EXHIBIT 10.12
AMENDED AND RESTATED LEASE AGREEMENT
(Kents Nursing Center)
THIS AMENDED AND RESTATED LEASE AGREEMENT (the "Lease") is made and
entered into as of the 6th day of July, 1994, effective as of the Commencement
Date, by and between EBT Healthcare Properties, L.P., a Delaware limited
partnership (hereinafter referred to as the "Lessor") and WelCare International
Properties Corporation, a Georgia corporation (hereinafter referred to as the
"Lessee").
W I T N E S S E T H :
WHEREAS, Lessor is the owner of that certain real property, more
particularly described on Exhibit "A" attached hereto and incorporated herein by
reference, improved with a 107-bed nursing home facility known as Kents Nursing
Center (the "Facility"), together with Lessor's easements and appurtenances in
adjoining and adjacent land, highways, roads, streets, lanes, whether public or
private, reasonably required for the installation, maintenance, operation and
service of sewer, water, gas, power, and other utility lines and for driveways
and approaches to and from abutting highways for the use and benefit of the
above-described parcel of real estate, together with that certain personal
property, fixtures, equipment and supplies used in connection with such real
estate and improvements (the "Premises");
WHEREAS, Lessor and Lessee entered into that certain Lease Agreement dated
as of October 1, 1993, whereby Lessor agreed to lease to Lessee the Premises
(the "Original Lease"); and
WHEREAS, Lessor and Lessee desire to amend and restate the Original Lease
in its entirety as provided in this Lease.
NOW THEREFORE, in consideration of Ten Dollars ($10.00) in hand paid by
each party to the other, the mutual promises herein contained and other good and
valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the parties do hereby agree as follows:
1. Ownership. Lessor is the owner of the Facility which is located on the
Premises.
2. Term. The term of this Lease shall be deemed to have commenced on the
1st day of October, 1993 (the "Commencement Date"), and shall end on the 30th
day of September, 2006 unless sooner terminated, and Lessee is hereby granted an
option to extend this Lease for two (2) additional five (5) year periods on the
same terms as provided in this Lease; provided, however, that at the time of
such election to extend, unless Lessee and Lessor shall have otherwise agreed in
writing upon the rent to be paid during the extension term(s), Lessee shall
provide Lessor with a letter from a third-party appraiser reasonably acceptable
to Lessor stating that the Base Rent (as hereinafter defined) and any other sums
payable under this Lease constitute a fair market rental rate for the Premises
(the "Fair Rental Rate"). Lessee shall pay the reasonable fees and charges of
such appraiser. If the Fair Rental Rate is greater than or less than the Base
Rent at the time of the extension of this Lease, then the Lessee can either (i)
elect not to extend this Lease, or (ii) pay as Base Rent an amount equal to the
Fair Rental Rate. Lessee must notify the Lessor in writing of its election to
exercise any of the renewal extensions at least three (3) months prior to the
expiration of the
then current lease term. Lessor and Lessee agree that they both shall be bound
by the appraiser's determination of the Fair Rental Rate to the extent herein
indicated.
3. Rental Payments.
A. Base Rent. Lessee shall pay to Lessor the amounts set forth on
Exhibit "B" as rent for the Premises in arrears upon the last day of each and
every month during the term of this Lease (the "Base Rent").
B. Additional Rent. Lessee shall pay to Lessor, monthly in arrears,
$358.00 for each 1/8% that the Prime Rate established by SouthTrust Bank of
Alabama, National Association (the "Prime Rate") exceeds 7.25% as additional
rent (the "Additional Rent"). The Additional Rent shall be calculated based on
the Prime Rate during the previous month taking into account any changes in the
Prime Rate during such month.
C. Payment of Rent. Lessor and Lessee acknowledge and agree that
this Lease and all Base Rent and Additional Rent (together, the "Rent") payable
hereunder may be assigned as additional collateral for a mortgage loan or loans
to Lessor. In such event, Lessor and Lessee mutually agree that, if required by
the lender (the "Mortgagee") pursuant to such mortgage loan (the "Mortgage"),
all payments of Rent shall be made to a lockbox or another account designated by
Mortgagee (a "Lockbox Account") and Mortgagee is hereby authorized by Lessor and
Lessee to debit such account each month for the amount equal to the monthly debt
service payments due pursuant to the promissory note secured by the Mortgage.
Payments so made by the Lessee shall be credited as payments of Rent made under
this Lease and shall satisfy the obligations of Lessee hereunder, to the extent
so paid. If payments of Rent are not made a Lockbox Account for the benefit of
Mortgagee, then such payments shall be made to Lessor at Lessor's address as
provided in Section 31 of this Lease or such other address as Lessor shall
specify pursuant to Section 31 at least thirty (30) days prior to a payment
date.
D. Debt Service Reserve Fund. No security deposit is required of
Lessee pursuant to this Lease except as follows. If required by Mortgagee,
pursuant to the terms of the Mortgage and this Lease, Lessor shall deposit into
an account with Mortgagee pursuant to an Assignment and Pledge of Deposit
Account (the "Deposit Agreement") an amount equal to three months debt service
on the Premises to serve as a debt service reserve fund, which may increase if
debt service payments increase (the "Debt Service Reserve Fund"). The Debt
Service Reserve Fund shall be governed by the terms of the Deposit Agreement.
Notwithstanding the foregoing, if Lessee provides Lessor with additional funds
to enable the deposit of additional debt service reserves as contemplated by the
Deposit Agreement, or if (and to the extent) Lessor shall have defaulted in its
obligations to fund the Premises Improvement Capital Account (as hereinafter
defined) and Lessee funds such account, then amounts pledged to Mortgagee as a
Debt Service Reserve Fund shall, upon repayment in full of the Mortgage or upon
any release of the Debt Service Reserve Fund (or any portion thereof) by the
Mortgagee (the "Release Date"), be deemed a security deposit of Lessee and shall
be refunded to Lessee to the extent Lessee funded such amounts or Lessor
defaulted in its obligation to fund the Premises Improvement Capital Account at
the earlier of (i) the termination of this Lease or (ii) the Release Date.
4. Net Lease. This Lease is intended to be a net lease in that it is the
intention of the parties hereto that the Rent payable to Lessor shall not be
reduced by any cost or charge whatsoever and that all expenses and charges
related to the ownership and operation of the
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Premises after the date of this Lease, whether for upkeep, maintenance;
compliance with environmental, health and safety laws (including the Americans
with Disabilities Act); insurance; taxes; utilities; federal, state and
municipal requirements; and other charges of a like nature or type or otherwise
shall be paid by Lessee, subject to the other terms of this Lease, including,
but not limited to, the provisions for the Premises Improvement Capital Account
(as defined herein). This provision is not in derogation of specific provisions
herein, but in expansion thereof and as an indication of the general intentions
of the parties hereto.
5. Taxes and Assessments. Lessee hereby agrees to pay to the public
authorities charged with collection thereof, promptly as the same become due and
payable, all taxes, assessments, and other public charges levied upon or
assessed against the Premises and/or any building, structure, fixture or
improvements now or hereafter located thereon, or arising in respect of the
occupance, use or possession of the Premises, and which become due and payable.
6. Fuel, Utility Services. Lessee hereby agrees to pay for all fuel,
electricity, heat or power, gas and water, or any other utility charges incurred
upon the Premises after the date of this Lease.
7. Compliance with Laws. Lessee covenants that in the use and occupation
of the Premises and the buildings, structures, fixtures and improvements
thereon, and the sidewalks adjacent thereto, Lessee will comply in all material
respects with all authorities in any manner affecting the Premises or any
building, structures, fixtures and improvements thereon or the use thereof and
the terms of the Mortgage. Lessee further agrees that it will not permit any
unlawful occupation, business or trade to be conducted on the Premises, or any
use to be made thereof contrary to any law, ordinance or regulation with respect
thereto.
8. Repairs, Alterations and Additions.
A. General. Lessee shall be further obliged to pay any expense from
the Gross Revenues of the Premises for repairing any improvements upon the
Premises, including, without limitation, extermination and landscaping, and
Lessee shall make all reasonable repairs and replacements necessary to maintain
the Premises and all furniture and fixtures in a reasonably good, tenantable and
wholesome condition, complying in all material respects with all applicable
laws, regulations, ordinances, licenses and requirements of all authorities
having jurisdiction over the Premises, subject to Lessor's contribution to the
Premises Improvement Capital Account provided for herein. Lessor, however, is
not hereby relieved of responsibility of maintenance assumed by it pursuant to
the Mortgage or as provided below. For purposes of this Lease, "Gross Revenues"
shall mean the amount equal to the sum of all revenues received or receivable
from the operation of the Facility less contractual allowances for xxxxxxxx not
paid or received from applicable governmental agencies or other third party
payors as determined during each calendar year.
B. Premises Improvement Capital Account. Due to the age and condition of
the Facility's existing physical plants, Lessor shall fund, from time to time,
amounts as reasonably determined by Lessee to be necessary for capital
improvements and deferred maintenance at the Premises. Such amounts funded by
Lessor shall be placed in an account established by Lessee to fund such capital
improvements, deferred maintenance and other capital needs for the upkeep,
modernization, or expansion of the Premises (the "Premises Improvement Capital
Account"). Lessor's obligation to fund the Premises Improvement Capital Account
shall not
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exceed $107,000 per year ($1,000 per year per licensed bed in the Facility
located on the Premises) (the "Yearly Improvements Deposit"). The Yearly
Improvements Deposit shall be payable upon the written request of Lessee and
shall be paid into the Premises Improvement Capital Account within thirty (30)
days after such prior written notice is provided by Lessee to Lessor. The
Premises Improvement Capital Account shall be solely administered and controlled
by Lessee and shall be used as set forth above or otherwise for the benefit of
the Premises as determined by the Lessee in its sole discretion.
9. Insurance. Lessee shall maintain insurance as follows:
(a) Professional liability insurance in at least the amount of
$1,000,000 per occurrence, $2,000,000 aggregate with a $10,000,000 umbrella. All
such liability insurance shall name each of Lessor and Mortgagee as an
additional insured;
(b) Liability insurance in an amount equal to at least $1,000,000
per occurrence, $2,000,000 aggregate, with a $10,000,000 umbrella. All such
liability insurance shall name each of Lessor and Mortgagee as an additional
insured;
(c) "All-risk" coverage on the Facility, including all improvements,
equipment and inventory, in an amount not less than the replacement cost
thereof, insuring against such potential causes of loss as shall be required by
Lessor, including but not limited to loss or damage from wind, fire, ice,
subsidence and, if requested by Lessor, earthquake;
(d) Business income insurance (including rental value if the
Facility is leased in whole or part) equal to not less than twelve (12) months
estimated gross revenues less expenses not ordinarily incurred during the period
of business interruption; and
(e) Workers compensation insurance as required by the laws of the
State where the Facility is located.
Each of the policies described in (c) and (d) shall name Lessor (or, if
directed by Lessor, Mortgagee) as mortgagee and loss payee under a standard
non-contributory mortgagee and lender loss payable clause, and shall provide
that Lessor and Mortgagee shall receive not less than thirty (30) days written
notice prior to cancellation. The proceeds of either of the policies described
in (c) and (d) shall be payable by check jointly payable to Lessee and to Lessor
(or, if directed by Lessor, Mortgagee) and delivered to Lessor (or, if directed
by Lessor, Mortgagee).
Lessee appoints Lessor and Mortgagee as Lessee's attorney-in-fact to cause
the issuance of or an endorsement of any policy to bring Lessee into compliance
herewith and, at the sole option of Lessor and Mortgagee, to make any claim for,
receive payment for, and execute and endorse any documents, checks or other
instruments in payment for loss, theft, or damage covered under any such
insurance policy; however, in no event will Lessor or Mortgagee be liable for
failure to collect any amounts payable under any insurance policy. Lessee agrees
and acknowledges that the application of insurance proceeds shall be governed by
Section 4.4 of that certain Loan Agreement of even date herewith between
Mortgagee and Lessor.
If Lessor shall in any manner resume possession of the Premises, Lessor
shall thereupon become, subject to the terms of the Mortgage, the sole owner of
all insurance
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policies held by or required hereunder to be delivered to Lessor, with the sole
right to collect and retain all unearned premiums and dividends thereon, and
Lessee shall only be entitled to a credit, in reduction of the then outstanding
indebtedness secured hereby, in the amount of the cancellation refund.
10. Other Operating Expenses. Lessee agrees to pay all other operational
expenses of the Premises not heretofore mentioned.
11. Surrender. Lessee agrees that, upon termination by lapse of time or
otherwise of the term hereby created, or any extension thereto, it will deliver
and surrender up to the Lessor said Premises in reasonably good condition and
repair; any damage, deterioration or destruction resulting from ordinary wear
and tear, loss by fire, casualty and causes beyond Lessee's control are
excepted.
12. Liens. Lessee will not permit any mechanic's, laborer's, or
materialmen's liens to stand against the Premises for any labor or material
furnished to Lessee or claimed to have been furnished to Lessee in connection
with work of any character performed or claimed to have been performed on the
Premises by or at the direction or sufferance of Lessee, but nothing herein
contained shall in any way prejudice the rights of Lessee to contest to final
judgment or decree any such lien. In the event of failure of Lessee to procure
the discharge of any such lien or contest such lien as above provided, by bond
or any other method, Lessor may, without further notice, procure the discharge
thereof by bonding, payment or otherwise, and all costs and expenses incurred by
Lessor in obtaining such discharge shall become due as additional Rent upon the
next payment of Rent. Lessor shall not cause any mortgage or lien other than the
Mortgage and security interests related thereto to stand against or attach to
the Premises.
13. No Abatement of Rent. The partial destruction of any building on the
Premises by fire or natural elements shall not in any manner affect this Lease
or the rights and obligations of Lessee hereunder and the Rent shall not xxxxx,
diminish or cease during reconstruction. The Rent shall not xxxxx upon
foreclosure under the Mortgage. However, should the Lessor fail to undertake to
repair, rebuild or replace any such damage or destruction within thirty (30)
days after such fire or other casualty, or shall fail to complete such work
within six (6) months, then the terms of this Lease shall expire at the option
of Lessee, after ten (10) days written notice to Lessor.
14. Damage or Destruction. If the Premises covered hereby, or any part
thereof, shall be damaged by fire or other hazard against which insurance is
held, the amounts paid by any insurance company in pursuance of the contract of
insurance to the extent of the indebtedness then remaining unpaid, shall be
paid, subject to the terms of the Mortgage, to Lessor and released only for the
repairing or rebuilding of the Premises.
15. Condemnation. If the Premises shall be condemned or taken in its
entirety for a public or quasi-public use, all compensation therefore shall be
paid to Mortgagee to be used to pay the Mortgage as provided in the Mortgage and
any remaining funds will be divided between Lessor and Lessee, and this Lease
and all obligations hereunder shall terminate as of the date of taking. If only
a portion of the Premises shall be condemned or taken for a public or
quasi-public use, any and all awards or compensation arising from such
condemnation or taking shall be paid to Mortgagee subject to the terms of the
Mortgage, and this Lease shall continue without modification, unless and except
that if so much or such portion of the
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Premises be taken that the taking shall materially interfere with the efficient
operation of its business by Lessee on the Premises, the judgment of Lessee as
to the materiality of such interference being conclusive, then at any time
within sixty (60) days after the taking of such portion of the Premises, Lessee
may terminate this Lease by serving upon Lessor written notice of its intention
to do so. In the event this Lease is so terminated, then any and all awards or
compensation arising from such condemnation or taking shall be paid jointly to
Lessor and Lessee subject to the terms of the Mortgage, and all obligations
hereunder shall cease as of the date of such termination and any funds remaining
after the payment of the Mortgage shall be divided between the Lessor and
Lessee. Nothing contained herein shall be construed to preclude Lessee from
prosecuting any claim directly against the condemning authority in such
condemnation proceedings for loss of business, or depreciation to, damage to, or
cost of removal of, or for the value of its leasehold interest, stock, trade
fixtures, furniture and other personal property belonging to Lessee.
16. Assignment and Subletting. Lessee may not assign or encumber this
Lease or its rights hereunder except to Mortgagee without first obtaining the
written consent of Lessor which will not be unreasonably withheld; provided,
however, that Lessee's assignment of this Lease to an affiliate of Lessee shall
be valid and binding on Lessor without Lessor's prior written consent. In such
event, Lessee shall remain liable for the payment of all Rent required to be
paid hereunder and for the performance of all terms, covenants and conditions
herein undertaken by Lessee. Lessee shall have the right to enter into subleases
with respect to the operation of the Premises or any portion thereof, at any
time during the term of this Lease without the consent of Lessor, which
subleases shall not be deemed to create a tenancy in the Premises; provided,
however, that Lessee shall remain liable for the payment of all Rent required to
be paid hereunder and for the performance of all terms, covenants, and
conditions herein undertaken by Lessee. Lessor shall not assign or encumber this
Lease or its rights hereunder without first obtaining the written consent of
Lessee and providing Lessee with a written agreement from the assignee that it
will abide by all of the terms of this Lease.
17. Holding Over. In the event Lessee continues to occupy the Premises
after the last day of the term hereby created, or after the last day of any
extension of said term, and Lessor elects to accept rent thereafter, a tenancy
from month to month only shall be created and not for any longer period without
the written concurrence of Lessor.
18. Abandonment and Reletting. If Lessee shall abandon or vacate the
Premises, except as permitted hereunder, the same may be re-let by Lessor for
such rent, and upon such terms as to it may seem fit and in accordance with
Lessor's Partnership Agreement and the Mortgage. If a sufficient sum shall not
be thus realized monthly after paying the expense of such re-letting and
collecting, to satisfy the Rent, Lessee agrees to satisfy and pay all
deficiencies during each month of the remaining period of this Lease.
19. Subrogation and Waiver. Lessor hereby waives any and all claims
against Lessee, its assignees or sub-lessee for damage or destruction of any
improvements on the Premises (whether or not resulting from the fault or
negligence of Lessee, its assignees or sub- lessee or their agents or employees)
which improvements are covered by insurance obtained by Lessee and the parties
agree that any policies of insurance obtained by Lessor will recognize this
waiver of Lessor by a good and sufficient waiver of subrogation provision;
provided, however, that nothing herein shall be construed as waiving Lessor's
right to any insurance proceeds under policies obtained by Lessee, but paid for
by Lessor.
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20. Default, Termination and Damages.
A. Lessee's Default For Nonpayment of Rent. Except as otherwise
provided in this Lease, Lessee shall be in default under this Lease if it fails
to pay the Rent owed to Lessor hereunder for a period of sixty (60) days (a
"Monetary Default").
B. Lessee Default For Other Than Nonpayment of Rent. Lessee shall be
in default under this Lease if it defaults on any of the covenants herein
contained to be kept by Lessee, except the payment of Rent, and such default
shall continue after written notice for a period of ninety (90) days (a
"Non-monetary Default").
C. Right to Re-enter Facility. If a Monetary Default or Non-monetary
Default shall occur and continue, Lessor shall have the immediate right, whether
or not the term of this Lease shall have been terminated to re-enter and
repossess the Premises by summary proceedings, ejectment, any other legal action
or in any lawful manner Lessor determines to be necessary or desirable. No such
re-entry or repossession of the Premises shall be construed as an election by
Lessor to terminate the term of this Lease.
D. Duty to Mitigate. At any time or from time to time after the
re-entry or repossession of the Premises pursuant to Section 20.C. hereof,
whether or not the term of this Lease shall have been terminated, Lessor, in the
name of Lessee or Lessor or otherwise and upon notice to Lessee, shall, to the
extent required by applicable state law pertaining to the duty to mitigate
damages upon breach of a lease or other contract, use such efforts to relet the
Premises as is required by such law, Lessor may collect and receive any rents
payable by reason of such reletting consistent with Section 18, hereof.
E. Continuing Duty of Lessee. No expiration or termination of the
term of this Lease pursuant to this Section or and no expiration of the term
pursuant to Section 18 hereof, by operation of law or otherwise, and no
re-entry, repossession or reletting of the Premises pursuant to Section 18
hereof or otherwise, shall relieve Lessee of its liabilities and obligations
hereunder, all of which shall survive such expiration, termination, re-entry,
repossession or reletting.
21. Remedies Cumulative. The remedies conferred by this Lease upon Lessor
and Lessee are not intended to be exclusive, but are cumulative and in addition
to all remedies otherwise afforded by law.
22. Successors. This Lease and all covenants and agreements herein
contained shall be binding upon, apply and inure to the respective successors
and assigns of all parties to this Lease.
23. Lessor's Title. Subject to the terms of this Lease, Lessor's title is,
and always shall be, paramount to the title and interest of Lessee, and nothing
herein contained shall empower Lessee to do any act which can or shall encumber
the title of the Lessor. Provided the holder of any mortgage now or hereafter
encumbering the Premises shall provide Lessee with a non-disturbance agreement
reasonably satisfactory to Lessee, Lessee agrees to subordinate its interest in
this Lease to the Mortgage that encumbers the Premises. Nothing contained herein
shall relieve the Lessor of any obligations under the Mortgage.
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24. Books and Financial Statements. Lessee shall deliver to Lessor at the
end of each fiscal year, or more often as reasonably requested by Lessor, the
books of its operations of the Facility. Lessee shall provide to Lessor the
financial statements required by the Mortgage.
25. License. Lessee at all times shall maintain in force and effect a
license from the state in which the Facility is located to operate a nursing
home, and shall at all times employ a duly qualified administrator to operate
the Facility.
26. Employees. Lessee shall have direct responsibility for recruiting,
hiring, training, promoting, assigning and discharging all operating and service
personnel necessary for the proper operation and maintenance of the Premises or
shall have direct responsibility for leasing employees for the Premises. All
employees shall be employees of the Lessee and the Premises or leased by the
Lessee and shall not be employees of the Lessor.
27. Notice of Action Against License. Notwithstanding any other provision
of this Lease to the contrary, Lessee shall inform Lessor immediately by hand
delivery, telephone, telecopy (receipt confirmed) or telegraph of any action
taken, commenced or instituted by any state or federal authority having
jurisdiction over the Premises as a health care facility to terminate or revoke
any license certification of Lessee. Such notice shall be given to Lessor at the
address set forth in Paragraph 30.A. below.
28. Surrender of Possession. Lessee shall, on or before the last day of
the term of this Lease, surrender possession of the Premises to Lessor, free and
clear of sub-tenancies not specifically agreed upon by Lessor, reasonably clean
and in reasonably good condition and repair, ordinary wear and tear excepted.
29. Quiet Enjoyment. If and so long as Lessee is not in default hereunder,
Lessor agrees that it will not interfere with the peaceful and quiet occupation
and enjoyment of the Premises by Lessee.
30. Inspection of Books and Records. Lessor and Mortgagee shall have the
right, upon reasonable notice and at reasonable times, to inspect the books and
records and accounts relating to the Facility.
31. Miscellaneous Provisions.
A. Notices. Any notice or other communication by either party to the
other shall be in writing and shall be given, and be deemed to have been duly
given, if either delivered personally or mailed, postage prepaid, by registered
or certified mail, or reputable overnight delivery service addressed as follows:
TO LESSOR:
EBT Healthcare Properties, L.P.
0000 Xxxxxxxx Xxx Xx.
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
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WITH A COPY TO:
Xxxxxx, Xxxxxx & Xxxxxxx
Two Midtown Plaza, Suite 1900
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Xx.
TO LESSEE:
WelCare International Properties Corporation
0000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxx
WITH A COPY TO:
Xxxxxx Xxxxxxx Xxxxx & Scarborough
0000 Xxxxxxxxx Xxxxxx
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx
or to such other address and to the attention of such other person or officer as
either party may from time to time designate.
B. Change of Address. Lessor and Lessee may change their address for
purposes of this Lease by giving notice thereof in accordance with the
provisions set forth for notices above.
C. Understanding and Agreements. This Lease constitutes all of the
understandings and agreements of whatever nature or kind existing between the
parties with respect to the subject matter hereof.
D. Headings. The paragraph headings contained herein are for
convenience of reference only and are not intended to define, limit or describe
the scope or intent of any provisions of this Lease.
E. Approval or Consent. Whenever, under any provision of this Lease,
the approval or consent of either party is required, the decision thereon shall
be promptly given, and such approval or consent shall not be unreasonably
withheld.
F. Severability. Should any part of this Lease be declared invalid
for any reason, such decision shall not affect or impair the validity of the
remaining part or parts hereof, and this Lease shall remain in full force and
effect as to all parts not declared invalid or unenforceable as if the same had
been executed with the invalid or unenforceable portion(s) thereof eliminated.
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G. Applicable Law. This Lease shall be governed by, and construed
and enforced in accordance with, the laws of Texas (without regard to its rules
of conflicts of laws).
H. Further Assurances. Lessee shall, upon the request of Lessor,
execute and deliver any and all further documents which may be required,
contemplated or desired by Lessor in furtherance of the transactions
contemplated by this Lease.
I. Amendment or Modifications. This Lease shall not be amended or
modified without the prior written consent of the parties hereto.
J. Time. Time is of the essence of this Lease.
K. Binding. This Lease shall be binding upon, and inure to the
benefit of, the parties hereto, their estates, heirs, personal representatives,
successors in interest and assigns.
L. Counterparts. This Lease may be executed in one of more
counterparts, each of which shall constitute one and the same instrument.
32. Lease Memorandum. The Original Lease is evidenced of record in the
Deed Records of Tarrant County, State of Texas, by the filing of that certain
Memorandum of Lease dated October 19, 1993, filed October 21, 1993, in Volume
11289, Page 1428. The aforesaid Memorandum of Lease shall continue in full force
and effect (as modified hereby) and shall memorialize and provide constructive
notice of the right, title and interest of Lessee in the Premises.
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IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease as of the
date first set forth above.
LESSOR:
EBT HEALTHCARE PROPERTIES, L.P.,
a Delaware limited partnership
By: EBT Healthcare, Inc.,
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxx, President
LESSEE:
WELCARE INTERNATIONAL PROPERTIES
CORPORATION, a Georgia corporation
By: /s/ Xxxx X. Xxxx
-------------------------------------
Xxxx X. Xxxx, Vice President
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EXHIBIT A
LEGAL DESCRIPTION
KENT'S NURSING HOME, TEXAS PROPERTY
Xxx XX, Xxxxx 0, XXXXXXX XXXX ADDITION to the City of Fort Worth, Tarrant
County, Texas, according to the Revised Plat recorded in Volume 388-16, Page
479, Plat Records, Tarrant County, Texas.
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LEASE PAYMENTS Exhibit B
Kents
Year 1 348,347
Year 2 348,347
Year 3 348,347
Year 4 348,347
Year 5 348,347
Year 6 348,347
Year 7 348,347
Year 8 348,347
Year 9 348,347
Year 10 348,347
Year 11 348,347
Year 12 348,347
Year 13 348,347
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SCHEDULE 10.12
CHPC has entered into lease agreements substantially identical to Exhibit
10.12 as follows:
1. Amended and Restated Lease Agreement dated July 6, 1994 with EBT
Healthcare Properties, L.P. ("EBT") for Orofino, Idaho facility. Material
details in which this agreement differs from Exhibit 10.12 are that the base
rent per year is $182,178 for the term of this agreement, and the "Additional
Rent" payment is $179.00 for each 1/8% that the Prime Rate established by
SouthTrust of Alabama, National Association exceeds 7.25% (the "Percentage
Amount").
2. Amended and Restated Lease Agreement dated July 6, 1994 with EBT for
Libby, Montana facility. Material details in which this agreement differs from
Exhibit 10.12 are that the base rent per year is $283,057 for the term of this
agreement, and the "Additional Rent" payment is $308.00 for the Percentage
Amount.
3. Amended and Restated Lease Agreement dated July 6, 1994 with EBT for
Pinewood, Idaho facility. Material details in which this agreement differs from
Exhibit 10.12 are that the base rent per year is $325,702 for the term of this
agreement, and the "Additional Rent" payment is $333.00 for the Percentage
Amount.
4. Amended and Restated Lease Agreement dated July 6, 1994 with EBT for
Union, Mississippi facility. Material details in which this agreement differs
from Exhibit 10.12 are that the base rent per year is $131,752 for the term of
this agreement, and the "Additional Rent" payment is $128.00 for the Percentage
Amount.
5. Amended and Restated Lease Agreement dated July 6, 1994 with EBT for
Natchez, Mississippi facility. Material details in which this agreement differs
from Exhibit 10.12 are that the base rent per year is $254,938 for the term of
this agreement, and the "Additional Rent" payment is $256.00 for the Percentage
Amount.
6. Amended and Restated Lease Agreement dated July 6, 1994 with EBT for
Winona, Mississippi facility. Material details in which this agreement differs
from Exhibit 10.12 are that the base rent per year is $291,808 for the term of
this agreement, and the "Additional Rent" payment is $296.00 for the Percentage
Amount.
7. Amended and Restated Lease Agreement dated July 6, 1994 with EBT for
Franklinton, Louisiana facility. Material details in which this agreement
differs from Exhibit 10.12 are that the term of this agreement terminates on
September 30, 2004, the base rent per year is $420,234 for the term of this
agreement, and there is no "Additional Rent" payment.
8. Amended and Restated Lease Agreement dated July 6, 1994 with EBT for
Bossier City, Louisiana facility. Material details in which this agreement
differs from Exhibit 10.12 are that the term of this agreement terminates on
September 30, 2004, the base rent per year is $141,191 for the term of this
agreement, and there is no "Additional Rent" payment.
14
9. Amended and Restated Lease Agreement dated July 6, 1994 with EBT for
Ferriday, Louisiana facility. Material details in which this agreement differs
from Exhibit 10.12 are that the term of this agreement terminates on September
30, 2004, the base rent per year is $355,929 for the term of this agreement, and
there is no "Additional Rent" payment.
10. Amended and Restated Lease Agreement dated July 6, 1994 with EBT for
McComb, Mississippi facility. Material details in which this agreement differs
from Exhibit 10.12 are that the term of this agreement terminates on March 31,
2004, the base rent per year is $377,921 for the term of this agreement, and
there is no "Additional Rent" payment.
11. Amended and Restated Lease Agreement dated July 6, 1994 with EBT for
Hiawatha, Kansas facility. Material details in which this agreement differs from
Exhibit 10.12 are that the base rent per year is $106,615 for the term of this
agreement, and there is no "Additional Rent" payment.
12. Amended and Restated Lease Agreement dated July 6, 1994 with EBT for
Starkville, Mississippi facility. Material details in which this agreement
differs from Exhibit 10.12 are that the term of this agreement terminates on
September 30, 2004, the base rent per year is $364,966 for the term of this
agreement, and there is no "Additional Rent" payment.
15
