EXHIBIT 10.58
THE CITY OF BETHANY, OKLAHOMA
and
THE XXXXXXX HOSPITAL TRUST
and
XXXXXXX GENERAL HOSPITAL through the HOSPITAL
BOARD OF THE CITY OF BETHANY, OKLAHOMA
Lessor
and
XXXXXXX PSYCHIATRIC HOSPITAL, INC.
Lessee
LEASE
Dated as of December 9, 1985
Property Located at Bethany, Oklahoma
EXHIBIT 10.58
L E A S E
LEASE, dated as of December 9, 1985, between THE
CITY OF BETHANY, OKLAHOMA, a municipal corporation ("City"),
THE XXXXXXX HOSPITAL TRUST, a Public Trust created under the
laws of the State of Oklahoma ("Trust"), and BETHANY GENERAL
HOSPITAL through THE HOSPITAL BOARD OF THE CITY OF BETHANY,
OKLAHOMA, a body created by ordinance of the City pursuant
to 11 0.S. Sec.30-102 ("Board"), with City, Trust and Board
being hereinafter collectively called "Lessor" and BETHANY
PSYCHIATRIC HOSPITAL, INC., an Oklahoma corporation
("Lessee").
RECITALS:
WHEREAS, City is the owner of the real property in
Oklahoma County, Oklahoma, described on Exhibit "A" attached
hereto (the "Land"), and
WHEREAS, by Amended Lease Agreement dated
September 16, 1969 (the "City Lease"), City leased the Land
to the Trust, and
WHEREAS, the Trust and the Board entered into a
Contract dated March 23, 1967 (the "Contract") relating to
the management of Xxxxxxx General Hospital (the "Hospital")
located on the Land, and
WHEREAS, under date of August 29, 1985, the Trust,
the City and the Board entered into a Management Agreement
with Lessee (the "Management Agreement") pertaining to the
construction of a twenty bed psychiatric pavilion on a part
of the Land, the remodeling of 6,442 square feet of the
Hospital and the operation of the pavilion and the remodeled
portion of the hospital as a forty bed psychiatric unit, and
WHEREAS, pursuant to the terms of and as partial
consideration for the Management Agreement, the City, the
Trust and the Board agree to lease a portion of the Land to
the Lessee.
NOW, THEREFORE, in consideration of the mutual
covenants and agreements herein contained and other good and
valuable consideration, the receipt of which is hereby
acknowledged, it is agreed as follows:
1. Definitions. Capitalized terms used herein
which are defined in the Management Agreement shall have the
respective meanings set forth in the Management Agreement,
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unless otherwise defined herein. Terms defined in the
foregoing recitals shall have the meanings set forth therein
and, in addition, the following terms shall have the follow
ing meanings:
Building Area: The term Building Area shall
mean the tract of land containing 14,578.29 square
feet or .34 acres, more or less, described on
Exhibit "B" attached hereto upon which Lessee is
to construct the psychiatric pavilion as provided
in the Management Agreement.
Parking Area: The term Parking Area shall
mean the tract of land described on Exhibit "C"
attached hereto which is adjacent to the Building
Area and is to be used for parking in connection
with the psychiatric pavilion.
Common Areas: The term Common Areas shall
mean parking areas, roadways, pedestrian
sidewalks, landscape areas, and all other areas or
improvements on the Land which may, from time to
time, be provided by the Lessor for the
convenience and use of patients, visitors and
tenants of the Hospital and their respective
invitees.
Leased Premises: The term Leased Premises
shall mean: (a) the Building Area, (b) the Parking
Area, (c) all the rights, easements and appurte
nances belonging and usually had and enjoyed in
connection with the Building Area and the Parking
Area, and (d) the use, in common with others to
whom Lessor has granted or may hereafter grant
rights to use the same, of the Common Areas.
Depositary: The Depositary shall be a bank
or trust company, appointed by Lessor, having its
principal office in Oklahoma City or Bethany,
Oklahoma, and having a combined capital, surplus
and undistributed profits (according to its most
recent published statement) of at least
$5,000,000.
First Mortgagee: the holder, from time to
time, of the First Mortgage.
Insurance Requirements: all terms of an
insurance policy covering or applicable to the
Leased Premises or any part thereof, all require
ments of the issuer of any such policy and all
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orders, rules, regulations and other requirements
of the National Board of Fire Underwriters (or any
other body exercising similar functions)
applicable to or affecting the Leased Premises or
any part thereof or any use or condition of the
Leased Premises or any part thereof.
Lease: this Lease, as at the time amended,
modified or supplemented.
Lease Term: as defined in Section 2.
Legal Requirements: all laws, statutes,
codes, acts, ordinances, orders, judgments, xx
xxxxx, injunctions, rules, regulations, permits,
licenses, authorizations, directions and require
ments of all governments, departments,
commissions, boards, courts, authorities,
agencies, officials and officers, foreseen or
unforeseen, ordinary or extraordinary, which now
or at any time hereafter may be applicable to the
Leased Premises or any part thereof.
Lessee's Equipment: all equipment, furniture
and furnishings and any additions or replacement
thereto which are owned by the Lessee, for which
the Lessee has not been repaid under the Terms of
the Management Agreement and are to be located on
the Land.
First Mortgage: a first mortgage of Lessee's
interest under this Lease as provided for in
Section 19.
Taking: a taking during the Lease Term of
all or any part of the Leased Premises or any
leasehold or other interest therein or right
accruing thereto, as the result or in lieu or in
anticipation of the exercise of the right of
condemnation or eminent domain, or a change of
grade affecting the Leased Premises or any part
thereof.
Unavoidable Delays: Delays due to strikes,
acts of God, governmental restrictions, enemy
action, riot, civil commotion, fire, unavoidable
casualty or other causes beyond the control of
Lessee.
Improvements: As defined in Section 4.
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Impositions: As defined in Section 8.
2. Property; Lease Term. Upon and subject to
the conditions and limitations set forth below, Lessor
leases to Lessee, and Lessee rents from Lessor, the Leased
Premises.
TO HAVE AND TO HOLD for a term commencing on
December 9, 1985, and expiring at midnight on December 9,
1988, unless the term of this Lease ("Lease Term") shall
sooner terminate as hereinafter provided. Provided, however,
the term of this Lease shall be automatically extended for
five (5) additional three (3) year periods unless Lessee
gives written notice to Board no later than one hundred
twenty (120) days prior to the end of the initial term or
any three (3) year extension that it does not wish there to
be an automatic extension.
3. Rent. The execution and delivery by Lessee
of the Management Agreement and the completion of
construction of the psychiatric pavilion as therein provided
constitutes prepaid rent for the entire term hereof,
including all renewals. PROVIDED, HOWEVER, in the event the
Management Agreement shall terminate prior to the end of the
Lease Term then beginning with the first day of the first
calendar month following termination of the Management
Agreement, the Lessee shall pay as additional rent monthly
in advance on the first day of each calendar month the sum
of Four Thousand One Hundred Sixty-Six and 67/100 Dollars
($4,166.67).
4. Ownership of Improvements. Prior to termina
tion of this Lease the improvements constructed by Lessee on
the Land (the Improvements) shall be and remain the property
of Lessee. On termination of the Lease Term, whether by
expiration of time or otherwise, title to the Improvements
shall be surrendered to and the Improvements shall become
the full and absolute property of the City without further
action by the Lessor or the Lessee. The Lessee's interest in
this Lease and all of the Lessee's right, title and interest
in and to the Improvements shall be non-separable, and any
attempt to transfer, mortgage, assign, convey or otherwise
encumber in whole or in part either of such interests shall
be void and ineffective (whether by act of the Lessee,
judicial decrees, judgment or otherwise) unless there shall
be a complete transfer, mortgage, assignment or encumbrance
to the same party of the Lessee's interest under this Lease
and the Lessee's interest in he Improvements. Any severance
resulting from the Lessee's title to the Improvements shall
not change the character of the Improvements as real
property.
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5. Use of Property. Prior to the termination of
the Management Agreement, Lessee shall use the Leased
Premises for the purposes of providing psychiatric and
chemical dependency services and psychiatric and chemical
dependency ancillary therapy and office space, as provided
for in the Management Agreement. After termination of the
Management Agreement, the Leased Premises may be used for
any lawful hospital related purpose.
6. Maintenance and Repairs. Lessor, at its
expense and as a Direct Operating Expense billable to the
Unit in accordance with the Management Agreement, will keep
the Building Area and Improvements in good safe and clean
order and condition and will promptly make all necessary or
appropriate repairs, replacements and renewals thereof,
whether interior or exterior, structural or non-structural,
ordinary or extraordinary, foreseen or unforeseen. In the
event the Management Agreement shall terminate prior to the
end of the Lease Term, such maintenance and repair shall be
the responsibility of Lessee, and the cost thereof shall be
a credit against rent due hereunder. Lessee will give Lessor
ten (10) days prior written notice before incurring an
expense in excess of $5,000.00 which it intends to credit
against rent.
7. Removal or Demolition of Improvements; Alter
ations and Additions. Lessee shall have the right to make
alterations, additions and changes in any of the
Improvements so long as such do not materially or
substantially decrease the value of the same.
8. Impositions. Subject to Section 11 relating
to contests, Lessor and Lessee will pay as a Direct
Operating Expense payable from the revenues of the Unit all
taxes and assessments ("Impositions") against their
respective interests in the Leased Premises during the term
hereof before any interest, penalty, fine or cost may be
added for non-payment, and will furnish to the other party
for inspection within 30 days after written request,
official receipts of the appropriate taxing authority or
other proof satisfactory to such other party evidencing such
payment. In the event the Management Agreement shall
terminate prior to the end of the Lease Term, such taxes and
assessments shall, subject to Section 11, be paid by Lessee.
In the event the Management Agreement is terminated prior to
the end of the Lease Term, if by law any Imposition may be
paid in installments, Lessee shall be obligated to pay only
those installments as they become due from time to time
before any interest, penalty, fine or cost may be added
thereto; and any Imposition relating to the fiscal period of
the taxing authority, part of which is included within the
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term of this Lease and a part of which extends beyond such
term shall be apportioned between Lessor and Lessee as of
the expiration of the term of this Lease.
9. Compliance with Requirements, etc. Subject
to Section 11 relating to contests, each of Lessor and
Lessee, at its own expense, will, to the extent applicable
to their respective use of and activities in, and
obligations hereunder with respect to, the Leased Premises,
promptly and diligently (a) comply with all Legal
Requirements and Insurance Requirements, and (b) procure,
maintain and comply with all permits, licenses, franchises
and other authorizations required for any use of the Leased
Premises or any part thereof then being made, and for the
proper erection, installation, operation and maintenance of
the Improvements.
10. Liens, etc. Lessee will not directly or
indirectly create or permit to remain, and will discharge
any mortgage, lien, security interest, encumbrance or charge
on, pledge of or conditional sale or other title retention
agreement with respect to the Leased Premises or any part
thereof, other than (a) this Lease (b) a First Mortgage, and
related security documents in accordance with section 19,
(c) while the Management Agreement is in effect, liens for
any Impositions and thereafter, liens for Impositions not
yet payable, or payable without the addition of any fine,
penalty, interest or cost for non-payment, or being
contested as permitted by Xxxxxxx 00, (x) subject to section
11, liens of mechanics, materialmen, suppliers or vendors,
or rights thereto, incurred in the ordinary course of
business for sums which under the terms of the related
contracts are not at the time due, provided that adequate
provision for the payment thereof shall have been made, and
(e) liens created by Lessor.
11. Permitted Contests. Lessor or Lessee, at its
own expense, may contest by appropriate legal proceedings
conducted in good faith and with due diligence, the amount
or validity or application, in whole or in part, of any
Imposition or any Legal Requirement or Insurance Requirement
provided that (a) such party shall first make all contested
payments, under protest if it desires, unless such proceed
ings shall suspend the collection thereof from Lessor, and
from the Leased Premises, (b) neither the Leased Premises
nor any part thereof or interest therein would be in any
danger of being sold, forfeited, lost or interfered with,
and (c) in the case of any Legal Requirement, Lessor and/or
Lessee would not be in any danger of any additional civil or
any criminal liability for failure to comply therewith and
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the Leased Premises would not be subject to the imposition
of any lien as a result of such failure.
12. Utility Services; Lessor Maintenance.
Subject to Section VIC. of the Management Agreement, Lessor
will pay or cause to be paid all charges for all public or
private utility services and protective services at any time
rendered to or in connection with the Leased Premises or any
part thereof, will comply with all contracts relating to any
such services, and will do all other things required for the
maintenance and continuance of all such services. After
termination of the Management Agreement, Lessee will xxxx
xxxxx Lessor monthly, within ten (10) days after written
request, for Lessor's actual cost of providing such
services. Lessor's request for reimbursement shall contain
supporting calculations and other information reasonably
requested by Lessee, have attached thereto invoices and
other supporting data and be certified as correct by a
Certified Public Accountant acceptable to Lessee. Lessor
will maintain the Common Area and the Parking Area.
13. Quiet Enjoyment. Lessor covenants that
Lessor is the owner of fee simple title to the Leased
Premises free of all liens and encumbrances and that Lessee,
upon performing and complying with all covenants,
agreements, terms and conditions of this Lease on its part
to be performed or complied with, shall not be hindered or
molested in its enjoyment of the Leased Premises.
14. Insurance.
14.1 Risks. The Lessee shall keep all Im
provements insured against loss or damage by fire and other
hazards. Each of Lessor and Lessee shall provide liability
insurance for personal injury and death and property damage
for the benefit of Lessor and Lessee. Lessee shall provide
appropriate workmen's compensation or other insurance
against liability arising from claims of workmen in respect
of and during the period of any work on or about the Leased
Premises. During the term of the Management Agreement, costs
of such insurance shall be Direct Operating Expenses payable
from the revenue of the Unit.
14.2 Coverage. The Lessee shall maintain fire
and extended coverage insurance in an amount of full
replacement cost with "agreed amount" and "inflation guard"
endorsements and with deductible not to exceed $1,000, or in
such greater amount or other terms as First Mortgagee may
require, which policy shall be written by a company or
companies having a Best's rating of A: IX or better. The
cost of such insurance shall be a Direct Operating Expense
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payable from the revenue of the Unit. Each of Lessor and
Lessee shall carry liability insurance in the amount
required by the Oklahoma Political Subdivisions Tort Claims
Act.
14.3 Policy Forms. All policies of insurance
to be furnished hereunder shall be in forms, companies and
amounts satisfactory to First Mortgagee, with Standard
Mortgage Clauses attached to all policies in favor of and in
form satisfactory to First Mortgagee, including provisions
requiring that the coverage evidenced thereby shall not be
terminated or materially modified without thirty (30) days'
prior written notice to Lessor, Lessee and First Mortgagee.
14.4 Policy Provisions. All insurance main
tained pursuant to this section shall (a) include an effec
tive waiver by the insurer of all rights of subrogation
against any named insured or such insured's interest in the
Leased Premises or any income derived therefrom; and (b)
provide that any losses shall be payable notwithstanding any
act or failure to act or negligence of Lessor or Lessee or
any other Person.
All policies of insurance provided for shall name
Lessor, Lessee and the First Mortgagee as insurers as their
respective interests may appear.
Lessee, at its sole cost and expense, shall main
tain such other insurance and in such amounts as may from
time to time be reasonably required by First Mortgagee.
A Standard Mortgagee Clause naming each Leasehold
Mortgagee as additional insured (on its own behalf and on
behalf of any Institutional Lenders which it may represent)
and the Leasehold Mortgagee whose Leasehold Mortgage is
prior in lien as sole loss payee shall be added to any and
all insurance policies required to be carried by Lessee
hereunder. At or prior to the commencement of the Lease term
and thereafter not less than fifteen (15) days prior to the
expiration dates of the expiring policies theretofore fur
nished pursuant to this Agreement, originals of the policies
(or, in the case of blanket insurance policies and general
public liability insurance policies, certificates of the
insurers) bearing notations evidencing the payment of premi
ums or accompanied by other evidence of such payment satis
factory to Lessor or Lessee, as the case may be, and First
Mortgagee, shall be delivered to First Mortgagee with copies
thereof certified as true and correct delivered to Lessor or
Lessee, as the case may be.
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15. Damage to or Destruction of Property.
15.1 Lessee to Give Notice. In case of any
material damage to or destruction of the Leased Premises or
any part thereof, Lessee will promptly give written notice
thereof to Lessor and First Mortgagee, generally describing
the nature and extent of such damage or destruction.
15.2 Restoration. Except as provided in
Section 15.4 below, in case of any damage to or destruction
of the Improvements or any part thereof, Lessee, at its
expense, shall promptly commence and complete (subject to
Unavoidable Delays) the restoration, replacements or
rebuilding of the Improvements as nearly as possible to its
value, condition and character immediately prior to such
damage or destruction, with such alterations and additions
as may be made at Lessee's election pursuant to and subject
to the terms of section 7 (such restoration, replacement,
rebuilding, alterations and additions, together with any
temporary repairs and property protection pending completion
of the work, being herein called "Restoration").
15.3 Application of Insurance Proceeds.
Insurance proceeds received on account of any damage to or
destruction of the Leased Premises or any part thereof shall
be paid to the First Mortgagee, if any, to be applied in
accordance with the then existing credit agreement between
Lessee, First Mortgagee and other creditors named therein.
If there is no First Mortgage, then said proceeds shall be
held by a Depositary and applied as follows:
(a) If Lessee is obligated to or elects
to rebuild, the proceeds shall be paid to
Lessee or as Lessee may direct, from time to
time as Restoration progresses, to pay (or
reimburse Lessee for) the cost of Restoration
in the manner and under the conditions that
the Lessor may require, including, without
limitation; (i) approval of plans and
specifications of such work before such work
shall be commenced, (ii) suitable completion
or performance bonds and Builder's All Risk
insurance, (iii) The Improvements shall be so
restored or rebuilt as to be of at least
equal value as prior to such damage or
destruction, and (iv) written request of
Lessee accompanied by evidence, satisfactory
to Lessor, that the amount requested has been
paid or is then due and payable and is
properly a part of such cost. Upon receipt by
Lessor of evidence satisfactory to it that
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Restoration has been completed and the cost
thereof paid in full, and that there are no
mechanics' or similar liens for labor or
materials supplied in connection therewith,
the balance, if any, of such proceeds shall
be paid to the Lessee or as Lessee may
direct.
(b) If Lessee is not obligated to and
does not elect to rebuild, said insurance
proceeds shall be paid to Lessee, or as
Lessee may direct.
15.4 Limits on Obligation to Restore.
(a) In the event of damage or
destruction of 50% or greater at any time or damage
or destruction of 25% or greater during the
last year of the initial term or any renewal
term, Lessee at its option may terminate this
Lease by written notice to Lessor within
sixty (60) days following such damage or
destruction as of a date specified in such
notice within ninety (90) days of such damage
or destruction. Upon such termination, Lessee
shall have no liability to restore the Leased
Premises.
(b) So long as there is a First
Mortgagee, Lessee's obligation in Section 15.2
shall only apply if and to the extent said
First Mortgagee shall make funds for such
purpose available to Lessee in accordance
with the terms of the then existing credit
agreement between Lessee and such First
Mortgagee, and other creditors named therein.
If Lessee is not obligated to restore the
Leased Premises as a result of the operation
of this paragraph 15.4(b) then (i) this Lease
shall terminate at the option of either party
and upon such termination Lessee shall remove
to the surface elevation of the adjoining
ground all debris and restore the Leased
Premises as nearly as practical to their
condition prior to the erection of the
Improvements. Provided, however, Lessee shall
not be responsible for removal of concrete
slab, paving or underground utility lines.
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16. Taking.
16.1 Lessee to Give Notice, etc. In case of
a Taking of all or any part of the Leased Premises or the
commencement of any proceedings or negotiations which might
result in such Taking, Lessee will promptly give written
notice thereof to Lessor and First Mortgagee, generally
describing the nature and extent of such Taking or the
nature of such proceedings and negotiations and the nature
and extent of the Taking which might result therefrom, as
the case may be. Lessor and Lessee may each file and
prosecute their respective claims for an award, but all
awards and other payments on account of a Taking shall be
paid to the Depositary, except as provided in the first
sentence of Section 16.4 below.
16.2 Total Taking. In case of a Taking
(other than for temporary use) of the fee of the entire
Leased Premises, this Lease shall terminate as of the date
of such Taking. In case of a Taking (other than for
temporary use) of, (a) such perpetual easement on the entire
Leased Premises, or (b) such a substantial part of the
Leased Premises, as shall result, in the good faith judgment
of Lessee, in the Leased Premises remaining after such
Taking (even if Restoration were made) being unsuitable for
Lessee's use, or (c) a Taking of 25% or greater during the
last year of the initial term or any renewal term, Lessee
may, at its option, terminate this Lease by written notice
to Lessor given within 60 days after such Taking, as of a
date specified in such notice within 90 days after such
Taking. Any Taking of the character referred to in this
Section 16.2, which results in the termination of this
Lease, is referred to as a "Total Taking". No such
termination shall terminate the right of Lessee or First
Mortgage with respect to awards or other payments on account
of a Taking.
16.3 Partial Taking. In case of a Taking of
the Leased Premises other than a Total Taking, (a) this
Lease shall remain in full force and effect as to the
portion of the Leased Premises remaining immediately after
such Taking, (b) rent shall be reduced pro-rata, based on
the Lessee's reduced interest based on the number of
operational beds, and (c) Lessee, at its expense, will
promptly commence and complete, subject to Unavoidable
Delays, Restoration of the Leased Premises as nearly as
possible to its value, condition and character immediately
prior to such Taking, except for any reduction in area
caused thereby, provided that, in case of a Taking for
temporary use, Lessee shall not be required to effect
Restoration until such Taking is terminated. So long as
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there is a First Mortgagee, Lessee's obligation to restore
shall only apply if and to the extent that said First
Mortgagee shall make funds for such purpose available to
Lessee in accordance with the terms of the then existing
credit agreement between Lessee and such First Mortgagee.
16.4 Application of Awards and Other
Payments. Awards and other payments on account of a Taking
shall be paid to the First Mortgagee, if any, to be applied
in accordance with the then existing credit agreement
between Lessee, First Mortgagee and other creditors named
therein. If there is no First Mortgagee, then said awards
and other payments shall be applied as follows:
(a) Net awards and payments received on
account of a Taking other than a Taking for
temporary use or a Total Taking shall be held
and applied to pay the cost of Restoration of
the Property, such application to be made
substantially as provided in paragraph (a) of
section 15.3, with respect to insurance
proceeds. The balance, if any, shall be paid
to Lessee.
(b) Net awards and payments received on
account of a Taking for temporary use shall
be paid to the Lessee, provided that, if any
portion of any such award or payment is made
by reason of any damage to or destruction of
the Leased Premises such portion shall be
held and applied as provided in the first
sentence of paragraph (a) of this Section
16.4.
(c) Net awards and payments received on
account of a Total Taking shall be allocated
as follows:
First: There shall be paid to
Lessor an amount equal to the fair
market value of the improved Building
Area as determined by an appraisal.
Second: Any remaining balance
shall be paid to Lessee.
Not more than thirty (30) days after any Taking
referred to in paragraph (c) of this Section 16.4, Lessor
shall cause a member of The American Institute of Real
Estate Appraisers, or an organization that is a successor
thereto, or in the event no such organization exists, an
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organization of appraisers substantially similar thereto,
(hereinafter "MAI Appraiser") to determine the value of the
interest of Lessor as required by the provisions of such
paragraph. Lessor's appraisal shall be the value if Lessee
does not (a) within ten (10) days after receipt of notice of
Lessor's appraisal employ an MAI Appraiser to determine the
value and (b) within thirty (30) days after the effective
date of notice of such objection submit to Lessor Lessee's
appraisal and a written summary of the methods used and data
collected to make the determination. If Lessor's and Les
see's appraisal differ by less than ten percent (10%), they
shall be averaged. If they differ by more than ten percent
(10%), the two appraisers shall jointly appoint a third MAI
Appraiser. The appraisal that among the three is furthest
from the median of the appraisals shall be disregarded and
the mean average of the other two shall be the value and
binding upon Lessor and Lessee. Lessor and Lessee shall each
pay one-half (1/2) of the expense of all appraisals.
16.5 First Mortgagee Participation. The
First Mortgagee, if any, shall have the right to participate
in all proceedings and negotiations described in Section
16.1.
17. Right to Perform Lessee's Covenants. In the
event that Lessee shall fail to perform any act required
hereunder to be performed by Lessee, then Lessor or First
Mortgagee may, but shall be under no obligation to, after
such notice to Lessee, if any, as may be reasonable under
the circumstances, perform such act with the same effect as
if made or performed by Lessee. Entry by Lessor or First
Mortgagee upon the Leased Premises for such purpose shall
not waive or release Lessee from any obligation or default
hereunder (except in the case of any obligation or default
which shall have been fully performed or cured by
Mortgagee). Lessee shall reimburse Lessor and First
Mortgagee for all sums so paid by Lessor or First Mortgagee
and all costs and expenses incurred by Lessor and First
Mortgagee in connection with the performance of any such
act. Any amount not reimbursed to the Lessor within ten (10)
days after demand may be deducted from payments due to the
Lessee under the Management Agreement.
18. Right to Perform Lessor's Covenants. In the
event that Lessor shall fail to pay any sum or perform any
act required hereunder to be paid or performed by Lessor,
then Lessee may, but shall be under no obligation to, after
such notice to Lessor as may be reasonable under the
circumstances, pay such sum or perform such act with the same
effect as if performed by Lessor. Lessor shall reimburse
Lessee for all sums so paid by Lessee and all costs and
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expenses incurred by Lessee in the performance of any such
act. Any amount not reimbursed within ten (10) days after
demand may be deducted from rent, or from payments due to
Lessor under the Management Agreement.
19. Leasehold Mortgages.
(a) Leasehold Mortgage Authorized
Without Lessor's prior consent Lessee
may mortgage or otherwise encumber Lessee's
leasehold estate created by this Lease and
including all, Improvements (the "Leasehold
Estate") to or for the benefit of the Lenders, to
secure an amount not to exceed the amount of
$1,700,000.00 plus accrued interest, or to
replace, restructure, refinance, refund or renew
such mortgage (including, without limitation such
replacement, restructure or refinancing involving
a mortgagee as trustee, agent or other
representative capacity to secure notes or bonds
or other obligations issued by Lessee), under a
Leasehold Mortgage and assign this Lease as
security for such Mortgage or Mortgages. Any other
Leasehold Mortgage shall require prior written
consent of the Board.
(b) Notice to Lessor
(i) (1) If Lessee shall on one or more
occasions mortgage or otherwise encumber Lessee's
Leasehold Estate to or for the benefit of one or
more Institutional Lenders, and if the holder of
such Leasehold Mortgage shall provide Lessor with
notice of such Leasehold Mortgage together with a
copy of such Leasehold Mortgage and the name and
address of the Leasehold Mortgagee, Lessor and
Lessee agree that, following receipt of such
notice by Lessor, the provisions of this Section
19 shall apply in respect to each such Leasehold
Mortgage.
(2) In the event of any assignment of a
Leasehold Mortgage or in the event of a change of
address of a Leasehold Mortgagee or of any
Assignee of such Leasehold Mortgage, notice of the
new name and address shall be provided to Lessor.
(ii) Lessor shall promptly upon receipt
of a communication purporting to constitute the
notice provided for by subsection (b)(i) above
15
acknowledge receipt of such communication as
constituting the notice provided for by subsection
(b)(i) above and agree to be bound by the provi
sions of the Lease for the benefit of the
Leasehold Mortgagee by an instrument in recordable
form or, in the alternative, notify the Lessee and
the Leasehold Mortgagee of the rejection of such
communication as not conforming with the
provisions of subsection (b)(i) and specify the
specific basis of such rejection.
(iii) After Lessor has received the
notice provided for by subsection (b)(i) above,
the Lessee, upon being requested to do so by
Lessor, shall with reasonable promptness provide
Lessor with copies of the note or other obligation
secured by such Leasehold Mortgage and of any
other documents pertinent to the Leasehold
Mortgage as specified by the Lessor. If requested
to do so by Lessor, the Lessee shall thereafter
also provide the Lessor from time to time with a
copy of each amendment or other modification or
supplement to such instruments. All recorded
documents shall be accompanied by the appropriate
certification of the applicable Recording Office
as to their authenticity as true and correct
copies of official records and all nonrecorded
documents shall be accompanied by a certification
by Lessee that such documents are true and correct
copies of the originals. From time to time upon
being requested to do so by Lessor, Lessee shall
also notify Lessor of the date and place of
recording and other pertinent recording data with
respect to such instruments as have been recorded.
Neither Lessee's failure to provide any of the
documents described above certified as so
provided, nor any other act or omission by Lessee
shall affect the validity of a Leasehold Mortgage
or the Leasehold Mortgagee's exercise of its
rights under this Lease or the Leasehold Mortgage.
(c) Definitions
(i) The term "Institutional Lender(s)"
as used in this Section 19 shall refer to a
savings bank, savings and loan association,
commercial bank, trust company, credit union,
insurance company, educational institution, real
estate investment trust or pension fund, in each
case whether acting for itself or as agent or
trustee or other representative capacity for the
16
holders of notes, bonds or other obligations of
Lessee. The term "Institutional Lender(s)" shall
also include other lenders of substance which
perform functions similar to any of the foregoing,
and which have assets in excess of fifty million
dollars ($50,000,000) at the time the Leasehold
Mortgage loan or obligation is made or incurred.
(ii) The term "Leasehold Mortgage" as
used in this Section 19 shall include a mortgage,
a deed of trust, a deed to secure debt, assignment
of rents and profits or other security instrument
by which Lessee's Leasehold Estate is mortgaged,
conveyed, assigned, or otherwise encumbered, to
secure a debt or other obligation.
(iii) The term "Leasehold Mortgagee" as
used in this Section 19 shall refer to any holder
of a Leasehold Mortgage, whether for itself or in
a representative capacity, in respect to which the
notice provided for by subsection (b) of this
Section 19 has been given and received and as to
which the provisions of this Section 19 are
applicable.
(d) Consent of Leasehold Mortgagee Required
No termination, surrender or modification of this
Lease by Lessor and/or Lessee whether pursuant to Section 2,
15 or 16 or otherwise (other than a termination by Lessor
after an Event of Default made in accordance with the
provisions of this Section 19) shall be effective unless
consented to in writing by all Leasehold Mortgagees.
(e) Default Notice
Lessor, upon providing Lessee any notice of: (i)
default under this Lease, or (ii) a termination of this
Lease, or (iii) a matter on which Lessor may predicate or
claim a default, shall at the same time provide a copy of
such notice to every Leasehold Mortgagee. No such notice by
Lessor to Lessee shall be deemed to have been duly given
unless and until a copy thereof has been so received by
every Leasehold Mortgagee. From and after such notice has
been received by every Leasehold Mortgagee, such Leasehold
Mortgagee shall have the same period, after the giving of
such notice upon it, for remedying any default or acts or
omissions which are the subject matter of such notice or
causing the same to be remedied, as is given Lessee after
the giving of such notice to Lessee, plus in each instance,
the additional period of time specified in subsections (f)
17
and (g) of this Section 19 to remedy, commence remedying or
cause to be remedied the defaults or acts or omissions which
are the subject matter of such notice specified in any such
notice. Lessor shall accept such performance by or at the
instigation of such Leasehold Mortgagee as if the same had
been done by Lessee. Lessee authorizes each Leasehold
Mortgagee to take any such action at such Leasehold
Mortgagee's option and does hereby authorize entry upon the
Leased Premises by the Leasehold Mortgagee for such purpose.
(f) Notice to Leasehold Mortgagee
(i) Anything contained in this Lease to
the contrary notwithstanding, if any default shall
occur which entitles Lessor to terminate this
Lease, Lessor shall have no right to terminate
this Lease unless, following the expiration of the
period of time given Lessee to cure such default
or the act or omission which gave rise to such
default, Lessor shall notify every Leasehold
Mortgagee of Lessor's intent to so terminate at
least 30 days in advance of the proposed effective
date of such termination if such default is
capable of being cured by the payment of money,
and at least 45 days in advance of the proposed
effective date of such termination if such default
is not capable of being cured by the payment of
money. The provisions of subsection (g) below of
this Section 19 shall apply if, during such 30- or
45-day termination notice period, any Leasehold
Mortgagee shall:
(1) notify Lessor of such Leasehold
Mortgagee's desire to nullify such notice, and
(2) pay or cause to be paid all rent,
additional rent, and other payments then due and
in arrears as specified in the Termination Notice
to such Leasehold Mortgagee and which may become
due during such 30- or 45-day period, and
(3) comply or in good faith, with
reasonable diligence and continuity, commence to
comply with all nonmonetary requirements of this
Lease then in default and reasonably susceptible
of being complied with by such Leasehold
Mortgagee; provided, however, that such Leasehold
Mortgagee shall not be required during such 45-day
period to cure or commence to cure any default
consisting of Lessee's failure to satisfy and
discharge any lien, charge or other encumbrance
18
against the Lessee's interest in this Lease or the
Leased Premises junior in priority to the lien of
the Leasehold Mortgage held by such Leasehold
Mortgagee.
(ii) Any notice to be given by Lessor to
a Leasehold Mortgagee pursuant to any provision of
this Section 19 shall be deemed properly addressed
if sent to the Leasehold Mortgagee who served the
notice referred to in subsection (b)(i)(l) unless
notice of a change of Leasehold Mortgage ownership
has been given to Lessor pursuant to subsection
(b)(i)(2).
(g) Procedure On Default
(i) If Lessor shall elect to terminate
this Lease by reason of any default of Lessee, and
a Leasehold Mortgagee shall have proceeded in the
manner provided for by subsection (f) of this
Section 19, the specified date for the termination
of this Lease as fixed by Lessor in its
Termination Notice shall be extended for a period
of six months, provided that such Leasehold
Mortgagee shall, during such six-month period:
(1) Pay or cause to be paid the rent,
additional rent and other monetary obligations of
Lessee under this Lease as the same become due,
and continue its good faith efforts to perform all
of Lessee's other obligations under this Lease,
excepting (A) obligations of Lessee to satisfy or
otherwise discharge any lien, charge or other
encumbrance against Lessee's interest in this
Lease or the Leased Premises junior in priority to
the lien of the Leasehold Mortgage held by such
Leasehold Mortgagee and (B) nonmonetary
obligations then in default and not reasonably
susceptible of being cured by such Leasehold
Mortgagee (which shall include Section 20(c) and
20(d), without limitation)
(2) if not enjoined or stayed or
otherwise prohibited by legal process, take steps
to acquire or sell Lessee's interest in this Lease
by foreclosure of the Leasehold Mortgage or other
appropriate means and prosecute the same to
completion with due diligence.
(ii) If at the end of such six (6) month
period such Leasehold Mortgagee is complying with
19
subsection (g)(i), this Lease shall not then
terminate, and the time for completion by such
Leasehold Mortgagee of its proceedings shall
continue so long as such Leasehold Mortgagee is
enjoined or stayed or otherwise prohibited by
legal process and thereafter for so long as such
Leasehold Mortgagee proceeds to complete steps to
acquire or sell Lessee's interest in this Lease by
foreclosure of the Leasehold Mortgage or by other
appropriate means with reasonable diligence and
continuity. Nothing in this subsection (g) of
this Section 19, however, shall be construed to
extend this Lease beyond the original term thereof
as extended by any options to extend the term of
this Lease properly exercised by Lessee or a
Leasehold Mortgagee in accordance with Section 19,
nor to require a Leasehold Mortgagee to continue
such foreclosure proceedings after the default has
been cured. If the default shall be cured and the
Leasehold Mortgagee shall discontinue such
foreclosure proceedings, this Lease shall continue
in full force and effect as if Lease had not
defaulted under this Lease.
(iii) If a Leasehold Mortgage is
complying with subsection (g)(i) of this Section
19, upon the acquisition of Lessee's Leasehold
Estate herein by such Leasehold Mortgagee or its
designee or any other purchaser at a foreclosure
sale or otherwise, this Lease shall continue in
full force and effect as if Lessee had not
defaulted under this Lease.
(iv) For the purpose of this Section 19,
the making of a Leasehold Mortgage shall not be
deemed to constitute an assignment or transfer of
this Lease or the Leasehold Estate hereby created,
nor shall any Leasehold Mortgagee, as such, be
deemed top be an assignee or transferee of this
Lease or of the Leasehold Estate hereby created so
as to require such Leasehold Mortgagee, as such,
to assume the performance of any of the terms,
covenants or conditions on the part of the Lessee
to be performed hereunder, but the purchaser at
any sale of this Lease and of the Leasehold Estate
hereby created in any proceedings for the
foreclosure of any Leasehold Mortgage, or the
assignee or transferee of this Lease and of the
Leasehold Estate hereby created in any proceedings
for the foreclosure of any Leasehold Mortgage, or
the assignee or transferee of this Lease and of
20
the Leasehold Estate hereby created under any
instrument of assignment or transfer in lieu of
the foreclosure of any Leasehold Mortgage shall be
deemed to be an assignee or transferee within the
meaning of this Section 19, and shall be deemed to
have agreed to perform all of the terms, covenants
and conditions on the part of the Lessee to be
performed hereunder from and after the date of
such purchase and assignment, but only for so long
as such purchaser or assignee is the owner of the
Leasehold Estate. If the Leasehold Mortgagee
shall become holder of the Leasehold Estate and if
the Improvements shall have been or become
materially damaged on, before or after the date of
such purchase and assignment, the Leasehold
Mortgagee or its designee shall be obligated to
repair, replace or reconstruct the Improvements if
Lessee is obligated to do so under Section 15,
only to the extent of the net insurance proceeds
received by the Leasehold Mortgagee or its
designee by reason of such damage. However, should
such net insurance proceeds be insufficient to
repair, replace or reconstruct the building or
other improvements to the extent required by
Section 15 and should the Leasehold Mortgagee or
its designee choose not to fully reconstruct the
Improvements to the extent required by said
Section 15 such failure shall constitute an event
of default under this Lease.
(v) Any Leasehold Mortgagee or other
acquirer of the Leasehold Estate of Lessee
pursuant to foreclosure, assignment in lieu of
foreclosure or other proceedings may, upon acquir
ing Lessee's Leasehold Estate, without further
consent of Lessor, sell and assign the Leasehold
Estate on such terms and to such persons and
organizations as are acceptable to such Leasehold
Mortgagee or acquirer and thereafter be relieved
of all obligations under this Lease; provided that
such assignee has delivered to Lessor its written
agreement to be bound by all of the provisions of
this Lease.
(vi) Notwithstanding any other
provisions of this Lease, any sale of this Lease
and of the Leasehold Estate hereby created in any
proceedings for the foreclosure of any Leasehold
Mortgage, or the assignment or transfer of this
Lease and of the Leasehold Estate hereby created
in lieu of the foreclosure of any Leasehold
21
Mortgage shall be deemed to be a permitted sale,
transfer or assignment of this Lease and of the
Leasehold Estate hereby created.
(h) New Lease
In the event of the termination of this Lease for
any reason whatsoever, including, without limitation, due to
a default by Lessee under this Lease or a rejection of this
Lease by Lessee as debtor-in-possession or by Lessee's
trustee in bankruptcy, Lessor shall, in addition to
providing the notices of default and termination as required
by subsections (e) and (f) above of this Section 19, provide
each Leasehold Mortgagee with written notice that the Lease
has been terminated, together with a statement of all sums
which would at that time be due under this Lease but for
such termination, and of all other defaults, if any, then
known to Lessor. Lessor agrees to enter into a new lease
("New Lease") of the Leased Premises with such Leasehold
Mortgagee or its designee for the remainder of the term of
this Lease, effective as of the date of termination, at the
rent and additional rent, and upon the terms, covenants and
conditions (including all options to renew but excluding
requirements which are not applicable or which have already
been fulfilled) of this Lease, provided:
(i) Such Leasehold Mortgagee shall make
written request upon Lessor for such New Lease
within 60 days after the date such Leasehold
Mortgagee receives Landlord's Notice of
Termination of this Lease given pursuant to this
subsection (h).
(ii) Such Leasehold Mortgagee or its
designee shall pay or cause to be paid to Lessor
at the time of the execution and delivery of such
New Lease, any and all sums which would at the
time of execution and delivery thereof be due
pursuant to this Lease but for such termination
and, in addition thereto, all reasonable expenses,
including reasonable attorneys' fees, which Lessor
shall have incurred by reason of such termination
and the execution and delivery of the New Lease
and which have not otherwise been received by
Lessor from Lessee or other party in interest
under Lessee. Upon the execution of such New
Lease, Lessor shall allow to the Lessee named
therein as an offset against the sums otherwise
due under this subsection (h)(ii) or under the New
Lease, an amount equal to the net income derived
by Lessor from the Leased Premises during the
22
period from the date of termination of this Lease
to the date of the beginning of the Lease term of
such New Lease. In the event of a controversy as
to the amount to be paid to Lessor pursuant to
this subsection (h)(ii), the payment obligation
shall be satisfied if Lessor shall be paid the
amount not in controversy, and the Leasehold
Mortgagee or its designee shall agree to pay any
additional sum ultimately determined to be due
plus interest at the rate of 10% per annum.
(iii) Such Leasehold Mortgagee or its
designee shall agree to remedy any of Lessee's
defaults of which said Leasehold Mortgagee was
notified by Lessor's Notice of Termination and
which are reasonably susceptible of being so cured
by Leasehold Mortgagee or its designee. Provided,
however, that such Leasehold Mortgagee or its
designee shall not be required to cure any default
consisting of Lessee's failure to satisfy and
discharge any lien, charge or other encumbrance
against the Lessee's interest in this Lease or the
Leased Premises junior in priority to the lien of
the Leasehold Mortgage held by the Leasehold
Mortgagee.
(iv) Any New Lease made pursuant to this
subsection (h) and any renewal lease entered into
with a Leasehold Mortgagee shall be prior to any
mortgage or other lien, charge or encumbrance on
the fee of the Leased Premises and the Lessee
under such New Lease shall have the same right,
title and interest in and to the Leased Premises
and the buildings, improvements and fixtures
thereon as Lessee had under this Lease.
(v) The Lessee under any such New Lease
shall be liable to perform the obligations imposed
on the Lessee by such New Lease only during the
period such person has ownership of such Leasehold
Estate.
(i) New Lease Priorities
If more than one Leasehold Mortgagee shall request
a New Lease pursuant to subsection (h)(i) of this Section
19, Lessor shall enter into such New Lease with the
Leasehold Mortgagee whose Leasehold Mortgage is prior in
lien, or with the designee of such Leasehold Mortgagee.
Lessor, without liability to Lessee or any Leasehold
Mortgagee with an adverse claim, may rely upon a mortgagee
23
title insurance policy issued by a responsible title
insurance company doing business within the state in which
the Leased Premises are located as the basis for determining
the appropriate Leasehold Mortgagee who is entitled to such
New Lease.
(j) Leasehold Mortgagee Need Not Cure
Specified Defaults
Nothing herein contained shall require any
Leasehold Mortgagee or its designee as a condition to its
exercise of right hereunder to cure any default of Lessee
not reasonably susceptible of being cured by such Leasehold
Mortgagee or its designee, or a subsequent owner of the
Leasehold Estate through foreclosure hereof (including,
without limitation, Sections 20(c) and 20(d)), in order to
comply with the provisions of subsection (f) or (g) of this
Section 19, or as a condition of entering into the New Lease
provided for by subsection (h) of this Section 19.
(k) No Merger
So long as any Leasehold Mortgage is in existence,
unless all Leasehold Mortgagees shall otherwise expressly
consent in writing, the fee title to the Leased Premises and
the Leasehold Estate of Lessee therein created by this Lease
shall not merge but shall remain separate and distinct,
notwithstanding the acquisition of said fee title and said
Leasehold Estate by Lessor or by Lessee or by a third party,
by purchase or otherwise.
(l) Future Amendments
In the event Lessee seeks to mortgage its
Leasehold Estate, Lessor agrees to amend this Lease from
time to time to the extent reasonably requested by an
Institutional Lender proposing to make Lessee a loan secured
by a first lien upon Lessee's Leasehold Estate, provided
that such proposed amendments do not materially and
adversely affect the rights of Lessor or its interest in the
Leased Premises. All reasonable expenses incurred by Lessor
in connection with any such amendment shall be paid by
Lessee.
(m) Estoppel Certificate
Lessor shall, without charge, at any time and from
time to time hereafter, but not more frequently than twice
in any one-year period (or more frequently if such request
is made in connection with any sale or mortgaging of
Lessee's Leasehold interest or permitted subletting by
24
Lessee), within 10 days after written request of Lessee to
do so, certify by written instrument duly executed and
acknowledged to any Leasehold Mortgagee or purchaser, or
proposed Leasehold Mortgagee or proposed purchaser, or any
other person, firm or corporation specified in such request:
(A) as to whether this Lease has been supplemented or amend
ed, and if so, the substance and manner of such supplement
or amendment; (B) as to the validity and force and effect of
this Lease, in accordance with its tenor; (C) as to the
existence of any default hereunder; (D) as to the existence
of any offsets, counterclaims or defenses hereto on the part
of the Lessee; (E) as to the commencement and expiration
dates of the term of this Lease; and (F) as to any other
matters as may be reasonably so requested. Any such
certificate may be relied upon by the Lessee and any other
person, firm or corporation to whom the same may be
exhibited or delivered, and the contents of such certificate
shall be binding on the Lessor.
(n) Notices
Notices from Lessor to the Leasehold Mortgagee
shall be mailed or personally delivered to the address
furnished Lessor pursuant to subsection (b) of this Section
19, and those from the Leasehold Mortgagee to Lessor shall
be mailed or personally delivered to the address designated
pursuant to the provisions of Section 26 hereof. Such
notices, demands and requests shall be given in the manner
described in Section 26 and shall in all respects be
governed by the provisions of that Section.
(o) Erroneous Payments
No payment made to Lessor by a Leasehold Mortgagee
shall constitute agreement that such payment was, in fact,
due under the terms of this Lease; and a Leasehold Mortgagee
having made any payment to Lessor pursuant to Lessor's
wrongful, improper or mistaken notice or demand shall be
entitled to the return of any such payment or portion
thereof provided he shall have made demand therefor not
later than one year after the date of its payment.
(p) Performance of Leasehold Mortgagee
Leasehold Mortgagee shall have the right, but not
the obligation, at any time prior to termination of this
Lease to pay all rents due hereunder, to effect any
insurance, to pay any taxes or assessments, to make any
repair or improvements or otherwise to do any act or thing
required of the Lessee hereunder or necessary or proper to
prevent the termination of this Lease, and Leasehold
25
Mortgagee is authorized to enter the Leased Premises for any
such purpose. All such acts and things shall be effective to
prevent a termination of this Lease as if done by Lessee
instead of Leasehold Mortgagee.
(q) Survival
The provisions of this section 19 shall survive
any termination of this Lease.
20. Events of Default; Termination. If any one
or more of the following events ("Events of Default") shall
occur:
(a) if Lessee shall fail to pay any rent and
such failure shall continue for more than twenty
(20) days after notice thereof from Lessor; or
(b) if Lessee shall fail to perform or
comply with any term hereof, such failure shall
continue for more than 90 days after notice
thereof from Lessor, and Lessee shall not, subject
to Unavoidable Delays, within such period commence
with due diligence and dispatch the curing of such
default, or, having so commenced, shall thereafter
fail or neglect, for reasons other than
Unavoidable Delays, to prosecute or complete with
due diligence and dispatch the curing of such
default; or
(c) if Lessee shall make a general
assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts as
they become due or shall file a petition in
bankruptcy, or shall be adjudicated a bankrupt or
insolvent, or shall file a petition seeking any
reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or
regulation, or shall file an answer admitting or
shall fail seasonably to contest the material
allegations of a petition filed against it in any
such proceeding, or shall seek or consent to or
acquiesce in the appointment of any trustee,
receiver or liquidator of Lessee or any material
part of its properties; or
(d) if, within 90 days after the
commencement of any proceeding against Lessee
seeking any reorganization, arrangement,
composition, readjustment, liquidation,
26
dissolution or similar relief under any present or
future statute, law or regulation, such proceeding
shall not have been dismissed, or if, within 90
days after the appointment without the consent or
acquiescence of Lessee, of any trustee, receiver
or liquidator of Lessee or of any material part of
its properties, such appointment shall not have
been vacated;
then, and in any such event (regardless of the tendency of
any proceeding which has or might have the effect of
preventing Lessee from complying with the terms of this
Lease), Lessor, at any time thereafter may give a written
termination notice to Lessee, and, subject to Section 19, on
the date specified in such notice this Lease shall terminate
and, the Lease Term shall expire and terminate by
limitation, and all rights of Lessee under this Lease shall
cease, unless before such date (i) all arrears of Rent,
(together with interest thereon at the rate of 10% per
annum) and all reasonable costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses)
incurred by or on behalf of Lessor hereunder, shall have
been paid by Lessee, and (ii) all other defaults at the time
existing under this Lease shall have been fully remedied to
the reasonable satisfaction of Lessor.
21. No Waiver, etc., by Lessor or Lessee. No
failure by Lessor or Lessee to insist upon the strict
performance of any term hereof or to exercise any right,
power or remedy consequent upon a breach thereof, and no
submission by Lessee or acceptance by Lessor of full or
partial rent during the continuance of any such breach,
shall constitute a waiver of any such breach or of any such
term. No waiver of any breach shall effect or alter this
Lease, which shall continue in full force and effect, or the
respective rights of Lessor or Lessee with respect to any
other then existing or subsequent breach. No foreclosure,
sale or other proceeding under any Mortgage or any other
mortgage with respect to the Leased Premises shall discharge
or otherwise affect the obligations of Lessee hereunder.
22. Acceptance of Surrender. No modification,
termination or surrender of this Lease or surrender of the
Leased Premises or any part thereof whether pursuant to
Sections 15 or 16 or otherwise, or of any interest therein
by Lessee shall be valid or effective unless agreed to and
accepted in writing by Lessor and First Mortgagee, if any,
and no act by any representative or agent of Lessor or First
Mortgagee, other than such a written agreement and
acceptance by Lessor and First Mortgagee, shall constitute
an acceptance thereof.
27
23. Estoppel Certificate by Lessee. Lessee will
execute, acknowledge and deliver to Lessor, promptly upon
request, a certificate certifying that (a) this Lease is
unmodified and in full force and effect (or, if there have
been modifications, that the Lease is in full force and
effect, as modified, and stating the modifications), (b) the
dates, if any, to which Rent, has been paid, and (c) no
notice has been received by Lessee of any default which has
not been cured, except as to defaults specified in said
certificate. Any such certificate may be relied upon by any
prospective purchaser or mortgagee of the Leased Premises or
any part thereof.
24. End of Lease Term. Upon the expiration or,
other termination of the term of this Lease, Lessee shall
quit and surrender to Lessor the Leased Premises ordinary
wear and tear and damage by fire and other casualty
excepted, and shall remove all Lessee's Equipment therefrom.
25. Provisions Subject to Applicable Law. All
rights, powers and remedies provided herein may be exercised
only to the extent that the exercise thereof does not
violate any applicable law, and are intended to be limited
to the extent necessary so that they will not render this
Lease invalid, unenforceable or not entitled to be recorded
under any applicable law. If any term of this Lease shall be
held to be invalid, illegal or unenforceable, the validity
of the other terms of this Lease shall in no way be affected
thereby.
26. Notices, etc. All notices and other communi
cations hereunder shall be in writing and shall be deemed to
have been given when mailed by first class registered or
certified mail, postage prepaid, or personally delivered
addressed (a) if to Lessee, 0000 Xxxxxxxxxxx Xxxxxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxxxx 00000, with a copy to the Leased
Premises, or at such other address as Lessee shall have
furnished in writing to Lessor, or (b) if the Lessor, at
0000 X.X. 00xx Xx., Xxxxxxx, Xxxxxxxx or at such other
address as Lessor shall have furnished in writing to Lessee.
27. Easements. If requested by Lessee, Lessor
will join in any easements, licenses, plats or restrictions
determined by Lessee to be necessary or desirable for the
operation of the Lease Premises; provided, however, the form
of any such instruments is subject to the approval of Lessor
which will not be unreasonably withheld or delayed.
28. Assignment. The Lessee shall have the right
to assign this Lease, with the consent of the Lessor, which
shall not be unreasonably withheld or delayed, to any
28
transferee of substantially all of Lessee's assets
(including the Lessee's rights under the Management
Agreement if still in effect) provided such transferree
expressly assumes, by writing delivered to Lessor, all of
the obligations of the transferring party under this Lease.
29. Miscellaneous. This Lease may be changed,
waived, discharged or terminated only by an instrument in
writing signed by the party against which enforcement of
such change, waiver, discharge or termination is sought.
This Lease shall be binding upon and inure to the benefit of
and be enforceable by the respective successors and assigns
of the parties hereto. The headings in this Lease are for
purposes of reference only and shall not limit or define the
meaning hereof. This Lease may be executed in any number of
counterparts, each of which is an original, but all of which
shall constitute one instrument. In the event of a conflict
between the terms of this Lease and the terms of the City
Lease or the Contract, the terms of this Lease shall
control. City joins in this Lease as owner of the Leased
Premises to lease the Leased Premises to Lessee and to
evidence its approval of and ratify the terms and provisions
hereof, however, nothing herein contained shall create an
indebtedness of the City.
IN WITNESS WHEREOF, the parties hereto have caused
this Lease to be executed and their respective seals to be
hereunto affixed and attested by their respective officers
thereunto duly authorized.
BETHANY PSYCHIATRIC HOSPITAL,
INC.,
ATTEST: an Oklahoma corporation
By:
Its Assistant Secretary Its President
BETHANY GENERAL HOSPITAL
By: THE HOSPITAL BOARD OF
ATTEST: THE CITY OF BETHANY, OKLAHOMA
By:
Its Secretary Its Chairman
29
THE CITY OF BETHANY, OKLAHOMA
ATTEST:
By:
Its Clerk Its Mayor
THE XXXXXXX HOSPITAL TRUST,
ATTEST: a Public Trust
By:
Its Secretary Its Chairman
1
STATE OF ALABAMA)
)ss.
COUNTY OF JEFFERSON)
The foregoing instrument was acknowledged before
me this ______ day of _________, 1986, by Xxxxxxx X. Xxxxx,
as President of Bethany Psychiatric Hospital, Inc., an
Oklahoma corporation, on behalf of the corporation.
Notary Public
My Commission Expires:
(SEAL)
STATE OF OKLAHOMA )
) ss.
COUNTY OF OKLAHOMA)
The foregoing instrument was acknowledged before
me this _____ day of ________, 1985, by ______________ as
_______________ of The Hospital Board of the City of
Bethany, Oklahoma, on behalf of Bethany General Hospital.
Notary Public
My Commission Expires:
(SEAL)
2
STATE OF OKLAHOMA)
) ss.
COUNTY OF OKLAHOMA)
The foregoing instrument was acknowledged before
me this _____ day of _________, 1985, by _________________
as _______________, Chairman of The Xxxxxxx Hospital Trust,
a public trust, on behalf of the Trust.
Notary Public
My Commission Expires:
(SEAL)
STATE OF OKLAHOMA)
) ss.
COUNTY OF OKLAHOMA)
The foregoing instrument was acknowledged before
me this _____ day of _______, 1985, by ______________ as
_______________ of The City of Bethany, Oklahoma, on behalf
of The City of Bethany, Oklahoma.
Notary Public
My Commission Expires:
(SEAL)
1
EXHIBIT "A"
Schedule A
A part of the Northwest Quarter (NW/4) of Section
TWENTY-NINE (29), Township TWELVE (12) North, Range FOUR (4)
West of the Indian Meridian, more particularly described as
follows, to-wit: Beginning at a point in the North line of
said Northwest Quarter (NW/4) 685 feet West of the Northeast
corner of said Northwest Quarter (NW/4) for the point or
place of beginning; thence South and at right angles to the
North line of said Northwest Quarter (NW/4) a distance of 50
feet to the point of a curvature; thence to the left along
the arc of a curve having a radius of 775.06 feet for a
distance of 533.35 feet to the point of a reverse curve;
thence to the right and along an arc of a curve having a
radius of 707.78 feet for a distance of 198.69 feet to the
point of a compound tangency; thence Southwesterly and to
the right along the arc of the curve having a radius of
329.36 feet for a distance of 134.18 feet to the point of a
tangency; thence West and parallel with the North line of
said Northwest Quarter (NW/4) a distance of 735 feet to the
point of a curvature; thence to the right and along the arc
of a curve having a radius of 444.71 feet for a distance of
39.33 feet to the point of a compound tangency; thence
Northeasterly and to the right along the arc of a curve
having a radius of 379.66 feet for a distance of 195.56 feet
to the point of a reverse curve; thence to the left along
the arc of a curve having a radius of 770.95 feet for a
distance of 551.77 feet to the point of a tangency; thence
North and at right angles to the North line of said
Northwest Quarter (NW/4) a distance of 50 feet to a point on
the North line of said Northwest Quarter (NW/4) 1,085 feet
West of the Northeast corner of said Northwest Quarter
(NW/4); thence East along the North line of said Northwest
Quarter (NW/4) a distance of 400 feet to the point or place
of beginning.
(NOTE: Subject to requirement No. 6)
EXHIBIT "B"
December 20, 1985
LEGAL DESCRIPTION of property from
Xxxxxxx General Hospital Tract for use as
Psychiatric Xxxx Addition
A part of the Northwest Quarter (NW 1/4) of Section
Twenty-nine (29), Township Twelve (12) North, Range Four (4)
West of the Indian Meridian, more particularly described as
follows, to wit:
COMMENCING at a point in the North line of said
Northwest Quarter (NW 1/4) 685.00 feet West of the
Northeast corner of said Northwest Quarter (NW 1/4);
THENCE South and at right angles to the North line of
said Northwest Quarter (NW 1/4) a distance of 50.00 feet
to the point of a curvature; THENCE to the left along
the arc of a curve having a radius of 775.06 feet for a
distance of 533.35 feet to the point of a reverse
curve; THENCE to the right and along an arc of a curve
having a radius of 707.78 feet for a distance of 198.69
feet to the point of a compound tangency; THENCE South
westerly and to the right along the arc of a curve
having a radius of 329.36 feet for a distance of 134.18
feet to the point of a tangency; THENCE West and
parallel with the North line of said Northwest Quarter
(NW 1/4) a distance of 521.84 feet; THENCE North 74.19
feet to the point of BEGINNING; THENCE North 00 degrees 00'00"
East a distance of 168.00 feet; THENCE North 90 degrees 00'00"
West a distance of 6.50 feet; THENCE North 00 degrees 00'00"
East a distance of 26.00 feet to a point on the South
building line of the Xxxxxxx General Hospital, THENCE
North 90 degrees 00'00" West along said South building line a
distance of 61.59 feet; THENCE South 00 degrees 00'00" West a
distance of 25.17 feet; THENCE North 90 degrees 00'00" West a
distance of 24.33 feet; THENCE South 00 degrees 00'00" West a
distance of 37.25 feet; THENCE North 90 degrees 00'00" West a
distance of 12.00 feet; THENCE South 00 degrees 00'00" West a
distance of 25.00 feet; THENCE South 90 degrees 00'00" East a
distance of 12.00 feet; THENCE South 00 degrees 00'00" West a
distance of 21.75 feet; THENCE South 90 degrees 00'00" East a
distance of 27.08 feet; THENCE South 00 degrees 00'00" West a
distance of 84.83 feet; THENCE South 90 degrees 00'00" East a
distance of 65.33 feet to the point or place of
BEGINNING containing 15149.92 square feet or .3478
acres more or less.
1
EXHIBIT "C"
December 20, 1985
LEGAL DESCRIPTION of property from
Xxxxxxx General Hospital Tract for use as
Psychiatric Xxxx Addition
Parking Lot
A part of the Northwest Quarter (NW 1/4) of Section
Twenty-nine (29), Township Twelve (12) North, Range Four (4)
West of the Indian Meridian, more particularly described as
follows, to wit:
COMMENCING at a point in the North line of said
Northwest Quarter (NW 1/4) 685.00 feet West of the
Northeast corner of said Northwest Quarter (NW 1/4);
THENCE South and at right angles to the North line of
said Northwest Quarter (NW 1/4) a distance of 50.00 feet
to the point of a curvature; THENCE to the left along
the end of a curve having a radius of 775.06 feet for a
distance of 533.35 feet to the point of a reverse
curve; THENCE to the right and along an arc of a curve
having a radius of 707.78 feet for a distance of 198.69
feet to the point of a compound tangency; THENCE South
westerly and to the right along the arc of a curve
having a radius of 329.36 feet for a distance of 134.18
feet to the point of a tangency; THENCE West and
parallel with the North line of said Northwest Quarter
(NW 1/4) a distance of 614.26 feet; THENCE North 118.70
feet to the point of BEGINNING; THENCE North 00 degrees 00'00"
East a distance of 62.02 feet; THENCE North 90 degrees 00'00"
West a distance of 12.00 feet; THENCE North 00 degrees 00'00"
East a distance of 25.00 feet; THENCE South 90 degrees 00'00"
East a distance of 12.00 feet; THENCE North 00 degrees 00'00"
East a distance of 36.50 feet; THENCE North 90 degrees 00'00"
West a distance of 40.39 feet to a point on the East
Right-of-way line of Xxxxxxxxx Avenue; THENCE
Southwesterly along said Right-of-way line on a curve
to the right having a radius of 800.95 feet a distance
of 100.25 feet having a chord length and bearing of
100.18 feet South 37 degrees 25'16" West to a point of a
reverse curve; THENCE on a curve to the left having a
radius of 349.66 feet a distance of 54.75 feet having a
chord length and bearing of 54.70 feet South 36 degrees 31'15"
West; THENCE South 90 degrees 00'00" East a distance of 133.82
feet to the point or place of BEGINNING containing
10440.29 square feet or .2397 acres more or less.
