EXHIBIT 10.44
NET GROUND LEASE
(NORTHEAST PARKING PARCEL)
THIS NET GROUND LEASE ("Lease") is made and entered into the 13th day
of June, 2005, but effective as of June 1, 2005, by and between NORTHERN
HEALTHCARE LAND VENTURES, LTD. ("Landlord"), a Texas limited partnership, and
MPT OF NORTH CYPRESS, L.P. ("Tenant"), a Delaware limited partnership.
W I T N E S S E T H:
WHEREAS, Landlord is the owner of certain real property located in
▇▇▇▇▇▇ County, Texas and being more particularly described on Exhibit "A"
attached hereto and by this reference made a part hereof (the "Land");
WHEREAS, North Cypress Property Holdings, Ltd. ("North Cypress"), an
entity with owners in common with Landlord, is the owner of certain real
property located adjacent to the Land (the "Hospital Tract");
WHEREAS, Landlord intends to lease the Land to Tenant and Tenant
intends to rent the Land from Landlord upon the terms and conditions hereinafter
set forth;
WHEREAS, on or about the date hereof, North Cypress and Tenant entered
into a ground lease pursuant to which North Cypress leased the Hospital Tract to
Tenant;
WHEREAS, Tenant intends to sublease the Land and the Hospital Tract to
North Cypress Medical Center Operating Company, Ltd. ("NCMC") pursuant to that
certain Sublease Agreement (Pre-Construction), to be executed by Tenant and NCMC
of even date herewith (the "Sublease");
WHEREAS, of even date herewith, NCMC and MPT Finance Company, LLC have
consummated a construction loan, the proceeds of which shall be utilized by NCMC
for construction of improvements on the Land and the Hospital Tract;
WHEREAS, Tenant intends to purchase from NCMC and NCMC intends to sell
to Tenant the improvements being constructed by NCMC on the Land and the
Hospital Tract and to evidence such intent, of even date herewith, Tenant and
NCMC have entered into a purchase and sale agreement (the "Improvements Sales
Contract"); and
WHEREAS, the Improvements Sales Contract provides, and Tenant and NCMC
have agreed, that NCMC shall lease from Tenant the Land, the improvements
purchased from NCMC and sublease the Hospital Tract.
NOW, THEREFORE, in consideration of the premises to be demised, the
rents to be paid and of the other covenants, conditions, warranties and
agreements hereinafter set forth, it is hereby agreed as follows:
1. Premises Demised. Landlord shall and by these presents does hereby
demise and rent unto Tenant, and Tenant by these presents does hereby take and
hire from Landlord the Land, together with all easements, rights and
appurtenances relating thereto (the "Premises").
2. Term. This Lease shall be for a period of ninety-nine (99) years
commencing on June 1, 2005 (the "Commencement Date"), and expiring on May 31,
2104, unless sooner terminated in accordance herewith. (Such ninety-nine (99)
year period, as may be sooner terminated, is herein reformed to as the "Term").
3. Rent.
3.1 During the Term, Tenant agrees to pay to Landlord, without
notice, demand, deduction, setoff or abatement, in lawful money of the United
States, at Landlord's address set forth in Section 20 or such other place as
Landlord shall designate in writing from time to time, annual rent for the
Premises as set forth below (the "Rent"). Rent equal to one-twelfth (1/12th) of
the annual rate then applicable shall be payable monthly in advance commencing
on the Commencement Date and continuing on the first (1st) day of each month
thereafter during the Term. The Rent per applicable period is as follows:
Period Annual Rent Monthly Installment
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June 1, 2005 - December 31, 2009 $ 63,468.00 $ 5,289.00
January 1, 2010 - December 31, 2014 $ 68,545.00 $ 5,712.00
January 1, 2015 - December 31, 2019 $ 74,029.00 $ 6,169.00
January 1, 2020 - December 31, 2024 $ 79,951.00 $ 6,663.00
January 1, 2025 - December 31, 2029 $ 86,347.00 $ 7,196.00
January 1, 2030 - December 31, 2034 $ 93,255.00 $ 7,771.00
January 1, 2035 - December 31, 2039 $100,715.00 $ 8,393.00
January 1, 2040 - December 31, 2044 $108,772.00 $ 9,064.00
January 1, 2045 - December 31, 2049 $117,474.00 $ 9,790.00
January 1, 2050 - December 31, 2054 $126,872.00 $10,573.00
January 1, 2055 - December 31, 2059 $137,022.00 $11,418.00
January 1, 2060 - December 31, 2064 $147,984.00 $12,332.00
January 1, 2065 - December 31, 2069 $159,822.00 $13,319.00
January 1, 2070 - December 31, 2074 $172,608.00 $14,384.00
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Period Annual Rent Monthly Installment
------ ----------- -------------------
January 1, 2075 - December 31, 2079 $186,417.00 $15,535.00
January 1, 2080 - December 31, 2084 $201,330.00 $16,777.00
January 1, 2085 - December 31, 2089 $217,436.00 $18,120.00
January 1, 2090 - December 31, 2094 $234,831.00 $19,569.00
January 1, 2095 - December 31, 2099 $253,618.00 $21,135.00
January 1, 2100 - May 31, 2104 $273,907.00 $22,826.00
Installments of Rent not received by Landlord within ten (10) calendar
days after the due date thereof shall be subject to a late charge due and
payable by Tenant to Landlord, in an amount equal to five percent (5%) of such
past due Rent.
3.2 Except as expressly provided in this Lease, Tenant shall
not be required to make any expenditure, incur any obligation, or incur any
liability of any kind whatsoever in connection with this Lease or the financing,
ownership, construction, maintenance, operation, or repair of the Premises,
except for the liability insurance coverage for the Land and real estate taxes
relating to the Premises to be paid through Tenant by NCMC under the Sublease or
by any other subtenant of the Premises under any substitute sublease of the
Premises.
4. Use of the Premises.
4.1 Tenant shall have the right to use the Premises for a
parking area for service of the hospital improvements located in the vicinity of
the Premises.
4.2 Tenant shall not use, nor shall it permit or suffer use of
the Premises for any illegal or unlawful purpose, nor in any manner to create
any nuisance or trespass. Tenant shall comply with all Governmental Requirements
(as herein defined) concerning the condition or use of the Premises or any
improvements constructed thereof, or any part thereof, or the business(es)
conducted thereon. Tenant shall likewise observe and comply with the
requirements of all policies of public liability, fire and all other policies of
insurance required to be supplied by Tenant at any time in force with respect to
the Premises. Tenant may, however, in good faith (and wherever necessary in the
name of, but without expense to, Landlord), contest the validity of any
Governmental Requirement; and, pending the determination of such contest, may
postpone compliance with such Governmental Requirement, except that Tenant shall
not postpone compliance therewith in such a manner as to subject Landlord to any
fine or penalty or to prosecution for any misdemeanor, felony or other crime, or
to cause the Premises or any Improvements thereon or any part thereof to be
condemned. The term "Governmental Requirement", as used in this Lease, shall
mean any present or future law, statute, act, judgment, order, ordinance, rule
or regulation of any governmental authority having jurisdiction over the
Premises, any improvements now or hereafter located thereon, or any other matter
related thereto.
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4.3 The Premises are encumbered by that certain Reciprocal
Easement Agreement and Declaration of Covenants, Conditions, and Restrictions
for Development and Operation of the North Cypress Medical Center Campus, dated
effective as of June 1, 2005 by and among Northern Healthcare Land Ventures,
Ltd., Northern Healthcare Land Ventures-II, Ltd. and Landlord, and recorded, or
to be recorded, in the real property records of ▇▇▇▇▇▇ County, Texas (the
"REA"). This Lease is subject to the terms and conditions of the REA. Landlord
shall pay as and when due the assessment due under the REA and Tenant shall have
no liability therefore.
4.4 Pursuant to Section 9.03 of the REA, Tenant is hereby
notified that the restrictions, regulations and conditions regarding operation
and use of the Campus (as defined in the REA), a copy of which are attached
hereto as Exhibit "B" and by this reference made a part hereof, affect the
Premises and that Tenant must comply with the same.
5. Expenses.
5.1 The Rent payable by Tenant hereunder shall be paid gross
to Landlord. Any and all expenses, except for the liability insurance coverage
for the Land and real estate taxes relating to the Premises to be paid through
Tenant by NCMC under the Sublease or by any other subtenant of the Premises
under any substitute sublease of the Premises, relating to the Premises arising
and accruing from and after the Commencement Date and throughout the Term shall
be borne by Landlord.
5.2 Landlord will use its best efforts to cause the Premises
to be taxed as a separate tax parcel for the year 2006 and all years during the
Term thereafter. If the applicable taxing authority will not tax the Premises as
a separate tax parcel, the tax ▇▇▇▇ which includes the Premises shall be
prorated among the owners of the land included in the tax ▇▇▇▇. The proration
shall be based on acreage of each parcel included within the tax ▇▇▇▇.
6. Construction of Improvements. Tenant shall have the right, from time
to time, to improve the Premises, as Tenant determines is desirable in its sole
discretion, including the right to grade the Premises and construct parking
improvements thereon. Tenant shall own all improvements placed upon the
Premises.
7. Maintenance and Repairs. Tenant shall not be obligated to make any
repairs, improvements or replacements to the Premises or to maintain the
Premises in any manner whatsoever during the Term.
8. Condemnation. If at any time during the Term, title to all of the
Premises shall be taken or condemned by any competent authority for any public
use or purpose under any statute or by right of eminent domain, then this Lease
shall terminate on the date of such taking and all Rent and other charges
payable by Tenant shall be apportioned as of the date of the taking. Nothing
contained herein shall prevent Landlord or Tenant from prosecuting claims in any
condemnation proceedings for the value of their respective interests. In the
event that title to part of the Premises shall be taken or condemned and, in
Tenant's sole discretion, Tenant determines
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that the remaining portion of the Premises are not suitable for the purpose to
which Tenant was utilizing the Premises at the time of the taking or
condemnation or any other purpose for which Tenant may wish to utilize the
Premises, then, and in that event, Tenant may elect to terminate this Lease as
of the date possession shall be taken by such authority. Such notice of election
shall be given in writing to Landlord within ninety-five (95) days after
official notice to Tenant of the portion to be taken. In the event Tenant shall
not timely exercise such option to terminate this Lease, or if part of the
Premises shall be taken or condemned under circumstances whereby Tenant does not
have such option, then, and in either of such events, the Rent for the balance
of the Term shall be abated and adjusted in an equitable manner.
9. Damages/Destruction. In the event any improvements now or hereafter
located on the Premises shall be damaged due to fire or other casualty, Tenant,
in its sole discretion, may elect to rebuild the damaged improvements or to raze
all or any of the improvements so damaged (and any other improvements deemed
desirable by Tenant). Tenant shall provide notice to Landlord of its election on
or before ninety (90) days subsequent to the date of the casualty. In the event
Tenant has not commenced repair or reconstruction of the damaged improvements
within six (6) months from the date of the casualty (or such longer period as
may be required in order to obtain permits to allow for such repair or
reconstruction), then Tenant shall raze the damaged improvements, remove the
debris thereby created and return the Premises to a neat and orderly condition.
If Tenant shall require more than the six (6) month period above described to
commence repair or reconstruction, Tenant shall notify Landlord of such
additional time as is needed.
10. Intentionally Deleted.
11. Intentionally Deleted.
12. Mechanic's Liens. Landlord will indemnify and hold Tenant harmless
from and against any loss or damage due to any lien filed against the Premises
on account of nonpayment or dispute with respect to labor or materials furnished
in connection with the construction or repair of any of the improvements made by
or for Landlord on the Premises prior to or during the Term. Tenant will
indemnify and hold Landlord harmless from and against any loss or damage due to
any lien filed against the Premises on account of nonpayment or dispute with
respect to labor or materials furnished in connection with the construction or
repair of any of the improvements made by or for Tenant on the Premises during
the Term (provided the improvements being constructed by NCMC on the Land and
the Hospital Tract shall not be deemed to be improvements made by or for Tenant
pursuant to this Section 12).
13. Assignment and Subletting. This Lease may not be assigned by
Landlord without the prior written consent of Tenant, which consent shall not be
unreasonably withheld. Landlord shall not assign this Lease to any entity which
is not a "special purpose entity" which sole asset is the Premises. Tenant,
without Landlord's prior written consent, may assign this Lease or any interest
therein or sublease the Premises or any portion thereof at any time and from
time to time.
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14. Default. In the event Tenant fails to pay the Rent as herein
provided and such failure continues for ninety (90) days subsequent to Tenant's
receipt of written notice of such failure from Landlord, then Landlord, after
providing to Tenant a second written notice setting forth such failure and
Tenant failing to cure such default within ten (10) days subsequent to Tenant's
receipt of such second notice, may exercise any right or remedy allowed at law
or in equity. If Tenant fails to promptly perform any other covenant hereunder
or pay any other sums due hereunder, and Tenant has not cured such failure
within ninety (90) days subsequent to Tenant's receipt of such written notice,
then Landlord, after providing to Tenant a second written notice setting forth
such failure and Tenant failing to cure such default within ten (10) days
subsequent to Tenant's receipt of such second notice, may exercise any right or
remedy allowed at law or in equity; provided in no event, except as hereinafter
specifically set forth in this Section 14, shall Landlord have the right to
terminate this Lease as a result of Tenant's default. Notwithstanding anything
in this Section 14 to the contrary, the remedies afforded Landlord under this
Section 14 shall not be applicable to any default by Tenant for which a remedy
is expressly provided in this Lease. The occurrence of any one or more of the
following events shall also constitute a default by Tenant hereunder, for which
Landlord will have the option, as its sole and exclusive remedy, to terminate
this Lease and in connection therewith, and as a condition of such termination,
to purchase all of Tenant's then existing interest in the Land, the Sublease,
and the improvements being constructed by NCMC on the Land and the Hospital
Tract, for an amount equal to the sum of the then outstanding principal balance
of the loan from MPT Finance Company, LLC to NCMC, plus any and all other sums
expended by Tenant in connection with the transactions contemplated by this
Lease, the Sublease and such loan:
14.1 if any of Tenant, MPT Finance Company, LLC, MPT Operating
Partnership L.P., or Medical Properties Trust, Inc. shall:
(a) admit in writing its inability to pay its debts
generally as they become due,
(b) file a petition in bankruptcy or a petition to
take advantage of any insolvency act,
(c) make an assignment for the benefit of its
creditors,
(d) consent to the appointment of a receiver of
itself or of the whole or any substantial part of its property, or
(e) file a petition or answer seeking reorganization
or arrangement under the Federal bankruptcy laws or any other applicable law or
statute of the United States of America or any state thereof;
provided, however, that no such inability, petition,
assignment, receivership, or forced reorganization as set forth in this Section
14.1 shall constitute a breach of this Lease if Tenant or its affiliates
vigorously contest the same by appropriate proceedings and shall remove or
vacate the same within ninety (90) days from the date of its creation, service
or filing; or
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14.2 if any of Tenant, MPT Finance Company, LLC, MPT Operating
Partnership L.P., or Medical Properties Trust, Inc. shall be liquidated or
dissolved, or shall begin proceedings toward such liquidation or dissolution, or
shall, in any manner, permit the sale or divestiture of substantially all of its
assets other than in connection with a merger or consolidation of Tenant into,
or a sale of substantially all of Tenant's assets to, another business entity;
or
14.3 if NCMC shall have declared MPT Finance Company, LLC to
be in default of any of its material covenants or obligations under the
construction loan from MPT Finance Company, LLC to NCMC, and such default shall
continue beyond any applicable notice, cure or grace period, provided such
default is not caused by or did not arise due to any default by NCMC under such
construction loan.
15. Further Encumbrances. Landlord agrees that it will not encumber the
Premises with any easements, security deeds or other encumbrances without
Tenant's prior written consent, which shall be given or withheld in Tenant's
sole discretion. To the extent there exists easements or other agreements which
affect the Premises as of the date hereof, and Tenant, in its reasonable
discretion, determines that a modification thereof is necessary for the
development of the Premises for Tenant's intended use or that other easements or
other rights which encumber the Premises are necessary, then Landlord agrees to
cooperate with Tenant in connection with modifying any such agreements and
granting such other easements and rights.
16. Financing.
16.1 Landlord agrees that Tenant shall have the absolute right
during the Term to place one (1) or more deeds of trust, mortgages or similar
security interests on all or any portion of Tenant's leasehold interest in the
Premises and/or any improvements therein; provided, however, and except as
provided below Tenant shall have no right whatsoever to encumber Landlord's fee
title and reversionary interest in the Premises and such security instrument
shall encumber only Tenant's rights under this Lease and the leasehold estate
created hereby.
16.2 Notwithstanding any other provision of this Lease to the
contrary, in the event Tenant or any sublessee of Tenant shall obtain a loan for
construction of improvements on the Premises or any other loan secured by
Tenant's leasehold interest in the Premises, Landlord, upon request by Tenant,
shall subordinate this Lease and Landlord's interest therein to such
construction loan and shall timely execute any and all documents reasonably
requested by the construction lender to evidence such subordination, however in
no event shall Landlord be required to subordinate its fee title or reversionary
interest in the Premises to such construction loan.
16.3 In the event of a termination of this Lease prior to the
expiration of the Term, Landlord, within thirty (30) days prior to the
termination of the Lease, shall serve upon any institutional lender which holds
a first priority mortgage encumbering Tenant's leasehold
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interest in the Premises (a "Lender") written notice of such termination,
together with a statement of any and all sums which would be due under the Lease
as of the date of notice (but for the termination of the Lease) and a
description of any and all events of default. Within thirty (30) days from its
receipt of the notice of termination, Lender shall have the option to obtain a
new lease for the Premises by providing Landlord with written notice of its
desire to exercise such option. Upon Landlord's receipt of such notice, Landlord
shall enter into a new lease for the Premises with Lender which shall:
(i) Commence as of the date of the termination of the Lease,
and shall be effective for the remainder of the Term, and contain all
of the terms and conditions that were set forth in the Lease,
including, but not limited to, those pertaining to rental payments; and
(ii) Require the tenant under the new lease to cure any
monetary events of default under the terminated Lease.
Landlord shall promptly take all actions necessary to evict Tenant or any other
unauthorized party from the Premises and, subject to the rights of any
sublessee, shall provide the tenant under the new lease with the sole and
exclusive possession of the Premises upon execution of the new lease.
16.4 In the event of a termination of the Lease prior to the
expiration of the Term and either (i) there exists no Lender, or (ii) the Lender
does not elect to exercise its option in Section 16.3 above, then Landlord, (x)
within thirty (30) days prior to the termination of the Lease if there is no
Lender, or (y) within five (5) days subsequent to the expiration or waiver of
Lender's option as described in Section 16.3 above if there is a Lender, shall
serve upon any sublessee written notice of such termination, together with a
statement of any and all sums which would be due under the Lease as of the date
of notice (but for the termination of the Lease) and a description of any and
all events of default. Within thirty (30) days from its receipt of notice of
termination, the sublessee shall have the option to obtain a new lease for the
Premises by providing with written notice of its desire to exercise such option.
Upon Landlord's receipt of such notice, Landlord shall enter into a new lease
for the Premises with the sublessee which shall (a) commence as of the day of
the termination of the Lease and shall be effective for the remainder of the
term of the sublease and contain all of the terms and conditions that were set
forth in a sublease agreement between Tenant and such sublessee, including, but
not limited to, those pertaining to rental payments and options to renew the
term of the sublease, and (b) require the subtenant under the new lease to cure
any monetary events of default under the terminated Lease.
Landlord shall promptly take all take action necessary to evict Tenant
or any other unauthorized party from the Premises, and shall provide sublessee
with the sole and exclusive possession of the Premises upon execution of the new
lease.
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16.5 For the benefit of any Lender, Landlord agrees, subject
nevertheless to all of the terms, covenants, agreements, provisions, conditions
and limitations contained in this Lease, not to accept a voluntary surrender of
this Lease at any time during which Lender shall hold an outstanding mortgage,
deed to secure debt or other security interest.
16.6 Landlord and Tenant hereby acknowledge and agree that any
Lender and any sublessee is an intended third party beneficiary of this Section
16.
17. First Refusal. Landlord and its assigns and successors in title do
by these presents bind themselves not to sell or convey the Premises or
otherwise transfer the same to any person or entity during the Term except as
provided in this Section 17. Tenant is herein granted the right to purchase the
Premises upon equal terms to any bona fide offer Landlord intends to accept.
Landlord, upon receipt of a bona fide offer for purchase of the Premises which
Landlord intends to accept, shall promptly give written notice thereof to Tenant
in writing setting forth the proposed terms and provisions of the sale including
the purchase price, terms of payment, and such additional information as may be
needed by Tenant to obtain a full understanding of the terms of the proposed
sale. Tenant shall have a period of thirty (30) days subsequent to receipt of
such notice within which to exercise in writing its option to purchase the
Premises upon the same terms, covenants, and conditions as those set forth in
the original offer. Failure of Tenant to exercise such option within said thirty
(30) day period of time shall terminate Tenant's option rights (so long as the
sale pursuant to the bona fide offer is consummated on the terms provided to
Tenant) and thereafter, Landlord shall be free to proceed with a sale of the
Premises in accordance with the terms of the bona fide offer to purchase. The
exercise of the option by Tenant shall be upon the same terms, covenants, and
conditions as those set forth in the original offer. In the event Tenant fails
to timely acquire the Premises in accordance with the original offer, Landlord
shall have the right to terminate Tenant's option to purchase the Premises and
thereafter the provisions of this Section 17 shall be waived as to all other
bona fide offers received by Landlord with respect to the sale of the Premises.
A sale by Landlord, subject to the terms hereof, shall not affect Tenant's
rights to continue as a tenant under the terms of this Lease. If Landlord does
not close the sale of the Premises pursuant to a bona fide offer which Tenant
has elected not to accept, then Tenant's right of first refusal shall apply to
any subsequent bona fide offer received by Landlord.
18. Representations and Warranties. With the understanding that Tenant
shall rely hereon, and as a material inducement to Tenant to enter into this
Lease, Landlord hereby represents, warrants and covenants to Tenant as follows:
18.1 Landlord is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Texas.
18.2 Landlord has the requisite limited partnership power and
authority to conduct its business as it is now being conducted and as proposed
to be conducted and to execute, deliver and carry out the terms of this Lease.
All limited partnership actions required to be taken by Landlord to authorize
the execution, delivery and performance of this Lease, have been duly and
properly taken or obtained in accordance and in compliance with Landlord's
partnership agreement.
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No other action on the part of Landlord or Landlord's partners (or other
person's possessing and exercising similar control and authority over Landlord)
is necessary to authorize the execution, delivery and performance of this Lease.
18.3 Landlord's execution, delivery and performance of this
Lease and will not, with or without the giving of notice and/or the passage of
time: (i) violate or conflict with any provision of Landlord's partnership
agreement; (ii) violate or conflict with any provision of any law to which
Landlord is subject; (iii) violate or conflict with any judgment, order, writ or
decree of any court applicable to Landlord; (iv) result in or cause the creation
of a lien on the Premises; or (v) 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 Landlord is a party or by which Landlord or the
Premises is bound.
18.4 No license, permit, qualification, order, consent,
authorization, approval or waiver of, or registration, declaration or filing
with, or notification to, any governmental entity or other person is required to
be made or obtained by or with respect to Landlord in connection with the
execution, delivery and performance of this Lease.
18.5 Landlord is the sole and exclusive owner of the simple
title to the Premises free and clear of any and all liens, encumbrances,
restrictions or easements of any kind whatsoever and any adverse claims of third
parties.
18.6 There are no tenants with respect to the Premises or
other parties which have a possessory right to the Premises.
18.7 (a) No governmental entity or any nongovernmental third
party has notified Landlord, or to Landlord's knowledge, any other party, of any
alleged violation or investigation of any suspected violation under the
Environmental Laws (hereinafter defined) in connection with the ownership of the
Premises, including any litigation or cause of action alleging personal injury
or property damage caused by exposure to, or the disposal, release or migration
of, any Hazardous Materials (hereinafter defined). To Landlord's knowledge, the
Premises is in full compliance with the Environmental Laws.
(b) To the knowledge of Landlord, no Hazardous
Materials have been stored, disposed of or arranged for the disposal on the
Premises, except in compliance with the Environmental Laws and Landlord has not
and will not install any underground storage tanks at, on or under the Premises.
(c) To the knowledge of Landlord, there have been no
actions, activities, circumstances, conditions, events or incidents, including,
without limitation, the generation, transportation, treatment, storage, release,
emission, discharge, presence or disposal of any Hazardous Materials on or from
the Premises that could form the basis of any Environmental Claim (hereinafter
defined) against Landlord or Tenant;
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(d) Landlord has not contractually assumed or
succeeded to any liability of any direct or indirect predecessors or any other
person related or with respect to any Environmental Law.
(e) To the knowledge of Landlord, there are no
conditions presently existing on, at or emanating from the Premises that may
result in any liability, investigation or clean-up cost under any Environmental
Law.
(f) For purposes of this Lease:
"Environmental Claim" means any claim,
action, cause of action, investigation or notice (written or
oral) by any person alleging actual or potential liability for
investigatory, cleanup or governmental response costs, or
natural resources or property damages, or personal injuries,
attorney's fees or penalties relating to (i) the presence, or
release into the environment, of any Hazardous Materials at
any location owned or operated by the Landlord, now or in the
past, or (ii) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law.
"Environmental Law" means all local, state
and federal laws relating to environmental conditions and
industrial hygiene, 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 ("▇▇▇▇"), the
Hazardous Materials Transportation Act, 49 U.S.C. Section
6901, et seq., the Federal Water Pollution Control Act, 33
U.S.C. Sections 1251 et seq., the Clean Air Act, 42 U.S.C.
Sections 741 et seq., the Clean Water Act, 33 U.S.C. Section
7401, et seq., the Toxic Substances Control Act, 15 U.S.C.
Sections 2601-2629, the Safe Drinking Water Act, 42 U.S.C.
Sections 300f-300j, and all similar federal, state and local
environmental statutes, ordinances and the regulations,
orders, or decrees now or hereafter promulgated thereunder.
"Hazardous Materials" means 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
Environmental Law.
18.8 There is no suit, action, proceeding, inquiry or
investigation against or involving Landlord or any of its properties or rights,
pending or, to the knowledge of Landlord threatened (including, without
limitation any suit, action, proceeding or investigation pursuant to
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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 federal, state or local law regulating employment) nor to the
knowledge of Landlord are there any facts which might result in or form the
basis of any such claim. There is no judgment, decree, injunction, rule or order
of any governmental entity or any other person (including, without limitation,
any arbitral tribunal) outstanding against Landlord and Landlord is not in
violation of any term of any judgment, decree, injunction or order outstanding
against it. Furthermore, there is no claim by or before any governmental entity
or other person pending or, to the knowledge of Landlord, threatened which
questions or challenges Landlord's title and ownership of the Premises, or which
questions or challenges the validity of this Lease or any action taken or to be
taken by Landlord pursuant to this Lease, and there is no basis for any such
claim.
18.9 There are no service, supply or management agreements
which relate to or affect the Premises.
19. Brokerage Commission. Each of the parties hereto represents and
warrants to the other that it has not caused any broker to be entitled to a fee
or commission by reason of this Lease. Each party agrees to hold the other party
harmless and to indemnify the other party from and against the claims of any
other broker for a commission resulting form the acts of the indemnifying party.
20. Notice. All notices, demands, consents, approvals, requests and
other communications required or permitted to be given under this Lease shall be
in writing and shall be (a) delivered in person, (b) sent by certified mail,
return receipt requested to the appropriate party at the address set out below,
(c) sent by Federal Express, Express Mail or other comparable courier addressed
to the appropriate party at the address set out below, or (d) transmitted by
facsimile transmission to the facsimile number for each party set forth below:
(a) if to Landlord: Northern Healthcare Land Ventures, Ltd.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Diamond, LLC
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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Petronella Law Firm, P.C.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to Tenant: MPT of North Cypress,
L.P. ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.,
Executive Vice President &
General Counsel
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
1600 Atlanta Financial Center
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Each notice, demand, consent, approval, request and other communication
shall be effective upon receipt and shall be deemed to be duly received if
delivered in person or by a national courier 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. 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. on the first Business
Day thereafter. Rejection or other refusal by the addressee to accept, or the
inability to deliver because of a changed address or changed facsimile number of
which no notice was given, shall be deemed to be receipt of the notice, demand,
consent, approval, request or communication sent. Any party shall have the
right, from time to time, to change the address or facsimile number to which
notice to it shall be sent by giving to the other party or parties at least ten
(10) days prior notice of the changed address or changed facsimile number.
Rejection or other refusal by the addressee to accept, or the inability
of the courier service or the United States Postal Service to deliver because of
a changed address of which no notice was given, shall be deemed to be receipt of
the notice sent. Any party shall have the right, from time to time, to change
the address to which notices to it shall be sent by giving to the other party or
parties at least ten (10) days prior notice of the changed address.
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21. Quiet Enjoyment. Subject only to the terms of this Lease, so long
as Tenant is not in default in the performance of its obligations under this
Lease, Landlord covenants that Tenant shall and may at all times during the Term
hold and have the quiet and peaceful enjoyment of the Premises and the sole and
exclusive possession of the Premises without objection or interference from
Landlord or any party claiming under Landlord.
22. Estoppel Certificate. From time to time, each party hereto, on or
before the date specified in a request therefor made by the other party, which
date shall not be earlier than ten (10) days from the making of such request,
but not more than three (3) times per calendar year, shall execute, acknowledge
and deliver to the other party a certificate evidencing whether or not (i) this
Lease is in full force and effect; (ii) this Lease has been amended in any way;
and (iii) there are any existing defaults on the part of either party hereunder,
to the knowledge of such other party, and specifying the nature of such
defaults, if any; (iv) stating the date to which rent and other amounts due
hereunder, if any, have been paid; and (v) such other matters as may reasonably
be requested by such party. Each certificate delivered pursuant to this Section
22 may be relied on by the addressee thereof and any prospective transferee of
Landlord's or Tenant's interest hereunder and any lender of Landlord or Tenant.
23. Option to Terminate Lease. Landlord, at its option and subject to
satisfaction of the following conditions, may elect to terminate this Lease (the
"Termination Right"). As a condition precedent to the exercise of the
Termination Right, Landlord, at Landlord's sole cost and expense, shall
construct or cause to be constructed on that certain tract of land adjacent to
the Premises and being more particularly described on Exhibit "B" attached
hereto and by this reference made a part hereof (the "Hospital Tract") parking
spaces and drive areas in a quantity sufficient to replace all parking spaces
and drive areas located on the Premises (the "Relocated Parking Work"). Landlord
shall submit to Tenant for its review and written approval all plans for the
Relocated Parking Work which approval shall include approval of the location of
the relocated parking area. The Relocated Parking Work shall be done in a good
and ▇▇▇▇▇▇▇ like manner, be of a quality equal to or greater than the then
existing parking improvements located on the Hospital Tract and be in accordance
with all applicable laws, rules, and regulations and the REA. Prior to
commencing the Relocated Parking Work, Landlord shall deliver to Tenant a copy
of the permits for such work and certificates of insurances for such insurance
as may be required by Tenant and any mortgagee of Tenant. Landlord, as part of
the Relocated Parking Work, shall landscape the area in which the relocated
parking is constructed in a manner equal to or greater than the landscaping then
at the Hospital Tract. Upon completion of the Relocated Parking Work, Landlord
shall provide Tenant with evidence of substantial completion of the Relocated
Parking Work in accordance with the plans approved by Tenant and a certificate
of occupancy or equivalent documentation which will allow the use of the
relocated parking by Tenant, which evidence and other documentation shall be
acceptable to Tenant in its sole discretion. After completion of the Relocated
Parking Work as required herein and delivery to Tenant of acceptable evidence of
substantial completion and occupancy and use rights, Landlord, by written notice
to Tenant may exercise the Termination Right. The termination of this Lease
shall be effective ten (10) days subsequent to Tenant's receipt
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of Landlord's notice of Landlord's exercise of the Termination Right and
thereafter neither Landlord nor Tenant shall have any further rights, duties or
obligations hereunder.
24. Miscellaneous.
24.1 This Lease shall inure to the benefit of and is binding
on the permitted successors and assigns of the Landlord and the successors and
assignee of Tenant.
24.2 This Lease Agreement, upon execution by all parties
hereto, shall become effective as of, and the "date of this Lease" or "date
hereof" wherever used herein shall mean, June 1, 2005.
24.3 This Lease, and all terms and conditions herein, shall
not be subject or subordinate to any mortgages, deeds of trust and deeds to
secure debt, placed by Landlord upon the Premises.
24.4 This Lease shall be governed by and interpreted in
accordance with the laws of the State of Texas, without regard to the principles
of conflicts of laws.
24.5 This Lease is the entire agreement between the parties
and no modification thereof shall be made except in writing, signed by the
parties.
24.6 A memorandum of this Lease shall be executed by Landlord
and Tenant simultaneously with the execution of this Lease and either party may
record the memorandum in the appropriate records of ▇▇▇▇▇▇ County, Texas.
24.7 If Tenant remains in possession of the Premises after
expiration of the Term, Tenant shall be a tenant at will at a rental rate equal
to 125% of the rate in effect at the end of the Term; and there shall be no
renewal of this Lease by operation of law.
24.8 At the expiration or earlier termination of the Term,
Tenant shall surrender possession of the Premises and any improvements thereon
owned by Tenant to Landlord. All personal property located on the Premises is
the property of Tenant and may be removed by Tenant from the Premises on or
prior to the expiration of the Term.
24.9 The titles or headings of the various Sections and
subsections of this Lease are intended solely for convenience of reference, and
are not intended to modify, explain or place construction upon any provision of
this Lease in any way whatsoever.
24.10 This Lease may be executed in any number of
counterparts, and each of such counterparts for all purposes shall be deemed to
be an original, and all of such counterparts shall constitute one and the same
Lease.
24.11 TIME IS OF ESSENCE OF THIS LEASE.
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IN WITNESS WHEREOF, Landlord and Tenant have cause their incumbent and
duly authorized representatives to execute this lease effective as of June 1,
2005.
LANDLORD:
NORTHERN HEALTHCARE LAND VENTURES, LTD.,
a Texas limited partnership
By: Northern Healthcare Land Ventures GP, LLC, a
Texas limited liability company, its general
partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D., Manager and Vice
Chairman
' TENANT:
MPT OF NORTH CYPRESS, L.P., a Delaware limited
partnership
By: MPT of North Cypress, LLC, a Delaware limited
liability company, its general partner
By: MPT Operating Partnership, L.P., a
Delaware limited partnership, its sole
member
By: Medical Properties Trust, LLC, a
Delaware limited liability company,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-------------------------------------
Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-----------------------------
Title: President & CEO
----------------------------------
EXHIBIT "A"
DESCRIPTION OF THE LAND
METES AND BOUNDS DESCRIPTION
PROPOSED NORTHEAST PARKING LOT
1.878 ACRES
May 6, 2005
All that certain 1.878 acre (81,823 square foot) tract of land situated in the
▇▇▇▇▇▇▇ ▇▇▇▇▇ Survey, Abstract Number 489, ▇▇▇▇▇▇ County, Texas, being out of
and a part of a called 19.855 acre tract of land as described by deed recorded
under ▇▇▇▇▇▇ County Clerk's File Number X441181 and being more particularly
described by metes and bounds as follows: (All bearings based on the Texas State
Plane Coordinate System, South Central Zone)
COMMENCING FOR REFERENCE at a 5/8-inch iron rod found in the west right-of-way
line of Huffmeister Road (100-foot wide right-of-way) at the southeast ▇▇▇▇▇ of
a called 5.1348 acre tract of land as described by deed recorded under ▇▇▇▇▇▇
County Clerk's File Number X647240 and being the northeast corner of said 19.855
acre tract, from which a 518-inch iron rod found at an angle point of a called
10.00 acre tract of land as described by deed recorded under ▇▇▇▇▇▇ County
Clerk's File Number X647241 and said 19.855 acre tract bears South 87 degrees
37' 41" West, a distance of 413.32 feet;
THENCE, South 02 degrees 41' 38" East, along said west right-of-way line, a
distance of 55.63 feet to the POINT OF BEGINNING and being the northeast corner
of the herein described tract;
THENCE, South 02 degrees 41' 38" East, continuing along said west right-of-way
line, a distance of 322.86 feet TO the beginning of a curve to the right at the
southeast corner of the herein described tract;
THENCE, southwesterly, a distance of 18.21 feet along the arc of said curve to
the right having a radius of 28.00 feet through a central angle of 37 degrees
15' 57" and a chord that bears South 68 degrees 59' 10". West, A distance of
17.89 feet to the point of tangency of said curve;
THENCE, South 87 degrees 37' 09" West, a distance of 233.74 feet to the
southwest corner of the herein described Tract;
THENCE, North 02 degrees 41' 38" West, a distance of 324.35 feet to the
northwest corner of the herein described Tract;
THENCE, North 86 degrees 39' 10" East, a distance of 250.74 feet to the POINT OF
BEGINNING and containing a compuTed area of 1.878 acres (81,823 square feet)
land.
This description is based on a survey made on the ground of the property and is
issued in conjunction with an exhibit map entitled "PROPOSED NORTHEAST PARKING
LOT" prepared by Benchmark Engineering Corporation, Job Number 03112.
EXHIBIT "B"
RULES, REGULATIONS AND RESTRICTIONS
OPERATIONS AND USE
NAME OF CAMPUS
1. The name of the Campus is North Cypress Medical Center Campus and the name
may not be changed without prior written consent of all the Parties.
PERMITTED USES
2. Subject to the limitations set forth in this Article, the Campus may be used
only for the development, construction, leasing, operation, and maintenance of
hospitals, professional office buildings, medical services, retail business
establishments and related facilities (such as the Common Areas) customarily
located in a first class medical Campus.
PROHIBITED NUISANCES
3. No Party may conduct or permit any activity or use on its Parcel that:
(a) Constitutes a private or public nuisance.
(b) Emits any noise or sound that is objectionable due to
intermittence, loudness, frequency, beat, or pitch.
(c) Emits any obnoxious odor.
(d) Involves the use of any noxious, toxic, hazardous, or corrosive
chemical, fuel, gas, or other substance, except in the Hospital Areas where such
substances may be used in connection with the provision of medical services or
in the operation of the hospital in the Hospital Areas.
(e) Produces dust or dirt.
(f) Involves a risk of fire, explosion, or other dangerous hazard.
(g) Involves the burning or incineration of garbage or refuse.
(h) Violates a law, ordinance, or regulation of any governmental
agency.
PROHIBITED OPERATIONS AND USES
4. No Parcel may be used for any of the following:
(a) Storage or warehousing, except by a retail establishment for
temporary storage of goods intended for sale at its establishment, or by a
hospital for temporary storage of goods intended for use in the operation of the
hospital.
(b) Manufacturing, industrial, or residential uses.
(c) Displaying merchandise in Common Areas.
(d) Entertainment or recreational uses which include, but are not
limited to: bowling alleys; skating rinks; theaters; video or other game
arcades; health spas (except in the Hospital Areas), studios, gyms, night clubs;
massage parlors; pool or billiard halls; pornographic or sexually oriented
stores, materials including books, videos, films, discs or sex performances, and
card rooms.
(e) Educational, training, or instructional uses, such as beauty
schools, ▇▇▇▇▇▇ colleges, business or technical colleges, or other facilities
oriented toward students or trainees rather than customers), provided nothing in
this subparagraph shall be deemed to prohibit a hospital from being a teaching
hospital.
FAST-FOOD USES
5. "Fast-food" establishments are permitted on the Campus.
RESTAURANT USES
6. Restaurants are permitted in the Campus subject to the following conditions:
(a) The restaurant is located in the Commercial Areas.
(b) A restaurant is located in the Hospital Areas as an accessory use
to the operation of the Hospital Areas.
(c) An Occupant operating a restaurant must, at the Occupant's sole
cost and expense, keep the Common Areas at all times free of trash and debris
generated by the restaurant and its customers. No portion of this cost may be
included in the Common Area Maintenance Costs.
(d) A lease to an Occupant operating a restaurant must contain
provisions incorporating the preceding requirements.
RULES AND REGULATIONS
7. The Parties may from time to time adopt Rules and Regulations pertaining to
the use of all Common Areas and other areas of the Campus by Occupants and
Users, provided that no rule or regulation shall abrogate or modify the rights
granted to any Party under this Agreement. Moreover, all Rules and Regulations
apply equally and without discrimination to all Owners, Users and Occupants. As
part of its obligations to manage, operate, and maintain the Campus, the Owner
must enforce these Rules and Regulations with respect to the Owner's Parcel. No
portion of the Common Areas may be used for commercial purpose by an Occupant or
User except as permitted by this Agreement or by the Rules and Regulations.
SIGNS
8. The regulations and restrictions for posting signs in Commercial Areas of the
Campus are:
No sign, symbol, advertisement, or billboard may be constructed, used,
maintained, erected, posted, displayed, or permitted on or about any portion of
the Campus except as expressly allowed as follows
(a) One storefront, establishment name sign may be used for each retail
establishment in the Campus provided that such sign:
(i) Identifies the name, business, or symbol of the establishment.
(ii) Does not advertise any particular item of merchandise (other than
as may be contained in the store's trade name).
(iii) Is harmonious with the general exterior architectural style of
the buildings in the Campus.
(iv) Is of a type, size, and design commonly found in first class
regional centers.
(v) Complies with the dimensional, floor level elevation, location, and
style of lettering specifications approved by the Project Architect. The Project
Architect has approved the foregoing signage specifications for the construction
of the hospital in the Hospital Areas.
(vi) Otherwise complies with the sign criteria and requirements
established in this document.
(vii) Has been approved by the Project Architect.
9. The regulations and restrictions for posting signs in the Hospital Areas of
the Campus are those which have been approved by the Project Architect
(hereinafter defined).
SOUND AND LIGHT PROJECTIONS
10. No Occupant may operate or maintain any system or electronic device (such as
loudspeakers or search lights) that projects sound or light beyond the confines
of the Occupant's retail establishment. A sound system for the Campus as a
whole, if approved by the Parties, may be installed for general promotional
purposes.
