(10)(ii) Lease between DCA of Mechanicsburg, LLC and Pinnacle Health Hospitals
dated July 24, 2001.
LEASE AGREEMENT
---------------
THIS LEASE AGREEMENT is made and entered in this 24 day of July, 2001,
by and between Pinnacle Health Hospitals, a Pennsylvania Nonprofit Corporation
having its principal place of business in Harrisburg, Pennsylvania ("Landlord");
and DCA of Mechanicsburg, LLC, a Pennsylvania limited liability company, having
its principal place of business in Mechanicsburg, Pennsylvania ("Tenant").
In consideration of the mutual covenants and agreements herein set
forth, and other good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, Landlord does hereby Lease to Tenant, and Tenant
does hereby Lease from Landlord, _____ [option from 3,500 to 5,300] gross square
feet of office space located on the First Floor, 120 S. Filbert Street,
Mechanicsburg, Pennsylvania (the "Premises") as more particularly described
hereinafter.
ARTICLE 1. LEASE SPACE, TERM AND TERMINATION
1.01. Leased Space. Tenant shall be entitled to full use of the
Premises, as shown on the sketch plan attached hereto as Exhibit "A". The
Premises contain approximately ______ gross square feet of space. Tenant, its
employees, patients and invitees shall also have the use of 15 parking spaces at
the side of the building closest to the premises and shall have access to
additional spaces in the rear of the building, within the designated employee
parking area.
1.02. Term. Unless sooner terminated or extended as herein provided,
the original Lease term for the Premises shall commence on the commencement date
as defined below in Section 2.06, and extend for a period of seven (7) years
(the "Term").
1.03. Termination. This Lease may be terminated prior to its
expiration date and in accordance with Article 6 of this Lease, by the
non-defaulting party in accordance with Article 8 herein.
ARTICLE 2. RENT
2.01. Base Rent. During the Lease Term, Tenant shall pay base rent of
$12.75 per square foot per annum, totaling $___________, payable in equal
monthly installments of $___________ on the first day of each calendar month
during the Term.
2.02. Amortization of Buildout. Landlord, at Tenant's option, will
supply the capital required for Tenant's buildout of the Space, up to a maximum
of $60.00 per square foot not to exceed a total of $100,500. Any amounts
advanced by Landlord shall be repaid on a monthly basis over the initial Term of
the Lease, with a seven year amortization schedule at 8.0% interest.
2.03. Renewals. After the initial Term as described above, Tenant has
the option to renew this Lease for two additional five year terms by giving
notice to Landlord at least ninety (90) days before expiration of the then
current Term. For any renewal term, rent shall be adjusted as described in
Section 2.04.
2.04. Rent Adjustments Initial Term and Renewal Terms. At the
beginning of the second year of the Term and each year thereafter during the
initial Term the then Base Rent for the year shall be adjusted upward by two
(2%) percent over the previous year's rent.
At the beginning of any renewal term hereof the then Base Rent for the
year shall be adjusted upward by the same percentage as the most recently
published Consumer Price Index - All Urban Consumers ("CPI-U") at the time of
the renewal for all items for the Philadelphia area, U.S. Department of Labor,
Bureau of Labor Statistics (1967 - 69 = 100) ("Recent Index") shall have
increased over the said Consumer Price Index - All Urban Consumers published for
2001 ("Base Index"). This change is illustrated as follows:
Increase in Rent = Recent Index - Base Index x Base Rent
-------------------------
Base Index
If said Consumer Price Index - All Urban Consumers in its present form
is discontinued or if the basis on which it is now calculated shall be revised,
Landlord and Tenant shall make an appropriate conversion of such revised index
on the basis of conversion factors published by the Bureau of Labor Statistics;
if such factors are not so obtainable, Landlord and Tenant shall request the
Bureau of Labor Statistics to provide, when needed, an appropriate conversion
adjustment which shall be applicable thereafter; if the Bureau of Labor
Statistics is unable to or is unwilling to provide such appropriate conversion
adjustment, then Landlord and Tenant shall in good faith, agree on a suitable
substitute for the Consumer Price Index - All Urban Consumers, and if no
agreement can be reached, each party shall select a disinterested arbitrator and
the two arbitrators so chosen shall select a third disinterested arbitrator; the
arbitrators so chosen shall select a substitute for the Consumer Price Index -
All Urban Consumers. The rules of arbitration shall be set by the arbitrators,
and the cost of arbitration shall be shared equally by Landlord and Tenant.
2.05. Rental Payments. All rent payments (and obligations deemed
additional rent) shall be received by Landlord on or before the first day of
each month at the address listed in Section 12.12 below (or such other place as
Landlord may from time to time designate in writing). Any payment not forwarded
and received within ten days of its due date shall be subject to a two percent
(2%) late charge. All payments shall be made without demand, setoff, abatement
or other reduction.
2.06. Rent Commencement. The Term and the payment of rent shall
commence at the date that the Tenant obtains local and state approval and its
Medicare provider number with respect to its Use (defined below).
Notwithstanding anything herein to the contrary, prior to there being a
Commencement Date, the service facilities and systems of the building serving
the Premises shall be stubbed into the Premises and shall be in good operating
condition and working order.
2.07. Possession. Possession of the Premises includes the exclusive
use of the same, together with the use, concurrent with any other occupants of
the building, of the common hallways, stairs, elevators (if any), toilet rooms,
parking areas, air conditioning, storage, waste removal, electric, heat, light
and water. Tenant, its agents, invitees, employees, servants, visitors and
patients shall have the right of ingress and egress to and from the said
Premises and the building. Landlord covenants that it will not at any time
during the Term or any renewal term become a party or consent to any action,
proceeding or project with might in any manner compete or interfere with
Tenant's business of providing dialysis services at the Premises, Tenant's Use
of the Premises, or deprive Tenant, its agents, employees, servants, invitees
2
and visitors or patients of ingress and egress to or from the Premises or the
building. Landlord shall not be prohibited from providing or arranging for
provision of dialysis services at other sites.
2.08. Renovation. The Tenant shall be responsible for all site
preparations. Landlord shall provide Tenant with a complete set of architectural
drawings or building plans in order for Tenant to renovate the Premises and to
verify services coming into the building and the Premises.
Landlord shall contribute up to a maximum of $5,000.00 or the actual
expense, which ever is less, for an exterior walk and entranceway to the
building and accessible to the Premises, to include a delivery entrance on the
side of the building providing double door access directly into the Tenants
space, so that the Premises are easily accessible for the delivery of supplies
and the entrance and exit of non-ambulatory patients of Tenant.
2.09. Use Availability. Landlord warrants to Tenant that the building
within which the Premises are located is in an area which is zoned for the Use
of the Premises as anticipated by the Tenant. Landlord will use its diligence in
obtaining all necessary permits and licenses from all regulatory agencies for
the continuous operation of its building within which the Premises are located,
which will comply with and satisfy health and other governmental codes and
regulations. It is understood and agreed that this Lease is specifically
contingent and subject to Tenant being able to use the premises for its
contemplated Use. If Tenant is unable to obtain the appropriate permits,
variances, licenses and/or other approvals for the Use of the Premises, this
Lease will automatically and immediately terminate and become null and void, and
Landlord shall immediately return to Tenant all rental payments and other
deposits heretofore made to Landlord.
ARTICLE 3. CONDUCT OF BUSINESS
3.01. Tenant's Business. During the Term of this Lease, Tenant shall
operate the Premises as a professional medical office for outpatient renal
dialysis, and for no other purposes ("Use"), without Landlord's prior written
consent, which consent shall not be arbitrarily withheld. Tenant's unauthorized
Use of the Premises shall constitute an event of default, entitling Landlord to
the remedies set forth in Article 8 below.
ARTICLE 4. MAINTENANCE, WASTE AND NUISANCE
4.01. Building Maintenance. It is the intent of the parties, during
the Term of this Lease and any extensions, to perform such maintenance and
repair as is necessary to keep the buildings safe and in compliance with
applicable ordinances and regulations. All such repairs and maintenance relating
to the plumbing, heating, ventilation, and air conditioning equipment, roof,
foundations, and structural aspects of the building, shall be the responsibility
of Landlord. Any interior repairs; redecorating or repainting; maintenance;
interior trash removal, including biohazardous waste removal; and cleaning
services shall be Tenant's responsibility.
4.02. Exterior and Common Area Maintenance. Landlord shall be
responsible for paying all costs and expenses incurred in maintaining the
grounds and parking areas in or about the premises. Such maintenance shall
include, but not be limited to the following: all costs and expenses of
operating, maintaining, repairing, lighting, signing, cleaning, painting and
striping the parking areas, snow removal and landscaping.
3
4.03. Security Services. Any security services desired by Tenant for
the protection of its property, personnel or operations shall be provided by
Tenant at its expense.
ARTICLE 5. OTHER OBLIGATIONS OF LANDLORD AND TENANT
5.01. Taxes and Assessments. Landlord shall pay all taxes, special
assessments, and governmental charges imposed during the Term of this Lease.
5.02. Alterations, Additions, and Improvements. Tenant shall be
totally responsible for the cost of any buildout and shall submit plans for
Landlord's approval prior to initiating any work. Landlord hereby gives Tenant
the option to have Landlord supply the capital necessary for the buildout and to
amortize the cost over the initial Term of this Lease, as provided in Section
2.02 hereof. Any costs advanced by the Landlord, for the buildout, shall be
payable to Landlord as Additional Rent. Tenant shall not make any other
alterations, additions or improvements to the Premises without the prior written
consent of Landlord, which shall not be unreasonably withheld. Tenant shall not
do or keep anything in or about the Premises which will increase the risk or the
rate on the casualty insurance above that which exists on the date of execution
of this lease.
5.03. Signs. Landlord shall permit Tenant's installation of interior
and exterior signs and directional devices identifying Tenant and its business,
such signs to be reasonable in number, size and design and approved by Landlord
prior to installation, which approval will not be unreasonably withheld.
5.04. Utilities and Services. Landlord shall pay for utilities and
services furnished to or used on the Premises, including but not limited to
water, gas, oil, heat, electricity, non-biohazard trash removal, and sewerage,
during the Lease Term and any renewal term. Tenant shall be responsible for the
cost of telephone services provided on the Premises.
5.05. Fixtures. Upon the expiration date of the Lease or any renewal
term, Tenant shall remove all trade and plant fixtures, equipment, apparatus and
other personalty purchased and/or installed by Tenant at its expense.
5.06. Mechanic's Liens. No work which Landlord permits Tenant to do
under this Lease, whether in the nature of erection, construction, alteration or
repair, shall be deemed for the immediate use and benefit of Landlord, so that
no mechanic's or other liens shall be allowed or charged against Landlord as a
result of any consent given by Landlord to Tenant to improve the Premises.
Tenant shall promptly pay all persons furnishing labor, work, and materials on
behalf of Tenant or its contractor in or about the Premises. If any mechanic's
or other liens shall at any time be filed against the Premises as a result of
work, labor, services or materials performed or furnished on behalf of Tenant,
or at its direction, Tenant shall immediately cause the same to be discharged of
record. If Tenant shall fail to cause the discharge of any such lien, such
failure shall be deemed an event of default, entitling Landlord to the remedies
set forth in Article 8 below.
5.07. Insurance.
(a) Tenant's Public Liability and Property Damage Insurance. At
its sole cost and expense, Tenant shall purchase and maintain policies of
comprehensive general liability insurance, covering the Premises generally, the
business operated by Tenant in or about the Premises, and the contractual
liability of Tenant under this Lease, in such form and with such insurers as are
4
acceptable to Landlord. The policies shall be in such amounts as Landlord may
require from time to time, but, in any event, shall have limits of at least
$1,000,000.00 with respect to property damage; $1,000,000.00 with respect to
death or personal injuries to any one person; and $2,000,000.00 arising out of
any one occurrence. Such insurance may be included in a blanket policy or
policies. Such policy or policies shall name Landlord and Tenant as named
insureds and shall provide that any insurance proceeds be paid to Landlord and
Tenant jointly, which proceeds shall be used to pay any property damage claims
against Landlord and/or Tenant.
(b) Fire and Casualty. Landlord shall, at its sole cost and
expense, keep the Premises insured against loss or damage by fire, flood, and
other casualty during the Term of this Lease.
(c) Tenant's Workers' Compensation and Other Insurance. At its
sole cost and expense, Tenant shall maintain any legally required limits of
workers' compensation insurance on all persons which it employs and such other
forms of insurance relating to Tenant's business as may be required by law.
(d) Other Insurance Matters. All insurance maintained under this
Lease shall be issued by companies authorized to do business in the Commonwealth
of Pennsylvania, and shall contain an endorsement requiring 30 days' written
notice to the named insured as for cancellation or change in the coverage, scope
or amount of any policy. As an express condition of this Lease, on or before the
commencement of the Term, Tenant shall furnish Landlord with certificates of all
insurance to be maintained by Tenant during the Term. If Tenant does not
maintain any requisite insurance in full force and effect, Landlord may notify
Tenant of such failure, and if Tenant does not deliver to Landlord within 10
days after such notice a certification showing that all required insurance is in
full force and effect, Landlord may secure the necessary insurance coverage. If
Landlord elects to secure such coverage, Tenant agrees to reimburse Landlord on
demand for any amount so paid, with 10 percent annual interest from the date of
Landlord's payment until repaid by Tenant as part of the next monthly rental
payment.
ARTICLE 6. DAMAGE AND CONDEMNATION
6.01. Fire and Casualty Damage.
(a) Total Destruction. If, during the Term, the Premises are
totally or substantially destroyed by fire, flood, or other casualty, or if such
Premises are rendered totally or partially inaccessible or unusable for Tenant's
use of the Premises, Tenant's sole remedy shall be the right to terminate this
Lease without further liability of either party, provided Tenant is not then in
default. Tenant shall be permitted to terminate the Lease under this subsection
if, in Landlord's reasonable opinion, more than fifty percent (50%) of the
Premises is destroyed or is rendered unusable for Tenant's Use. In such event,
Tenant shall vacate the Premises within five days of the destruction, and
Tenant's rental obligation shall abate (and this Lease shall terminate) upon
such vacation, provided Tenant is not then in default.
(b) Partial Damage. In Landlord's reasonable opinion, if less
than fifty percent (50%) of the Premises is destroyed or is rendered unusable
for Tenant's Use, the Lease shall continue, Landlord shall repair that damage as
promptly as possible, but not more than 120 days from such damage, at Landlord's
sole cost and expense, the rent shall be reduced pro rata to reflect the portion
of the Premises which has been rendered unusable by fire, flood or other
casualty, until the completion of such repair. If the damage cannot be repaired
within 120 days, Tenant shall have the option to terminate the Lease in
accordance with subparagraph (a) of this Section 6.01.
5
6.02. Condemnation. During the Term or any extension thereof, if all
or part of the Premises should be taken for any public or quasi-public use under
any governmental law, ordinance, or regulation, or by right of eminent domain,
or if it should be sold to the condemning authority under threat of
condemnation, this Lease shall terminate and the rent shall be abated during the
unexpired portion of the Lease, effective as of the date Tenant vacates (or is
required to vacate) the Premises. In such event, Landlord shall be entitled to
receive the entire condemnation award for taking of the property and related
damages; Tenant may initiate separate proceedings for the value of its Leasehold
interest (if any).
ARTICLE 7. INDEMNITY
Tenant agrees to the indemnify and hold Landlord harmless against any
and all claims, demands, damages, costs and expenses, including reasonable
attorneys' fees for the defense thereof, arising from: (a) the use, conduct or
management of Tenant's business in the Premises; (b) Tenant's breach or default
of any term, condition or covenant of this Lease or Tenant's violation of any
law relating to its use of the Premises; (c) the act, omission or negligence of
Tenant, its agents, contractors, employees, subtenants, invitees, customers, or
licensees in or about the Premises or the common areas thereon; (d) any
accident, injury or damage, loss or theft of property in or about the Premises
resulting from any act or omission of Tenant or its agents, contractors,
employees, subtenants, invitees, customers, or licensees, except Landlord's
negligence or intentional act; or (e) Tenant's failure to comply with any
regulations, ordinances, codes, governmental orders or statutes relating to the
Premises subject to Section 2.09. In the event of any action brought against
Tenant and/or Landlord as the result of any such claim, Tenant at its sole cost
and expense, upon notice from Landlord, will defend such action by counsel
acceptable to Landlord.
Landlord agrees to indemnify and hold Tenant harmless against any and
all claims, demands, damages, costs and expenses, including reasonable
attorneys' fees for the defense thereof, arising from: (a) the use, conduct or
management of Landlords or other tenants business in the premises; (b)
Landlord's breach or default of any term, condition or covenant of this Lease or
Landlord's or other tenants violation of any law relating to its use of the
Premises; (c) the act, omission or negligence of Landlord, its agents,
contractors, employees, subtenants, invitees, customers, or licensees in or
about the Premises or the common areas thereon; (d) any accident, injury or
damage, loss or theft of property in or about the Premises resulting from any
act or omission of Landlord or its agents, contractors, employees, subtenants,
invitees, customers, or licensees, except Tenant's negligence or intentional
act; or (e) Landlord's failure to comply with any regulations, ordinances,
codes, governmental orders or statutes relating to the Premises. In the event of
any action brought against Tenant and/or Landlord as the result of any such
claim, Landlord at its sole cost and expense, upon notice from Tenant, will
defend such action by counsel acceptable to Tenant.
ARTICLE 8. DEFAULT AND REMEDIES
8.01. Default by Tenant. The occurrence of any of the following shall
constitute a material breach and a default by Tenant, entitling Landlord to the
rights and remedies set forth below:
6
(a) If Tenant shall allow the rent to be in arrears and unpaid
more than 10 days after receiving written notice of such delinquency.
(b) Recordation of this Lease, assignment of Tenant's interest
herein or subletting the Premises, or any portion thereof, in violation of this
Lease.
(c) Tenant's petitioning for relief under any chapter of the
Bankruptcy Code, or the filing of any involuntary petition against Tenant, if
the petition is not dismissed within 60 days of its filing.
(d) Tenant's breach of any term, condition or covenant of this
Lease, which continues uncured for a period of 30 days after Tenant receives
written notice of such breach, provided Tenant has not challenged such
allegation of breach in any appropriate forum.
(e) Tenant's violation of any law pertaining to its operations
on the Premises, including but not limited to those laws governing its use of
the Premises or parking lot.
(f) Tenant's failure to use the Premises in such manner as to
permit Landlord's purchase of fire or other insurance at usual and customary
rates.
(g) Tenant's creating a lien, mortgage or other encumbrance
against its Leasehold interest in the Premises, or Tenant's failure to
subordinate his Leasehold interest to the interest of Landlord or Landlord's
mortgagee.
8.02. Landlord Remedies. In the event of Tenant's breach (with
suitable non-disturbance provisions) and default under Section 8.01 above,
Landlord, at its option, may exercise any or all of the following remedies:
(a) Re-enter and take possession of the Premises, remove
Tenant's property to storage at Tenant's expense, relet the Premises, or any
part thereof, for all or any part of the remainder of the Lease Term, to a party
satisfactory to Landlord, and at such monthly rental as Landlord may with
reasonable diligence be able to secure. Should Landlord be unable to relet after
reasonable effort to do so, or should such monthly rental be less than the
rental Tenant was obliged to pay under this Lease (including obligations deemed
additional rent and the expenses of reletting and storing Tenant's property),
then Tenant shall pay the amount of such deficiency to Landlord, plus interest
at 10 percent per annum until date of payment. It is understood, however, that
Tenant's obligation to pay rent shall continue only for as long as Landlord does
not demolish the buildings on the property and continues to attempt in good
faith to relet the Leased Premises.
(b) Enter judgment by confession in an amicable action of
ejectment. TENANT HEREBY AUTHORIZES AND EMPOWERS THE PROTHONOTARY OR ANY
ATTORNEY OF ANY COURT OF RECORD IN PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR AND
CONFESS JUDGMENT IN EJECTMENT AGAINST TENANT AND IN FAVOR OF LANDLORD FOR THE
PREMISES AND TO DIRECT THE IMMEDIATE ISSUANCE OF A WRIT OF POSSESSION WITH A
CLAUSE FOR ALL COSTS, PLUS REASONABLE ATTORNEYS' FEE, WAIVING ALL IRREGULARITIES
AND WITHOUT FURTHER NOTICE OR LEAVE OF COURT.
7
(c) Enter a money judgment by confession. TENANT HEREBY
AUTHORIZES THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD OF
PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR AND CONFESS JUDGMENT ATAINST TENANT AND
IN FAVOR OF LANDLORD FOR THE FULL AMOUNT OF ALL UNPAID RENT, PLUS ALL COSTS
INCURRED IN REGAINING POSSESSION OF THE PREMISES, REMOVING AND STORING TENANT'S
PROPERTY, PLUS INTEREST AT 10 PERCENT, REASONABLE ATTORNEYS' FEES AND COSTS OF
SUIT, WITH FULL RELEASE OF ERRORS AND WAIVER OF ANY RIGHT TO EXEMPTION.
(d) To cure any breach or default by Tenant at Tenant's costs.
If, as a result of Tenant's breach or default, Landlord is required to pay any
sum or to perform any act requiring a monetary payment, then such sum shall be
deemed immediately due from Tenant to Landlord, and shall bear interest at the
maximum legal rate from the date of Landlord's initial payment until Tenant
fully reimburses Landlord. The sums advanced by Landlord and reimbursed by
Tenant (inclusive of interest) shall be deemed additional rent.
(e) In the event of Tenant's breach or threatened breach of any
of the terms and conditions hereof, Landlord shall have the right of injunction
to restrain the same and the right to invoke any remedy allowed by law or in
equity, regardless of whether other remedies, damages, or indemnity are provided
by law; and
(f) Exercise any other remedy available to Landlord at law or in
equity.
All rights and remedies of Landlord under this Lease shall be
cumulative, and the exercise of any one or more of them shall not be deemed to
exclude any other right or remedy. Such rights and remedies may be exercised and
enforced concurrently and whenever and as often as occasion therefore arises.
Judgments under the foregoing warrants for money judgment and ejectment may be
entered on the original or photocopies of this Lease as many times as may be
necessary to secure possession of the Premises and payment of all sums due
hereunder.
8.03. Default by Landlord. Landlord's breach of any term, condition or
covenant of this Lease, including but not limited to unreasonably withholding
consents, failure to maintain the building and the Premises as required by this
Lease, failure to use due care with respect to the persons and property of
Tenant, failure of Landlord's warranties as to the good operating condition of
the services to the Premises, and otherwise interfering with, whether
negligently or intentionally, the business of the Tenant and its peaceable and
quiet enjoyment of the Premises, which continues uncured for a period of twenty
(20) days after Landlord receives written notice of such breach, shall
constitute a material breach and a default by Landlord, entitling Tenant to any
and all rights and remedies available at law or in equity.
8.04. Tenant Remedies.
(a) Notwithstanding anything to the contrary contained in
Article 4 of this Lease, if Landlord shall fail to perform any repair
obligations required under this Lease within a reasonable time following
Tenant's written request for such repairs, or if Landlord shall fail to promptly
perform any repairs required under this Lease of an emergency condition, then
Tenant may elect to make such repairs at Landlord's expense. Landlord shall
promptly reimburse Tenant for the cost of such repairs. In the event that
Landlord fails to promptly reimburse Tenant for the cost of such repairs, Tenant
shall have at its option the right to deduct the costs, including interest at
the maximum legal rate, from the rent.
8
(b) All sums reasonably incurred by Tenant in connection with
any default by Landlord under this Lease, including without limitation all
costs, expenses and reasonable attorney's fees shall be deemed immediately due
from Landlord to Tenant, and shall bear interest at the maximum legal rate.
All rights and remedies of Tenant under this Lease shall be cumulative
and not exclusive. Nothing in this Lease shall be construed to limit remedies
available to Tenant at law or in equity. No delay or omission to exercise any
right or remedy shall be construed as a waiver of the right or remedy or of any
default by Landlord.
ARTICLE 9. INSPECTION BY LANDLORD
During the term or any extension thereof, Tenant shall permit Landlord
and its agents to enter into and upon the Premises at all reasonable times upon
reasonable written notice, and in a reasonable manner for the purpose: (a)
inspecting the Premises or making improvements, repairs or alterations to the
building or Premises; (b) making surveys or engineering studies, or any other
activity related to Landlord's obligations under this Lease, or Landlord's
intended use of the Premises after the expiration of any term.
ARTICLE 10. ASSIGNMENT, SUBLETTING AND RECORDATION
10.01. Assignment and Subletting by Landlord. Landlord shall have the
unlimited right to assign this Lease, or any interest herein.
10.02. Assignment and Subletting by Tenant. Tenant shall have the
privilege of assigning or subletting the Premises to another who has the
approximate capitalization or financial condition of Tenant at the time of
execution of this Lease, after first obtaining written consent of Landlord, such
consent to be reasonable and shall not be arbitrarily withheld. Notwithstanding
any provisions hereof, Tenant may assign or sublet the Premises or any portion
thereof, without Landlord's consent, to (i) Tenant's medical director and
similar physician; and (ii) any corporation which controls, is controlled by or
is under common control with Tenant, or to any corporation resulting from the
merger or consolidation with Tenant, or to any person or entity which acquires
substantially all of the assets of Tenant, provided that said assignee assumes,
in full, the obligations of Tenant under this Lease. Any such subletting or
assignment shall terminate from that time on any and all liabilities and
obligations of Tenant to pay rent or perform under the Lease. Consent to one
assignment or subletting by Landlord shall not be deemed consent to any
subsequent assignment or subletting.
10.03. Recordation. Tenant shall be prohibited from recording this
Lease without Landlord's prior written consent, other than required by law, or
the Securities Exchange Commission.
ARTICLE 11. QUIET ENJOYMENT
11.01. Quiet Enjoyment. Tenant, on paying the rent and keeping and
performing under the Lease, shall and may peaceably and quietly enjoy the
Premises for the Lease Term and any renewal term, as against any person claiming
the same by, through or under Landlord, subject to the legal requirements and
the provisions of this Lease. Landlord shall use reasonable efforts to have
other tenants comply with their applicable rules and regulations. This covenant
and any and all other covenants of Landlord contained in this Lease shall be
binding upon Landlord and its successors or assigns.
9
ARTICLE 12. MISCELLANEOUS
12.01. Parties Bound. This Lease shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors, and assigns where permitted
by the Lease.
12.02. Pennsylvania Law to Apply. This Lease shall be construed under
and in accordance with the laws of Pennsylvania, and all obligations of the
parties created hereunder are performable in Dauphin county, Pennsylvania.
12.03. Legal Construction. In case any one or more of the provisions
contained in this Lease shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision thereof and this Lease shall be construed
as if such invalid, illegal, or unenforceable provision had never been contained
herein.
12.04. Prior Agreements Superseded. This Lease constitutes the sole
agreement of the parties and supersedes any prior understandings or written or
oral agreements between the parties regarding Lease of the Premises.
12.05. Amendment. No amendment, modification, or alteration of the
terms hereof shall be binding, unless in writing, dated subsequent to the date
of this Lease, and signed by both Landlord and Tenant or their authorized
agents.
12.06. Rights and Remedies Cumulative. The rights and remedies provided
by this Lease are cumulative and the use of any one right or remedy by either
party shall not preclude or waive its right to use any or all other remedies.
Said rights and remedies are given in addition to any other rights the parties
may have by law, statute, ordinance, or otherwise.
12.07. Waiver of Default. No waiver by the parties of a default or
breach of any term, condition, or covenant of this Lease shall be deemed to be a
waiver of any other breach or default or of any other term, condition, or
covenant contained herein.
12.08. Attorneys' Fees. If either party breaches its obligation
hereunder and the other party initiates judicial proceedings to remedy such
breach or otherwise enforce its right hereunder, then the prevailing party will
be entitled to reasonable attorney's fees in connection with such proceedings.
12.09. Excuses. Neither Tenant nor Landlord shall be required to
perform any term, condition, or covenant in this Lease so long as such
performance is delayed or prevented by any governmental authority, civil riot,
and any other cause not reasonably within the control of Tenant or Landlord and
which by the exercises of due diligence Tenant or Landlord is unable, wholly or
in part, to prevent or overcome.
12.10. Time of Essence. Time is deemed to be of the essence of the
Lease.
10
12.11. Additional Rent. All sums of money or charges required to be
paid by Tenant under this Lease, whether or not designated as "additional rent",
shall for all purposes be deemed to be and shall be paid by Tenant as rent. If
any such payment or charge is not paid when due, it shall be payable with the
regular monthly installment of minimum rent due immediately thereafter.
12.12. Notices. All notices or demands required or permitted to be
given or served under this Lease shall be deemed to have been given or served
provided that same is delivered by hand or certified mail as follows:
To Landlord at: Pinnacle Health System
17 South Market Square
P.O. Box 8700
Harrisburg, PA 17105-8700
Attn: Carol Helt
To Tenant at: DCA of Mechanicsburg, LLC
1344 Ashton Rd. #201
Hanover, MD 21076
12.13. Board Approval. The enforceability of this Lease, and Landlord's
rights and obligations hereunder, shall be contingent upon receiving approval to
enter into the Lease by the Board of Directors of Pinnacle Health Hospitals, or
its corporate parent, Pinnacle Health System, within 30 days of execution
hereof.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
undersigned Landlord and Tenant, by their duty authorized officers, execute this
Lease on the day, month and year first above written.
WITNESS: PINNACLE HEALTH HOSPITALS
/s/ VIAN POTTEIGER BY: /s/ CHRISTOPHER P. MARCLAY
- ------------------------------ ------------------------------
Christopher P. Marclay
(Landlord) VP & Secretary
WITNESS: DCA OF MECHANICSBURG, LLC
/s/ KIMBERLY A. WAXER BY: /s/ STEPHEN W. EVERETT
- ------------------------------ ------------------------------
Stephen W. Everett
(Tenant)
11