person, as applicable, the members, general or limited partners, shareholders, stockholders or other Persons, however designated, who are the owners of the issued and outstanding equity or ownership interests of such Person.

"ER Business" has the meaning set forth in the recitals hereof.

"ER Facility" means either a FS Facility or an HR Facility.

"Excluded Liabilities" has the meaning set forth in Section 3.2.

"Exclusivity Exception" has the meaning set forth in Section 2.1.

"Existing Facility Acquisition" means the acquisition of a Real Property relating to an existing Hospital Facility in accordance with the terms of this Agreement and the applicable Hospital Purchase Contract (which shall not include any Distressed Facility Acquisitions).

"Existing Facility Purchase Price" means, in connection with any Existing Facility Acquisition, the purchase price for the applicable Real Property and the other Assets related thereto, reflected in the applicable Hospital Purchase Contract, subject to prorations, credits, adjustments and all closing costs as provided therein.

"Expense Deposit" has the meaning set forth in Section 13.9.

"Facility" or "Facilities" means either an ER Facility or Hospital Facility, as the case may be, whether to be constructed or currently located on each Real Property.

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"Final Approval Information" has the meaning set forth in Section 2.2(b).

"Final Closing" has the meaning set forth in Section 8.1.

"Financial Statements" has the meaning set forth in Section 4.5.

"First Choice" means First Choice ER, LLC, a Texas limited liability company, that will be the sole member of the Adeptus Lessees for FS Facilities.

"First Closing" means the first Applicable Closing under this Agreement.

"Fixtures" means all permanently affixed equipment, machinery, fixtures, and other items of real property, including all components thereof, now and hereafter located in, on or used in connection with, and permanently affixed to or incorporated into the Improvements, including, without limitation, all furnaces, boilers, heaters, electrical equipment, heating, plumbing, lighting, ventilating, refrigerating, incineration, air and water pollution control, waste disposal, air‑cooling and air‑conditioning systems and apparatus, sprinkler systems and fire and theft protection equipment, and built‑in vacuum, cable transmission, oxygen and similar systems, all of which, to the greatest extent permitted by law, are hereby deemed by the parties to constitute real estate, together with all replacements, modifications, alterations and additions thereto.

"FS Facility" means a free-standing emergency care facility which is not part of a Provider Based Network.

"GAAP" means United States generally accepted accounting principles as in effect from time to time.  Any accounting term used herein and not specifically defined herein shall be construed in accordance with GAAP.

"Governing Documents" means, with respect to any Person, as applicable, such Person's charter, articles or certificate of incorporation, formation or organization, bylaws or other documents or instruments which establish and/or set forth the rules, procedures and rights with respect to such Person's governance, including, without limitation, any stockholders, limited liability company, operating or partnership agreement related to such Person, in each case as amended, restated, supplemented and/or modified and in effect as of the relevant date.

"Governmental Body" means any United States federal, state or local government, political subdivision, governmental, regulatory or administrative authority, instrumentality, agency body or commission, court, tribunal or judicial or arbitral body, in each case of competent jurisdiction, including the Securities and Exchange Commission.

"Guaranty" means that certain Guaranty in the form of Exhibit B, to be executed by Adeptus in favor of the MPT Parties guaranteeing the matters described therein, as the same may be modified, amended or restated from time to time.

"HIPAA" has the meaning set forth in Section 10.1.

"Hospital Facility" means a general acute care hospital.

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"Hospital Holdco" means an entity wholly-owned by Adeptus that will be the sole member of the Adeptus Lessees for Hospital Facilities and HR Facilities.

"Hospital Purchase Contract" means, in connection with any Existing Facility Acquisition, a Purchase and Sale Agreement to be executed by and among Adeptus, the applicable Adeptus Lessee and the applicable MPT Lessor for the acquisition of the applicable Real Property, which shall contain representations, warranties and covenants relating to the applicable Real Property consistent with those described in this Agreement and which shall be in a form mutually agreeable to the parties; provided, however, that MPT and Adeptus acknowledge and agree that (a) Hospital Facilities are subject to more complex regulations and intensive oversight by governmental authorities, including, without limitation, the Joint Commission, Medicare, Medicaid and the TRICARE/CHAMPUS programs and, such Purchase and Sale Agreements shall include such additional or expanded representations, warranties, covenants, conditions and deliveries as MPT deems necessary or desirable to address (i) the foregoing regulatory and oversight issues relating to Hospital Facilities and (ii) the leasing and operation of Hospital Facilities, as opposed to ER Facilities; and (b) the applicable MPT Lessor, in its sole discretion, may elect to purchase the applicable Real Property directly from the Unrelated Seller pursuant to applicable Real Estate Contract, in which event the applicable Adeptus Party and such MPT Lessor shall enter into an assignment and assumption agreement, pursuant to which such Adeptus Party shall assign to such MPT Lessor the right and obligation to purchase such Real Property directly from the Unrelated Seller (with such MPT Obligor's sole obligation to such Unrelated Seller being to pay the purchase price for such Real Property as specified in the Real Estate Contract).

"HR Facility" means a free-standing emergency care facility which is part of a Provider Based Network.

"Improvements" means, with respect to each Real Property, all buildings, improvements, structures and Fixtures located or to be constructed thereon, including, without limitation, landscaping, parking lots and structures, roads, drainage and all above ground and underground utility structures, equipment systems and other so‑called "infrastructure" improvements and any appurtenances thereto.

"Indebtedness" of any Person means, without duplication, (a) all liabilities and obligations, contingent or otherwise, of any such Person:  (i) in respect of borrowed money (whether secured or unsecured), (ii) under conditional sale or other title retention agreements relating to property or services purchased and/or sold by such Person, (iii) evidenced by bonds, notes, debentures or similar instruments, (iv) for the payment of money relating to a capitalized lease obligation, (v) evidenced by a letter of credit or a reimbursement obligation of such Person with respect to any letter of credit, (vi) pursuant to any guarantee, or (vii) secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) a Lien on the assets or property of such Person, and (b) all liabilities and obligations of others of the kind described in the preceding clause (a) and otherwise that (i) such Person is responsible or liable for, directly or indirectly, as obligor, guarantor, surety or otherwise, or (ii) which are secured by a Lien on any of the assets or property of such Person.

"Indemnified Party" has the meaning set forth in Section 11.3(a).

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"Indemnifying Party" has the meaning set forth in Section 11.3(a).

"Intercreditor Agreement" means that certain Amended and Restated Intercreditor Agreement, dated as of March 31, 2014, between MPT and certain of its Affiliates, including the existing MPT Parties, and FSFC, as Administrative Agent for itself and other lenders, relating to Adeptus and its subsidiaries, as the same may be modified, amended or restated from time to time.

"Joinder Agreement" has the meaning set forth in Section 10.4.

"Knowledge," "to the knowledge" "best knowledge of" or similar words or phrases means, with respect to any Person, such Person's actual knowledge of a particular fact or matter if (a Person's "Knowledge Group"), (a) in the case of Adeptus, the then acting President and Chief Executive Officer, Chief Financial Officer, Chief Development Officer or Vice President of Strategic Initiatives has actual knowledge of such fact or matter, or in the case of MPT, R. Steven Hamner, Executive Vice President and CFO, or Emmett McLean, Executive Vice President, COO, Secretary and Treasurer, has actual knowledge of such fact or matter; or (b) any of such Person's Knowledge Group would be expected to discover or otherwise become aware of such fact or matter after conducting a reasonably diligent inquiry.

"Knowledge Group" has the meaning set forth in the definition of Knowledge.

"Law" means any federal, state or local statute, law, rule, regulation, ordinance, order, code, policy or rule of common law, now or hereafter in effect, and in each case as amended, and any judicial or administrative interpretation thereof by a Governmental Body or otherwise, including, without limitation, any judicial or administrative order, consent, writ, decree, determination or judgment.

"Letter of Intent" has the meaning set forth in the recitals hereof.

"Lien" means any mortgage, deed of trust, pledge, hypothecation, assignment, charge or deposit arrangement, lien (statutory or otherwise) or preference, security interest, restriction or other encumbrance of any kind or nature whatsoever.

"Management Agreement" means any property management agreement or similar agreement whereby a Person is engaged to provide management services with respect to a Facility.

"Master Lease" means that certain Master Lease Agreement in substantially the same form as attached hereto as Exhibit C, to be executed by and among the MPT Lessors and the Adeptus Lessees, as the same may be modified, amended or restated from time to time.

"Material Adverse Effect" means, with respect to any Person, any change, event(s), occurrence(s) or effect(s), whether direct or indirect, that, both before and after giving effect to the transactions contemplated by this Agreement, reasonably would be expected to, individually or in the aggregate, have a material adverse effect on (a) the business, properties, results of operations, assets, revenue, income, prospects or condition (financial or otherwise) of, or the ability to timely satisfy the obligations or liabilities (whether absolute or contingent) of such

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Person, or (b) the ability of such Person to perform its obligations under, and/or consummate the transactions contemplated by, this Agreement within the time period specified herein.  For avoidance of doubt and without limiting the generality of the foregoing, any adverse effect on a Person that results, or that reasonably would be expected to result, in damages or costs in excess of Five Hundred Thousand and No/100 Dollars ($500,000.00) shall constitute a Material Adverse Effect with respect to such Person.

"Material Contracts" has the meaning set forth in Section 4.11(b).

"Maximum Funding Amount" has the meaning set forth in Section 2.1.

"MPT Indemnified Parties" has the meaning set forth in Section 11.1(a).

"MPT Guaranty" means that certain Guaranty in the form of Exhibit D, to be executed by MPT in favor of Adeptus guaranteeing the MPT Lessors' funding obligations with respect to the New Projects, as the same may be modified, amended or restated from time to time.

"MPT Lessors" has the meaning set forth in the recitals hereof.

"MPT Parties" means MPT and the MPT Lessors.

"MPT Party Damages" has the meaning set forth in Section 11.1(a).

"MPT Party Indemnity Period" has the meaning set forth in Section 11.1(b).

"MPT Right of Refusal" has the meaning set forth in Section 2.1.

"New Closing Certificate" has the meaning set forth in Section 7.2(m).

"New Development Project" means either the acquisition and development of a Real Property as a new ER Facility or new Hospital Facility, as the case may be, in accordance with the terms of this Agreement and the applicable Project Development Agreement.

"New Party" has the meaning set forth in Section 10.4.

"New Project" means either (a) a New Development Project, or (b) an Existing Facility Acquisition, in each case, in accordance with the terms and conditions of this Agreement.

"Non‑Permissible Assignee" has the meaning set forth in Section 13.1.

"OFAC" has the meaning set forth in Section 4.14(a).

"Omnibus Amendment to 2013 Master Funding Obligation Documents" means that certain Nineteenth Omnibus Amendment Agreement to be executed and delivered in accordance with this Agreement, by Adeptus, First Choice and each Affiliate of Adeptus which is a party to the 2013 Master Funding Obligation Documents, MPT and each Affiliate of MPT which is a party to the 2013 Master Funding Obligation Documents, which will amend certain of the 2013 Master Funding Obligation Documents to, among other things, cross-default and cross-collateralize the obligations under the 2013 Master Funding Obligation Documents and the

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obligations of Adeptus and its Affiliates under and in accordance with this Agreement and the Master Lease, to be in a form mutually agreeable to the parties.

"Ordinary Course of Business" means, with respect to any Person, any action that is consistent with the fundamental business model of such Person.

"Partial Assignment" has the meaning set forth in Section 3.1.

"Patriot Act" has the meaning set forth in Section 4.14(a).

"Permitted Exceptions" has the meaning ascribed thereto in the applicable Real Estate Contract with respect to each Real Property.

"Permits" has the meaning set forth in Section 4.12

"Person" means an individual, a corporation, a limited liability company, a general or limited partnership, an unincorporated association, a joint venture, a Governmental Body or another entity or group.

"Project Development Agreement" means, in connection with each New Development Project, a Project Funding and Development Agreement in substantially the form attached hereto as Exhibit F, to be executed by and among Adeptus and the applicable Developer, MPT Lessor and Adeptus Lessee.

"Project Purchase Price" has the meaning set forth in Section 3.3.

"Provider Based Network" means a network of Facilities whereby the Medicare Participation Agreements (as defined in the Master Lease) and related licenses and authorizations are obtained by an Adeptus Lessee operating a Hospital Facility and utilized by such Adeptus Lessee to operate HR Facilities in accordance with the requirements of all applicable Healthcare Laws (as defined in the Master Lease).

Pursuit Costs” means, with respect to each Target Property or New Project, the actual and reasonable out‑of‑pocket costs and expenses incurred by Adeptus, MPT and/or their respective Affiliates to identify and select a Target Property that is acquired by MPT  in accordance with this Agreement, to negotiate a Real Estate Contract therefor and to perform due diligence, including without limitation, title and survey costs, attorneys’ fees and fees of third party consultants.  Pursuit Costs shall not include any of the foregoing costs relating to any Target Property that is not acquired by MPT.

"Real Estate Contract" means, in connection with any applicable New Project, a Purchase and Sale Agreement, to be executed with an Unrelated Seller for the acquisition of the applicable Real Property and to be delivered to MPT as part of the Final Approval Information, which Purchase and Sale Agreement shall contain all of the terms and conditions described in the schedule attached hereto as Schedule 1.1.

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"Real Property" or "Real Properties" means any parcel of real property (including land, improvements, hereditaments, easements and appurtenances) relating to any New Project which is approved in accordance with Section 2.4 and becomes subject to a Real Estate Contract.

"Rejected Property" has the meaning set forth in Section 2.1(a).

"Special Purpose Entity" means an entity which (a) exists solely for the purpose of leasing all or any portion of a particular Real Property and conducting the operation of a Facility thereon, provided that an Adeptus Lessee that leases a Hospital Facility may also lease Real Properties on which HR Facilities related to such Hospital Facility are located and conduct the ER Business of such HR Facilities thereon, and an Adeptus Lessee may sublease a particular Real Property as permitted in the Master Lease, (b) conducts business only in its own name, under the name "First Choice" or under any other trade name utilized by a particular Facility, (c) does not engage in any business other than the leasing of all or any portion of a particular Real Property and the operation of a Facility with ancillary healthcare or other services or businesses provided thereon, provided that an Adeptus Lessee that leases a Hospital Facility may also lease Real Properties on which HR Facilities related to such Hospital Facility are located and conduct the ER Business of such HR Facilities thereon, and an Adeptus Lessee may sublease a particular Real Property as permitted in the Master Lease, (d) does not hold, directly or indirectly, any ownership interest (legal or equitable) in any entity or any real or personal property other than the leasehold interest which it owns in a particular Real Property and the other assets incident to the operation of a Facility thereon, provided that an Adeptus Lessee that leases a Hospital Facility may also lease Real Properties on which HR Facilities related to such Hospital Facility are located and conduct the ER Business of such HR Facilities thereon, and an Adeptus Lessee may sublease a particular Real Property as permitted in the Master Lease, (e) does not have any debt other than as permitted by the Master Lease or arising in the Ordinary Course of Business and does not guarantee or otherwise obligate itself with respect to the debts of any other Person except as contemplated herein or in the Master Lease or Intercreditor Agreement (which shall include, without limitation, the pledge of the "Senior Collateral AR" as defined therein), (f) has its own separate books, records, accounts and financial statements (with no commingling of funds or assets), except the financial statements of the individual Adeptus Lessees may be consolidated, (g) holds itself out as being a company separate and apart from any other entity and (h) maintains all entity formalities independent of any other entity.

"Subordination Agreement" means that certain Amended and Restated Subordination Agreement, dated as of March 31, 2014, among MPT and certain of its Affiliates, including the the existing MPT Parties, FSFC, as Administrative Agent for itself and other lenders, Adeptus and First Choice, as the same may be modified, amended or restated from time to time.

"Subsidiary" means, with respect to any Person, any Person of which fifty percent (50%) or more of the total voting power of the voting securities is beneficially owned or controlled (as defined in the definition of "Affiliate" above), directly or indirectly, by such Person.

"Target Property" has the meaning set forth in Section 2.2.

"Target Property Notice" has the meaning set forth in Section 2.2.

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"Taxes" means any and all taxes (including, without limitation, all roll‑back taxes), charges, fees, levies or other assessments, including, without limitation, any and all income, gross receipts, excise, real and personal property (including leaseholds and interests in leaseholds), sales, use, occupation, transfer, license, ad valorem, gains, profits, gift, minimum estimated, alternative minimum, social security, unemployment, disability, premium, recapture, credit, payroll, withholding, severance, stamp, capital stock, value added leasing, franchise and other taxes or similar charges of any kind, including any interest and penalties on or additions thereto or attributable to any failure to comply with any requirement regarding any Tax Return (as hereinafter defined) and including any amendment or extension thereof.

"Tax Return" means any return, declaration, filing, report, claim for refund or information return or other statement relating to Taxes (whether filed with or submitted to, or required to be filed with or submitted to, any Governmental Body), including any schedule or attachment thereto.

"Termination Date" has the meaning set forth in Section 9.1.

"Third Party Claim" has the meaning set forth in Section 11.3(b).

"Title Company" has the meaning ascribed thereto in the applicable Real Estate Contract with respect to each Real Property.

"Unrelated Seller" means, in connection with each applicable New Project, the "Seller" under and as defined in the applicable Real Estate Contract.

"Unrelated Seller Claim" has the meaning set forth in Section 10.3.

"Unrelated Seller Damages" has the meaning set forth in Section 10.3.

"Warranties" means all warranties, representations and guaranties with respect to any of the Assets, whether express or implied.

1.2. Interpretation; Terms Generally.  The definitions set forth in Section 1.1 and elsewhere in this Agreement shall apply equally to both the singular and plural forms of the terms defined.  Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.  Unless otherwise indicated, the words "include", "includes" and "including" shall be deemed to be followed by the phrase "without limitation." The words "herein", "hereof" and "hereunder" and words of similar import shall be deemed to refer to this Agreement (including the Schedules and Exhibits) in its entirety and not to any part hereof, unless the context shall otherwise require.  All references herein to parties, Articles, Sections, Schedules and Exhibits shall be deemed to refer to parties, Articles, Sections and Schedules of, and Exhibits to, this Agreement, unless the context shall otherwise require.  Unless the context shall otherwise require, any references to any agreement or other instrument or statute or regulation are to it as amended and supplemented from time to time (and, in the case of a statute or regulation, to any corresponding provisions of successor statutes or regulations).  Any reference in this Agreement to a "day" or number of "days" that does not refer explicitly to a "Business Day" or "Business Days" shall be interpreted as a reference to a calendar day or number of calendar days.  If any action or notice is to be taken or given on or by a particular

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calendar day, and such calendar day is not a Business Day, then such action or notice shall be deferred until, or may be taken or given on, the next Business Day.

ARTICLE II

FUNDING AND DEVELOPMENT

2.1. Funding and Development.  Based upon the representations and warranties set forth herein, and subject to the terms and conditions hereof, MPT shall cause the MPT Lessors to fund the applicable Project Purchase Price (or Existing Facility Purchase Price), all Closing Costs, Pursuit Costs for the Assets, any items with respect to which Adeptus is responsible pursuant to Section 3.4) and all hard and soft costs for the construction of Improvements in connection with New Development Projects, relating to (a) the acquisition of Real Property and the construction of additional Improvements relating to ER Facilities, (b) the acquisition of Real Property and the construction of additional Improvements relating to Hospital Facilities, and (c) the acquisition of Real Property relating to existing Hospital Facilities, with a maximum aggregate funding of $150,000,000.00 (the "Maximum Funding Amount").  All acquisitions and funding relating to New Development Projects will be pursuant to the terms of the applicable Project Development Agreement.  All funding relating to Existing Facility Acquisitions will be pursuant to the terms of the applicable Hospital Property Contract.  During the Commitment Period, MPT shall have the sole and exclusive right of first refusal to finance the acquisition and development of real property for the Business (the "MPT Right of Refusal"); provided, however, that the MPT Right of First Refusal shall be subject to the following exceptions (collectively, the "Exclusivity Exception"):

(a)if after receiving a Target Property Notice or Final Approval Information MPT rejects or is deemed to have rejected a proposed Target Property (provided that such rejection is not based solely on the failure of the applicable Real Estate Contract to comply with the requirements described in Schedule 1.1, or the refusal of the Adeptus Parties to enter into a mutually acceptable Hospital Purchase Contract with respect to Existing Facility Acquisitions) (each, a "Rejected Property"), then Adeptus shall be permitted to seek and obtain financing relating to such Rejected Property from other Persons and, in addition, Adeptus shall be granted an exemption from the MPT Right of Refusal to obtain financing for one (1) other so-called Target Property from other Persons for Target Properties of similar type and character as the Rejected Property (i.e., if the Rejected Property related to an ER Facility, then the exempted Target Property must also be an ER Facility; provided, however, that if the Rejected Property is a fee ownership   property, then the exempted Target Property may be either a fee ownership property or a leasehold ownership property and if the Rejected Property is a leasehold ownership property, then the exempted Target Property may be either a leasehold ownership property or a fee ownership property); or

(b)if the owner of a potential Target Property demands to retain development responsibilities and such requirement is verified to the reasonable satisfaction of MPT, then Adeptus shall be permitted to seek and obtain financing relating to such Target Property from such other Person.

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2.2. Selection of Real Properties; Initial Approval.  From the date hereof until the first to occur of (a) January 31, 2016, (b) the Termination Date, or (c) the Applicable Closing Date of the Final Closing (the "Commitment Period"), Adeptus shall have the right to select parcels of real property for New Projects that it desires an MPT Lessor to acquire pursuant to the provisions of this Agreement (each, a "Target Property").  Adeptus shall provide written notice to MPT identifying each Target Property, together with the information described in the schedule attached hereto as Schedule 2.2(a), at least thirty (30) days prior to the anticipated Applicable Closing Date for such Target Property (each, an "Initial Target Property Notice").  Within ten (10) Business Days after MPT's receipt of each Initial Target Property Notice, MPT shall have the right to initially approve or reject such Target Property, which approval shall not be unreasonably withheld or conditioned.  If MPT shall fail to initially approve or reject any Target Property within said ten (10) Business Day period, MPT shall be deemed to have rejected such Target Property.  Adeptus Buyer shall have the right to enter into a Real Estate Contract in accordance with Section 2.3 below.

2.3. Final Approval of Real Properties.  In connection with each Target Property that has been initially approved by MPT, if a Real Estate Contract has not previously been entered into, Adeptus (a) shall use its commercially reasonable efforts to cause the applicable Adeptus Buyer to enter a Real Estate Contract for the purchase thereof, and (b) shall provide MPT promptly with the additional information (the “Final Approval Information”) described in the schedule attached hereto as Schedule 2.2(b).  Within ten (10) Business Days after receipt of the Final Approval Information, MPT shall have the right to determine, which determination shall not be unreasonably withheld or conditioned, if it desires to acquire the Target Property.  If MPT shall fail to finally approve or reject such Target Property within said ten (10) Business Day period, then MPT shall be deemed to have rejected such Target Property; provided, however, that if MPT rejects or is deemed to have rejected a Target Property, Adeptus Buyer, at its option, may proceed to acquire the Target Property with other funds.  Provided that MPT approves the Final Approval Information, MPT and Adeptus shall endeavor in good faith to close such acquisition subject to the terms and conditions of this Agreement and the applicable Real Estate Contract.

2.4. Existing Facility Acquisitions.  In the event that any Target Property approved by MPT in accordance with Section 2.3 relates to an Existing Facility Acquisition, the Existing Facility Purchase Price, along with all representations, warranties, terms, conditions, deliveries, closing procedures and indemnities relating thereto shall be addressed in the applicable Hospital Purchase Contract and the remaining provisions of this Agreement after Section 2.5 shall not apply to such Existing Facility Acquisition.

2.5. Distressed Facility Acquisitions.  In the event of any Distressed Facility Acquisition, the purchase price, along with all representations, warranties, terms, conditions, deliveries, closing procedures and indemnities relating thereto shall be addressed in the applicable Distressed Facility Agreement and the remaining provisions of this Agreement after this Section 2.5 shall not apply to such Distressed Facility Acquisition.

2.6. Commitment Fee.  In addition to any other amounts required to be paid by Adeptus hereunder, at the First Closing, Adeptus shall pay to MPT or its designee a commitment fee in the amount of Three Hundred Seventy-Five Thousand and No/100 Dollars ($375,000.00) (the "Commitment Fee"), which Commitment Fee shall be deemed fully earned and nonrefundable if

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the First Closing occurs.  Notwithstanding the foregoing, Adeptus' payment of the Commitment Fee shall be deferred solely to the extent necessary for Adeptus to remain in compliance with the provisions of ASC 840‑40‑55 and Adeptus shall make monthly payments of the Commitment Fee to MPT on the first (1) day of each month after the First Closing, provided that the Commitment Fee shall be paid in full no later than the date of Completion (as defined in the applicable Project Development Agreement) of the first New Development Project.  Contemporaneously with each payment, Adeptus shall deliver to MPT a written explanation of the payment amount and the current calculation of the payment limitations under ASC 840‑40‑55, which explanation shall be in such detail as reasonably necessary for MPT to confirm the prevailing payment limitation.

ARTICLE III

PURCHASE AND SALE OF ASSETS; PURCHASE PRICE

3.1. Purchase and Sale of Assets.  Based upon the representations and warranties of Adeptus as set forth herein, and subject to the terms and conditions hereof, at each Applicable Closing relating to a New Development Project, the applicable MPT Lessor shall acquire from the Unrelated Seller, free and clear of all Liens other than the Permitted Exceptions, the following assets (collectively, the "Assets"):

(a)

the applicable Real Property;

(b)

to the extent assignable, all rights in all intangible property relating exclusively to such Real Property, including, but not limited to, zoning rights, Permits and indemnification or similar rights and all Warranties affecting or inuring to the benefit of such Real Property or the owner thereof (including, without limitation, any indemnification or similar rights and Warranties related to such Real Property);

(c)

all right, title and interest in and to any site plans, surveys, soil and substrata studies, architectural drawings, plans and specifications, inspection reports, engineering and environmental plans and studies, title reports, floor plans, landscape plans and other plans relating to such Real Property; and

(d)

all right, title and interest in and to all causes of action, claims and rights in litigation (or which could result in litigation against any party) pertaining or relating to such Real Property (including, without limitation, any causes of action, claims or rights in litigation or other rights related to or arising under any purchase contracts respecting the Real Property).

The parties acknowledge and agree that, in connection with each Applicable Closing, the Adeptus Buyer shall assign to the MPT Lessor the right to acquire the Real Property subject to the applicable Real Estate Contract from the Unrelated Seller (and MPT Lessor shall assume no other obligations thereunder) (each, a "Partial Assignment"), and such MPT Lessor shall acquire the Real Property from such Unrelated Seller subject to the terms and conditions of the applicable Real Estate Contract.  Alternatively, upon the mutual agreement of the parties, the

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Adeptus Buyer shall acquire the Real Property from the applicable Unrelated Seller and then convey such Real Property and the other Assets to the applicable MPT Lessor (the "Direct Sale Alternative"). 

3.2. No Assumption of Liabilities.  Notwithstanding anything in this Agreement to the contrary other than Section 6.2(a) below, no MPT Lessor shall assume or agree to pay, satisfy, discharge or perform, or shall be deemed by virtue of the execution and delivery of this Agreement or any other document delivered at the Applicable Closing pursuant to this Agreement, or as a result of the consummation of the transactions contemplated by this Agreement or such other document, to have assumed, or to have agreed to pay, satisfy, discharge or perform, or shall be liable for, any liability, obligation, contract or Indebtedness of any of the Adeptus Parties, any Unrelated Seller or any other Person, whether primary or secondary, direct or indirect, including, without limitation, any liability or obligation relating to the ownership, use or operation of any of the Assets prior to the Applicable Closing, any liability or obligation arising out of or related to any breach, default, tort or similar act committed by any Adeptus Party, any Unrelated Seller, or any Affiliate of any Adeptus Party or Unrelated Seller, or for any failure of any Adeptus Party, any Unrelated Seller, or any Affiliate of any Adeptus Party or Unrelated Seller, to perform any covenant or obligation for or during any period prior to the Applicable Closing, and any liability arising out of the ownership and operation of the Assets by any Unrelated Seller, any Adeptus Party or any other Person prior to the Applicable Closing (collectively, the "Excluded Liabilities"); provided, however, that the foregoing shall not limit MPT's indemnification obligations under Section 6.2(a) below.

3.3. Project Purchase Price.  With respect to each New Development Project, the purchase price for each Real Property and the other Assets related thereto, shall be the purchase price reflected in the applicable Real Estate Contract or as otherwise agreed by the parties, subject to prorations, credits and adjustments as provided therein (each a "Project Purchase Price").  Subject to the terms and conditions hereof, at each Applicable Closing, the applicable MPT Lessor shall pay the Project Purchase Price (less any applicable Earnest Money Deposit) to the Unrelated Seller (or to the applicable Adeptus Party in connection with a Direct Sale Alternative) as specified in the applicable Real Estate Contract, the applicable MPT Lessor shall reimburse Adeptus or its designee in an amount equal to the applicable Earnest Money Deposit and the applicable MPT Lessor shall pay all Closing Costs and Pursuit Costs (either by reimbursing Adeptus or paying the applicable person to whom such Closing Costs or Pursuit Costs are owed).

3.4. Taxes, Rentals, Utilities.  The parties acknowledge that, to the extent the applicable Real Estate Contract imposes any obligation to pay such items on the purchaser, all utility charges and all real and personal property Taxes related to the applicable Real Property shall be included in the Development Budget (as defined in the applicable Project Development Agreement) for such Real Property.

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ARTICLE IV

REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE ADEPTUS PARTIES

With the understanding that MPT shall rely hereon, and as a material inducement to MPT to enter into this Agreement, Adeptus hereby represents, warrants and covenants to MPT as of the date hereof and as of the Applicable Closing Date, as follows:

4.1. Organization.  Adeptus is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and is qualified to do business in every jurisdiction where such qualification is necessary.  Each other existing Adeptus Party is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Texas and is qualified to do business in every jurisdiction where such qualification is necessary.  Each existing Adeptus Lessee is, and has at all times since its organization been, a Special Purpose Entity.  Schedule 4.1(a) sets forth the ownership of each existing Adeptus Party and, except as set forth therein, no other Person has, and no such Adeptus Party has offered to any Person, any equity interest in any Adeptus Party or any option, warrant or other right to acquire the same.  Schedule 4.1(b) contains a list of all direct and indirect Subsidiaries of Adeptus.

4.2. Authorization; Enforcement.  Each existing Adeptus Party has the requisite corporate or limited liability company power and authority (a) to conduct its business as it is now being conducted and as proposed to be conducted, (b) to execute, deliver and carry out the terms of this Agreement, all documents and agreements necessary to give effect to the provisions of this Agreement, including the Master Lease and any Project Development Agreement, and to consummate the transactions contemplated hereby and thereby, to the extent such Adeptus Party is a signatory thereto, and (c) to execute, deliver and carry out the terms of each Real Estate Contract to which it is a party and all documents and agreements necessary to give effect to the provisions of such Real Estate Contract, and to consummate the transactions contemplated thereby.  All actions required to be taken by any existing Adeptus Party (i) to authorize the execution, delivery and performance of this Agreement, the Master Lease, the Project Development Agreement, as well as all other Adeptus Instruments and all transactions contemplated hereby and thereby, and (ii) to authorize the execution, delivery and performance of such Real Estate Contract and all other documents, agreements and instruments executed by any Adeptus Party which are necessary to give effect thereto, have been or shall be duly and properly taken or obtained in accordance and in yet compliance with such Adeptus Party’s Governing Documents.  Adeptus has delivered to MPT true and correct copies of each existing Adeptus Party’s Governing Documents.  No other action on the part of any existing Adeptus Party or any of such Adeptus Party’s directors, managers or Equity Constituents is necessary to authorize the execution, delivery and performance of this Agreement, the other Adeptus Instruments, the Real Estate Contracts (upon approval thereof in accordance with this Agreement) and all transactions contemplated hereby and thereby.  This Agreement, all other Adeptus Instruments to which any Adeptus Party will become a party hereunder and each Real Estate Contract to which any Adeptus Party will become a party shall constitute the valid and legally binding obligations of such Adeptus Party, and are and will be enforceable against such Adeptus Party in accordance with the respective terms hereof or thereof, except as enforceability

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may be restricted, limited or delayed by applicable bankruptcy, insolvency or other similar laws affecting creditors' rights generally and except as enforceability may be subject to and limited by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

4.3. Absence of Conflicts.  Each existing Adeptus Party’s execution, delivery and performance of this Agreement and the other Adeptus Instruments to which such Adeptus Party will become a party, and each Real Estate Contract to which such Adeptus Party is a party, and the consummation of the transactions contemplated hereby and thereby will not, with or without the giving of notice and/or the passage of time:  (a) violate or conflict with any provision of such Adeptus Party’s Governing Documents; (b) violate or conflict with any provision of any Law to which such Adeptus Party or any of its Equity Constituents is subject; (c) violate or conflict with any judgment, order, writ or decree of any court applicable to such Adeptus Party; (d) result in or cause the creation of a Lien on any portion of any of the Real Properties or any of the other Assets, except as contemplated hereunder; or (e) result in the breach or termination of any provision of, or create rights of acceleration or constitute a default under, the terms of any indenture, mortgage, deed of trust, contract, agreement or other instrument to which such Adeptus Party is a party.

4.4. Consents and Approvals.  Except as set forth on Schedule 4.4, and except as may be required for the development, construction, use and occupancy of the Real Properties, no license, permit, qualification, order, consent, authorization, approval or waiver of, or registration, declaration or filing with, or notification to, any Governmental Body or other Person is required to be made or obtained, which has not been made or obtained, by or with respect to any existing Adeptus Party in connection with the execution, delivery and performance of this Agreement, the other Adeptus Instruments, or the Real Estate Contracts or the consummation of the transactions contemplated hereby or thereby.

4.5. Financial Statements.  Prior to execution of this Agreement, Adeptus has delivered to MPT the audited balance sheets and audited statement of income and cash flows of Adeptus for the fiscal year 2013 (collectively, the "Annual Financial Statements").  Schedule 4.5 sets forth (a) the unaudited balance sheet of Adeptus on a consolidated basis for the most recent fiscal quarter (the aforementioned balance sheets being herein referred to, collectively, as the "Balance Sheets"), and (b) the unaudited statement of income and cash flows of Adeptus on a consolidated basis for the most recent fiscal quarter (the financial statements described in this sentence, together with the Annual Financial Statements are referred to, collectively, as the "Financial Statements").  Except as set forth on Schedule 4.5, the Financial Statements have been prepared in accordance with GAAP, are based on the books, records and accounts of Adeptus and fairly present the financial condition and results of operations, cash flows and members' equity of Adeptus as of the respective dates thereof and for the respective periods indicated therein, except (i) that the unaudited interim statements do not include complete note (including footnote) disclosure as required by GAAP; and (ii) that the unaudited interim statements are subject to normal, year‑end adjustments which are not, and will not be, material in amount or effect, either individually or in the aggregate.

4.6. No Undisclosed Liabilities; Guaranties.  Except as set forth on Schedule 4.6(a), other than any liabilities and obligations under this Agreement and the other Adeptus Instruments, no

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existing Adeptus Party has any material liability or obligation (other than obligations to consummate the transactions contemplated by this Agreement), whether absolute, accrued, contingent or otherwise, including any potential future liability arising out of acts or omissions which have already occurred, which is not fully and accurately reflected or reserved against in the Balance Sheets, except for liabilities or obligations that may have arisen in the Ordinary Course of Business since the latest date of the Financial Statements (none of which results from, arises out of, relates to, is in the nature of, or was caused by any breach of contract, breach of warranty, tort, infringement or violation of law), and to the Knowledge of each existing Adeptus Party no fact, condition or circumstance could form the basis of any Claim in respect of any such material liability or obligation.  Schedule 4.6(b) sets forth a list of all Guaranties entered into by each existing Adeptus Party, true and correct copies of which have been delivered to MPT.

4.7. Absence of Changes.  Except as set forth on Schedule 4.7 and except as contemplated by this Agreement, since the date of the latest Financial Statements, each existing Adeptus Party has:

(a)

preserved its legal existence and retained its business organization intact;

(b)

conducted its business only in the Ordinary Course of Business;

(c)

complied in all material respects with all applicable Laws;

(d)

not suffered any change, event or circumstance which has had, or would be reasonably expected to have, a Material Adverse Effect; and

(e)

not agreed or offered, whether in writing or otherwise, to take, and no existing Adeptus Party or any of their respective members, managers or officers have authorized the taking of, any action described in subsection (d) above.

4.8. Reserved.

4.9. Taxes.  Each existing Adeptus Party has filed or caused to be filed all Tax Returns of such Adeptus Party which have become due (taking into account valid extensions of time to file) prior to the date of this Agreement, except where the failure to file would not have a Material Adverse Effect on such Adeptus Party or prevent or impede the consummation of the transactions contemplated hereby or under the Adeptus Instruments.  Such Tax Returns are accurate and complete in all material respects, and each existing Adeptus Party has paid or caused to be paid all Taxes for the periods covered thereby, whether or not shown to be due on such Tax Returns, except where the failure to file would not have a Material Adverse Effect on such Adeptus Party or prevent or impede the consummation of the transactions contemplated hereby or under the Adeptus Instruments.    

4.10. Litigation.  Except as set forth on Schedule 4.10, there is no dispute, suit, action, proceeding, inquiry or investigation (a “Claim”) against or involving any existing Adeptus Party or, to the Knowledge of Adeptus, threatened, which would have a Material Adverse Effect (including, without limitation any suit, action, proceeding or investigation pursuant to Title 11 of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act of 1993, or any other Law regulating

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employment) or prevent or impede the consummation of the transactions contemplated hereby or by the Adeptus Instruments, and no existing Adeptus Party has Knowledge of any fact, condition or circumstance which reasonably could be expected to form the basis of any such Claim which would have a Material Adverse Effect.    

4.11. Contracts, Obligations and Commitments.

(a) Schedule 4.11(a)(i) sets forth a list of all contracts and agreements entered into by any Adeptus Party or any Affiliates of any Adeptus Party relating to (i) the acquisition of any current Target Property and (ii) the design, development and construction of the Improvements relating to such Target Property (including, without limitation, any contracts and agreements with architects, engineers, design professionals, developers, general contractors or development escrows or other similar agreements) (collectively the "Development Contracts").  Except as set forth on Schedule 4.11(a)(ii), (A) the Development Contracts are free and clear of all Liens and are assignable by the applicable Adeptus Parties (or alternatively, the existing Adeptus Parties may grant a first priority security interest therein to the MPT Parties), (B) the Development Contracts are legally valid, binding and enforceable in accordance with their respective terms (except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights generally and by general equitable principles, regardless of whether enforcement is sought in a proceeding at law or in equity); (C) each of the Development Contracts is in full force and effect; (D) to the Knowledge of Adeptus, there are no defaults by any party to the Development Contracts; (E) no existing Adeptus Party has received notice of any default, offset, counterclaim or defense claimed by any other party under any Development Contract; and (F) to the Knowledge of Adeptus, no condition or event has occurred which with the passage of time or the giving of notice or both would constitute a default or breach under the terms of any Development Contract.

(b) The existing Adeptus Parties have delivered to MPT complete and correct copies of all written contractual agreements to which any existing Adeptus Party is a party relating to indebtedness secured by, or which purports to be secured by, any of the assets of such Adeptus Party thereunder (collectively, the "Material Contracts").  Except as set forth on Schedule 4.11(b), (i) each of the Material Contracts is legally valid, binding and enforceable against the parties thereto in accordance with its respective terms (except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights generally and by general equitable principles, regardless of whether enforcement is sought in a proceeding at law or in equity); (ii) each of the Material Contracts is in full force and effect; (iii) to the Knowledge of Adeptus, there are no defaults by any party to the Material Contracts; (iv) no existing Adeptus Party has received notice of any default, offset, counterclaim or defense under any Material Contract; and (v) to the Knowledge of Adeptus, no condition or event has occurred which with the passage of time or the giving of notice or both would constitute a default or breach under the terms of any Material Contract.

4.12. Permits.  The existing Adeptus Parties have all licenses, permits, certificates of need and other authorizations of Governmental Bodies that are required for the operation of the Business as currently conducted (collectively, the "Permits").  Except as set forth on Schedule 4.12, the Permits are in full force and effect and the applicable Adeptus Parties may grant a first priority security interest therein to the MPT Parties, subject to all applicable laws.

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4.13. Compliance with Law.  Adeptus and the other existing Adeptus Parties are in compliance in all material respects with every applicable Law, including, without limitation, as applicable, Chapter 254 of the Texas Health and Safety Code and Chapter 131 of the Texas Administrative Code, and any other Law governing the construction, licensure, or operation of freestanding emergency medical care facilities, and every order, writ, and decree of every Governmental Body in connection with the ownership, conduct, operation and maintenance of the Business and their respective ownership and use of their assets, and, to the Knowledge of each existing Adeptus Party, no event has occurred or circumstance exists which (without notice or lapse of time) would result in any material noncompliance with any such Law order, writ or decree.

4.14. Brokers.  Except as set forth on Schedule 4.14, no Person is or will be entitled to any brokerage, finder's or other fee, commission or payment in connection with or as a result of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of any existing Adeptus Party or any Unrelated Seller, and MPT shall not be liable or obligated to pay any of such amounts to such Person unless and until the applicable Real Property is acquired.

4.15. Agreements with Affiliates and Certain Other PersonsSchedule 4.14(a) sets forth a list of all agreements relating to the acquisition, financing, development, construction, operation or management of the Facilities or otherwise relating to the transactions contemplated in this Agreement that have been entered into by each existing Adeptus Party with any Person that is an Affiliate of any existing Adeptus Party (including, without limitation, any officer, director, employee, partner, member, manager or trustee of such Adeptus Party or any other Affiliate of such Adeptus Party).  Schedule 4.14(b) sets forth a list of all agreements entered into by any officer, director, employee, partner, member, manager or trustee of each existing Adeptus Party or any other Affiliate of such existing Adeptus Party, on the one hand, with any vendor, supplier, seller, contractor or service provider of any existing Adeptus Party, on the other hand.

4.16. Patriot Act Compliance.    

(a) Each existing Adeptus Party has complied in all material respects with the International Money Laundering Abatement and Anti‑Terrorist Financing Act of 2001, which comprises Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the "Patriot Act") and the regulations promulgated thereunder, and the rules and regulations administered by the U.S. Treasury Department's Office of Foreign Assets Control ("OFAC"), to the extent the same are applicable to such Adeptus Parties.

(b) No existing Adeptus Party is included on the List of Specially Designated Nationals and Blocked Persons maintained by the OFAC, or is a resident in, or organized or chartered under the laws of, (i) a jurisdiction that has been designated by the U.S.  Secretary of the Treasury under Section 311 or 312 of the Patriot Act as warranting special measures due to money laundering concerns or (ii) any foreign country that has been designated as non‑cooperative with international anti‑money laundering principles or procedures by an intergovernmental group or organization, such as the Financial Action Task Force on Money

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Laundering, of which the United States is a member and with which designation the United States representative to the group or organization continues to concur.

4.17. Representations Complete.  The representations and warranties made or to be made by Adeptus and each other existing Adeptus Party in this Agreement or in any Adeptus Instrument and the statements made in or information contained on any Schedule or certificates furnished by Adeptus or any other Adeptus Party pursuant to this Agreement do not contain and, subject to Section 6.3, will not contain, as of their respective dates and as of the Applicable Closing Dates, any untrue statement of a material fact, nor do they omit or will they omit, as of their respective dates or, subject to Section 6.3, as of such Applicable Closing Dates, to state any material fact necessary to make the statements contained herein or therein, in the light of the circumstances under which they were made, not misleading.

ARTICLE V

REPRESENTATIONS AND WARRANTIES BY MPT

MPT hereby represents and warrants to Adeptus as of the date hereof and as of the Applicable Closing Date, as follows:

5.1. Organization.  MPT is a limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware and is qualified to do business in every jurisdiction where such qualification is necessary.  Each other existing MPT Party is a limited liability company or limited partnership duly organized, validly existing and in good standing under the laws of the State of Delaware and is qualified to do business in every jurisdiction where such qualification is necessary.

5.2. Authorization; Enforcement, Absence of Conflicts.  Each existing MPT Party has the requisite power and authority to execute, deliver and carry out the terms of this Agreement, all documents and agreements necessary to give effect to the provisions of this Agreement, including the Master Lease and any Project Development Agreement, to which it is a signatory, and to consummate the transactions contemplated hereby and thereby, and to conduct its businesses as now being conducted and as proposed to be conducted.  All actions required to be taken by each existing MPT Party to authorize the execution, delivery and performance of this Agreement, all documents executed by it which are necessary to give effect to this Agreement and all transactions contemplated hereby and thereby, have been or shall be duly and properly taken or obtained.  No other action on the part of any existing MPT Party is necessary to authorize the execution, delivery and performance of this Agreement, all documents necessary to give effect to this Agreement and all transactions contemplated hereby and thereby.  The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not, with or without the giving of notice and/or the passage of time:  (a) violate or conflict with any provision of the Governing Documents of any existing MPT Party; (b) violate any provision of law, statute, rule or regulation to which any existing MPT Party is subject; (c) violate or conflict with any judgment, order, writ or decree of any court applicable to any existing MPT Party; (d) violate or conflict with any law or regulation applicable to any MPT Party; or (e) result in the breach or termination of any provision of, or

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create rights of acceleration or constitute a default under, the terms of any debt or obligation to which any existing MPT Party is a party or by which any existing MPT Party is bound.

5.3. Binding Agreement.  This Agreement and all agreements to which each existing MPT Party will become a party hereunder are and will constitute the valid and legally binding obligations of such MPT Party, and are and will be enforceable against such MPT Party in accordance with the respective terms hereof or thereof, except as enforceability may be restricted, limited or delayed by applicable bankruptcy, insolvency or other laws affecting creditors’ rights generally and except as enforceability may be subject to and limited by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

5.4. Litigation.  There is no Claim pending or, to the Knowledge of MPT, against or involving any existing MPT Party or, to the Knowledge of MPT, threatened, which would have a Material Adverse Effect or prevent or impede the consummation of the transactions contemplated hereby, and MPT has no Knowledge of any fact, condition or circumstance which reasonably could be expected to form the basis of any such Claim which would have a Material Adverse Effect.

5.5. Brokers.  Other than commissions or other fees payable to employees or independent contractors of any existing MPT Party for which such MPT Parties shall be responsible, no Person is or will be entitled to any brokerage, finder’s or other fee, commission or payment in connection with or as a result of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of MPT or any other existing MPT Party.

5.6. Compliance with Law.  MPT and the other existing MPT Parties are in compliance in all material respects with every applicable Law, order, writ or decree, and to the Knowledge of MPT, no event has occurred or circumstance exists which (without notice or lapse of time) would result in any material noncompliance with any such Law, order, writ or decree which would have a Material Adverse Effect.

5.7. Patriot Act Compliance.    

(a) Each existing MPT Party has complied in all material respects with the Patriot Act and regulations promulgated thereunder, and the rules and regulations administered by OFAC, to the extent the same are applicable to such MPT Parties.

(b) No existing MPT Party is included on the List of Specially Designated Nationals and Blocked Persons maintained by the OFAC, or is a resident in, or organized or chartered under the laws of, (i) a jurisdiction that has been designated by the U.S. Secretary of the Treasury under Section 311 or 312 of the Patriot Act as warranting special measures due to money laundering concerns or (ii) any foreign country that has been designated as non‑cooperative with international anti‑money laundering principles or procedures by an intergovernmental group or organization, such as the Financial Action Task Force on Money Laundering, of which the United States is a member and with which designation the United States representative to the group or organization continues to concur.

5.8. Representations Complete.  The representations and warranties made or to be made by MPT and each other existing MPT Party in this Agreement or in any related agreement and the

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statements made in or information contained on any Schedule or certificates furnished by MPT or any other MPT Party pursuant to this Agreement do not contain and will not contain, as of their respective dates and as of the Applicable Closing Dates, any untrue statement of a material fact, nor do they omit or will they omit, as of their respective dates or as of such Applicable Closing Dates, to state any material fact necessary to make the statements contained herein or therein, in the light of the circumstances under which they were made, not misleading.

ARTICLE VI

PRE‑CLOSING COVENANTS

From and after the execution of this Agreement until the earlier of (a) the Final Closing Date (as herein defined) or (b) the expiration of the Commitment Period, the applicable party shall observe the following covenants:

6.1. Intentionally Omitted.  

6.2. Access; Confidentiality.    

(a) Between the date hereof until the expiration of the Commitment Period (it being understood that the access provisions hereof shall no longer remain effective with respect to Assets and Unrelated Sellers for which an Applicable Closing shall have occurred), each existing Adeptus Party shall (A) afford MPT and its authorized representatives reasonable access to such Adeptus Parties and to all books, records, offices and other facilities of such Adeptus Parties; (B) permit MPT and its authorized representatives to make such inspections and to make copies of such books and records as they may reasonably require, in each case subject to compliance with applicable confidentiality requirements; (C) furnish MPT and its authorized representatives with such financial and operating data and other information related to the Real Properties, the Business, and such Adeptus Parties as the MPT Parties may from time to time reasonably request; and (D) use their commercially reasonable efforts to cause all Unrelated Sellers to permit the existing MPT Parties and their authorized representatives (including their designated engineers, architects, surveyors and/or consultants), upon reasonable notice to enter into and upon all or any portion of any of the Real Properties in order to investigate and assess, as such MPT Parties deem necessary or appropriate in their sole and absolute discretion, the Real Properties and to complete their due diligence review with respect to the satisfaction all of the conditions set forth in Section 7.2.  The existing Adeptus Parties shall cooperate, and shall use commercially reasonable efforts to cause the Unrelated Sellers to cooperate, with the existing MPT Parties and their authorized representatives in conducting such investigations, and shall provide (or use commercially reasonable efforts to cause the Unrelated Sellers to provide) to such MPT Parties and their authorized representatives all information maintained by such Adeptus Parties or provided by the Unrelated Sellers to such Adeptus Parties and related to their due diligence review and other matters referenced above.  MPT shall indemnify, defend and hold harmless the existing Adeptus Parties from and against all demands, claims, losses, damages, costs and expenses asserted against or incurred by such Adeptus Parties or any of them arising out of or resulting from any physical damage to the applicable Real Properties caused by any of the MPT Parties’ or their respective consultants’ or agents’ inspections thereof.

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(b) Notwithstanding any provision of the 2013 Master Funding Agreement to the contrary, the provisions of the Confidentiality Agreement dated as of July 13, 2012 (the "Confidentiality Agreement") shall remain binding and in full force and effect until the Completion of the Real Property that is the subject of the Final Closing.  The information contained herein, in the Schedules or delivered to MPT or its authorized representatives pursuant hereto shall be subject to the Confidentiality Agreement as Information (as defined and subject to the exceptions contained therein) and, for that purpose and to that extent, the terms of the Confidentiality Agreement are incorporated herein by reference.

6.3. Schedule Updates.  From the date of this Agreement until the expiration of the Commitment Period, the existing MPT Parties, on the one hand, and the existing Adeptus Parties on the other hand, shall immediately advise the other in writing of any additions or changes to any Schedule, or the need to provide additional Schedules, to reflect any deficiencies or inaccuracies in the applicable representations, warranties or Schedules or to reflect circumstances or matters which occur after the date of this Agreement which, if existing prior to such date, would have been required to be described on such Schedule; provided, however, that no additions or changes made to any Schedule by any party to correct deficiencies or inaccuracies on such Schedule shall be deemed to cure any breach or inaccuracy of a representation or warranty, covenant or agreement or to satisfy any condition unless otherwise agreed to in writing by the other party, but provided further, however, that an addition or change made to any Schedule by any Party to reflect circumstances or matters which occur after the date of this Agreement shall be deemed to cure a breach or inaccuracy of a representation or warranty, covenant or agreement, but shall not be deemed to satisfy any condition unless agreed to in writing by the other party, which agreement shall not be unreasonably withheld, conditioned or delayed.

6.4. Conduct of Business by Adeptus Parties.  Each existing Adeptus Party covenants and agrees that, during the period from the date hereof until the earlier of (i) the Final Closing Date or (ii) the expiration of the Commitment Period, unless MPT shall otherwise agree in writing, such Adeptus Party shall conduct its businesses only in, and it shall not take any action except in, the Ordinary Course of Business and in compliance in all material respects with all applicable laws and regulations.  Further, no existing Adeptus Party shall do or propose to do, directly or indirectly, any of the following without the prior written consent of MPT, which consent shall not be unreasonably withheld, conditioned or delayed:

(a) amend, repeal or otherwise change in any material way the Governing Documents of any such Adeptus Party, except for an amendment or other change (i) that would not materially adversely affect such Adeptus Party's ability to perform its obligations under the Master Lease or other Adeptus Instruments to which it is a party, or (ii) is effected in connection with a transaction that is otherwise permitted by this Agreement or the Master Lease (provided that it would not materially adversely affect such Adeptus Party's ability to perform its obligations under the Master Lease or other Adeptus Instruments to which it is a party);

(b) fail to perform its material obligations in all respects under agreements to which it is a party relating to or respecting any of the Real Properties, including any Real Estate Contracts;

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(c) reduce the coverage of, fail to timely renew or pay the premiums on or cancel any insurance policy relating to any of the Real Properties;

(d) cause to lapse or fail to renew any material license and certification necessary to conduct the Business of any of the Real Properties;

(e) fail to timely make all required material filings (or to obtain applicable extensions) with Governmental Bodies relating to any of the Real Properties;

(f) create, assume, or permit to exist any Lien upon any of the Real Properties, other than those presently in existence or being contested by the applicable Adeptus Parties in accordance with the Master Lease;

(g) except as otherwise expressly permitted herein, enter into or agree to enter into any lease, option, agreement or other arrangement granting any rights with respect to the Assets or the development or construction of any Improvements, including, without limitation entering into any construction contracts or any agreements with a contractor or subcontractor, but excluding contracts with third party consultants relating to due diligence;

(h) terminate or modify in any respect any Real Estate Contract after MPT has notified Adeptus that it desires to acquire the Target Property pursuant to Section 2.2(b) above, or any Development Contract or Material Contract relating to any of the Real Properties; or

(i) take, agree or offer, in writing or otherwise, to take, any of the actions described in Sections 6.4(a) through (h) above, or any action which would make any of the representations or warranties of Adeptus contained in this Agreement untrue, incorrect or incomplete in any material respect or prevent Adeptus from performing or cause any other Adeptus Parties not to perform their respective covenants hereunder, in each case, such that the conditions set forth in Sections 7.2(a) or 7.2(b), as the case may be, would not be satisfied.

6.5. Cooperation.  From the date hereof until the earlier of (a) the Final Closing Date or (b) the expiration of the Commitment Period, (i) upon request from MPT, each existing Adeptus Party shall confer on a reasonably frequent basis with one or more representatives of MPT to report material matters respecting the transactions contemplated hereby including any and all material developments with any Unrelated Seller with respect to any Real Estate Contract and (ii) MPT and Adeptus shall promptly provide the other or their counsel with copies of all filings made by such party with any Governmental Body in connection with this Agreement and the transactions contemplated hereby.

6.6. Regulatory and other Authorizations, Notices and Consents.    

(a) Each party shall use all commercially reasonable efforts to obtain all authorizations, consents, orders and approvals of all Governmental Bodies and other Persons that may be or become necessary for its execution and delivery of, and the performance of its obligations pursuant to, this Agreement and each such party will cooperate fully with the other parties in promptly seeking to obtain all such authorizations, consents, orders and approvals.

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(b) The existing MPT Parties shall cooperate and use commercially reasonable efforts to assist the existing Adeptus Parties in giving such notices and obtaining such consents and estoppel certificates; provided, however, that such MPT Parties shall have no obligation to give any guarantee or other consideration of any nature in connection with any such notice, consent or estoppel certificate.

6.7. Mutual Covenants.  The parties shall use their good faith reasonable efforts to satisfy the conditions to the closing of the transactions contemplated hereby.  Without limiting the generality of the foregoing, the respective parties shall execute and/or deliver, or use their respective good faith reasonable efforts to cause to be executed and/or delivered at Applicable Closing, the documents contemplated to be executed and/or delivered by them hereunder.

ARTICLE VII

CLOSING CONDITIONS

7.1. Conditions to the Obligations of Adeptus.  The obligations of the existing Adeptus Parties to effect the transactions contemplated hereby with respect to each Applicable Closing shall be further subject to the fulfillment of the following conditions, any one or more of which may be waived by Adeptus:

(a) all of the representations and warranties of the existing MPT Parties set forth in this Agreement shall be true and correct in all material respects when made and as of the Applicable Closing Date as if made on such Applicable Closing Date, subject to updates under Section 6.3;

(b) the existing MPT Parties shall have delivered, performed, observed and complied in all material respects with all of the items, instruments, documents, covenants, agreements and conditions required by this Agreement to be delivered, performed, observed and complied with by it prior to, or as of, the Applicable Closing; and

(c) the applicable MPT Parties shall have executed, where applicable, and delivered to Adeptus the documents referenced in Section 8.3.

7.2. Conditions to the Obligations of MPT.  The obligations of the existing MPT Parties to effect the transactions contemplated hereby, with respect to each Applicable Closing, shall be further subject to the fulfillment of the following conditions, any one or more of which may be waived by MPT:

(a) all of the representations and warranties of the existing Adeptus Parties set forth in this Agreement shall be true and correct in all material respects when made and as of the Applicable Closing Date as if made on the Applicable Closing Date, subject to updates under Section 6.3;

(b) the existing Adeptus Parties shall have delivered, performed, observed and complied in all material respects with all of the items, instruments, documents, covenants, agreements and conditions required by this Agreement to be delivered, performed, observed and complied with by them prior to, or as of, such Applicable Closing;

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(c) no existing Adeptus Party shall have suffered any change, event or circumstance which has had, or could have, a Material Adverse Effect;

(d) the existing MPT Parties shall have satisfactorily completed their due diligence investigations of all aspects of each transaction, including the Assets, the applicable Adeptus Lessee, the applicable Developer and the proposed construction contracts and contractors, in accordance with the time periods established in this Agreement and shall be satisfied with the results of such investigations in their sole discretion;

(e) all necessary approvals, consents and estoppel certificates of third parties to the validity and effectiveness of the transactions contemplated hereby have been obtained;

(f) no portion of the Assets relating to the applicable Real Property shall have been damaged or destroyed by fire or casualty;

(g) the existing MPT Parties shall have received copies of all permits, licenses, certificates of need and other approvals of Governmental Bodies received or obtained by the Adeptus Parties that are required for the construction and development of Improvements that customarily would have been issued or given prior to the Applicable Closing considering the current stage of the development of such Improvements, together with written evidence satisfactory to such MPT Parties that the licensing, operations and use of such Improvements will be available in the ordinary course of business and will be in accordance with all applicable state and other governmental requirements;

(h) the existing MPT Parties shall have received copies of an environmental report for the applicable Real Property and a property condition report for any existing improvements, which reports shall be in form and substance acceptable to the MPT Parties in their sole discretion;

(i) no condemnation, eminent domain or similar proceedings shall have been commenced or threatened in writing with respect to any material portion of the applicable Real Property;

(j) the existing Adeptus Parties shall have executed where applicable, and delivered to MPT the documents referenced in Section 8.2;

(k) there shall not have been instituted by any creditor of any existing Adeptus Party or any Unrelated Seller, any Governmental Body or any other Person, any suit, action or proceeding which would affect the Assets or seek to restrain, enjoin or invalidate the transactions contemplated by this Agreement;

(l) subject to the requirements under Section 38.14 of the Master Lease, and to the extent then applicable, Adeptus or the existing Adeptus Lessees shall have obtained, or cause to be obtained, a letter of credit securing the obligations of such Adeptus Lessees under the Master Lease, in a form and from a financial institution acceptable to MPT in its reasonable discretion, as more fully described in the Master Lease;

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(m) Adeptus shall have executed and delivered the applicable Cost Overrun Guaranty and the Guaranty (it being understood that, with respect to all Applicable Closings following the First Closing, delivery of the Guaranty shall not be required);

(n) to the extent the acquisition of any of the Real Properties has already been closed at the time of the Applicable Closing, no "Event of Default" shall have occurred under the Master Lease or the other Project Development Agreements and no event, condition or circumstance shall have occurred that with notice or the passage of time would constitute such an Event of Default, and the Adeptus Parties shall have delivered a certificate to that effect in form and substance satisfactory to MPT (the "New Closing Certificate");

(o) MPT shall have agreed upon the terms of all necessary modifications, amendments and restatements of the Intercreditor Agreement and Subordination Agreement, as determined in MPT's sole discretion; and

(p) the transaction contemplated by the applicable Real Estate Contract shall have closed.

ARTICLE VIII

CLOSINGS

8.1. Applicable Closing Dates.  The closing of the purchase and sale of each Real Property and other Assets related thereto pursuant to this Agreement (each an "Applicable Closing") shall be handled through escrow deliveries to the applicable Title Company on the date required for closing pursuant to the applicable Real Estate Contract for such Real Property and other Assets (the actual date of each Applicable Closing being herein referred to as the "Applicable Closing Date").  The date of the final Applicable Closing of any Real Property and other Assets related thereto hereunder shall be referred to as the "Final Closing."    

8.2. Adeptus Parties' Closing Date Deliverables.  On the Applicable Closing Date for a particular Real Property, in addition to all documents and agreements to be delivered by the Unrelated Seller under the applicable Real Estate Contract, Adeptus shall deliver, or cause to be delivered, to the applicable MPT Parties the following:

(a) an Assignment and Assumption Agreement to effect the Partial Assignment with respect to the applicable Real Estate Contract, in form and substance mutually satisfactory to the parties (it being understood that, with respect to any Real Property acquired utilizing the Direct Sale Alternative, this delivery shall not be required but additional deliveries shall be required as described below);

(b) a Joinder Agreement;

(c) a certified copy of the resolutions of the governing body of each applicable existing Adeptus Party dated prior to the Applicable Closing Date and authorizing such Adeptus Party's execution, delivery and performance of this Agreement and all other documents to be executed in connection herewith;

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(d) certificates of existence and good standing of each existing Adeptus Party and the applicable Developer from the appropriate Governmental Body, along with certificates of good standing and foreign qualification of each existing Adeptus Lessee and such Developer from the Secretary of State of the state in which the applicable Real Property is located, if applicable, in each case dated the most recent practical date prior to the Applicable Closing Date;

(e) a certificate from each existing Adeptus Party dated the Applicable Closing Date to the effect that all of the representations and warranties of such Adeptus Party contained in this Agreement, as such representations and warranties may have been updated under Section 6.3 above, remain in all material respects true and correct as of the Applicable Closing Date as if made on such date and that such Adeptus Party has performed and satisfied in all material respects all covenants and conditions required by this Agreement to be performed or satisfied by such Adeptus Party on or prior to such Applicable Closing;

(f) the Master Lease, together with a Memorandum of Lease Agreement, in form and substance mutually satisfactory to the parties (it being understood that, with respect to all Applicable Closings following the First Closing, this delivery shall be limited to an amendment of the Master Lease and an amendment of the Memorandum of Lease Agreement, each for the purpose of including the legal description of the applicable Real Property);

(g) a Project Development Agreement for such New Development Project;

(h) a Cost Overrun Guaranty for such New Development Project;

(i) the Guaranty (it being understood that, with respect to all Applicable Closings following the First Closing, this delivery shall not be required);

(j) an Assignment of Rents and Leases in form and substance mutually satisfactory to the parties (it being understood that, with respect to all Applicable Closings following the First Closing, this delivery shall be limited to an amendment of such Assignment of Rents and Leases for the purpose of including the legal description of the applicable Real Property or the applicable assignees thereunder);

(k) an executed Security Agreement in form and substance mutually satisfactory to the parties (it being understood that, with respect to all Applicable Closings following the First Closing, this delivery shall be limited to an amendment of the Security Agreement for the purpose of including the legal description of the applicable Real Property and the secured parties thereunder);

(l) a Noncompete Agreement by Adeptus in form and substance mutually satisfactory to the parties (it being understood that, with respect to all Applicable Closings following the First Closing, this delivery shall not be required);

(m) a Management Subordination Agreement in form and substance mutually satisfactory to the parties; provided, however, that to the extent the parties acknowledge that no Management Agreement exists at the time of the First Closing or other Applicable Closings, this condition shall be waived until such time as a Management Agreement exists;

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(n) the Omnibus Amendment to the 2013 Master Funding Obligation Documents and all other amendments to the 2013 Master Funding Obligation Documents which are deemed necessary by MPT in its reasonable discretion and in a form mutually agreeable to the parties;

(o) any necessary joinder, amendment and restatement of the Intercreditor Agreement as required by MPT, in form mutually agreeable to the parties;

(p) any necessary joinder, amendment and restatement of the Subordination Agreement as required by MPT, in form mutually agreeable to the parties;

(q) if applicable, Lien waiver affidavits and certifications in form and substance acceptable to MPT and the Title Company from all contractors, subcontractors and other third parties who performed work on or supplied materials and/or labor to or for the Real Property and verifying that all work, supplies, materials and labor have been paid in full and there are no liens on the Real Property nor any potential liens on the Real Property;

(r) the New Closing Certificate; and

(s) such other instruments and documents consistent with the terms of this Agreement as MPT reasonably deems necessary to effect the transactions contemplated hereby.

It is understood and agreed that, in the event of any exercise of the Direct Sale Alternative, in addition the deliveries required hereinabove, the applicable Adeptus Party shall execute and deliver to the applicable MPT Party deed, bill of sale and such other documents, instruments, affidavits and waivers as required to be delivered by the Unrelated Seller under the applicable Real Estate Contract, in substantially the same form as required under the applicable Real Estate Contract.

8.3. MPT Parties' Closing Date Deliverables.  On the Applicable Closing Date, the existing MPT Parties shall deliver or cause to be delivered to the existing Adeptus Parties the following:

(a) an Assignment and Assumption Agreement to effect the Partial Assignment with respect to the applicable Real Estate Contract, in form and substance mutually satisfactory to the parties;

(b) a Joinder Agreement;

(c) the MPT Guaranty (it being understood that, with respect to all Applicable Closings following the First Closing, this delivery shall not be required);

(d) certificates of existence and good standing of MPT and each MPT Lessor from the Delaware Secretary of State of the State of Delaware, dated the most recent practical date prior to the Applicable Closing Date;

(e) certificates of good standing and foreign qualification of each MPT Lessor from the Secretary of State of the state in which the applicable Real Property is located, dated the most recent practical date prior to the Applicable Closing Date;

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(f) a certified copy of the resolutions of the governing body of MPT and each MPT Lessor dated prior to the Applicable Closing Date and authorizing such MPT Lessors' execution, delivery and performance of this Agreement and all other documents to be executed in connection herewith;

(g) a certificate dated the Applicable Closing Date signed by MPT and the applicable MPT Lessor to the effect that all of the representations and warranties of such MPT Lessor contained in the Agreement, as such representations and warranties may have been updated under Section 6.3 above, remain in all material respects true and correct as of the Closing Date as if made on such date and that such MPT Lessor has performed and satisfied in all material respects all covenants and conditions required by this Agreement to be performed or satisfied by such MPT Lessor on or prior to the Applicable Closing; and

(h) all other documents identified in Section 8.2 above to which any new or existing MPT Party is a party.

ARTICLE IX

TERMINATION

9.1. Termination.  Notwithstanding anything to the contrary in this Agreement and in addition to any termination rights provided for elsewhere in this Agreement, the obligations of the parties hereunder may be terminated and the transactions contemplated hereby abandoned at any time prior to an Applicable Closing:  (a) by mutual written consent of the parties; (b) by Adeptus if (i) the conditions set forth in Section 7.1 shall not have been satisfied with respect to any Applicable Closing on or before January 31, 2016, or (ii) MPT shall have rejected and not acquired at least five (5) Target Properties proposed by Adeptus (provided that any such rejection is not based solely on the failure of the applicable Real Estate Contract to comply with the requirements described in Schedule 1.1, or the refusal of the Adeptus Parties to enter into a mutually acceptable Hospital Purchase Contract with respect to an Existing Facility Acquisition), or (c) by MPT if the conditions set forth in Section 7.2 shall not have been satisfied with respect to any Applicable Closing on or before January 31, 2016 (the date of any such termination under subsection (a), (b) or (c) being referred to herein as the "Termination Date").    

9.2. Notice and Effect.  In the event of the termination of this Agreement pursuant to this Article IX, the party terminating this Agreement shall give prompt written notice thereof to the parties, and the transactions contemplated hereby relating to a Real Property that has not yet been acquired that shall be abandoned without further action by any party.  Notwithstanding any statement contained in this Agreement to the contrary, termination of this Agreement shall not relieve any party from liability for any breach or violation of this Agreement.

ARTICLE X

CERTAIN POST‑CLOSING COVENANTS

10.1. HIPAA Compliance.  Each of the Facilities shall, upon the applicable Operational Date (as defined in the applicable Project Development Agreement), comply with the standards for

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privacy of individually‑identifiable health information which were promulgated pursuant to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA").

10.2. Post‑Closing Access to Information.  The parties acknowledge that, subsequent to an Applicable Closing, each may need access to the Assets subject to such Applicable Closing and to information, documents or computer data in the control or possession of the other for purposes of concluding the transactions contemplated herein and for audits, investigations, compliance with governmental requirements, regulations and requests, the prosecution or defense of third party claims.  Accordingly, the parties agree that upon prior reasonable notice and during regular business hours they will make available to the other and their agents, independent auditors and/or governmental entities such documents and information as may be available relating to such Assets and will permit the other to make copies of such documents and information at the requesting party's expense, provided that none of the foregoing will interfere with the operation of the Business.

10.3. Real Estate Contract Indemnification.  The parties acknowledge that there may be indemnification rights and claims against the Unrelated Sellers pursuant to the terms of the Real Estate Contracts.  In the event that any such indemnification right or claim under a Real Estate Contract (an "Unrelated Seller Claim") shall arise or accrue in favor of any Adeptus Party at any time hereafter with respect to or affecting any of the Assets or otherwise resulting in any demands, claims, actions, losses, damages, liabilities, penalties, Taxes, costs and expenses (including, without limitation, reasonable attorneys' and accountants' fees, settlement costs, arbitration costs and any reasonable other expenses for investigating or defending any action or threatened action) (collectively, "Unrelated Seller Damages"), Adeptus shall, after notification to MPT, (a) promptly notify the applicable Unrelated Seller of the Unrelated Seller Claim (including all material facts related thereto) and make a claim for indemnity against such Unrelated Seller with respect thereto pursuant to the terms of the applicable Real Estate Contract; (b) promptly notify MPT of any and all material communications, notices or other information, whether written or oral, any of the Adeptus Parties receives with respect to such Unrelated Seller Claim; (c) coordinate with MPT in the exercise of all of the Adeptus Parties' rights with respect to such Unrelated Seller Claim (including, without limitation, the selection, engagement and/or approval of counsel) it being understood and agreed that no Adeptus Party shall take any action with respect to any such Unrelated Seller Claim (except for those actions set forth in clauses (a) and (b) above) without the MPT's prior written consent; (d) account for any amounts received by any Adeptus Party in respect of any such Unrelated Seller Claim; and (e) not take or agree to take any action which would conflict with its obligations to the MPT Parties with respect to such Unrelated Seller Claim pursuant to this Section 10.3 or which would otherwise adversely affect any rights of the MPT Parties with respect to such Unrelated Seller Claim.  MPT shall reasonably cooperate with the Adeptus Parties in connection with any Unrelated Seller Claims, which cooperation shall be at Adeptus' sole cost and expense.  The provisions of this Section 10.3 shall be in addition to any rights or remedies of the MPT Parties provided in Article XIII hereof, and shall survive any termination of this Agreement for a period concurrent with the survival period of any indemnification obligations of the respective Unrelated Sellers under the Real Estate Contracts.

10.4. Joinder of New Projects.  In connection with each New Project, the parties shall add such New Project to this Agreement upon the following terms and conditions:

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(a) a new MPT Lessor and a new Adeptus Lessee shall be joined to this Agreement (each, a "New Party");

(b) the existing MPT Parties and Adeptus Parties, and each New Party shall execute a Joinder Agreement in form to be mutually agreed upon by the parties (each, a "Joinder Agreement"), which shall provide, among other things, that the acquisition, funding and development of the applicable Real Property is subject to the terms, representations, warranties, covenants, conditions and deliveries as set forth in this Agreement; it being further understood and agreed, however, that any such New Parties shall not be required to reaffirm or satisfy the representations, warranties, covenants and conditions with respect to any previously closed Real Property, and all representations, warranties, covenants and conditions relating to any such New Party shall not apply with respect to any previously closed Real Property.

ARTICLE XI

INDEMNIFICATION

11.1. Adeptus Parties' Agreement to Indemnify.

(a) Subject to the limitations set forth in this Article XI, the existing Adeptus Parties, jointly and severally, shall indemnify, defend and hold harmless MPT, the other existing MPT Parties, their Affiliates and their respective officers, managers, members, (general and limited) partners, shareholders, employees, agents and representatives (collectively, the "MPT Indemnified Parties") from and against all demands, claims, actions, losses, damages, liabilities, penalties, taxes, costs and expenses (including, without limitation, attorneys' and accountants' fees, settlement costs, arbitration costs and any reasonable other expenses for investigating or defending any action or threatened action) asserted against or incurred by the MPT Indemnified Parties or any of them arising out of or in connection with or resulting from (i) any breach of, misrepresentation associated with or failure to perform under any covenant, representation, warranty or agreement under this Agreement, the Adeptus Instruments, or the other agreements contemplated hereby or thereby on the part of the existing Adeptus Parties; (ii) any claims asserted against or damages suffered by the MPT Indemnified Parties as a result of any breach by any existing Adeptus Party of its representations, warranties, covenants or obligations under this Agreement; or (iii) any Excluded Liabilities (collectively, "MPT Party Damages"); provided, however, that (A) MPT Party Damages shall not apply to any matters resulting from or caused by the gross negligence or willful misconduct of any MPT Indemnified Party, and (B) the obligations of Adeptus under this Section 11.1(a) with respect to the Master Lease shall exclude any MPT Party Damages arising under the Master Lease, all of which must be pursued against Adeptus (if at all) pursuant to the terms of the Master Lease and the Guaranty.

(b) The indemnification of the MPT Indemnified Parties by the Adeptus Parties provided for under this Article XI as to a particular Real Property shall terminate on the date that is the second (2nd) anniversary after the date of the Applicable Closing of such Real Property (the "MPT Party Indemnity Periods"); provided, however, if a particular Real Property is not Completed (as defined in the applicable Project Funding Agreement) prior to the second anniversary of the applicable Closing Date, such termination date shall be extended for one year following the date of Completion.  The limitation in the preceding sentence shall not apply to

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any MPT Party Damages arising or resulting from (i) any act or omission of the Adeptus Parties which constitutes fraud, (ii) any breach by Adeptus Parties of their respective post‑closing covenants under Sections 10.1,  10.2 or 10.3, or (iii) the Excluded Liabilities.  Notwithstanding the foregoing, the obligations of the Adeptus Parties for indemnification pursuant to this Section 11.1 with respect to any Real Property prior to the Completion thereof shall not in the aggregate exceed the Guaranty Limitation (as defined in the Project Development Agreement for such Real Property), except and to the extent otherwise provided for in the Cost Overrun Guaranty.

11.2. MPT's Agreement to Indemnify.    

(a) Subject to the limitations set forth in this Article XI, the existing MPT Parties shall indemnify, defend and hold harmless Adeptus, the other Adeptus Parties, their respective Affiliates and their respective officers, managers, members, (general and limited) partners, shareholders, employees, agents and representatives (collectively, the "Adeptus Indemnified Parties") from and against all demands, claims, actions, losses, damages, liabilities, penalties, Taxes, costs and expenses (including, without limitation, reasonable attorneys' fees, settlement costs, arbitration costs and any reasonable other expenses for investigating or defending any action or threatened action) asserted against or incurred by any of the Adeptus Indemnified Parties or any of them arising out of or in connection with or resulting from (i) any breach of, misrepresentation associated with or failure to perform under any covenant, representation, warranty or agreement under this Agreement or the other agreements contemplated hereby on the part of any existing MPT Party; or (ii) any claims asserted against or damages suffered by the Adeptus Parties as a result of any breach by any MPT Party its representations, warranties, covenants or obligations under this Agreement (collectively, "Adeptus Damages"); provided, however, that Adeptus Damages shall not apply to any matters resulting from or caused by the gross negligence or willful misconduct of any Adeptus Indemnified Party.

(b) The indemnification of the Adeptus Indemnified Parties by the existing MPT Parties provided for under this Section 11.2 shall terminate on the second (2nd) anniversary of the Applicable Closing (the "Adeptus Indemnity Period").  The limitation in the preceding sentence shall not apply to any Adeptus Damages arising or resulting from (i) any act or omission of any MPT Indemnified Party which constitutes fraud, or (ii) any breach by any MPT Party of its post‑closing covenants under Section 10.3.

11.3. Notification and Defense of Claims.    

(a) A party entitled to be indemnified pursuant to this Article XI (the "Indemnified Party") shall notify the party liable for such indemnification (the "Indemnifying Party") in writing of any claim or demand which the Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement, as soon as possible after the Indemnified Party becomes aware of such claim or demand; provided, that, the Indemnified Party's failure to give such notice to the Indemnifying Party in a timely fashion shall not result in the loss of the Indemnified Party's rights with respect thereto except to the extent the Indemnifying Party is materially prejudiced by the delay.

(b) If the Indemnified Party shall notify the Indemnifying Party of any claim or demand pursuant to the provisions hereof, and if such claim or demand relates to a claim or

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demand asserted by a third party against the Indemnified Party (a "Third Party Claim"), the Indemnifying Party shall have the obligation either (i) to pay such claim or demand, or (ii) defend any such Third Party Claim with counsel reasonably satisfactory to the Indemnified Party.  After the Indemnifying Party has assumed the defense of such Third Party Claim, the Indemnifying Party shall not be liable to the Indemnified Party under this Article XI for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation, provided that the Indemnified Party shall have the right to employ counsel, at the Indemnifying Party's expense, to represent it if (A) in the Indemnified Party's reasonable opinion the Indemnifying Party is not diligently prosecuting the defense of such Third Party Claim, (B) such Third Party Claim involves remedies other than monetary damages and such remedies, in the Indemnified Party's reasonable judgment, could have a Material Adverse Effect on such Indemnified Party, (C) the Indemnified Party may have available to it one or more defenses or counterclaims that are inconsistent with one or more defenses or counterclaims that may be alleged by the Indemnifying Party, or (D) the Indemnified Party believes in its reasonable discretion that a conflict of interest exists between the Indemnifying Party and the Indemnified Party with respect to such Third‑Party Claim or action, and in any such event the reasonable fees and expenses of such separate counsel for the Indemnified Party shall be paid by the Indemnifying Party.  The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party's possession reasonably required by it for its use in contesting any Third‑Party Claim or demand.

(c) No Indemnified Party may settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder without the prior written consent of the Indemnifying Party, unless (i) the Indemnifying Party fails to assume and diligently prosecute the defense of such claim or (ii) such settlement, compromise or consent includes an unconditional release of the Indemnifying Party from all liability arising out of such claim and does not contain any equitable order, judgment or term which includes any admission of wrongdoing or could result in any liability (including regulatory liability) of the Indemnifying Party or which would otherwise in any manner affect, restrain or interfere with the business of the Indemnifying Party or any Affiliate of the Indemnifying Party.  An Indemnifying Party may not, without the prior written consent of the Indemnified Party, settle or compromise any claim or consent to the entry of any judgment with respect to which indemnification is being sought hereunder unless such settlement, compromise or consent includes an unconditional release of the Indemnified Party from all liability arising out of such claim and does not contain any equitable order, judgment or term which includes any admission of wrongdoing or could result in any liability (including regulatory liability) of the Indemnified Party or which would otherwise in any manner affect, restrain or interfere with the business of the Indemnified Party or any of the Indemnified Party's Affiliates.

11.4. Investigations.  The right to indemnification based upon breaches or inaccuracies of representations, warranties and covenants will not be affected by any investigation conducted with respect to, or knowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Applicable Closing Date, whether as a result of disclosure by a party pursuant to this Agreement or otherwise, the accuracy or inaccuracy of or compliance with any such representation, warranty or covenant.  The waiver of any condition based on the accuracy of any representation or warranty, or on the performance

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of or compliance with any covenant, will not affect a party's right to indemnification, payment of damages or other remedies based on such representations, warranties and covenants.

11.5. Exclusive Remedy.  FROM AND AFTER THE APPLICABLE CLOSING, THE PARTIES AGREE AND ACKNOWLEDGE THAT THE INDEMNIFICATION RIGHTS PROVIDED IN THIS ARTICLE XI SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF THE PARTIES TO THIS AGREEMENT FOR BREACHES OF THIS AGREEMENT AND FOR ALL DISPUTES ARISING UNDER OR RELATING TO THIS AGREEMENT AND ANY ADDITIONAL AGREEMENTS OR DOCUMENTS EXECUTED OR DELIVERED IN OR ARISING OUT OF THE TRANSACTIONS CONTEMPLATED HEREBY, EXCEPT FOR POST‑CLOSING COVENANTS, CASES WHERE SPECIFIC PERFORMANCE IS AVAILABLE AS A REMEDY AND EXCEPT IN CASES OF FRAUD.

ARTICLE XII

DISPUTE RESOLUTION

12.1. Governing Law.  EXCEPT AS PROVIDED IN THIS SECTION 12.1, THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS EXECUTED AND PERFORMED IN SUCH STATE, WITHOUT GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES.  NOTWITHSTANDING THE FOREGOING, THE PARTIES HERETO AGREE THAT ALL PROVISIONS OF THIS AGREEMENT OR THE LEASE RELATING TO THE CREATION OF THE LEASEHOLD ESTATE AND ALL REMEDIES RELATING TO THE RECOVERY OF POSSESSION OF ALL OR ANY PORTION OF THE REAL PROPERTY (SUCH AS AN ACTION FOR UNLAWFUL DETAINER OR OTHER SIMILAR ACTION) SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE WHERE THE APPLICABLE PORTION OF THE REAL PROPERTY IS LOCATED.

12.2. Jurisdiction and Venue.  THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THE STATE OF ALABAMA.  EXCEPT AS PROVIDED IN THIS SECTION 12.12, THE PARTIES AGREE THAT ANY ACTION OR PROCEEDING ARISING UNDER THIS AGREEMENT SHALL BE BROUGHT AND TRIED EXCLUSIVELY IN THE STATE OR FEDERAL COURTS LOCATED IN THE STATE OF ALABAMA.  EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT.  FURTHER, THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY CLAIM THAT SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.  SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY CERTIFIED MAIL ADDRESSED TO A PARTY AT THE ADDRESS DESIGNATED PURSUANT TO SECTION 13.2 SHALL BE EFFECTIVE SERVICE OF PROCESS AGAINST SUCH PARTY FOR ANY ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT.  A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT MAY BE ENFORCED IN ANY OTHER COURT TO WHOSE JURISDICTION ANY OF THE PARTIES IS OR MAY BE SUBJECT.  NOTWITHSTANDING THE FOREGOING, THE PARTIES FURTHER AGREE THAT ALL

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ACTIONS AND PROCEEDINGS RELATING TO THE CREATION OF THE LEASEHOLD ESTATE AND ALL REMEDIES RELATING TO THE RECOVERY OF POSSESSION OF ALL OR ANY PORTION OF THE REAL PROPERTY (SUCH AS AN ACTION FOR UNLAWFUL DETAINER OR OTHER SIMILAR ACTION) MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF THE STATE WHERE THE APPLICABLE PORTION OF THE REAL PROPERTY IS LOCATED.

12.3. Waiver of Jury Trial.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF ANY PARTY OR ANY EXERCISE OF ANY PARTY OF THEIR RESPECTIVE RIGHTS HEREUNDER OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE ASSETS (INCLUDING ANY CLAIM OR DEFENSE ASSERTING THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE).  THIS WAIVER IS A MATERIAL INDUCEMENT FOR MPT TO ENTER INTO THIS AGREEMENT.

ARTICLE XIII

MISCELLANEOUS

13.1. Assignment.  Except as expressly permitted herein, this Agreement is not assignable by any party without the prior written consent of the other parties.  Notwithstanding the foregoing, the MPT Parties may at any time and without the consent of Adeptus or any other Adeptus Party assign all of their rights and obligations hereunder to any Person other than any Person whose primary business is the provision of physician‑staffed emergency room or urgent care medical services (a "Non‑Permissible Assignee"); provided, however, that (a) no such assignment shall relieve or release the MPT Parties from their obligations hereunder, and (b) if there shall exist any Event of Default (under and as defined in the Master Lease), the MPT Parties may assign all of their rights and obligations hereunder to any Person, including, without limitation, a Non‑Permissible Assignee.  Notwithstanding the foregoing, so long as no Event of Default (as defined in the Master Lease) is outstanding under the Master Lease, the Adeptus Parties may at any time and without the consent of MPT or any of the MPT Parties assign all or any portion of their respective rights and obligations hereunder to any Person in connection with (i) a Permitted Sale Transaction (as defined in the Master Lease), or (ii) any other transfer (be it by merger, consolidation, sale, assignments or otherwise) of all or substantially all of the assets of Adeptus, so long as following the consummation of such transfer, the assignee of Adeptus is in pro forma compliance with the covenants set forth in Section 16.1(l) of the Master Lease.

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13.2. Notice.  All notices, demands, consents, approvals, requests and other communications required or permitted to be provided under this Agreement shall be in writing (except where specifically stated otherwise herein) and shall be (a) delivered in person, (b) sent by certified mail, return receipt requested, (c) delivered by a recognized delivery service, or (d) sent by facsimile transmission and addressed as follows:

 

 

 

 

 

 

 

 

 

If to any Adeptus

Party:

 

c/o Adeptus Health LLC

2491 S. Lake Vista, Suite 200

Lewisville, Texas  75067

Attn:  Chief Development Officer

Telephone: (972) 899-6666

Facsimile: (972) 899-6664

 

With a copy to:

 

Adeptus Health LLC

2491 S. Lake Vista, Suite 200

Lewisville, Texas  75067

Attn:  Legal Department

Telephone: (972) 899-6666

Facsimile: (972) 899-6664

 

With a copy to:

 

DLA Piper LLP (US)

203 North LaSalle Street, Suite 1900

Chicago, Illinois 60601 1293

Attn:  Merle Teitelbaum Cowin, Esq.

Telephone: (312) 368‑4089

Facsimile:  (312) 630‑7419

 

If to any MPT Party:

 

c/o MPT Operating Partnership, L.P.

1000 Urban Center Drive, Suite 501

Birmingham, AL  35242

Attn:  Legal Department

Telephone: (205) 969‑3755

Facsimile: (205) 969‑3756

 

With a copy to:

 

Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

420 20th Street North, Suite 1400

Birmingham, Alabama  35203

Attn:  Thomas O.  Kolb, Esq.

Telephone: (205) 250‑8321

Facsimile: (205) 488‑3721

 

 

or to such other address as either party may hereafter designate in writing, and shall be effective upon receipt.  A notice, demand, consent, approval, request and other communication shall be deemed to be duly received if delivered in person or by a recognized delivery service, when left at the address of the recipient and if sent by facsimile, upon receipt by the sender of an

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acknowledgment or transmission report generated by the machine from which the facsimile was sent indicating that the facsimile was sent in its entirety to the recipient's facsimile number; provided that if a notice, demand, consent, approval, request or other communication is served by hand or is received by facsimile on a day which is not a Business Day, or after 5:00 p.m. (based upon Birmingham, Alabama time) on any Business Day at the addressee's location, such notice or communication shall be deemed to be duly received by the recipient at 9:00 a.m. (based upon Birmingham, Alabama time) on the first Business Day thereafter.

13.3. Calculation of Time Period.  When calculating the period of time before which, within which or following which any act is to be done or step taken, the date that is the reference date in calculating such period shall be excluded.  If the last day of such period is a non‑Business Day, the period in question shall end of the next succeeding Business Day.

13.4. Captions.  The section and paragraph headings or captions appearing in this Agreement are for convenience only, are not a part of this Agreement, and are not to be considered in interpreting this Agreement.

13.5. Entire Agreement; Modification.  This Agreement, including the Exhibits attached hereto, and other written agreements executed and delivered in connection herewith by the parties, constitute the entire agreement and understanding of the parties with respect to the subject matter of this Agreement.  This Agreement supersedes any prior oral or written agreements between the parties with respect to the subject matter of this Agreement. It is expressly agreed that there are no verbal understandings or agreements which in any way change the terms, covenants, and conditions set forth in this Agreement, and that no modification of this Agreement and no waiver of any of its terms and conditions shall be effective unless it is made in writing and duly executed by the parties.  The parties have not relied upon, and shall not be entitled to rely upon, any prior or contemporaneous agreements, understandings, representations or statements (oral or written) other than this Agreement in effecting the transactions contemplated herein or otherwise.

13.6. Schedules and Exhibits.  All Schedules and Exhibits referred to in this Agreement shall be deemed a part of this Agreement and are hereby incorporated herein by reference.  The statements in the Schedules referred to in this Agreement, and those in any supplement thereto, relate only to the provisions in the Section of this Agreement to which they expressly relate and not to any other provision in this Agreement.  Further, nothing set forth in such Schedule shall be deemed adequate to disclose an exception to a representation or warranty related thereto unless such Schedule identifies the exception with reasonable particularity and describes the relevant facts in reasonable detail.

13.7. Further Assurances.  From time to time after the Applicable Closing and without further consideration, each party shall execute and deliver to the other such instruments of sale, transfer, conveyance, assignment, consent or other instruments as may be reasonably requested in order to carry out the purpose and intent of this Agreement.

13.8. Counterparts.  This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same

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instrument.  Executed signature pages to this Agreement may be delivered by facsimile transmission or by e‑mail and any such signature page shall be deemed an original.

13.9. Expenses.  Adeptus shall be responsible for the payment of all Closing Costs, Pursuit Costs and all other reasonable expenses incurred by the parties in connection with the transactions contemplated hereby; provided, that such costs and expenses with respect to each Real Property shall be included in the budget for each New Project and funded by the MPT Lessors in accordance with the applicable Project Development Agreement.  The parties acknowledge that Adeptus has delivered to MPT an expense deposit in the amount of One Hundred Thousand Dollars ($100,000) (the "Expense Deposit").  At the First Closing, MPT shall refund the Expense Deposit to Adeptus.  The provisions of this Section 13.9 shall survive the termination of this Agreement.

13.10. Public Announcements.  Adeptus and MPT agree that public announcements, if any, concerning the subject matter of this Agreement shall be mutually approved in advance; provided, however, that, notwithstanding any provision hereof to the contrary, but subject to the provisions of the Confidentiality Agreement, without the prior approval of the other party, Adeptus or MPT or their respective Affiliates, may (a) disclose that it has entered into this Agreement and may provide and disclose information regarding this Agreement, the parties to this Agreement, the Master Lease, the Real Property, the Assets and such additional information which such party may reasonably deem necessary, to its proposed investors in connection with a public offering or private offering of securities, or any current or prospective lenders with respect to its financing, and to investors, analysts and other parties in connection with earnings calls and other normal communications with investors, analysts and other parties, (b) release information required to be disclosed pursuant to applicable law, including, without limitation, federal and state securities laws and the rules and regulations of the NYSE or NASDAQ, and (c) include any information in a prospectus, prospectus supplement or other offering circular or memorandum in connection with public or private capital raising or other activities undertaken by such party.

13.11. Right to Specific Performance.  Each of the parties hereto agree that irreparable damage, for which monetary damages (even if available) would not be an adequate remedy, would occur if a party breaches its obligations under this Agreement (including failing to take such actions as are required of it hereunder to consummate the transactions contemplated herein).  Accordingly, each party acknowledges and agrees that the other parties shall be entitled to an injunction, specific performance and other equitable relief to prevent any such breaches of this Agreement and to enforce specifically the terms and provisions hereof, in addition to any other remedy to which they are entitled at law or in equity (including the recovery of damages from the other party), without proving actual damages or posting any bond or other security in connection with any such order or injunction.  Each party agrees that it will not oppose the granting of an injunction, specific performance or other equitable relief on the basis that any other party has an adequate remedy at law or that any award of specific performance is not an appropriate remedy for any reason at law or in equity.

13.12. Binding Effect; No‑Third Party Beneficiaries.  This Agreement shall bind and inure to the benefit of the parties and their successors and assigns; provided, however, that (a) this Agreement shall not inure to the benefit of any assignee pursuant to an assignment which violates the terms of this Agreement and (b) neither this Agreement nor any other agreement

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contemplated in this Agreement shall be deemed to confer upon any Person not a party to this Agreement or such other agreement any rights or remedies contained in this Agreement or such other agreement as a third party beneficiary hereof, thereof, or otherwise.

13.13. Construction.  The parties hereto have participated jointly in the negotiation and drafting of this Agreement.  In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of authorship of any of the provisions of this Agreement.

13.14. Joint and Several Obligations.  Whenever any provision of this Agreement refers to the joint and several liability of parties hereto, the other parties hereto may enforce such provision against any one or more or all of such parties.

 

[Signatures Appear on the Following Pages.]

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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized officers as of the date first written above.

 

 

 

 

MPT:

 

 

 

MPT OPERATING PARTNERSHIP, L.P.

 

 

 

By:

/s/ R. Steven Hammer

 

Name:

R. Steven Hamner

 

Title:

Executive Vice President and CFO

 

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ADEPTUS:

 

 

 

ADEPTUS HEALTH LLC

 

 

 

By:

/s/ Tim Fielding

 

Name:

Tim Fielding

 

Title:

CFO and Treasurer

 

 

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EXHIBIT A

FORM COST OVERRUN GUARANTY

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A-1


 

 

COST OVERRUN GUARANTY

 

THIS COST OVERRUN GUARANTY (this “Guaranty)  is made this         day of                , 201  , by FIRST CHOICE ER, LLC, a Texas limited liability company (“FirstChoice”) [OR, in connection with ACH Facility, ACH Holdco], and ADEPTUS HEALTH LLC, a Delaware limited liability company (“Adeptus” and together with FirstChoice, “Guarantor”), for the benefit of MPT OF                    FCER, LLC, a Delaware limited liability company (together with its permitted successors and assigns, "Owner"):

 

RECITALS:

 

A. Owner owns fee title to the real property located in                   County,               (the “Property”).

 

B. Owner,Guarantor,                               , a                       (“Lessee”), and                 , a                     (“Developer), have entered into that certain Project Funding and Development Agreement, dated as of the date hereof (as the same may be modified, amended or restated from time to time, the “PFDA”), pursuant to which Developer has agreed develop and improve the Property as an approximately                  square foot standalone emergency room facility [or acute care hospital facility] (the “Project”) and Owner has agreed to fund the development and construction of the Project, upon the terms and conditions set forth therein. Capitalized terms that are not otherwise defined in this Guaranty shall have the respective meanings that such terms have in the PFDA.

 

C. Owner and Lessee have joined and become parties to that certain Master Lease Agreement, dated as of, 2014 (as the same may be modified, amended or restated from time to time, the “Master Lease”), pursuant to which Lessee has agreed to lease the Project from Owner, upon the terms and conditions set forth therein.

 

D. As a condition to entering into the PFDA and the Master Lease, Owner requires that Guarantor provide this Guaranty.

 

E. Guarantor is an affiliate of Lessee and will derive substantial economic and other benefits from the development of the Project and the Master Lease.

 

AGREEMENT:

 

For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of the matters described in the foregoing Recitals, which Recitals are incorporated herein and made a part hereof, Guarantor agrees as follows:

1. Guaranty.  Subject to the terms and condition of this Guaranty, Guarantor absolutely, unconditionally and irrevocably guarantees to Owner the following (the Guaranteed Obligations”):

 

 


 

a. the payment to Owner of all Cost Overruns (defined below), such payment to be made to Owner within ten (I 0) days after demand from Owner, provided, however, that at no time shall the aggregate liability of Guarantor for Cost Overruns and for obligations owing under the PFDA exceed the Construction Period Maximum Liability (defined below); and

 

b. the payment of all Enforcement Costs (as defined below). As used in this Guaranty:

 

(i) Cost Overruns”  shall mean the amount, if any, by which the aggregate amount of Actual Development and Construction Costs (defined below) for the Project exceeds the aggregate amount of Budgeted Development and Construction Costs (defined below) for the Project.

 

(ii) Actual Development and Construction Costs”  shall mean the actual out-of-pocket costs and expenses incurred by Owner for construction and development costs (including both hard and soft costs) of the Project in accordance with the PFDA, through Completion, but excluding (x) any Construction Period Accrual, (y) any acquisition costs for the Property, and (z) any Force Majeure Costs (defined below).

 

(iii) Budgeted Development and Construction Costs”  shall mean the Total Funding Amount, less (x) the amount of the Construction Period Accrual (in any) set forth in the Development Budget, and (y) any acquisition costs for the Property.

 

(iv) Construction Period Maximum Liability”  as of any date shall mean the sum of (A) 89.95% of the then incurred Actual Development and Construction Costs for the Project that are properly capitalizable under US GAAP incurred as of such date, minus (B) the sum of (i) any payments previously paid by Guarantor or Master Lessee in connection with the Project which have been future valued at 9.875% to such point in time, and (ii) the present value of any future payments in connection with the Project, discounted at 9.875% , that Guarantor or Master Lessee is obligated to make, but in each case excluding payments that are not required to be included in the calculation of Guarantor's or Master Lessee's maximum guaranty amount under ASC 840-40-55 (EITF 97-10).

 

(v) Force Majeure Costs”  shall mean shall mean (A) all costs and expenses incurred by Owner or Developer to restore the Project in connection with a Force Majeure Event (including (1) all capitalized interest and other collateral costs and carrying costs accruing on such cost necessary to repair and restore damage caused by such Force Majeure Event, and (2) all capitalized interest and other collateral costs and carrying costs accruing as a result of time delays necessary to repair and restore damage caused by such Force Majeure Event) less the amount of all insurance proceeds applied to the restoration of the Project and (B) to the extent the

2


 

Project is not restored following such Force Majeure Event, the reduction, if any, in fair market value of the Project as a result of such Force Majeure Event.

 

(vi) Force Majeure Event"  shall mean the occurrence of one or more events that causes damage to the Project or any portion thereof caused by Owner or Owner's employees, act of God, including fire, floods, tornadoes, hurricanes or any other causes, unless such damage was caused by Guarantor, Master Lessee or any of their respective employees.

 

2. Waiver of Defenses.  Guarantor agrees that the obligations, covenants and agreements of Guarantor under this Guaranty shall not be affected or impaired by any act of Owner, or any event or condition except full performance of the Guaranteed Obligations. Guarantor agrees that, without full performance of the Guaranteed Obligations, the liability of Guarantor hereunder shall not be discharged, and Guarantor waives any defense based on (a) lack of authority or bankruptcy or insolvency of the Owner, Developer, Master Lessee or any other person or entity; (b) any failure of Owner to commence action against the Developer or any other person or entity, or to file or enforce a claim against the estate (either in administration, bankruptcy, or any other proceeding) of Developer or any other person or entity; (c) any election of remedies by the Owner or any other person or entity which destroys or otherwise impairs any subrogation rights of Guarantor or the right of Guarantor to proceed against Developer, Owner or any other person or entity for reimbursement; (d) any failure on the part of the Owner to ascertain the extent or nature of the liability of any person or entity liable for the obligations of Developer under the PFDA, or any failure on the part of Owner or any other person or entity to disclose to Guarantor any material facts affecting the obligations of Developer under the PFDA; (e) any lack of acceptance or notice of acceptance of this Guaranty by Owner; (f) any lack of presentment, demand, protest, or notice of demand, protest, nonpayment or nonperformance with respect to the obligations of Developer under the PFDA; (g) any lack of due diligence by Owner in obtaining reimbursement from any person or entity now or hereafter liable for the obligations of Developer under the PFDA; (h) any deficiency in the ability of Owner to collect from any persons or entities now or hereafter liable for the obligations of Developer under the PFDA; (i) the renewal or extension of time for the payment or performance of the Guaranteed Obligations or any other agreement relating to the Guaranteed Obligations, whether made with or without the knowledge or consent of Guarantor; G) any transfer, waiver, compromise, settlement, surrender or release of the provisions of the PFDA (provided that the PFDA shall not be modified or amended and no Change Order will be approved by Owner without the prior written consent of Guarantor); (k) the existence of any defenses to enforcement of the provisions of the PFDA other than mandatory counter-claims; (1) the existence of any set-off, claim, reduction or diminution of the Guaranteed Obligations, or any defense of any kind or nature, which Guarantor may have against Developer, Owner or any other person or entity or which any party has against Owner; (m) the addition of any and all other indorsers, guarantors, obligors and other persons liable for the payment and performance of the Guaranteed Obligations and the acceptance of any and all other security for the payment and performance of the Guaranteed Obligations; all whether or not Guarantor shall have had notice or knowledge or any act or omission referred to in the foregoing clauses (a) through (m) of this Paragraph. Guarantor intends that Guarantor shall remain liable hereunder as a principal until all Guaranteed Obligations shall have been satisfied in full, notwithstanding any fact, act, event or occurrence which might otherwise operate as a legal or equitable discharge of a surety or guarantor.

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3. Unconditional Liability.  This is a guaranty of payment and performance and not a guaranty of collection. The liability of Guarantor under this Guaranty shall be direct and immediate and not conditional or contingent on the pursuit of any remedies against Developer, Master Lessee or any other person or entity. Upon a default in payment or performance of any of the Guaranteed Obligations, Owner may enforce its rights, powers and remedies under the PFDA or hereunder, in any order, without demand or notice of any kind (except notice and cure periods as may be required by the PFDA), and without exercising any rights or remedies against Developer or any other person or entity, and all such rights, powers and remedies available to the Owner shall be nonexclusive and cumulative of all other available rights, powers and remedies. If any of the Guaranteed Obligations are partially paid or partially performed, for whatever reason, this Guaranty shall remain in full effect, and Guarantor shall remain liable for the entire remaining unpaid or unperformed Guaranteed Obligations.

 

4. Waiver of Exemptions.  Guarantor waives, to the fullest extent permitted by law, all rights to the benefits of any moratorium, reinstatement, marshaling, forbearance, valuation, stay, extension, redemption, appraisement, and exemption now or hereafter provided by any applicable law.

 

5. Enforcement Costs.  If: (i) this Guaranty is placed in the hands of one or more attorneys for collection or is collected through any legal proceeding; (ii) one or more attorneys is retained to represent Owner in any bankruptcy, reorganization, receivership, or other proceedings affecting creditors' rights and involving a claim under this Guaranty or (iii) one or more attorneys is retained to represent Owner in any other proceedings whatsoever in connection with this Guaranty, then Guarantor shall pay to Owner upon demand all reasonable attorneys' fees, costs and expenses, including, without limitation, court costs, filing fees, and all other costs and expenses incurred in connection therewith (all of which are referred to herein as Enforcement Costs), in addition to all other amounts due hereunder.

 

6. Modification of Guaranty.  This Guaranty may not be changed orally and no obligation of Guarantor can be released or waived by Owner except by a writing signed by the Owner. This Guaranty shall be irrevocable by Guarantor until all Guaranteed Obligations have been completely satisfied. This Guaranty shall be reinstated if any payment received Owner from Guarantor is returned or rescinded due to any law relating to bankruptcy, insolvency or other relief of debtors or for any other reason.

 

7. Subrogation.  Until all of the Guaranteed Obligations guaranteed hereunder have been satisfied and discharged in full, (a) Guarantor shall not exercise its right of subrogation and (b) Guarantor waives any right to enforce any remedy which it now has or may hereafter have against Lessee, any other guarantor or any other party to any of the Transaction Documents, or any other documents entered into in connection therewith, and any benefit of, and any right to participate in, any security or other assets now or hereafter held by Owner with respect to the Master Lease, the other Transaction Documents or any other document or instrument entered into in connection therewith.

 

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8. Binding Effect; No Third Party Beneficiaries.  This Guaranty shall bind and inure to the benefit of Owner and its successors and assigns, and Owner's successors and permitted assigns shall be entitled to enforce performance and observance of this Guaranty to the same extent Owner is entitled to do so; provided, however, that (a) this Guaranty shall not inure to the benefit of any assignee pursuant to an assignment which violates the terms of this Guaranty; and (b) this Guaranty shall not be deemed to confer any rights or remedies contained in this Guaranty upon any Person not a party or made subject to this Guaranty (other than Owner).

 

9. Governing Law; Jurisdiction.  This Guaranty and the obligations ansmg hereunder shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to contracts made and performed in such State, without giving effect to conflicts of law principles. To the fullest extent permitted by law, Guarantor hereby unconditionally and irrevocably waives any claim to assert that the law of any other jurisdiction governs this Guaranty. Any legal suit, action or proceeding against Guarantor or Owner arising out of or relating to this Guaranty shall be instituted in any federal or state court in the State of Alabama, and Guarantor waives any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding and hereby irrevocably submits to the jurisdiction of any such court in any suit, action or proceeding.

 

10. Notices.  All notices, demands, consents, approvals, requests and other communications under this Guaranty shall be in writing and shall be either (a) delivered in person, (b) sent by certified mail, return receipt requested, (c) delivered by a recognized delivery service, or (d) sent by facsimile transmission and addressed as follows:

 

 

 

 

Address of Owner:

c/o MPT Operating Partnership, L.P.

 

1000 Urban Center Drive, Suite 501

 

Birmingham, Alabama 35242

 

Fax:

(205) 969-3756

 

Attn:

Legal Department

 

 

 

With a copy to:

Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

 

1400 Wells Fargo Tower

 

420 North 20th Street

 

Birmingham, Alabama 35203

 

Attn:

Thomas O. Kolb, Esq.

 

Fax:

(205) 488-3721

 

 

 

Address of Guarantor:

c/o Adeptus Health LLC

 

2941 S. Lake Vista, Suite 200

 

Lewisville, Texas 75067

 

Attn:

Chief Development Officer

 

Fax:

(972) 899-6664

 

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With copies to:

Adeptus Health LLC

 

2491 S. Lake Vista, Suite 200

 

Lewisville, Texas 75067

 

Attn:

Legal Department

 

Fax:

(972) 899-6664

 

 

 

 

DLA Piper LLP (US)

 

203 N. LaSalle Street, Suite 1900

 

Chicago, Illinois 60601

 

Attn:

Merle Teitelbaum Cowin, Esq.

 

Fax:

(312) 630-7419

 

or to such other address as either party may hereafter designate in writing, and shall be effective upon receipt. A notice, demand, consent, approval, request and other communication shall be deemed to be duly received if delivered in person or by a recognized delivery service, when left at the address of the recipient and if sent by facsimile, upon receipt by the sender of an acknowledgment or transmission report generated by the machine from which the facsimile was sent indicating that the facsimile was sent in its entirety to the recipient's facsimile number; provided that if a notice, demand, consent, approval, request or other communication is served by hand or is received by facsimile on a day which is not a Business Day, or after 5:00 p.m. (based upon Birmingham, Alabama time) on any Business Day at the addressee's location, such notice or communication shall be deemed to be duly received by the recipient at 9:00 a.m. (based upon Birmingham, Alabama time) on the first Business Day thereafter.

 

11. Severability.  Any provision of this Guaranty which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.

 

12. No Waiver.  No failure by any party to insist upon the strict performance of any term of this Guaranty or to exercise any right, power or remedy consequent upon a breach thereof, and no acceptance of full or partial performance under the terms of this Guaranty during the continuance of any such breach, shall constitute a waiver of any such breach or any such term. To the extent permitted by law, no waiver of any breach shall affect or alter this Guaranty, which shall continue in full force and effect with respect to any other then existing or subsequent breach. The parties agree

6

 


 

that no waiver shall be effective hereunder unless it is in writing.

 

13. Tolling of Statute of Limitations.  Any act or circumstance that shall toll any statute of limitations applicable to the Guaranteed Obligations shall also toll the statute of limitations applicable to the liability of Guarantor for the Guaranteed Obligations.

 

14. Assignment.  This Guaranty is not assignable by Guarantor without the prior written consent of Owner. Owner may at any time and without the consent of Guarantor assign all of its rights and obligations hereunder to any other Person in connection with an assignment of the applicable Project Development Agreement in accordance with the terms thereof.

 

15. Necessary Action.  Guarantor and Owner shall perform any further acts and execute and deliver any documents that may be reasonably necessary to carry out the provisions of this Guaranty.

 

16. Joint and Several Obligations.  Adeptus and FirstChoice, each as a Guarantor, shall be jointly and severally liable for all of the liabilities and obligations of the Guarantor under this Guaranty.

 

17. Entire Agreement.  This Guaranty supersedes all prior discussions and agreements among the parties with respect to the subject matter hereof and contains, together with the PFDA and the Master Lease, the entire understanding among the parties with respect to the subject matter hereof. It is expressly agreed that there are no verbal understandings or agreements which in any way change the terms, covenants, and conditions set forth in this Guaranty, and that no modification of this Guaranty and no waiver of any of its terms and conditions shall be effective unless it is made in writing and duly executed by the parties. The parties have not relied upon, and shall not be entitled to rely upon, any prior or contemporaneous agreements, understandings, representations or statements (oral or written) other than this Guaranty in effecting the transactions contemplated herein or otherwise

 

18. Descriptive Headings.  Headings and other similar references are for the purpose of facilitating reference to this Guaranty and do not supplement, limit or otherwise vary the text of this Guaranty.

 

19. References.  References to Sections shall be deemed to refer to the appropriate Sections of this Guaranty. Unless otherwise specified in this Guaranty, the terms "herein," "hereof," "hereunder" and other terms of like or similar import, shall be deemed to refer to this Guaranty as a whole, and not to any particular Section hereof. The term "including" shall mean including, without limitation.

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20. Individual Enforcement.  Owner shall be entitled to enforce this Guaranty and to take any action with respect hereto without any requirement to join any party (other than Guarantor) in any such enforcement or other action.

 

21. Time of Essence.  Time is of the essence with respect to payment and performance of the Guaranteed Obligations.

 

 

 

[Signatures are on the following pages.]

 

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Executed as of the date first written above.

 

 

 

 

 

FIRST CHOICE ER, LLC, a Texas limited liability company

 

 

 

 

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

 

 

 

ADEPTUS HEALTH LLC, a Delaware limited liability company

 

 

 

 

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

 

 

 


 

EXHIBIT B

Form Guaranty

 

 

B-1


 

 

GUARANTY

 

THIS GUARANTY (this Guaranty) is made and entered into as of this                  day of                 , 2014, by ADEPTUS HEALTH LLC, a Delaware limited liability company (Guarantor), for the benefit of MPT OPERATING PARTNERSHIP, L.P., a Delaware limited partnership (MPT), the 2014 Master Lease Lessors (as herein defined) and the 2013 Master Lease Lessors (as herein defined) (MPT, the Lessors and the 2013 Master Lease Lessors, together with their respective permitted successors and permitted assigns, the Beneficiary).

 

W I T N E S S E T H:

 

WHEREAS, Adeptus and MPT are parties to that certain Master Funding and Development Agreement, dated as of                 , 2014, relating to (a) the acquisition and development of multiple parcels of real property and (b) the leasing of such real property by affiliates of MPT (each a 2014 Master Lease Lessor” and collectively the 2014 Master Lease Lessors”) to affiliates of Adeptus (each a 2014 Master Lease Lessee” and collectively the 2014 Master Lease Lessees”) (as the same may be amended, modified, supplemented and restated from time to time, the Master Funding and Development Agreement”);

 

WHEREAS, the 2014 Master Lease_Lessors and the 2014 Master Lease Lessees have entered into that certain Master Lease Agreement, dated as of                 , 2014, relating to the real property that either has been or will be acquired by 2014 Master Lease Lessors pursuant to the Master Funding and Development Agreement (as the same may be amended, modified, supplemented and restated from time to time, the Master Lease”);

 

WHEREAS, certain 2014 Master Lease Lessors and 2014 Master Lease Lessees either have or will enter into a Project Funding and Development Agreement pursuant to the terms of the Master Funding and Development Agreement (as the same may be amended, modified and restated from time to time, the Project Development Agreements”) relating to the development of the Leased Property (as defined in the Master Lease);

 

WHEREAS, certain other 2014 Master Lease Lessors and 2014 Master Lease Lessees may enter into a Purchase and Sale Agreement pursuant to the terms of the Master Funding and Development Agreement (as the same may be amended, modified and restated from time to time, the Hospital Purchase Contracts”) relating to Existing Facility Acquisitions (as defined in the Master Funding and Development Agreement);

 

WHEREAS, Adeptus, First Choice, MPT are also parties to that certain Master Funding and Development Agreement, dated as of June 11, 2013 (as the same has been or may be modified, amended, restated or supplemented from time to time, the 2013 Master Funding and Development Agreement”), together with certain Affiliates of Adeptus (collectively, the 2013 Master Lease Lessees”) and certain Affiliates of MPT (collectively, the 2013 Master Lease Lessors”), relating to

 


 

(a) the acquisition and development of multiple parcels of real property and (b) the leasing of such real property by the 2013 Master Lease Lessors to the 2013 Master Lease Lessees pursuant to that certain Master Lease Agreement, dated as of August 29, 2013 (as the same has been or may be modified, amended, restated or supplemented from time to time, collectively, the 2013 Master Lease”) (the 2013 Master Lease Lessors together with the 2014 Master Lease Lessors shall be referred to herein, collectively, as the Lessors” and the 2013 Master Lease Lessees together with the 2014 Master Lease Lessees shall be referred to herein, collectively, as the Lessees”);

 

WHEREAS, Guarantor directly or indirectly owns equity interests in the Lessees, Guarantor expects to derive direct and indirect benefits (financial and otherwise) from the transactions contemplated under the Master Funding and Development Agreement and the 2013 Master Funding and Development Agreement, and it is and will be to the Guarantor’s advantage to assist the Lessees in connection with such transactions; and

 

WHEREAS, Guarantor desires to guarantee unconditionally the Obligations (as herein defined) upon the terms and conditions hereinafter set forth.

 

NOW, THEREFORE, in consideration of the premises, representations, warranties, mutual covenants and agreements set forth herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Guarantor hereby covenants and agrees as follows:

 

1.

Defined Terms.  The following terms shall have the respective meanings ascribed to them in this Section 1:

 

Affiliate: With respect to any Person (i) any Person that, directly or indirectly, controls or is controlled by or is under common control with such Person, (ii) any other Person that owns, beneficially, directly or indirectly, 10% or more of the outstanding capital stock, shares or equity interests of such Person, or (iii) any officer, director, employee, partner, member, manager or trustee of such Person or any Person controlling, controlled by or under common control with such Person (excluding trustees and persons serving in similar capacities who are not otherwise an Affiliate of such Person). For the purposes of this definition, “control” (including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, through the ownership of voting securities or otherwise.

 

Event of Default: As defined in Section 4.

 

Obligations: All obligations, duties and liabilities of (a) the 2014 Master Lease Lessees under or pursuant to the Master Lease and any Hospital Purchase Contract; (b) the 2013 Master Lessees under or pursuant to the 2013 Master Lease; and (c) any Lessee arising under any and all renewals,

2


 

increases, and substitutions, amendments and extensions of the liabilities or obligations under the Master Lease, the 2013 Master Lease or any Hospital Purchase Contract.

 

Person: An individual, a corporation, a limited liability company, a general or limited partnership, an unincorporated association, a joint venture, a Governmental Body or another entity or group.

 

2.

Guaranty.  Guarantor hereby absolutely, unconditionally and irrevocably guarantees to and for the benefit of Beneficiary, the full and prompt payment, performance and discharge of the Obligations. Upon the occurrence of an Event of Default (as defined herein), Guarantor shall perform or cause Lessees to perform such obligations, as if they constituted the direct and primary obligations of Guarantor. Beneficiary may, in its sole discretion, seek satisfaction of such Obligations from all or any of Lessees and Guarantor. The obligations and liabilities of Guarantor hereunder are continuing, absolute and unconditional, shall not be subject to any counterclaim, recoupment, set-off, reduction or defense based upon any claim that Guarantor may have against Lessees, Lessors or any of their respective Affiliates, officers, directors, members, shareholders, employees, agents and representatives, and shall remain in full force and effect until all of the Obligations guaranteed hereby have been paid, performed and discharged in full, without regard to, and without being released, discharged, impaired, modified or in any way affected by, the occurrence from time to time of the following events, circumstances or conditions, whether or not Guarantor shall have knowledge or notice thereof or shall have consented thereto:

 

(a) the failure or refusal to give notice to Guarantor;

 

(b) the compromise, settlement, release or termination with Lessees of any or all of the obligations, covenants or agreements of Lessee under the Master Lease, the 2013 Master Lease or a Hospital Purchase Contract, or the amendment, modification, restatement or forgiveness of the Master Lease, the 2013 Master Lease or a Hospital Purchase Contract;

 

(c) any consent, extension or indulgence under or in respect of any exercise or non- exercise of any right, remedy, power or privilege under or with respect to any of the Obligations guaranteed hereby;

 

(d) the assignment of the Master Funding and Development Agreement, the Master Lease or the 2013 Master Lease by MPT or any applicable Beneficiary or Lessee (to the extent permitted under the Master Funding and Development Agreement, the Master Lease or the 2013 Master Lease); or

 

(e) the voluntary or involuntary liquidation or dissolution of, sale or other disposition of all or substantially all of the assets of, or the marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, the Beneficiary, Guarantor, Lessee, or any of their respective assets, or any action taken by any trustee or receiver or by any

3


 

court in any such proceeding, or the disaffirmance, rejection or postponement in any such proceeding, of any of the Beneficiary’s, Guarantor’s or Lessee’s covenants, obligations, undertakings or agreements.

 

3.

Representations and Warranties of Guarantor.  Guarantor hereby represents and warrants to Beneficiary that (a) Guarantor has full legal right, power and authority to enter into this Guaranty, to incur the obligations provided for herein, and to execute and deliver the same to Beneficiary; (b) this Guaranty has been duly executed and delivered by Guarantor and constitutes Guarantor’s valid and legally binding obligation, enforceable against Guarantor in accordance with its terms, subject to bankruptcy, insolvency, reorganization, and similar laws affecting the enforcement of creditor’s rights or contractual obligations generally and, as to enforcement, to general principles of equity, regardless of whether applied in a proceeding at law or in equity; (c) no approval or consent of any foreign, federal, state, county, local or other governmental or regulatory body, and no approval or consent of any other Person is required in connection with the execution and delivery by Guarantor of this Guaranty or the consummation and performance by Guarantor of the transactions contemplated hereby (other than consents and approvals that have been obtained); (d) the execution and delivery of this Guaranty and the obligations created hereby have been duly authorized by all necessary proceedings on the part of Guarantor, and will not conflict with or result in the breach or violation of any of the terms or conditions of, or constitute (or with notice or lapse of time or both would constitute) a default under the governing documents of Guarantor, any instrument, contract or other agreement to which Guarantor is a party or by or to which Guarantor or Guarantor’s assets or properties are bound or subject; or any statute or any regulation, order, judgment or decree of any court or governmental or regulatory body; and (e) Guarantor is not a party to or, to the knowledge of Guarantor, threatened in writing with any litigation or judicial, administrative or arbitration proceeding which, if decided adversely to Guarantor, would restrain, prohibit or materially delay the transactions contemplated hereby.

 

4.

Events of Default.  An occurrence of any of the following shall constitute an Event of Default” hereunder:

 

(a) There shall occur an “Event of Default” under and within the meaning of the Master Lease, the 2013 Master Lease or any Hospital Purchase Contract .

 

(b) If Guarantor shall fail, refuse or neglect to perform and discharge fully and timely any of its monetary obligations hereunder and, in the case of a non-monetary failure, such failure, refusal or neglect is not cured by Guarantor within a period of thirty (30) days after receipt by Guarantor of written notice thereof from MPT, unless such failure cannot with due diligence be cured within a period of thirty (30) days (in MPT’s reasonable discretion), in which case such failure shall not be deemed to continue so long as Guarantor commences to cure such failure within the thirty (30) day period and proceeds with due diligence to complete the curing thereof within sixty (60) days after receipt by Guarantor of MPT’s notice of default (or such longer period as is reasonably required in the determination of MPT to effect such cure if Guarantor is diligently proceeding to do so); provided however, in no event shall MPT be required to give more than one (1) notice and cure period for Guarantor’s failure to observe or perform the same (or repetitive) covenant or condition in any consecutive twelve (12) month period.

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5. Remedies.  Upon the occurrence of an Event of Default, the Beneficiary shall have any and all rights and remedies available in law or equity to enforce any failure by Guarantor to fulfill its obligations hereunder. No remedy herein conferred upon or reserved to the Beneficiary hereunder is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every such remedy now or hereafter existing at law or in equity.

 

6. Waiver of Acceptance, Etc.  Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Lessee, and/or Guarantor with respect to the Obligations guaranteed hereunder. Without limiting the other provisions of this Section 6, this Guaranty shall be construed as a continuing, absolute and unconditional guarantee of performance and payment without regard to the validity, regularity or enforceability of any obligations or any other collateral security thereof (if any) or other guarantee thereof (if any) or any other circumstance whatsoever (with or without notice to or knowledge of Guarantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of the obligations of Guarantor under this Guaranty, in bankruptcy or in any other instance, and the obligations and liabilities of Guarantor hereunder shall not be conditioned or contingent upon the pursuit by Beneficiary or any other person at any time of any right or remedy against Lessee, or against any other person (if any) which may be or become liable in respect of all or any part of the obligations or against any collateral security therefor or guarantee thereof or right of offset with respect thereto (if any). This Guaranty is not merely a guarantee of collection and the obligations of Guarantor hereunder are primary and this guarantee constitutes a guarantee of payment.

 

7. Subrogation.  Until all of the Obligations guaranteed hereunder have been satisfied and discharged in full, (a) Guarantor shall not exercise its right of subrogation and (b) Guarantor waives any right to enforce any remedy which Beneficiary now has or may hereafter have against Lessee, or any other guarantor or any other party to the Master Lease, the 2013 Master Lease or any Hospital Purchase Contract , or any other documents entered into in connection therewith, and any benefit of, and any right to participate in, any security or other assets now or hereafter held by Beneficiary with respect to the Master Lease, the 2013 Master Lease, any Hospital Purchase Contract or any other document or instrument entered into in connection therewith.

 

8. Severability.  Any provision of this Guaranty which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.

 

9. No Waiver.  No failure by any party to insist upon the strict performance of any term of this Guaranty or to exercise any right, power or remedy consequent upon a breach thereof, and no acceptance of full or partial performance under the terms of this Guaranty during the continuance of any such breach, shall constitute a waiver of any such breach or any such term. To the extent permitted by law, no waiver of any breach shall affect or alter this Guaranty, which shall continue in full force and effect with respect to any other then existing or subsequent breach. The parties agree that no waiver shall be effective hereunder unless it is in writing.

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10. Tolling of Statute of Limitations.  Any act or circumstance that shall toll any statute of limitations applicable to the Obligations guaranteed hereby shall also toll the statute of limitations applicable to the liability of Guarantor for the Obligations guaranteed by this Guaranty.

 

11. Notices.  All notices, demands, consents, approvals, requests and other communications under this Guaranty shall be in writing and shall be either (a) delivered in person, (b) sent by certified mail, return receipt requested, (c) delivered by a recognized delivery service, or (d) sent by facsimile transmission and addressed as follows:

 

 

 

 

if to either Guarantor:

Adeptus Health LLC
2941 S. Lake Vista, Suite 200
Lewisville, Texas 75067
Attn: Chief Development Officer

 

Phone:

(972) 899-6666

 

Fax:

(972) 899-6664

 

 

With copies to:

Adeptus Health LLC
2491 S. Lake Vista, Suite 200
Lewisville, Texas 75067
Attn: Legal Department

 

Phone:

(972) 899-6666

 

Fax:

(972) 899-6664

 

 

 

DLA Piper LLP (US)
203 North LaSalle Street, Suite 1900
Chicago, Illinois 60601-1293

 

Attn:

Merle Teitelbaum Cowin, Esq.

 

Phone:

(312) 368-4089

 

Fax:

(312) 630-7419

 

 

 

if to any Beneficiary:

c/o MPT Operating Partnership, L.P.
1000 Urban Center Drive, Suite 501
Birmingham, Alabama 35242

 

Attn:

Legal Department

 

Phone:

(205) 969-3755

 

Fax:

(205) 969-3756

 

 

 

With a copy to:

Baker, Donelson, Bearman, Caldwell & Berkowitz, PC
1400 Wells Fargo Tower
420 North 20th Street
Birmingham, Alabama 35203

 

Attn:

Thomas O. Kolb, Esq.

 

Phone:

(205) 250-8321

 

Fax:

(205) 488-3721

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or to such other address as either party may hereafter designate in writing, and shall be effective upon receipt. A notice, demand, consent, approval, request and other communication shall be deemed to be duly received if delivered in person or by a recognized delivery service, when left at the address of the recipient and if sent by facsimile, upon receipt by the sender of an acknowledgment or transmission report generated by the machine from which the facsimile was sent indicating that the facsimile was sent in its entirety to the recipient’s facsimile number; provided that if a notice, demand, consent, approval, request or other communication is served by hand or is received by facsimile on a day which is not a Business Day (as defined in the Master Lease), or after 5:00 p.m. (based upon Birmingham, Alabama time) on any Business Day at the addressee’s location, such notice or communication shall be deemed to be duly received by the recipient at 9:00 a.m. (based upon Birmingham, Alabama time) on the first Business Day thereafter.

 

12. Governing Law.  THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS EXECUTED AND PERFORMED IN SUCH STATE, WITHOUT GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES.

 

13. Jurisdiction and Venue.  GUARANTOR CONSENTS TO PERSONAL JURISDICTION IN THE STATE OF ALABAMA. GUARANTOR AGREES THAT ANY ACTION OR PROCEEDING ARISING FROM OR RELATED TO THIS GUARANTY SHALL BE BROUGHT AND TRIED EXCLUSIVELY IN THE STATE OR FEDERAL COURTS LOCATED IN JEFFERSON COUNTY, ALABAMA. GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT. GUARANTOR EXPRESSLY ACKNOWLEDGES THAT THE STATE OF ALABAMA IS A FAIR, JUST AND REASONABLE FORUM AND AGREE NOT TO SEEK REMOVAL OR TRANSFER OF ANY ACTION FILED BY ANY OF THE OTHER PARTIES IN SAID COURTS. FURTHER, GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY CLAIM THAT SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY CERTIFIED MAIL ADDRESSED TO GUARANTOR AT THE ADDRESS DESIGNATED PURSUANT TO SECTION 11 SHALL BE EFFECTIVE SERVICE OF PROCESS AGAINST GUARANTOR FOR ANY ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT. A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT MAY BE ENFORCED IN ANY OTHER COURT TO WHOSE JURISDICTION ANY OF THE PARTIES IS OR MAY BE SUBJECT.

 

14. Expenses.  The Beneficiary shall be entitled to recover all reasonable costs associated with enforcing the provisions of this Guaranty in the event of a breach hereof by Guarantor, including, without limitation, courts costs and reasonable attorneys’ fees.

 

15. Entire Agreement; Modification.  This Guaranty and other written agreements executed and delivered by the parties in connection with this Guaranty, constitute the entire agreement and

7


 

understanding of the parties with respect to the subject matter of this Guaranty. This Guaranty supersedes any prior oral or written agreements between the parties with respect to the subject matter of this Guaranty. It is expressly agreed that there are no verbal understandings or agreements which in any way change the terms, covenants, and conditions set forth in this Guaranty, and that no modification of this Guaranty and no waiver of any of its terms and conditions shall be effective unless it is made in writing and duly executed by the parties. The parties have not relied upon, and shall not be entitled to rely upon, any prior or contemporaneous agreements, understandings, representations or statements (oral or written) other than this Guaranty in effecting the transactions contemplated herein or otherwise.

 

16. Assignment.  This Guaranty is not assignable by Guarantor without the prior written consent of Beneficiary. Beneficiary may at any time and without the consent of Guarantor assign all of its rights and obligations hereunder to any Person to whom the Master Lease or 2013 Master Lease has been assigned in accordance with the provisions thereof.

 

17. Binding Effect; No Third Party Beneficiaries.  This Guaranty shall bind and inure to the benefit of the parties and their successors and assigns, and the Beneficiary’s permitted successors and permitted assigns shall be entitled to enforce performance and observance of this Guaranty to the same extent Beneficiary is entitled to do so; provided, however, that (a) this Guaranty shall not inure to the benefit of any assignee pursuant to an assignment which violates the terms of this Guaranty, the Master Lease, the 2013 Master Lease or any Hospital Purchase Contract; and (b) this Guaranty shall not be deemed to confer any rights or remedies contained in this Guaranty upon any Person not a party or made subject to this Guaranty (other than any Person which constitutes a Beneficiary).

 

18. Counterparts.  This Guaranty may be executed in counterparts, each of which shall be an original and all of which taken together shall constitute one and the same instrument.

 

19. Necessary Action.  Guarantor and Beneficiary shall perform any further acts and execute and deliver any documents that may be reasonably necessary to carry out the provisions of this Guaranty.

 

20.

Joint Drafting.  Guarantor and Beneficiary and their respective counsel have participated in the drafting and redrafting of this Guaranty and the general rules of construction which would construe any provisions of this Guaranty in favor of or to the advantage of one party as opposed to the other as a result of one party drafting this Guaranty as opposed to the other or in resolving any conflict or ambiguity in favor of one party as opposed to the other on the basis of which party drafted this Guaranty are hereby expressly waived by all parties to this Guaranty.

[Signature appears on following page.]

 

8


 

 

IN WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty as of the date first above written.

 

 

 

 

 

GUARANTOR:

 

 

 

 

 

ADEPTUS HEALTH LLC

 

 

 

 

 

By:

 

Name:

 

Title:

 

 

 


 

EXHIBIT C

Form Master Lease

 

 

C-1


 

 

 

 

 

 

MASTER LEASE AGREEMENT



BY AND AMONG



THE ENTITIES LISTED ON SCHEDULE 1(a) ATTACHED HERETO,

collectively, Lessor



AND



THE ENTITIES LISTED ON SCHEDULE 1(b) ATTACHED HERETO,

collectively, jointly and severally, as Lessee








_____________, 2014

 

 

 


 

Table of Contents

 

 

 

 

 

 

 

Page

Article I

DEFINITIONS

Article II

LEASED PROPERTY; TERM

22 

Article III

RENT

23 

3.1

Rent

23 

3.2

Additional Charges

24 

Article IV

IMPOSITIONS

25 

4.1

Payment of Impositions

25 

4.2

Adjustment of Impositions

25 

4.3

Utility Charges

26 

4.4

Insurance Premiums

26 

Article V

ABSOLUTE NET LEASE; NO TERMINATION; TERMINATION WITH RESPECT TO FEWER THAN ALL FACILITIES

26 

5.1

Absolute Net Lease; No Termination

26 

5.2

Termination with Respect to Fewer than all Facilities

27 

Article VI

OWNERSHIP OF LEASED PROPERTY AND PERSONAL PROPERTY

27 

6.1

Ownership of the Leased Property

27 

6.2

Lessee's Personal Property

27 

Article VII

CONDITION AND USE OF LEASED PROPERTY

27 

7.1

Condition of the Leased Property

27 

7.2

Use of the Leased Property

28 

7.3

Lessor to Grant Easements

30 

Article VIII

LEGAL AND INSURANCE REQUIREMENTS

30 

8.1

Compliance with Legal and Insurance Requirements

30 

8.2

Hazardous Materials

31 

8.3

Healthcare Laws

32 

8.4

Single Purpose Entity

32 

8.5

Organizational Covenants

32 

Article IX

REPAIRS; RESTRICTIONS

33 

9.1

Maintenance and Repair

33 

9.2

Encroachments; Restrictions

33 

Article X

CONSTRUCTION OF LEASED IMPROVEMENTS; CAPITAL ADDITIONS

34 

10.1

Construction of Capital Additions to the Leased Property

34 

10.2

Capital Additions Financed by Lessee

35 

10.3

Capital Additions Financed by Lessor

35 

10.4

Salvage

36 

Article XI

LIENS

36 

Article XII

PERMITTED CONTESTS

36 

12.1

Permitted Contests

36 

Article XIII

INSURANCE

37 

1


 

Table of Contents

(continued)

 

 

 

 

 

 

 

Page

13.1

General Insurance Requirements

37 

13.2

Additional Insurance

40 

13.3

Waiver of Subrogation

40 

13.4

Form of Insurance

40 

13.5

Increase in Limits

41 

13.6

No Separate Insurance

41 

Article XIV

FIRE AND CASUALTY

42 

14.1

Insurance Proceeds

42 

14.2

Reconstruction in the Event of Damage or Destruction Covered by Insurance

42 

14.3

Reconstruction in the Event of Damage or Destruction Not Covered by Insurance

43 

14.4

Lessee's Personal Property

43 

14.5

Restoration of Lessee's Property

43 

14.6

No Abatement of Rent

44 

14.7

Waiver

44 

Article XV

CONDEMNATION

44 

15.1

Parties' Rights and Obligations

44 

15.2

Total Taking

44 

15.3

Partial Taking

44 

15.4

Award Distribution

45 

Article XVI

DEFAULT

45 

16.1

Events of Default

45 

16.2

Additional Expenses

52 

16.3

No Waiver by Lessor

52 

16.4

Waiver of Statutory Rights

52 

Article XVII

LESSOR'S RIGHT TO CURE

52 

Article XVIII

PURCHASE OF THE LEASED PROPERTY

53 

Article XIX

HOLDING OVER

53 

Article XX

RISK OF LOSS

54 

Article XXI

INDEMNIFICATION

54 

Article XXII

ASSIGNMENTS AND SUBLEASING

55 

22.1

Assignment and Subleasing

55 

22.2

Sublease Limitations

56 

22.3

Sublease Subordination and Non‑Disturbance

56 

Article XXIII

OFFICER'S CERTIFICATES; FINANCIAL STATEMENTS; NOTICES AND OTHER CERTIFICATES

57 

Article XXIV

INSPECTION

59 

Article XXV

NO WAIVER

59 

Article XXVI

REMEDIES CUMULATIVE

59 

 

2


 

Table of Contents

(continued)

 

 

 

 

 

 

Page

Article XXVII

SURRENDER

60 

Article XXVIII

NO MERGER OF TITLE

60 

Article XXIX

TRANSFERS BY LESSOR; LESSOR SEVERANCE RIGHTS

60 

29.1

Transfers by Lessor

60 

29.2

Severance Rights

61 

Article XXX

QUIET ENJOYMENT

61 

Article XXXI

NOTICES

62 

Article XXXII

APPRAISAL

63 

Article XXXIII

PURCHASE RIGHTS

64 

33.1

Lessee's Option to Purchase

64 

33.2

Lessor's Option to Purchase Lessee's Personal Property

64 

Article XXXIV

SUBSTITUTION RIGHTS

65 

34.1

Lessee's Property Substitution Right

65 

34.2

Conditions Precedent to Lessee's Property Substitution Right

65 

34.3

Procedures for Property Substitution

66 

34.4

Lessor Costs

67 

Article XXXV

FINANCING OF THE LEASED PROPERTY

67 

Article XXXVI

RESERVED

68 

Article XXXVII

LICENSES AND COMPLIANCE WITH HEALTHCARE LAWS

68 

37.1

Maintenance of Licenses

68 

37.2

No Transfers or Alterations of Licenses

68 

37.3

Termination of Lease or Possession

69 

37.4

Material Condition of Lease

69 

Article XXXVIII

MISCELLANEOUS

70 

38.1

General

70 

38.2

Bankruptcy Covenants and Waivers

70 

38.3

Lessor's Expenses

71 

38.4

Entire Agreement; Modifications

71 

38.5

Lessor Securities Offering and Filings

72 

38.6

Non‑Recourse as to Lessor

72 

38.7

Covenants, Restrictions and Reciprocal Easements

72 

38.8

Force Majeure

72 

38.9

Management Agreements

73 

38.10

Non‑Competition

73 

38.11

Governing Law

73 

38.12

Jurisdiction and Venue

74 

38.13

Future Intercreditor Agreements and Subordination Agreements

74 

38.14

Letter of Credit

75 

38.15

True Lease

75 

38.16

Representations and Covenants relating to Certain Facilities

76 

38.17

Compliance with Anti‑Terrorism Laws

76 

38.18

Electronically Transmitted Signatures

76 

3


 

Table of Contents

(continued)

 

 

 

 

 

 

 

Page

38.19

Waiver of Jury Trial

76 

38.20

Joint and Several Obligations

76 

38.21

Counterparts

77 

38.22

Specific Performance

77 

38.23

Continuation of Defaults

77 

38.24

Survival

77 

38.26

Joint Drafting

77 

Article XXXIX

MEMORANDUM OF LEASE

77 

 

 

 

 

 

 

4


 

 

 

MASTER LEASE Agreement

THIS MASTER LEASE AGREEMENT (this "Lease") is dated as of ______________, 2014, and is by and among the entities listed on Schedule 1(a) attached hereto and made a part hereof by reference and incorporation (collectively, the "Lessor"), having their principal office at 1000 Urban Center Drive, Suite 501, Birmingham, Alabama 35242, and the entities listed on Schedule 1(b) attached hereto and made a part hereof by reference and incorporation (collectively, jointly and severally, the "Lessee"), having their principal office at 2941 S. Lake Vista, Suite 200, Lewisville, Texas  75067.

STATEMENT OF INTENT

Subject to Articles V,  XIV,  XV,  XXIX,  XXXIII and Section 16.1, this Lease constitutes one unitary, indivisible, non‑severable true lease of all the Leased Property.  This Lease does not constitute separate leases contained in one document each governed by similar terms.  The use of the expression "unitary lease" to describe this Lease is not merely for convenient reference.  It is the conscious choice of a substantive appellation to express the intent of Lessor and Lessee in regard to an integral part of this transaction, which is to accomplish the creation of an indivisible lease.  Lessor and Lessee agree that from an economic point of view the portions of the Leased Property leased pursuant to this Lease constitute one economic unit and that the Rent and all other provisions have been negotiated and agreed to be based upon a lease of all the portions of the Leased Property as a single, composite, inseparable transaction.  Except as expressly provided in this Lease for specific isolated purposes (and in such cases only to the extent expressly so stated), all provisions of this Lease, including definitions, commencement and expiration dates, rental provisions, use provisions, renewal provisions, breach, default, enforcement, termination and assignment and subletting provisions, shall apply equally and uniformly to all the Leased Property as one unit and are not severable.  The economic terms of this Lease would have been substantially different had separate leases or a "divisible" lease been acceptable to Lessor.  An Event of Default of any of the terms or conditions of this Lease occurring with respect to any portion of the Leased Property relating to a particular Facility shall constitute an Event of Default under this Lease with respect to all the Leased Property.  Except as expressly provided in this Lease for specific isolated purposes (and in such cases only to the extent expressly so stated), Lessor and Lessee agree that the provisions of this Lease shall at all times be construed, interpreted and applied such that the intention of Lessor and Lessee to create a unitary lease shall be preserved and maintained.  Lessor and Lessee agree that for the purposes of any assumption, rejection or assignment of this Lease under 11 U.S.C. Section 365 or any amendment or successor section thereof, this is one indivisible and non‑severable lease dealing with and covering one legal and economic unit which must be assumed, rejected or assigned as a whole with respect to all (and only all) the Leased Property.

W I T N E S S E T H:

WHEREAS, pursuant to the Master Funding and Development Agreement, dated as of ___________, 2014, initially between Adeptus Health LLC, a Delaware corporation ("Adeptus"), and MPT Operating Partnership, L.P., a Delaware limited partnership ("MPT"), Lessor, an affiliate

 

 


 

 

 

of MPT, and Lessee, an affiliate of Adeptus, have agreed to lease a certain parcel of Land (as hereinafter defined), along with Leased Improvements (as hereinafter defined) relating thereto, pursuant to this Lease;

WHEREAS, each FCER Facility Lessee (as hereinafter defined) has been or will be formed as a wholly owned subsidiary of First Choice ER, LLC, a Texas limited liability company ("First Choice"), in order to lease and operate a separate Facility (as hereinafter defined) on the Leased Property (as hereinafter defined);

WHEREAS, each ACH Facility Lessee (as hereinafter defined) has been or will be formed as a wholly-owned subsidiary of ACH Holdco (as hereinafter defined) in order to lease and operate a separate ACH Facility (as hereinafter defined) and ACH Remote Facilities (as hereinafter defined) related thereto on the Leased Property;

WHEREAS, it is intended that in the future Affiliates of Lessee will be formed as wholly owned subsidiaries of First Choice or ACH Holdco in order to lease and operate additional Facilities on the Leased Property;

WHEREAS, in certain instances, the Leased Improvements will be developed and constructed in accordance with the Project Development Agreements (as hereinafter defined), while other Leased Improvements will have been completed at the time the same become subject to this Lease;

WHEREAS, Lessor desires to lease the Leased Property to Lessee and Lessee desires to lease the Leased Property from Lessor, upon the terms and conditions hereinafter provided; and

WHEREAS, it is the desire and intent of the parties that any and all existing and future indebtedness, obligations and liabilities of Adeptus and its Affiliates to or in favor of any of MPT, Lessor or any of their respective Affiliates (whether now existing or hereafter formed) shall be cross-defaulted and cross-collateralized to the indebtedness, obligations and liabilities under and in accordance with the Master Funding and Development Agreement, this Lease and the 2013 Master Funding Obligation Documents (as hereinafter defined).

NOW, THEREFORE, the parties agree as follows:

ARTICLE I

DEFINITIONS

For all purposes of this Lease, except as otherwise expressly provided or unless the context otherwise requires, (a) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular, (b) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP at the applicable time, (c) all references herein to Articles, Sections, Schedules, parties and Exhibits shall be deemed to refer to Articles, Sections and Schedules of, and parties and Exhibits to, this Lease, unless the context shall

2

 


 

 

 

otherwise require, and (d) the words "herein," "hereof," "hereunder" and other words of similar import refer to this Lease as a whole and not to any particular Article, Section or other subdivision.

2013 Master Funding Obligation Documents:  Collectively, (a) that certain Master Funding and Development Agreement, dated as of June 11, 2013 (the "2013 Master Funding Agreement"), by and among Adeptus and certain of its Affiliates, and MPT and certain of its Affiliates, (b) that certain Master Lease Agreement, dated as of August 29, 2013 (the "2013 Master Lease"), by and among certain Affiliates of Adeptus and certain Affiliates of MPT, and (c) all other project development agreements, security agreements, guarantees, cost overrun guarantees and other documents, agreements, amendments and joinders executed in connection with transactions contemplated under the 2013 Master Funding Agreement, in each case, as any of the same have been or may hereafter be modified, amended, restated or supplemented from time to time.

ACH Facility:  A general acute care hospital facility operated on the Leased Property, or a portion thereof, licensed in the state of its location, which hospital may be part of a Provider Based Network (as herein defined).

ACH Facility Lessee:  A lessee of Leased Property on which an ACH Facility or an ACH Remote Facility is operated.

ACH Holdco:  An entity that will be a wholly-owned subsidiary of Adeptus and which will own the ACH Facility Lessees.

ACH Remote Facility:  A free-standing emergency medical facility operated on the Leased Property, or a portion thereof, and which is part of a Provider Based Network.

Acquisition Date:  With respect to each Facility, the date of acquisition of the parcel of the Land and any existing improvements relating thereto in accordance with the Master Funding and Development Agreement or Hospital Purchase Contract, as applicable.  In connection with the any existing ACH Facility added to this Lease pursuant to a Distressed Facility Agreement (as herein defined), the "Acquisition Date" shall mean the closing date under the applicable Distressed Facility Agreement.

Addendum:  An Addendum/Joinder which will be entered into by an Affiliate of Lessor, an Affiliate of Lessee and all entities then constituting Lessor and Lessee, at the time an additional parcel of Land is made subject to this Lease in accordance with the Master Funding and Development Agreement.

Additional Charges:  As defined in Section 3.2.

Adeptus:  Adeptus Health LLC, a Delaware limited liability company.

Adjustment Date:  Each January 1 during the Term (as hereinafter defined), commencing on January 1, 2016.

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Affiliate:  With respect to any Person (i) any Person that, directly or indirectly, controls or is controlled by or is under common control with such Person, (ii) any other Person that owns, beneficially, directly or indirectly, 10% or more of the outstanding capital stock, shares or equity interests of such Person, or (iii) any officer, director, employee, partner, member, manager or trustee of such Person or any Person controlling, controlled by or under common control with such Person (excluding trustees and persons serving in similar capacities who are not otherwise an Affiliate of such Person).  For the purposes of this definition, "control" (including the correlative meanings of the terms "controlled by" and "under common control with"), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, through the ownership of voting securities or otherwise.

AIREA:  The American Institute of Real Estate Appraisers, or any successor organization.

Allocated Base Rent:  As defined in Section 3.1(a).

Allocated Lease Base:  With respect to each Facility (other than Existing ACH Facilities), the portion of aggregate Lease Base relating thereto, as defined on Schedule 3.1(a), and with respect to each Existing ACH Facility), the portion of aggregate Lease Base relating thereto, as defined on Schedule 3.1(b), in each case, plus or minus any adjustments as Lessor and Lessee may agree to from time to time.

Anti‑Terrorism Laws:  Any laws, statutes and regulations relating to terrorism or money laundering, including Executive Order No. 13224 (effective September 24, 2001), the Patriot Act, the laws, statutes and regulations comprising or implementing the Bank Secrecy Act, and the laws, statutes and regulations administered by OFAC.

Award:  All compensation, sums or anything of value awarded, paid or received on a total or partial Condemnation.

Bankruptcy Code:  Chapter of 11 U.S.C. § 101, et seq.

Base Rent:  At any time, the total Allocated Base Rent payable with respect to all Facilities for any applicable period.

Blocked Person:  Any Person:  (a) listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224, (b) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224, (c) a Person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti‑Terrorism Law, (d) a Person that commits, threatens or conspires to commit or supports "terrorism" as defined in Executive Order No. 13224, or (e) a Person that is named a "specially designated national" or "blocked person" on the most current list published by OFAC or other similar list.

4

 


 

 

 

Business:  As applicable, the operation of the FSE Facilities and ACH Remote Facilities as free-standing emergency medical facilities and the operation of the ACH Facilities as general acute care hospital facilities and, in each case, the engagement in and pursuit and conduct of any business venture or activity related thereto.

Business Day:  Each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which money centers in the New York, New York are authorized or obligated by law or executive order to close.

Capital Additions:  With respect to each Facility, (a) non‑routine renovations or expansions of buildings, structures or other improvements currently located on that portion of the Leased Property where such Facility is located (or on additional parcels added to such Leased Property), (b) the addition of one or more parcels of land to such portion of the Leased Property (whether by purchase or ground lease), or (c) the addition of one or more new buildings or additional structures placed on such portion of the Leased Property or any such additional parcels of land, including, without limitation, the construction of a new wing or new story.

Capital Addition Cost:  With respect to each Facility, the cost of any Capital Additions proposed to be made by Lessee whether or not paid for by Lessee or Lessor.  Such cost shall be designated and limited pursuant to a schedule to be agreed upon by the parties prior to commencement of construction of any Capital Addition.

Cash Collections:  Any and all payments received for patient related services that are posted to Lessee's accounting system for a Facility, including, without limitation, any such payments received from patients, insurance companies, managed care and preferred provider organizations, or other payors.

CERCLA:  As defined in the definition of "Hazardous Materials Laws."

Certificate of Occupancy:  With respect to each applicable Facility, the certification or other governmental authorization issued by the applicable Governmental Body authorizing the occupancy and operation of the portion of the Leased Property relating to such Facility, which certification may be subject to certain conditions, so long as occupancy is permitted.

Change of Control Transaction:  Any transaction, the consummation of which results in (a) Adeptus ceasing to own, directly or indirectly, at least One Hundred Percent (100%) of the Equity Interests of First Choice or ACH Holdco; (b) First Choice ceasing to own, directly or indirectly, at least Fifty-One Percent (51%) of the Equity Interests of any FCER Facility Lessee; or (c) ACH Holdco ceasing to own, directly or indirectly, at least Fifty-One Percent (51%) of the Equity Interests of any ACH Facility Lessee, in each case, without the prior written consent of Lessor, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that "Change of Control Transaction" shall not include any Permitted Sale Transaction (as hereinafter defined).  For the avoidance of doubt, the entering into of a written agreement (unless the agreement is conditioned on MPT's approval or will not close until after the expiration of the Term) or the granting of an option

5

 


 

 

 

to acquire the Equity Interests of First Choice, ACH Holdco or any Facility Lessee, or the issuance of debt convertible into the Equity Interests of First Choice, ACH Holdco or any Facility Lessee shall be deemed to be the issuance of Equity Interests for purposes of determining whether a Change of Control Transaction has occurred.

Code:  The Internal Revenue Code of 1986, as amended.

Combined Lease Payments:  For any period, the sum of the payment obligations of all Combined Lessees under all leases for real property, including, without limitation, this Lease, the 2013 Master Lease and any intra‑company leases for real property; provided, however, that payment obligations with respect to any Facility Lessee (other than a Facility Lessee that operates an Existing ACH Facility) will not be included until the first calendar month after such Facility has been open for business for six (6) months.

Combined Lessees:  Collectively, for any period, the Facility Lessees under this Lease, the "Facility Lessees" under and as defined in the 2013 Master Lease, and any other Affiliate(s) of Adeptus that becomes a lessee under a lease agreement(s) hereafter entered into with any Affiliate of MPT.

Commencement Date:   ______________, 2014.

Completion:  The terms "completion," "complete construction," "completion of construction" and similar phrases mean, with respect to the portion of the Leased Property relating to each Facility (other than an Existing ACH Facility), such time as Lessor receives (i) written certification from the Architect (as defined in the Project Development Agreement for such Facility) that the construction of such portion of the Leased Improvements has been substantially completed in accordance with the Plans and Specifications (as defined in the Project Development Agreement for such Facility) therefor, which certificate shall be in form and substance reasonably satisfactory to Lessor and shall include the written approval of Lessor's construction inspector noted thereon, and (ii) Lessor has received the Certificate of Occupancy for such portion of the Leased Property; provided, however, that for purposes of determining whether the Rent Commencement Date has occurred with respect to any Facility (other than an Existing ACH Facility), Lessor may waive either of these requirements in writing in its sole discretion and, if such waiver is delivered, "Completion" for purposes of such Rent Commencement Date shall mean the date of issuance of the Certificate of Occupancy.

Completion Date:  With respect to each Facility (other than an Existing ACH Facility), the date of Completion of the Leased Improvements relating to such Facility.

Condemnation:  Either (a) the exercise of any governmental power, whether by legal proceedings or otherwise, by a Condemnor or (b) a voluntary sale or transfer by Lessor to any Condemnor, either under threat of Condemnation or while legal proceedings for Condemnation are pending, in all of the foregoing cases with respect to any portion of the Leased Property.

Condemnor:  Any public or quasi‑public authority, or private corporation or individual, having the power of Condemnation.

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Consolidated Cash Flow:  For any period, for Adeptus and its subsidiaries on a consolidated basis, an amount equal to the sum of (a) consolidated EBITDA for such period, minus (b) income taxes paid in cash during such period, minus (c) tax distributions made during such period, minus (d) management fees during such period.

Consolidated Fixed Charge Coverage Ratio:  As of any date of determination, the ratio of (a) Consolidated Cash Flow for the four calendar quarters most recently ended to, (b) Consolidated Fixed Charges for the four calendar quarters most recently ended.

Consolidated Fixed Charges:  For any period, for Adeptus and its subsidiaries on a consolidated basis, an amount equal to the sum of (a) the cash portion of consolidated interest charges for such period, plus (b) consolidated maintenance capital expenditures for such period, plus (c) consolidated scheduled funded debt payments for such period.

Construction Period:  With respect to each Facility (other than an Existing ACH Facility), that period of time commencing on the applicable Acquisition Date and ending on the last day of the calendar month during which the Completion Date shall occur.

Construction Period Accrual:  With respect to each Facility (other than an Existing ACH Facility), an amount equal to the product of (a) the amount all hard and soft costs funded in accordance with the Development Budget for the acquisition of the Land and the development of the Leased Improvements, multiplied on a per diem basis by (b) the Lease Rate (based upon a 360‑day year), with such product being compounded on an annual basis during the Construction Period.

Cost Overrun Guaranty:  With respect to each Facility (other than an Existing ACH Facility), that certain Cost Overrun Guaranty executed by Adeptus in favor of MPT and the applicable Facility Lessor, as the same may be modified, amended or restated from time to time.

CPI:  The Consumer Price Index, all urban consumers, all items, U.S. City Average, published by the United States Department of Labor, Bureau of Labor Statistics, in which 1982‑1984 equals one hundred (100).  If the Consumer Price Index is discontinued or revised during the term of this Lease, such other governmental index or computation with which it is replaced shall be used in order to obtain substantially the same result as would be obtained if the Index had not been discontinued or revised.

Credit Enhancements:  Such documents, instruments and agreements (including without limitation, security agreements, non‑competition agreements and guarantees) executed and delivered to Lessor as shall be necessary to provide Lessor with comparable rights, credit enhancements and security as are provided in the Other Agreements and the Letter of Credit, as determined in Lessor's reasonable discretion.

Date of Taking:  The date the Condemnor has the right to possession of the property being condemned.

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Declarations:  As defined in Section 38.7.

Developer:  With respect to each applicable Facility, the "Developer" under and as defined in the applicable Project Development Agreement.

DHHS:  As defined in Section 37.1.

Distressed Facility Agreement:  As defined in the Master Funding and Development Agreement.

EBITDA:  For any period, for Adeptus and its subsidiaries on a consolidated basis, earnings before the deduction of interest, taxes, depreciation and amortization, plus, to the extent deducted in calculating such earnings, (a) expenses incurred during such period to the extent the same have been reimbursed in cash during such period by a third party (other than Adeptus or any subsidiary), and (b) fees and expenses incurred during such period relating to pre-opening activities, stock compensation, advisory service fees and expenses paid to Sterling Fund Management LLC and fees and expenses incurred as part of an initial public offering, as all of the items described in this term are determined in accordance with GAAP.

EBITDAR:  For any period, for all the Combined Lessees on a consolidated basis, earnings before the deduction of interest, taxes, depreciation and amortization and rent, plus, to the extent deducted in calculating such earnings, (a) expenses incurred during such period to the extent the same have been reimbursed in cash during such period by a third party (other than Adeptus or any subsidiary), and (b) fees and expenses incurred during such period relating to pre-opening activities, stock compensation, advisory service fees and expenses paid to Sterling Fund Management LLC and fees and expenses incurred as part of an initial public offering, as all of the items described in this term are determined in accordance with GAAP; provided, that the earnings of a Facility Lessee relating to any Facility, other than an Existing ACH Facility, will not be included until the first calendar month after such Facility has been open for business for six (6) months.

Encumbrance:  As defined in Article XXXV.

Environmental Indemnification Agreement:  That certain Environmental Indemnification Agreement, dated as of the date hereof, by Adeptus and each Facility Lessee in favor of Lessor, as the same may be modified, amended or restated from time to time. 

Equity Constituents:  With respect to any Person, as applicable, the members, general or limited partners, shareholders, stockholders or other Persons, however designated, who are the owners of the issued and outstanding equity or ownership interests of such Person.

Equity Interests:  With respect to any Person, the voting power, ownership, or other equitable interests of such Person, including any interest represented by any capital stock, convertible or participating debt instruments, membership interest, partnership interest, or any similar interest therein.

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Escalator:  As defined in Section 3.1(b).

Escrow Invoice:  As defined in Section 3.2.

Events of Default:  As defined in Section 16.1.

Existing ACH Facility:  An ACH Facility that is existing and operational at the time the corresponding real property is made subject to this Lease in accordance with the Master Funding and Development Agreement.

Extension Notice:   As defined in Article II.

Extension Term(s):   As defined in Article II.

Facility:  Each of the FSE Facilities, ACH Facilities and ACH Remote Facilities listed on Schedule 1(c), and, once joined or added hereto, each additional FSE Facility, ACH Facility or ACH Remote Facility to be located on additional parcels of Land that are made subject to this Lease pursuant to an Addendum, sometimes collectively referred to as the “Facilities.”

[_______ Facility:  That certain ___________ (____)-licensed bed ACH Facility located in __________, _________ County, _______.]

[_________ Facility:  That certain FSE Facility located in __________, _________ County, _______.]

Facility Instrument:  A note (whether secured or unsecured), loan agreement, credit agreement, guaranty, security agreement, mortgage, deed of trust or other agreement pursuant to which a Facility Lender has provided financing to Lessor in connection with any portion of the Leased Property or any part thereof, or financing provided to Lessee, if such financing is provided by Lessor or any Affiliate of Lessor or in connection with a Capital Addition, and any and all renewals, replacements, modifications, supplements, consolidations, spreaders and extensions thereof.

Facility Lender:  A holder (which may include any Affiliate of Lessor) of any Facility Instrument.

Facility Lender SNDA:  As defined in Article XXXV.

Facility Lessee:  The individual lessee which operates a particular Facility.  A Facility Lessee shall be either a FCER Facility Lessee or an ACH Facility Lessee.  For the avoidance of doubt, all of the Facility Lessees are referred to collectively as Lessee.

Facility Lessor:  The individual lessor which owns and leases a particular Facility.  For the avoidance of doubt, all of the Facility Lessors are referred to collectively as Lessor.

Facility Loan:  A loan made by a Facility Lender.

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Fair Market Added Value:  With respect to each Facility, the Fair Market Value of the portion of the Leased Property relating to such Facility, including all Capital Additions with respect thereto, less the Fair Market Value of such portion of the Leased Property determined as if no Capital Additions paid for by Lessee had been constructed with respect thereto.

Fair Market Value:  With respect to each Facility, the Fair Market Value of the portion of the Leased Property relating to such Facility, including all Capital Additions with respect thereto, (a) as shall be determined in accordance with the appraisal procedures set forth in Article XXXII or in such other manner as shall be mutually acceptable to Lessor and Lessee, and (b) which shall not take into account any reduction in value resulting from any damage, destruction or condemnation of any part of such portion of the Leased Property or any indebtedness to which such portion of the Leased Property is subject and which encumbrance Lessee or Lessor is otherwise required to remove pursuant to any provision of this Lease or agrees to remove at or prior to the closing of the transaction as to which such Fair Market Value determination is being made.  With respect to each Facility and notwithstanding anything contained in this Lease to the contrary, any appraisal of the portion of the Leased Property relating thereto shall assume the Lease is in place for a term of fifteen (15) years, shall not take into account any purchase options and shall not take into account any closing costs customarily paid by either purchaser or seller.

Fair Market Value Purchase Price:  With respect to each Facility, the Fair Market Value of the portion of the Leased Property relating thereto, less the Fair Market Added Value with respect to such portion of the Leased Property.

FCER Facility Lessee:  A Facility Lessee of a Leased Property on which an FSE Facility is operated.

Final Completion Date:  The later of (a) the date of Completion of construction of the Leased Improvements on the final parcel of land to be acquired and developed in accordance with the Master Funding and Development Agreement, or (b) the date of acquisition of the final parcel of real property relating to an Existing ACH Facility, in either case, to be added to the Leased Property hereunder.

Financial Statements:  For any fiscal year or other accounting period for Lessee or Guarantor balance sheets, statements of operations and capital accounts, and statements of cash flows setting forth in comparative form the corresponding figures for the year‑earlier fiscal period, all prepared in accordance with GAAP.

First Choice:  As defined in the Recitals hereof.

Fixed Term:  As defined in Article II.

Fixtures:  All equipment, machinery, fixtures, and other items of real property, including all components thereof, now and hereafter located in, on, or used in connection with, and that are in each case permanently affixed to or incorporated into the buildings and structures on the Land, including, without limitation, all permanently affixed furnaces, boilers, heaters, electrical equipment,

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heating, plumbing, lighting, ventilating, refrigerating, incineration, air and water pollution control, waste disposal, air‑cooling and air‑conditioning systems and apparatus, sprinkler systems and fire and theft protection equipment, and built‑in oxygen and vacuum systems, all of which, to the greatest extent permitted by law, are hereby deemed by the parties to constitute real estate, together with all replacements, modifications, alterations and additions thereto.

Force Majeure:  As defined in Section 38.8.

FSE Facility:  A free-standing emergency medical facility operated on the Leased Property, or a portion thereof, licensed in the state of its location, but which is not a part of a Provider Based Network.

FSFC:  Fifth Street Finance Corp., a Delaware corporation, as administrative agent for itself and other lenders.

Full Replacement Cost:  As defined in Section 13.1.

GAAP:  The United States generally accepted accounting principles and practices as in effect from time to time and applied consistently throughout the periods involved.

Governmental Body:  Any United States federal, state or local government, political subdivision, governmental, regulatory or administrative authority, instrumentality, agency body or commission, self‑regulatory organization, court, tribunal or judicial or arbitral body, including the Securities and Exchange Commission.

Guarantor:  Adeptus and its successors and assigns.

Guaranty:  That certain Guaranty, dated as of the date hereof, executed and delivered by the Guarantor in favor of Lessor, as the same may be amended, modified and/or restated from time to time.

Hazardous Materials:  Any substance, including without limitation, asbestos or any substance containing asbestos and deemed hazardous under any Hazardous Materials Law, the group of organic compounds known as polychlorinated biphenyls, flammable explosives, radioactive materials, infectious wastes, biomedical and medical wastes, chemicals known to cause cancer or reproductive toxicity, pollutants, effluents, contaminants, emissions or related materials, and any items included in the definition of hazardous or toxic wastes, materials or substances under any Hazardous Materials Laws.

Hazardous Materials Laws:  Each federal, state and local law and regulation relating to pollution, protection, or preservation of human health or the environment, including ambient air, surface water, ground water, land surface or subsurface strata, and natural resources, and including each law and regulation relating to emissions, discharges, releases or threatened releases of Hazardous Materials, or otherwise relating to the manufacturing, processing, distribution, use, treatment, generation,

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storage, containment (whether above ground or underground), disposal, transport or handling of Hazardous Materials, or the preservation of the environment or mitigation of adverse effects thereon and each law and regulation with regard to record keeping, notification, disclosure and reporting requirements respecting Hazardous Materials, including, without limitation, the Resource Conservation and Recovery Act of 1976 ("RCRA"), the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), the Hazardous Materials Transportation Act, the Federal Water Pollution Control Act, the Clean Air Act, the Clean Water Act, the Toxic Substances Control Act, the Safe Drinking Water Act, and all similar federal, state and local environmental statutes and ordinances, and the regulations, orders, and decrees now or hereafter promulgated thereunder, in each case as amended from time to time.

Health Benefit Laws:  Laws relating to the licensure, certification, qualification or authority to transact business relating to the provision of, or payment for, or both the provision of and payment for, health benefits, health care or insurance coverage, including ERISA, COBRA, HIPAA, SCHIP, Medicare, Medi‑Caid, CHAMPUS/TriCare, and laws relating to the regulation of workers compensation, utilization review, third‑party administrative services, case management and coordination of benefits.

Health Compliance Laws:  All applicable laws pertaining to billing, kickbacks, false claims, self‑referral, claims processing, marketing, HIPAA security standards for the storage, maintenance, transmission, utilization and access to and privacy of patient information, and HIPAA and state standards for electronic transactions and data code sets, including, without limitation, the False Claims Act (31 U.S.C. Section 3729 et seq.), the Anti‑Kickback Act of 1986 (41 U.S.C. Section 51 et seq.), the Federal Health Care Programs Anti‑Kickback Statute (42 U.S.C. Section 1320a‑7a(b)), the Stark Law, the Civil Monetary Penalties Law (42 U.S.C. Section 1320a‑7a), or the Truth in Negotiations (10 U.S.C. Section 2304 et seq.), Health Care Fraud (18 U.S.C. Section 1347), Mail Fraud (18 U.S.C. Section 1341), Wire Fraud (18 U.S.C. Section 1343), Theft or Embezzlement (18 U.S.C. Section 669), Fraud and False Statements (18 U.S.C. Section 1001), False Statements Relating to Health Care Matters (18 U.S.C. Section 1035), and any other applicable federal health care law or equivalent state statutes, or any rule or regulation promulgated by a Governmental Body with respect to any of the foregoing, as any of the same may be amended, modified and/or restated from time to time.

Healthcare Laws:  Health Benefit Laws, Health Compliance Laws and HIPAA.

HIPAA:  The Health Insurance Portability and Accountability Act of 1996, as the same may be amended, modified or supplemented from time to time, and any successor statue thereto, and any and all rules or regulations promulgated from time to time thereunder.

Hospital Purchase Contract:  In connection with any Existing ACH Facility to be made subject to this Lease, a Purchase and Sale Agreement executed by and among Adeptus, the applicable Facility Lessee and the applicable Facility Lessor for the acquisition of the real property relating to such Existing ACH Facility, as any of the same may be modified, amended or restated from time to time.

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Impacted Facility:  As defined in Section 14.2(a).

Impartial Appraiser:  As defined in Section 13.1(a).

Impositions:  Collectively, with respect to each Facility, all civil monetary penalties, fines and overpayments imposed by state and federal regulatory authorities (excluding any penalties or fines caused by the action or inaction of any Lessor or MPT), all Real Estate Taxes, all state and local sales and use taxes, single business, gross receipts, transaction privilege, rent or similar taxes, franchise (including but not limited to taxes based on capital, net worth or assets), license, business entity, annual report fees and other taxes imposed on any business entities, including limited partnerships, limited liability companies and other "pass through" entities, and any such taxes and statutory representation fees imposed on Lessor or Lessor's Affiliates (including, without limitation, all assessments, charges and costs imposed under the Permitted Exceptions), all assessments for utilities, public improvements or benefits, ground rents, water, wastewater, sewer, sanitary sewer or other rents and charges, excises, tax levies, fees, including, without limitation, impact, development, license, permit, inspection, authorization and similar fees, and all other governmental charges of every kind or nature, and all other fees, costs and expenses which at any time prior to, during or in respect of the Term may be charged, assessed or imposed on or in respect of or be a lien upon (a) Lessor or Lessor's interest in the portion of the Leased Property relating to such Facility, (b) such portion of the Leased Property or any part thereof or any rent therefrom or any estate, right, title or interest therein, or (c) any occupancy, operation, use or possession of, sales from, or activity conducted on, or in connection with, such portion of the Leased Property or the leasing or use of such portion of the Leased Property or any part thereof.  Notwithstanding any provision hereof to the contrary, nothing contained in this Lease shall be construed to require Lessee to pay (1) any tax based on net income (whether denominated as a financial institutions or other tax) imposed on Lessor, or (2) any transfer tax of Lessor, or (3) any tax imposed with respect to the sale, exchange or other disposition by Lessor of any portion of the Leased Property or the proceeds thereof, unless such disposition is to Lessee pursuant to the terms of this Lease, or (4) except as expressly provided elsewhere in this Lease, any principal or interest on any Encumbrance on any portion of the Leased Property, except to the extent that any tax, assessment, tax levy or charge which Lessee is obligated to pay pursuant to the first sentence of this definition and which is in effect at any time during the Term is totally or partially repealed, and a tax, assessment, tax levy or charge set forth in clause (1) or (2) is levied, assessed or imposed expressly in lieu thereof, in which case the substitute tax, assessment, tax levy or charge shall be deemed to be an Imposition.

Initial Master Lease:  That certain Master Lease Agreement, dated as of August 29, 2013, by and among certain Affiliates of MPT, as lessor, and certain Affiliates of Adeptus, as lessee, relating to multiple free-standing emergency medical facilities, as the same has been or may be modified, amended or restated from time to time.

Insurance Premiums:  As defined in Section 4.4.

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Insurance Requirements:  All terms of any insurance policy required by this Lease and all requirements of the issuer of any such policy, and such additional insurance which Lessor may reasonably require.

Intercreditor Agreement:  That certain [Second] Amended and Restated Intercreditor Agreement, dated as of ____________, 2014, by and among MPT, Lessor and FSFC, as Administrative Agent for itself and other lenders, relating to Adeptus and its subsidiaries, as the same may be modified, amended or restated from time to time.

Joint Commission:  As defined in Article XXIII.

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Confidential treatment has been requested with respect to information contained within the [*] marking.  Such portions have been omitted from this filing and have been separately filed with the Securities and Exchange Commission.

 

Land:  The parcels of land described on Exhibit A‑1 et seq., attached hereto and incorporated herein by reference, together with all hereditaments, easements, mineral rights, rights of way and other appurtenances related thereto, and any additional parcel or parcels of land acquired by an Affiliate of Lessor and made subject to this Lease pursuant to an Addendum.  With respect to each Facility, "Land" shall mean the portion of the Land relating to such Facility or any Capital Additions with respect thereto.

Late Payment Penalty Rate:  Shall mean on any date a rate equal to Five Percent (5%).

Lease:  As defined in the preamble.

Lease Assignment:  Those certain Assignment of Rents and Leases executed by each Facility Lessee in favor of Lessor, as the same may be amended, modified and/or restated from time to time.

Lease Base:  The aggregate of the Allocated Lease Bases with respect to all the Facilities.

Lease Rate:  [*].

Leased Improvements:  With respect to each portion of the Land relating to a particular Facility, those items described in Article II(b) relating thereto.

Leased Property:  With respect to each Facility, those items described in Article II, as well as all Capital Additions thereto.

Legal Requirements:  With respect to each Facility and the portion of the Leased Property related thereto, all federal, state, county and municipal governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions affecting such Leased Property, Lessee's operation of the Business on such portion of the Leased Property, or the construction, use or alteration of such Leased Property (including, without limitation, the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973), whether now or hereafter enacted and in force, including any which may (a) require repairs, modifications, or alterations in or to such portion of the Leased Property, or (b) in any way adversely affect the use and

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enjoyment thereof, and all permits, licenses, authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Lessee, at any time in force affecting such portion of the Leased Property.

Lessee:  Each of the entities listed on Schedule 1(b) attached hereto, and each additional Affiliate of Lessee added as a Lessee pursuant to an Addendum, together with their respective successors and permitted assigns, jointly and severally.

Lessor:  Each of the entities listed on Schedule 1(c) attached hereto, and each additional Affiliate of Lessor added as a Lessor pursuant to an Addendum, together with their respective successors and permitted assigns.

Lessor Parties:  As defined in Section 38.6.

Lessor's Notice Address:  As defined in Section 13.4.

Letter of Credit:  As defined in Section 38.14.

Letter of Credit Obligations:  All obligations of Lessee and its Affiliates under this Lease and all Other Agreements.

Licenses:  As defined in Section 37.1.

Major Repairs:  All repairs to the Leased Property of every kind and nature, whether interior or exterior, structural or non‑structural (including, without limitation, all parking decks and parking lots), which extend the life of the Leased Property (as opposed to being routine maintenance and repair expenditures), as shall be necessary or appropriate from time to time during the Term.

Management Agreement:  Any contract or agreement for the management of operations of the applicable Facility or any Facility Lessee.

Management Company:  Any person, firm, corporation or other entity or individual who or which will manage the operations of a Facility Lessee or a Facility.

Master Funding and Development Agreement:  That certain Master Funding and Development Agreement, dated as of __________, 2014, by and among Adeptus and MPT, as the same may be amended, modified and/or restated from time to time.

Material Obligation:  Any obligation of any Facility Lessee or any Guarantor (other than any obligations owing to Lessor or any of its Affiliates) which exceeds the lesser of (a) Five Million Dollars ($5,000,000), or (b) as of any date of determination, the enterprise value of Ten Percent (10%) of the Equity Interest in Guarantor (as reflected on Guarantor's most recent monthly balance sheet delivered to Lessor as required under Article XXIII(b)(iii)).

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Medicaid:  The medical assistance program established by Title XIX of the Social Security Act (42 U.S.C. Sections 1396 et seq.) and any statute succeeding thereto.

Medicare:  The health insurance program for the aged and disabled established by Title XVIII of the Social Security Act (42 U.S.C. Sections 1395 et seq.) and any statute succeeding thereto.

Monthly Escrow Amount:  As defined in Section 3.2.

MPT:  MPT Operating Partnership, L.P., a Delaware limited partnership.

Net Worth:  At any time, the sum of the following for the applicable Person, on a consolidated basis determined in accordance with GAAP:

(a)the amount of capital, stated capital or capital account balance (after deducting the cost of any treasury shares), plus

(b)the amount of capital surplus and retained earnings (or, in the case of a capital surplus or retained earnings deficit, minus the amount of such deficit), plus

(c)the amount of all distributions to shareholders, partners or members, as applicable, as a result of debt or equity transactions, plus

(d)the amount of all non-cash write-offs of intangible assets, minus

(e)without duplication of deductions in respect of items already deducted in arriving at surplus and retained earnings, any write up in book value of assets resulting from a revaluation thereof pursuant to GAAP subsequent to the most recent balance sheet prior to the date thereof, except any net write up in value of foreign currency in accordance with GAAP, any write up resulting from reversal of a reserve for bad debts or depreciation, and any write up resulting from a change in methods of accounting for inventory.

Non‑Competition Agreement:  That certain Non‑Competition Agreement executed by Adeptus simultaneously with the execution of this Lease, as the same may be amended, modified and/or restated from time to time.

Noncompliance Period:  As defined in Section 16.1(l)(ii).

Non‑Permissible Assignee:  As defined in Section 29.1.

OFAC:  The U.S. Department of Treasury Office of Foreign Assets Control.

OFAC List:  Collectively, the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to Executive Order No. 13224, 66 Fed. Reg. 49079 (September 25, 2001) and/or any other list of terrorists or other restricted Persons maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Executive Orders.

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Officer's Certificate:  With respect to each Facility Lessee, a certificate of such Facility Lessee signed by the representative(s) authorized to so sign by the governing body of such Facility Lessee, or any other person whose power and authority to act has been properly authorized.

Operating Agreements:  With respect to each Facility Lessee, all agreements to which such Facility Lessee is a party with respect to the ownership, operation or management of the Business, including, without limitation, any and all service and maintenance contracts, employment contracts, management agreements, equipment leases, consulting agreements, laboratory servicing agreements, pharmaceutical contracts and physician, other clinician or other professional services provider contracts, but excluding any Participation Agreements, as the same may from time to time be amended, restated, supplemented, renewed or modified.

Operational Date:  As defined in Section 7.2(a).

Option Price:  As defined in Section 14.2(a).

Organizational Documents:  With respect to any Person, the articles of incorporation or organization, certificate of incorporation or formation or other formation document, together with all other documents creating and governing such Person, including stockholder agreements, limited liability company or operating agreements, partnership agreements and bylaws.

Other Agreements:  All other leases, loans, and agreements entered into between Lessor or any Affiliate of Lessor, on the one hand, and Lessee, Guarantor or any of their respective Affiliates on the other hand, including, without limitation, the Master Funding and Development Agreement, the Hospital Purchase Contracts, the Project Development Agreements, the Guaranty, Cost Overrun Guaranties, the Non‑Competition Agreement, the Security Agreement, the Environmental Indemnification Agreement, and all other agreements, documents or instruments either having been executed prior to or contemporaneously herewith, or that will hereafter be executed, by Lessee, Guarantor or any of their respective Affiliates in favor of or with Lessor or any of its Affiliates, including, without limitation, the 2013 Master Funding Obligation Documents and any amendments with respect thereto, as any of the same may be modified, amended, or restated from time to time.

Overdue Rate:  On any date, the Lease Rate plus Six Percent (6%).

Participation Agreements:  With respect to each Facility Lessee, all third‑party payor participation or reimbursement agreements, and provider numbers and provider agreements, to which such Facility Lessee is a party relating to rights to payment or reimbursement from, and claims against, private insurers, managed care plans, employee assistance programs, Blue Cross and/or Blue Shield, governmental authorities and other third‑party payors (including, without limitation, if applicable to such Facility Lessee, Medicare and Medicaid), as the same may from time to time be amended, restated, extended, supplemented or modified, together with all rights, privileges and entitlements thereunder.

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Patriot Act:  The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107‑56, as the same may be amended, modified or restated from time to time.

Permitted Exceptions:  As defined in Article II.

Permitted Sale Transaction:  Any transaction which, directly or indirectly, through one or more step transactions or tiered transactions, results in the transfer (be it by merger, consolidation, sale, assignments, or otherwise) of (a) all or substantially all of the assets of Lessee, or (b) 51% or more of the direct or indirect Equity Interests held by First Choice in a FCER Facility Lessee or 51% or more of the direct or indirect Equity Interests held by ACH Holdco in an ACH Facility Lessee, to a Person, so long as immediately following the consummation of any such transaction, a Person that owns 51% or more of the direct or indirect Equity Interests in the applicable Facility Lessee (i) is in pro forma compliance with the covenants applicable to Adeptus set forth in Section 16.1(l) (which compliance shall be measured to include such Person's subsidiaries, as applicable), and (ii) employs executives experienced in managing the operations of medical care facilities or engages a third party manager that has such experience; it being understood and agreed that any such transaction shall be permitted under this Lease only if no Event of Default then exists and the Combined Lessees (or the transferee, assignee or successor thereof) are in pro forma compliance with the covenant applicable to Combined Lessees set forth in Section 16.1(k), to the extent then applicable.

Person:  An individual, a corporation, a limited liability company, a general or limited partnership, an unincorporated association, a joint venture, a Governmental Body or another entity or group.

Personal Property:  With respect to a Facility Lessee, all of such Facility Lessee's consumable inventory and supplies, machinery, equipment, furniture, furnishings, trailers, movable walls or partitions, computers, trade fixtures and other tangible personal property (including all such items not permanently affixed to the portion of the Leased Property), currently owned and acquired after the execution of this Lease, and necessary, used, or useful in the operation of such Facility, but excluding any items within the definition of Fixtures.

Primary Intended Use:  As defined in Article VII.

Project Development Agreement:  With respect to each Facility (other than an Existing ACH Facility), that certain Project Funding and Development Agreement to be executed by and among Developer, Adeptus, the applicable Facility Lessee and Facility Lessor in accordance with the Master Funding and Development Agreement, as the same may be amended, modified and/or restated from time to time.

Property Substitution:  As defined in Section 34.1.

Property Substitution Date:  With respect to any applicable Facility, the effective date of a Property Substitution.

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Provider Based Network:  A network of Facilities whereby the Medicare Participation Agreements and related licenses and authorizations are obtained by the ACH Facility Lessee operating an ACH Facility and utilized by such ACH Facility Lessee to operate ACH Remote Facilities in accordance with the requirements of all applicable Healthcare Laws.

RCRA:  As defined in the definition of "Hazardous Materials Laws."

Real Estate Taxes:  With respect to each Facility, all real estate taxes, assessments and special assessments, and dues which are levied or imposed during the Term upon the portion of the Leased Property relating to such Facility.

Removal Notice:  As defined in Section 16.1(E).

Rent:  Collectively, the Base Rent (as increased in accordance with the provisions of Section 3.1(b)), and the Additional Charges.

Rent Commencement Date:   With respect to each Facility (other than an Existing ACH Facility), the date of Completion of the Leased Improvements in accordance with the applicable Project Development Agreement.  With respect to each Existing ACH Facility, the date that such Existing ACH Facility is made subject to this Lease pursuant to an Addendum (provided that, in connection with an existing ACH Facility added to this Lease pursuant to a Distressed Facility Agreement, the Addendum may establish an alternate date mutually agreeable to the parties).

Replacement Facility:  As defined in the definition of "Substitute Property."

Request:  As defined in Section 10.3.

RFFE Loans:  As defined in Article XVII.

SARA:  As defined in the definition of "Hazardous Materials Laws."

Security Agreement:  That certain Security Agreement, dated of even date herewith, between Lessor and Lessee, as the same may be modified, amended or restated from time to time.

Severed Property:  As defined in Section 29.2.

Severance Notice:  As defined in Section 29.2.

Severance Date:  As defined in Section 29.2.

Severed Lease:  As defined in Section 29.2.

Single Purpose Entity:  With respect to each Facility, an entity which (a) exists solely for the purpose of leasing all or any portion of the Leased Property relating to such Facility and conducting the operation of the Business thereon, provided that a Facility Lessee that leases an ACH Facility may

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also lease Leased Properties on which ACH Remote Facilities related to such ACH Facility are located and conduct the operation of the Business of such ACH Remote Facilities thereon and a Facility Lessee may sublease a particular Leased Property as permitted herein, (b) conducts business only in its own name, under the name "FirstChoice" or under any other trade name utilized by a particular Facility, (c) does not engage in any business other than the leasing of all or any portion of such portion of the Leased Property and the operation of such Business, provided that a Facility Lessee that leases an ACH Facility may also lease Leased Properties on which ACH Remote Facilities related to such ACH Facility are located and conduct the operation of the Business of such ACH Remote Facilities thereon and a Facility Lessee may sublease a particular Leased Property as permitted herein, (d) does not hold, directly or indirectly, any ownership interest (legal or equitable) in any entity or any real or personal property other than the leasehold interest which it owns in such portion of the Leased Property and the other assets incident to the operation of the Business with an ancillary healthcare or other services or businesses provided thereon, provided that a Facility Lessee that leases an ACH Facility may also lease Leased Properties on which ACH Remote Facilities related to such ACH Facility are located and conduct the operation of the Business of such ACH Remote Facilities thereon and a Facility Lessee may sublease a particular Leased Property as permitted herein, (e) does not have any debt other than as permitted by this Lease or arising in the ordinary course of the Business and does not guarantee or otherwise obligate itself with respect to the debts of any other person or entity, other than as contemplated by this Lease or the Intercreditor Agreement (which shall include, without limitation, the pledge of the "Senior Collateral AR" as defined therein) or approved by Lessor in writing, (f) has its own separate books, records, accounts and financial statements, except that financial statements of the individual facility Lessees may be consolidated, (g) holds itself out as being a company separate and apart from any other entity, and (h) maintains all entity formalities independent of any other entity.

Subordination Agreement:  That certain [Second] Amended and Restated Subordination Agreement, dated as of_____________, 2014, among MPT, Lessor and FSFC, as Administrative Agent for itself and other lenders, Adeptus and FirstChoice, as the same may be modified, amended or restated from time to time.

Substitute Lease:  As defined in Section 34.3.

Substitute Property:  With respect to any Facility, a fee interest in land and improvements thereon which may be included in the Property Substitution, with respect to which:  (i) such improvements consist solely of an existing FSE Facility or Existing ACH Facility (the "Replacement Facility") consented to by Lessor in its sole and absolute discretion; (ii) the financial records (which records will include audited financial statements if available) of such freestanding emergency medical facility shall have been prepared in accordance with GAAP and made available to Lessor; (iii) all licenses, certificates of need, permits, approvals and authorizations pertaining to ownership and operation of such land and improvements as a freestanding emergency medical facility and related facilities shall be in full force and effect, free of material defaults or notices of material default; and (iv) neither the Property Substitution nor the utilization of such land and improvements in a Property Substitution will result in the realization of taxable income or gain to any Lessor or any Equity Constituent of any Lessor under the Code, as reasonably determined by Lessor, or if such taxable

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income or gain is realized, FirstChoice or an Affiliate agrees to pay the same and to indemnify Lessor for the same.

Taking:  With respect to each Facility, a taking or voluntary conveyance during the Term of all or part of the portion of the Leased Property relating to such Facility, or any interest therein or right accruing thereto or use thereof, as the result of, or in settlement of, any Condemnation or other eminent domain proceeding affecting such portion of the Leased Property whether or not the same shall have actually been commenced.

Tenant(s):  The lessees, tenants, sublessees or subtenants under the Tenant Leases, if any.

Tenant Leases:  All leases, subleases, pharmacy leases and other rental agreements (written or verbal, now or hereafter in effect), if any, pursuant to which any Facility Lessee has granted a possessory interest in and to any space in or any part of the Leased Property, or that otherwise have rights with regard to the Leased Property, and all security deposits, security interests, letters of credit, pledges, guaranties, prepaid rent or other sums, deposits or interests held by Lessee, if any, with respect thereto.

Term:  With respect to each Facility, the actual duration of this Lease, including the Fixed Term and the Extension Terms (if extended by Lessee) as provided in Article II.

Terminated Facility:  As defined in Section 16.1(C).

Terminated Possession Facility:  As defined in Section 16.1(B).

Third Party Programs:  As defined in Section 37.1.

Total Development Costs:  With respect to all Facilities (other than Existing ACH Facilities), the sum of (a) all hard and soft costs incurred in connection with the acquisition of the Land and the development of the Leased Improvements pursuant to the Project Development Agreements; (b) the aggregate of the Construction Period Accruals relating to such Facilities; and (c) the costs of any future Capital Additions financed by Lessor or its Affiliates after the Construction Period.

Unsuitable for Its Use or Unsuitable for Its Primary Intended Use:  As used anywhere in this Lease, the terms "Unsuitable for Its Use" or "Unsuitable for Its Primary Intended Use" shall mean that, with respect to the portion of the Leased Property relating to any Facility, by reason of damage or destruction or a partial Taking by Condemnation, such Facility cannot be operated on a commercially practicable basis for its Primary Intended Use and substantially in accordance with the manner in which it was previously operated, taking into account, all relevant factors (such as the availability of parking), and the effect of such damage or destruction or partial Taking.

USPAP:  The Uniform Standards of Professional Appraisal Practice, as amended from time to time.

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ARTICLE II

LEASED PROPERTY; TERM

Upon and subject to the terms and conditions hereinafter set forth, Lessor leases to Lessee and Lessee rents from Lessor all of Lessor's rights and interest in and to the following property (collectively, and as modified from time to time pursuant to the terms of this Lease, the "Leased Property"):

(a) the Land; and

(b) the existing improvements on the Land and the buildings and any  improvements constructed on the Land, including, but not limited to, all buildings, structures, Fixtures and other improvements of every kind, alleyways and connecting tunnels, sidewalks, utility pipes, conduits and lines (on‑site and off‑site), parking areas and roadways appurtenant to such buildings and structures presently or hereafter situated upon the Land, Capital Additions financed by Lessor and all hereditaments, easements, rights of way and other appurtenances related thereto (collectively, the "Leased Improvements").

SUBJECT, HOWEVER, to all applicable matters of record and any other matters as set forth on Exhibit B‑1  et seq. (and such other matters set forth in any Addendum) (collectively, the "Permitted Exceptions"), Lessee shall have and hold the Leased Property for a fixed term (the "Fixed Term") commencing on the Commencement Date and ending at midnight on the last day of the one hundred eightieth (180th) full month after the Final Completion Date, unless sooner terminated as herein provided.

So long as no Event of Default then exists, and no event then exists which with the giving of notice or the passage of time or both would constitute an Event of Default, Lessee shall have the option to extend the Fixed Term on the same terms and conditions set forth herein for three (3) additional periods of five (5) years each (each an "Extension Term"); it being understood and agreed that Lessee's exercise of any such extension option must apply to the entire Leased Property.  Lessee may exercise each such option by giving written notice to Lessor at least ninety (90) days prior to the expiration of the Fixed Term or Extension Term, as applicable (the "Extension Notice").  If, during the period following the delivery of the Extension Notice to Lessor and prior to the effective date of such extension, an Event of Default shall occur, at Lessor's option, the Term shall not be so extended and Lessee shall be deemed to have forfeited all subsequent options to extend the Fixed Term of this Lease.  If Lessee elects not to exercise its option to extend, all subsequent options to extend and all rights of Lessee to purchase as provided in Articles XIV,  XV and XXXIII shall be deemed to have lapsed and be of no further force or effect.

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Confidential treatment has been requested with respect to information contained within the [*] marking.  Such portions have been omitted from this filing and have been separately filed with the Securities and Exchange Commission.

 

ARTICLE III

RENT

3.1 Rent.  During the Term, Lessee shall pay to Lessor, in advance and without notice, demand, set off or counterclaim, in lawful money of the United States of America, at Lessor's address set forth herein or at such other place or to such other person, firm or entity as Lessor may designate from time to time in writing, the Rent as provided in this Lease.  With respect to each Facility, Rent shall be calculated and payable as follows:

(a) Base Rent.  With respect to each Facility, commencing on the applicable Rent Commencement Date, subject to adjustment as provided herein (including adjustments set forth in Section 3.1(b) below), Lessee shall pay Lessor, base rent with respect to such portion of the Leased Property (the "Allocated Base Rent") in advance on or before the first (1st) day of each calendar month during the Term, including any partial months (prorated based upon a three hundred sixty (360) day year), in an amount equal to the product of (i) the Allocated Lease Base for such Facility as of the last day of the immediately preceding month, multiplied by (ii) the Lease Rate, divided by (iii) twelve (12).  In the event that the first day of any calendar month falls on a non-Business Day, such payment of Base Rent shall be paid on or before the last Business Day prior to the first day of such calendar month.

(b) Adjustment of Lease Rate.  Commencing on January 1, 2016 and continuing on each Adjustment Date thereafter during the Term, the Lease Rate shall be increased (and in no event decreased) and shall be equal to the sum of (i) the Lease Rate previously in effect, [*].

(c) Rent Schedule.  From time to time during the Term, Lessor may, in its reasonable discretion, calculate the Base Rent payable hereunder (the "Rent Schedule"), and provide a copy of such Rent Schedule to Lessee.  Base Rent, as calculated in accordance with Sections 3.1(a) and 3.1(b) shall include Allocated Base Rent payable with respect to the Leased Property relating to all Facilities.  The Rent Schedule shall be adjusted and substituted on a periodic basis by Lessor, in its reasonable discretion, as the Base Rent is adjusted and calculated during the Term as provided herein.  Lessor's failure to provide a copy of the Rent Schedule or substitute or adjusted Rent Schedule shall not limit or affect the Lessee's obligations hereunder.  Notwithstanding the foregoing, to the extent the most recent Rent Schedule, if any, provided by Lessor to Lessee does not accurately reflect the current amount of Base Rent, as adjusted, Lessee shall not be in default of its obligation to pay rent pursuant to this Section 3.1 so long as Lessee pays the Base Rent, as adjusted, shown on the Rent Schedule most recently provided by Lessor to Lessee, and within ten (10) days after receipt by Lessee of an updated Rent Schedule provided by Lessor, Lessee pays to Lessor

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any additional Base Rent due as a result of the Base Rent shown on the updated Rent Schedule that has not previously been paid.

3.2 Additional Charges.  In addition to the Base Rent, (a) Lessee will also pay and discharge as and when due and payable all other amounts, liabilities, obligations and Impositions that Lessee assumes or agrees to pay under this Lease, and all other amounts, liabilities, obligations and Impositions related to the ownership, use, possession and operation of the Leased Property, including, without limitation, all costs of owning and operating each Facility, all Real Estate Taxes, Insurance Premiums, maintenance and capital improvements, all violations of and defaults under any of the Permitted Exceptions (but excluding any items Lessee is not required to pay under the definition of Impositions) and (b) in the event of any failure on the part of Lessee to pay any of those items referred to in clause (a) above, Lessee will also promptly pay and reimburse Lessor and/or its Affiliates for all such amounts paid by Lessor and/or its Affiliates and promptly pay and discharge every fine, penalty, interest and cost which may be added for non‑payment or late payment of such items (the items referred to in clauses (a) and (b) above being referred to herein collectively as the "Additional Charges"), and Lessor shall have all legal, equitable and contractual rights, powers and remedies provided in this Lease, by statute, or otherwise, in the case of non‑payment of the Additional Charges, as in the case of the Base Rent.  If any installment of Base Rent or Additional Charges shall not be paid within five (5) Business Days after the applicable due date, Lessee, in addition to all other obligations hereunder, will pay Lessor on demand, as Additional Charges, a late charge computed at the Overdue Rate and a late payment penalty computed at the Late Payment Penalty Rate on the amount of such installment, from the due date of such installment to the date of payment thereof.  To the extent that Lessee pays any Additional Charges to Lessor pursuant to clause (b) above or pursuant to any other requirement of this Lease, Lessee shall be relieved of its obligation to pay such Additional Charges to the entity to which they would otherwise be due.  Nothing in the foregoing limits the provisions of Article XII.  At Lessor's option, during the Term, upon its written request to Lessee, Lessee shall make monthly payments to Lessor (or to a Facility Lender, if requested by Lessor) in such amounts as Lessor shall estimate to be necessary to pay any Real Estate Taxes and/or some or all Insurance Premiums.  If Lessor exercises this option, it shall include in its written request an invoice in reasonable detail (the "Escrow Invoice") specifying the amount to be paid on account of Real Estate Taxes and/or Insurance Premiums (the "Monthly Escrow Amount").  Lessee shall pay to Lessor the Monthly Escrow Amount on the first (1st) day of each month after receipt of the initial Escrow Invoice.  At any time, with at least five (5) Business Days' notice prior to the end of any month during the Term, Lessor may deliver to Lessee a substituted, adjusted or amended Escrow Invoice providing for a new Monthly Escrow Amount, and thereafter Lessee shall pay the revised Monthly Escrow Amount on the first (1st) day of the each succeeding month (subject to further adjustment as provided for in this sentence).  Any sums paid to Lessor pursuant to this Section 3.2 shall not bear interest, may be commingled with Lessor's (or Facility Lender's) books and accounts, and upon an Event of Default hereunder, may be applied by Lessor (or Facility Lender) to all sums owed by Lessee or any Affiliate of Lessee to Lessor or any Affiliate of Lessor (or to sums owed to Facility Lender) relating to the acquisition and leasing of the Leased Property (provided, that prior to an Event of Default Lessor shall use any amounts so paid to pay the relevant Real Estate Taxes and Insurance Premiums, as applicable, in each case prior to

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delinquency).  Lessor shall refund to Lessee at the end of the Term, provided that no Event of Default then exists, any such remaining amounts collected in excess of the amounts ultimately required to pay the relevant Real Estate Taxes or Insurance Premiums.

ARTICLE IV

IMPOSITIONS

4.1 Payment of Impositions.  Subject to Article XII relating to permitted contests, Lessee will pay, or cause to be paid, all Impositions before any fine, penalty, interest or cost may be added for non‑payment, with such payments to be made directly to the taxing or assessing authorities, unless, in the case of escrows and deposits, such Impositions are required to be paid to Lessor or Facility Lender as provided in Section 3.2, and Lessee will promptly furnish to Lessor copies of official receipts or other satisfactory proof evidencing such payments.  Lessor, at its expense, shall, to the extent permitted by applicable law, prepare and file all tax returns and reports as may be required by governmental authorities in respect of Lessor's net income, gross receipts, franchise taxes and taxes on its capital stock, and Lessee, at its expense, shall, to the extent permitted by applicable laws and regulations, prepare and file all other tax returns and reports in respect of any Imposition as may be required by governmental authorities.  If any refund shall be due from any taxing authority with respect to any Imposition paid by Lessee, the same shall be paid over to, or retained by, Lessee provided no Event of Default shall have occurred and be continuing.  Any such funds retained by Lessor due to an Event of Default shall be applied to Lessee's obligations as reasonably determined by Lessor.  Lessor and Lessee shall, upon request of the other, provide any data (a) that is maintained by the party to whom the request is made, and (b) that pertains to the Leased Property, as may be necessary to prepare any required returns and reports.  In the event that any Governmental Body classifies any property covered by this Lease as personal property, Lessee shall file all personal property tax returns in such jurisdictions where it may legally so file.  Lessor, to the extent it possesses the same, and Lessee, to the extent it possesses the same, will provide the other party, upon request, with cost and depreciation records necessary for filing returns for any property so classified as personal property.  In the event that Lessor is legally required to file personal property tax returns, Lessee will be provided with copies of assessment notices indicating a value in excess of the reported value as soon as reasonably practicable, and in any event, in sufficient time for Lessee to file a protest.  After obtaining written approval from Lessor, which approval shall not be unreasonably withheld, conditioned or delayed, Lessee may, at Lessee's sole cost and expense, protest, appeal, or institute such other proceedings as Lessee may deem appropriate to effect a reduction of real estate or personal property assessments, and Lessor, at Lessee's expense as aforesaid, shall fully cooperate with Lessee in such protest, appeal, or other action.  Billings for reimbursement by Lessee to Lessor of personal property taxes shall be accompanied by copies of a bill therefor and payments thereof which identify the personal property with respect to which such payments are made.

4.2 Adjustment of Impositions.  Impositions that are levied or assessed with respect to the tax‑fiscal period during which the Term terminates, unless Lessee purchases the Leased Property pursuant to purchase options expressly provided herein, if any, shall be adjusted and prorated

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between Lessor and Lessee, whether or not such Imposition is imposed before or after such termination, and Lessee's obligation to pay its prorated share thereof shall survive such termination.

4.3 Utility Charges.  Lessee will contract for, in its own name, and will pay or cause to be paid all charges for electricity, power, gas, oil, sewer, water and other utilities used in connection with the Leased Property during the Term, including, without limitation, all impact and tap fees necessary for the operation of the Facilities, except to the extent that such impact and tap fees were or are to be paid by Lessor as part of the Total Development Costs or the cost of a Capital Addition.

4.4 Insurance Premiums.  Lessee will contract for, in its own name, and will pay or cause to be paid all premiums for the insurance coverage required to be maintained pursuant to Article XIII during the Term (the "Insurance Premiums"); provided, however, if required by Lessor pursuant to Section 3.2, all or a portion of the Insurance Premiums shall be paid as required under Section 3.2.

 

ARTICLE V

ABSOLUTE NET LEASE; NO TERMINATION; TERMINATION
WITH RESPECT TO FEWER THAN ALL FACILITIES

5.1 Absolute Net Lease; No Termination.  The parties understand, acknowledge and agree that this is an absolute net lease and this Lease shall yield to Lessor the full amount of the installments of the Base Rent and the payments of Additional Charges throughout the Term.  Lessee further acknowledges and agrees that all charges, assessments or payments of any kind are due and payable without notice, demand, set off or counterclaim and shall be paid by Lessee as they become due and payable.  Lessee shall remain bound by this Lease in accordance with its terms and shall neither take any action without the consent of Lessor to modify, surrender or terminate the same, nor seek nor be entitled to any abatement, deduction, deferment or reduction of Rent, or set‑off against the Rent, nor shall the respective obligations of Lessor and Lessee be otherwise affected by reason of (a) any damage to, or destruction of, any Leased Property or any portion thereof from whatever cause or any Taking of the Leased Property or any portion thereof, except as otherwise specifically provided in this Lease, (b) the lawful or unlawful prohibition of, or restriction upon, Lessee's use of the Leased Property, or any portion thereof, or the interference with such use by any person, corporation, partnership or other entity, or by reason of eviction by paramount title; (c) any claim which Lessee has or might have against Lessor or by reason of any default or breach of any warranty by Lessor under this Lease or any other agreement between Lessor and Lessee, or to which Lessor and Lessee are parties, (d) any bankruptcy, insolvency, reorganization, composition, readjustment, liquidation, dissolution, winding up or other proceedings affecting Lessor or any assignee or transferee of Lessor, or (e) any other cause whether similar or dissimilar to any of the foregoing other than a discharge of Lessee from any such obligations as a matter of law.  Lessee hereby specifically waives all rights, arising from any occurrence whatsoever, which may now or hereafter be conferred upon it by law to (i) modify, surrender or terminate this Lease or quit or surrender the

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Leased Property or any portion thereof, or (ii) entitle Lessee to any abatement, reduction, suspension or deferment of the Rent or other sums payable by Lessee hereunder, except as otherwise specifically provided in this Lease.  The obligations of Lessor and Lessee hereunder shall be separate and independent covenants and agreements and the Rent and all other sums payable by Lessee hereunder shall continue to be payable in all events unless the obligations to pay the same shall be terminated pursuant to the express provisions of this Lease or by termination of this Lease other than by reason of an Event of Default.

5.2 Termination with Respect to Fewer than all Facilities.  Wherever in this Lease the action of terminating this Lease with respect to the portion of the Leased Property relating to a particular Facility (or action of similar import) is described or permitted, such action shall mean the termination of Lessee's rights in and to the portion of the Leased Property relating to such Facility.  Notwithstanding anything in this Lease to the contrary, if this Lease shall be terminated by Lessor or Lessee pursuant to rights granted hereunder with respect to any portion of the Leased Property relating to a particular Facility, such termination shall not affect the Term of this Lease with respect to the balance of the Leased Property relating to Facilities not so terminated and this Lease shall continue in full force and effect with respect to such portion of the Leased Property, except that the total Base Rent payable hereunder shall be reduced by the amount of Allocated Base Rent with respect to the Facility as to which this Lease has been so terminated, (b) all references herein to Leased Property shall thereafter no longer include such terminated portion of the Leased Property, (c) the relevant Facility shall no longer be a Facility hereunder, and (d) provided that all of Lessee's obligations hereunder with respect to such portion of the Leased Property (excluding unasserted contingent indemnification obligations) have been paid in full to Lessor, the relevant Facility Lessee shall no longer be a Facility Lessee hereunder or a party hereto; subject, however, to Lessor's right, in the event of any such termination because of an Event of Default, to recover damages with respect thereto.

ARTICLE VI

OWNERSHIP OF LEASED PROPERTY AND PERSONAL PROPERTY

6.1 Ownership of the Leased Property.  Lessee acknowledges that the Leased Property is the property of Lessor and that Lessee has only the right to the possession and use of the Leased Property upon and subject to the terms, provisions and conditions of this Lease.

6.2 Lessee's Personal Property.  Lessee agrees that, subject to Lessor's purchase option with respect thereto, all of Lessee's Personal Property not removed by Lessee within thirty (30) days following the expiration or earlier termination of this Lease with respect thereto shall be considered abandoned by Lessee and may be appropriated, sold, destroyed or otherwise disposed of by Lessor (at Lessee's cost) with prior written notice thereof to Lessee, without any payment to Lessee and without any obligation to Lessee to account therefor.  Lessee will, at its expense, restore the Leased Property to substantially the same condition existing before the removal and repair all damage to the Leased Property caused by the installation or removal of Lessee's Personal Property.

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ARTICLE VII

CONDITION AND USE OF LEASED PROPERTY

7.1 Condition of the Leased Property.  Lessee acknowledges receipt and delivery of possession of the portions of the Leased Property upon which the Facilities are or shall be situated and that Lessee has examined and otherwise has acquired knowledge of the condition of the Leased Property prior to the execution and delivery of this Lease and has found the same to be in good order and repair and satisfactory for its purpose hereunder.  Lessee is leasing the Leased Property "as is" and "where is" in its present condition Lessee has not relied on any representation or warranty by Lessor and hereby waives any claim or action against Lessor in respect of the condition of the Leased Property.  LESSOR MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, IN RESPECT OF THE LEASED PROPERTY OR ANY PART THEREOF, EITHER AS TO ITS FITNESS FOR USE, SUITABILITY, DESIGN OR CONDITION FOR ANY PARTICULAR USE OR PURPOSE OR OTHERWISE, AS TO QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, LATENT OR PATENT, IT BEING AGREED THAT ALL SUCH RISKS ARE TO BE BORNE BY LESSEE.  LESSEE ACKNOWLEDGES THAT THE LEASED PROPERTY HAS BEEN INSPECTED BY LESSEE AND IS SATISFACTORY TO LESSEE.  ACCORDINGLY, LESSEE HEREBY ACKNOWLEDGES THAT LESSOR HAS NOT MADE AND WILL NOT MAKE, NOR SHALL LESSOR BE DEEMED TO HAVE MADE ANY WARRANTY OR REPRESENTATION, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ALL WARRANTIES THAT THE LEASED PROPERTY IS FREE FROM VICES, DEFECTS AND DEFICIENCIES, WHETHER HIDDEN OR APPARENT OR ANY WARRANTY AS TO THE FITNESS, DESIGN OR CONDITION OF THE LEASED PROPERTY FOR ANY PARTICULAR USE OR PURPOSE OF SUCH LEASED PROPERTY.  THE PROVISIONS OF THIS SECTION 7.1 HAVE BEEN NEGOTIATED, AND ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY WARRANTIES BY LESSOR, EXPRESS, IMPLIED OR CREATED BY APPLICABLE LAW, WITH RESPECT TO THE CONDITION OF THE LEASED PROPERTY.

7.2 Use of the Leased Property.

(a) With respect to all Facilities (other than Existing ACH Facilities), to the extent not obtained as of the Completion Date, Lessee or its Affiliates shall obtain all material Licenses necessary to operate each such Facility for its Primary Intended Use as quickly as reasonably possible and, in any event, all such Licenses for a particular Facility shall be obtained by the required dates set forth on Schedule 7.2(a) relating to such Facility (each, an "Operational Date"); provided,  however, that, upon written request from Lessee to Lessor prior to the Operational Date with respect to a particular Facility, and so long as Lessor is reasonably satisfied that Lessee is diligently proceeding in its efforts to obtain such Licenses for such Facility, Lessee shall have the option to extend the period in which to obtain such Licenses with respect to such Facility for two (2) additional periods of thirty (30)

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days each.  Lessee may exercise each such option by giving written notice to Lessor at least five (5) Business Days prior to the Operational Date (or any applicable extension period). 

(b) With respect to all Existing ACH Facilities, from and after the Rent Commencement Date with respect to each Existing ACH Facility, Lessee shall maintain all Licenses, including, but not limited to, Medicare and/or Medicaid certifications, provider numbers and agreements, certificates of need, governmental approvals, and full accreditation from all applicable governmental authorities that are necessary for the operation of such Facilities consistent with the Primary Intended Use.

(c) Lessee shall operate each Facility throughout the Term as follows:

[(i)The __________ Facility shall be operated as a [FSE Facility] [if a construction project - "after the Completion Date relating to such Facility, subject to Section 7.2(a)], and for such other legal ancillary uses as may be necessary in connection with or incidental to such uses;]

[(ii)The __________ Facility shall be operated as a [ACH Facility] [if a construction project - "after the Completion Date relating to such Facility, subject to Section 7.2(a)], and for such other legal ancillary uses as may be necessary in connection with or incidental to such uses; and]

[(iii)The __________ Facility shall be operated as an ACH Remote Facility _________________________________ [if a construction project - "after the Completion Date relating to such Facility, subject to Section 7.2(a)], and for such other legal ancillary uses as may be necessary in connection with or incidental to such uses;]

and in each case subject to all covenants, restrictions, easements and all other matters of record (including those set forth in the Permitted Exceptions) relating to the applicable Facility, including with respect to all Facilities that are part of a Provider Based Network, complying with the requirements of all Healthcare Laws in connection therewith (the “Primary Intended Use”).  Lessee shall comply with all Legal Requirements and, subject to Section 7.2(a), shall maintain all Licenses, including, but not limited to, Medicare and/or Medicaid certifications (relating to ACH Facilities only), provider numbers and agreements, certificates of need, governmental approvals, and full accreditation from all applicable governmental authorities, if any, that are necessary for the operation of the applicable Facility consistent with the Primary Intended Use; provided, however, that notwithstanding the foregoing, an ACH Facility Lessee shall have the right to withdraw from or terminate its participation or certification in any Third-Party Programs, provided that such withdrawal or termination is voluntary and not the result of any fraud or violation of the terms of such Third-Party Program.

(d) Lessee shall continuously operate the Leased Property only as a provider of healthcare services in accordance with the Primary Intended Use and Lessee shall maintain

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its certifications for reimbursement and licensure and all accreditations; provided, however, that notwithstanding the foregoing, an ACH Holdco Facility Lessee shall have the right to withdraw from or terminate its participation or certification in any Third-Party Programs, provided that such withdrawal or termination is voluntary and not the result of any fraud or violation of the terms of such Third-Party Program.

(e) Lessee shall not commit or suffer to be committed any waste on the Leased Property nor shall Lessee cause or permit any nuisance thereon.

(f) Lessee shall neither suffer nor permit the Leased Property or any portion thereof, including any Capital Addition whether or not financed by Lessor, or Lessee's Personal Property, to be used in such a manner as (i) might reasonably tend to impair Lessor's (or Lessee's, as the case may be) title thereto or to any portion thereof, or (ii) may reasonably make possible a claim or claims of adverse usage or adverse possession by the public, as such, or of implied dedication of the Leased Property or any portion thereof.

(g) With respect to each Facility, Lessor shall have the right and option to erect a plaque in the vicinity of the front desk located inside such Facility stating that such Leased Property is ow