EXHIBIT 10.36
Ground Lease Agreement between
CNL Retirement ER1, LP and
Peabody Campus, LLC dated October 10, 2002, relating to
the Xxxxxxxx Xxxxxxx Xxxxxxxxxx Xxxx Xxxxxxxxxx Xxxxxxxxx
- Xxxxxxx, Xxxxxxxxxxxxx
GROUND LEASE AGREEMENT
Between
CNL RETIREMENT ER1, LP,
a Delaware limited partnership,
as Landlord,
and
PEABODY CAMPUS, LLC,
a Maryland limited liability company,
as Tenant,
Dated as of
October 10, 2002
Execution Copy
GROUND LEASE AGREEMENT
TABLE OF CONTENTS
PAGE
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Article I. AGREEMENT TO LEASE.....................................................................................1
1.1 Demise...................................................................................................1
1.2 Condition................................................................................................1
1.3 Quiet Enjoyment..........................................................................................2
1.4 Effective Date...........................................................................................2
1.5 Commencement Date........................................................................................2
Article II. TERM..................................................................................................2
2.1 Lease Term...............................................................................................2
2.2 INTENTIONALLY OMITTED....................................................................................2
Article III. RENT.................................................................................................3
3.1 Base Rent................................................................................................3
3.2 Payment and Calculation of Base Rent.....................................................................3
3.3 Additional Rent; Rent Defined............................................................................4
3.4 Sales Tax................................................................................................4
3.5 Payment of Rent..........................................................................................5
3.6 Past Due Rent............................................................................................5
3.7 No Abatement of Rent.....................................................................................5
Article IV. RESERVE DEPOSIT.......................................................................................5
4.1 Reserve Deposit..........................................................................................5
4.2 Security Agreement.......................................................................................6
Article V. USE AND OPERATION OF LEASED PROPERTY...................................................................6
5.1 Permitted Use............................................................................................6
5.2 Necessary Approvals......................................................................................6
5.3 Lawful Use, Etc..........................................................................................7
5.4 Environmental Matters....................................................................................7
5.5 Compliance With Restrictions, Etc........................................................................8
5.6 Survival.................................................................................................8
Article VI. TAXES AND ASSESSMENTS.................................................................................8
Article VII. UTILITIES............................................................................................8
Article VIII. LICENSE, PERMITS, FEES, ETC.........................................................................9
Article IX. INSURANCE.............................................................................................9
9.1 Insurance by Tenant.....................................................................................9
9.2 Hazard Insurance........................................................................................9
9.3 Liability Insurance.....................................................................................9
9.4 Worker's Compensation Insurance........................................................................10
9.5 Builder's Risk Insurance...............................................................................10
9.6 Loss of Rent Insurance.................................................................................10
9.7 Flood Hazard Insurance.................................................................................10
9.8 Malpractice Insurance/Professional Liability Insurance.................................................10
9.9 Other Insurance........................................................................................10
9.10 Carriers and Features..................................................................................10
9.11 Failure to Procure Insurance...........................................................................11
9.12 Waiver of Subrogation..................................................................................11
Article X. DAMAGE OR DESTRUCTION.................................................................................11
10.1 Restoration and Repair.................................................................................11
10.2 Uninsured Losses.......................................................................................11
Article XI. CONSTRUCTION, ADDITIONS, ALTERATIONS AND REMOVALS....................................................11
11.1 Prohibition............................................................................................11
11.2 Permitted and Required Construction and Renovation.....................................................12
11.3 Ownership of Improvements..............................................................................13
Article XII. MAINTENANCE AND REPAIRS.............................................................................13
12.1 Repairs by Tenant......................................................................................13
12.2 Landlord's Obligation..................................................................................14
Article XIII. LANDLORD'S RIGHT OF INSPECTION AND ENTRY...........................................................14
13.1 Inspection.............................................................................................14
Article XIV. ASSIGNMENT AND SUBLETTING...........................................................................14
14.1 Transfers by Tenant....................................................................................14
14.2 Leasehold Mortgages....................................................................................15
14.3 Existing Mortgagees....................................................................................15
14.4 Assignment by Landlord.................................................................................16
Article XV. LANDLORD'S INTEREST NOT SUBJECT TO LIENS.............................................................17
15.1 Liens, Generally.......................................................................................17
15.2 Mechanics Liens........................................................................................17
15.3 Contest of Liens.......................................................................................18
15.4 Notices of Commencement of Construction................................................................18
Article XVI. CONDEMNATION........................................................................................18
16.1 Total Taking...........................................................................................18
16.2 Partial Taking.........................................................................................19
16.3 Business Damages.......................................................................................19
16.4 Restoration............................................................................................20
16.5 Temporary Taking.......................................................................................20
16.6 Notices of Action: Representation......................................................................20
16.7 Disputes...............................................................................................20
Article XVII. SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE......................................................20
17.1 Intentionally Omitted..................................................................................20
17.2 Attornment.............................................................................................20
17.3 Rights of Mortgagees and Assignees.....................................................................21
Article XVIII. LANDLORD'S RESERVATIONS AND RESTRICTIONS..........................................................21
18.1 Surrender of Leased Property...........................................................................21
18.2 Holding Over...........................................................................................21
Article XIX. LIABILITY OF LANDLORD; INDEMNIFICATION..............................................................22
19.1 Liability of Landlord..................................................................................22
19.2 Indemnification of Landlord............................................................................22
19.3 Notice of Claim or Suit................................................................................23
19.4 Limitation on Liability................................................................................23
19.5 Landlord a Single Purpose Entity.......................................................................23
Article XX. THIRD PARTY RIGHTS AND OBLIGATIONS...................................................................23
20.1 Third Party Documents..................................................................................23
20.2 Landlord's Rights Subject to Provisions of LaSalle Bank Tri-Party Agreement............................23
20.3 Landlord's Rights Subject to Provisions of Brooksby Village Non-Disturbance Agreement..................23
Article XXI. DEFAULT.............................................................................................24
21.1 Events of Default......................................................................................24
21.2 Remedies on Default....................................................................................25
21.3 Landlord May Cure Tenant Defaults......................................................................27
21.4 Intentionally Omitted..................................................................................27
21.5 Rights Cumulative......................................................................................27
Article XXII. NOTICES............................................................................................28
Article XXIII. ADDITIONAL COVENANTS OF TENANT....................................................................29
23.1 Conduct of Business....................................................................................29
23.2 Additional Covenants of Tenant.........................................................................29
23.3 Tenant a Single Purpose Entity.........................................................................29
23.4 Compliance with Development Agreement..................................................................29
23.5 Compliance with Management and Marketing Agreement.....................................................30
Article XXIV. TENANT PURCHASE RIGHTS.............................................................................30
24.1 Right of First Offer...................................................................................30
24.2 Option to Purchase.....................................................................................32
24.3 Rights Subject to Lease................................................................................33
Article XXV. reit and ubti requirements..........................................................................33
25.1 Intentionally Omitted..................................................................................34
25.2 Basis for Sublease Rent Restricted.....................................................................34
25.3 Landlord Affiliate Subleases Restricted................................................................34
25.4 Landlord Interests in Tenant Restricted................................................................34
25.5 Intentionally Omitted..................................................................................34
25.6 Intentinoally Omitted..................................................................................34
25.7 Certain Subtenants Prohibited..........................................................................34
25.8 Future Amendment.......................................................................................34
Article XXVI. MISCELLANEOUS......................................................................................35
26.1 "Net" Lease............................................................................................35
26.2 Guaranty of Lease......................................................................................35
26.3 Estoppel Certificates..................................................................................35
26.4 Brokerage..............................................................................................35
26.5 No Partnership or Joint Venture........................................................................35
26.6 Entire Agreement.......................................................................................36
26.7 Waiver.................................................................................................36
26.8 Time...................................................................................................36
26.9 Costs and Attorneys' Fees..............................................................................36
26.10 Captions and Headings.................................................................................36
26.11 Severability..........................................................................................36
26.12 Successors and Assigns................................................................................36
26.13 Applicable Law........................................................................................36
26.14 Waiver of Jury Trial..................................................................................37
Attachments and Exhibits -.Exhibit A - Legal Description
------------------------
Exhibit B - Site Plan
Exhibit C - Memorandum of Ground Lease
Exhibit D - Permitted Exceptions
Exhibit E - Third Party Documents
Exhibit F - Tenant Estoppel Certificate
Exhibit G - Single Purpose Entity Requirements
Exhibit H - Appraisal Process
GROUND LEASE AGREEMENT
THIS GROUND LEASE AGREEMENT (the "Lease") made and entered into as of
October 10, 2002 by and between CNL RETIREMENT ER1, LP, a Delaware limited
partnership, (the "Landlord") and PEABODY CAMPUS, LLC, a Maryland limited
liability company ("Tenant");
W I T N E S S E T H:
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WHEREAS, Landlord is the owner of that certain tract, piece and parcel
of land located in Essex County, Massachusetts more particularly described on
Exhibit A attached hereto, and by this reference made a part hereof, excluding
however all buildings and other improvements to or located upon such real
property (the "Leased Property"); and
WHEREAS, Tenant desires to lease from Landlord, and Landlord has agreed
to lease to Tenant, the Leased Property, upon the terms and conditions as more
particularly hereinafter provided and described;
NOW, THEREFORE, for and in consideration of the premises hereof, the
sums of money to be paid hereunder, and the mutual and reciprocal obligations
undertaken herein, the parties hereto do hereby covenant, stipulate and agree as
follows:
ARTICLE I.
AGREEMENT TO LEASE
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1.1 Demise. Landlord, for and in consideration of the rents herein
reserved and required to be paid by Tenant and of the covenants, promises and
agreements herein contained, does hereby demise, let and lease unto Tenant, and
Tenant, for and in consideration of the foregoing demise by Landlord and of the
covenants, promises and agreements herein contained does hereby hire, lease and
take as Tenant from Landlord the entire Leased Property, upon those terms and
conditions hereinafter set forth. The Leased Property demised by Landlord to
Tenant hereunder do not include the existing and to-be-constructed continuing
care retirement community and related improvements, including the buildings,
parking areas and driveways, utilities, storm drainage and retention and
landscaped areas and all other improvements of any type (collectively the
"Improvements"), which are and shall continue to be the property of Tenant
during the Term of this Lease.
1.2 Condition. Tenant acknowledges and agrees that the Leased Property
is and shall be leased by Landlord to Tenant in its present "as is" condition,
and that Landlord makes absolutely no representations or warranties whatsoever
with respect to the Leased Property or the condition thereof, except as
expressly set forth in this Lease. Tenant acknowledges that Landlord has not
investigated and does not warrant or represent to Tenant that the Leased
Property are fit for the purposes intended by Tenant or for any other purpose or
purposes whatsoever, and Tenant acknowledges that the Leased Property are to be
leased to Tenant in their existing condition, i.e., "as-is", on and as of the
Commencement Date. Tenant acknowledges that Tenant shall be solely responsible
for any and all actions, repairs, permits, approvals and costs required for the
use, development, occupancy and operation of the Leased Property in accordance
with applicable governmental requirements, including, without limitation, all
governmental charges and fees, if any, which may be due or payable to applicable
authorities. Tenant agrees that, by leasing the Leased Property, Tenant warrants
and represents that Tenant has examined and approved all things concerning the
Leased Property which Tenant deems material to Tenant's leasing and use of the
Leased Property. Tenant further acknowledges and agrees that (a) neither
Landlord nor any agent of Landlord has made any representation or warranty,
express or implied, concerning the Leased Property or which have induced Tenant
to execute this Lease except as contained in this Lease, and (b) any other
representations and warranties are expressly disclaimed by Landlord.
1.3 Quiet Enjoyment. Landlord covenants and agrees that from and after
the Commencement Date, as hereinafter defined, so long as Tenant shall timely
pay all rents due to Landlord from Tenant hereunder and keep, observe and
perform all covenants, promises and agreements on Tenant's part to be kept,
observed and performed hereunder, Tenant shall and may peacefully and quietly
have, hold and occupy the Leased Property free of any interference from
Landlord; subject, however, and nevertheless to those matters shown on Exhibit D
attached hereto (the "Permitted Exceptions") and the terms, provisions and
conditions of this Lease.
1.4 Effective Date. The "Effective Date" of this Lease shall be
considered to be the date of full execution hereof. Exclusive possession of the
Leased Property shall be delivered to Tenant on and as of the Effective Date.
1.5 Commencement Date. The "Commencement Date" of this Lease shall be
the Effective Date.
ARTICLE II.
TERM
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2.1 Lease Term. The term of this Lease (the "Term") shall, unless
sooner terminated as elsewhere provided in this Lease, be for a period of Thirty
and One-Half (30 1/2) years, commencing on the Commencement Date and terminating
and expiring at 12:01 a.m. on the date which is six (6) months following the
thirtieth (30th) anniversary of the Commencement Date.
2.2 INTENTIONALLY OMITTED.
ARTICLE III.
RENT
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3.1 Base Rent. Subject to proration as set forth below, annual base
rent for the Leased Property ("Base Rent") for the first (1st) through fifth
(5th) Lease Years (as hereafter defined) shall be the sum of TWO MILLION SIX
HUNDRED SEVEN THOUSAND FIVE HUNDRED SIXTY-SEVEN AND 57/100 DOLLARS
($2,607,567.57) per year. Base Rent for the sixth (6th) through tenth (10th)
Lease Years, and for each successive Lease Year of the Term subsequent to the
tenth (10th) Lease Year of the Term, shall be adjusted and increased, effective
the first day of each Lease Year, as follows:
(a) Subject to proration as provided herein, from and after the
beginning of the sixth (6th) Lease Year, the amount of annual Base Rent
for each Lease Year of the Term (unless adjusted to a greater amount
pursuant to Section 3.2 below) shall increase by three percent (3 %)
over the amount of annual Base Rent for the immediately preceding Lease
Year; and
(b) In addition and not in limitation of the foregoing, annual
Base Rent for the Eleventh (11th), Sixteenth (16th), Twenty-First
(21st) and Twenty-Sixth (26th) Year of the Term shall be equal, in each
case, to the greater of (i) the amount calculated in accordance with
the preceding Subsection (a) of this Section 3.1, or (ii) Fifteen
Percent (15%) of: the amount of "Landlord's Original Investment" plus
an amount equal to the "FMV Percentage Increase" (as such terms are
defined below) in such amount over (x) the previous ten (10) Lease
Years, in the case of the Eleventh (11th) Lease Year, or otherwise (y)
the previous five (5) Lease Years.
3.2 Payment and Calculation of Base Rent. Base Rent shall be paid by
Tenant to Landlord in equal monthly installments, in advance, on the first (1st)
day of each calendar month commencing on the first (1st) day of the calendar
month immediately following the Commencement Date, it being agreed that if the
Commencement Date falls on a day other than the first day of the month, Base
Rent payable with respect to the period between the Commencement Date and the
first day of the following calendar month shall be due at the time that the
first payment of Base Rent is due. In the event of a default by Tenant of its
obligations under this Lease beyond any applicable notice and cure period, the
full amount of Base Rent for the remaining term of this Lease shall be
immediately due and payable by Tenant to Landlord. For the purposes of this
Lease:
(a) the term "Lease Year" shall mean and be defined as each
twelve month period commencing on the first day of the calendar month
immediately following the Commencement Date; provided, however, that
the first Lease Year shall include the period from the Commencement
Date to the first day of the next following calendar month. Base Rent
shall be proportionately prorated for any extended or partial Lease
Year (i.e., the first Lease Year and/or the final Lease Year);
(b) the term "Landlord's Original Investment" shall mean shall
mean the sum of SEVENTEEN MILLION THREE HUNDRED EIGHTY-THREE THOUSAND
SEVEN HUNDRED EIGHTY-THREE AND 78/100 DOLLARS ($17,383,783.78), which
represents, for purposes of this Lease, Landlord's total acquisition
and transactional costs incurred in acquiring the Leased Property;
(c) the term "FMV Percentage Increase" shall mean shall mean
the percentage increase, if any, over any related or referenced period,
in the Fair Market Value of the Leased Property;
(d) the "Fair Market Value" of or relating to the Leased
Property shall mean the fair market value, determined as provided
below, of the Landlord's fee simple interest in the land constituting
the Leased Property, and not including any interest or component of
value relating to the Improvements; and
(e) If by the end of the sixth (6th) month of the Eleventh
(11th), Sixteenth (16th), Twenty-First (21st) and Twenty-Sixth (26th)
Lease Years, or at any other time the Fair Market Value of the Leased
Property or any interest therein is required to be established or
determined hereunder, Landlord and Tenant are unable to agree on the
Fair Market Value of the Leased Property for purposes of this
calculation, such Fair Market Value shall be established by the
appraisal process described on Exhibit H attached hereto. If the Base
Rent for the applicable five-year period of the Term is not finally
determined by such appraisal process prior to the end of each five-year
period of the Term following which the Base Rent is subject to increase
based upon any increase in Fair Market Value, then until the updated
Fair Market Value is established, the Base Rent shall provisionally be
increased by Ten Percent (10%) over the previous Lease Year's Base
Rent, with the Base Rent to be adjusted retroactively once the Fair
Market Value is determined. Any adjusted Base Rent due from Tenant for
prior periods as a result of the foregoing shall be payable in not more
than six (6) monthly installments, with interest thereon at the Prime
Rate as published in the Wall Street Journal (or equivalent rate), plus
Four Percent (4%) per annum, and any such amounts due from Landlord to
Tenant shall be recovered as a credit against future Base Rent.
Landlord and Tenant acknowledge and agree that this Section is designed
to establish a fair market Base Rent for the Leased Property during
each such applicable five-year period of the Term.
3.3 Additional Rent; Rent Defined. If Landlord shall make any
expenditure for which Tenant is responsible or liable under this Lease, or if
Tenant shall become obligated to Landlord under this Lease for any sum other
than Base Rent as hereinabove provided, the amount thereof shall be deemed to
constitute additional rent ("Additional Rent") and shall be due and payable by
Tenant to Landlord, together with all applicable sales taxes thereon, if any,
simultaneously with the next succeeding monthly installment of Rent or at such
other time as may be expressly provided in this Lease for the payment of the
same.
For the purpose of this Lease, the term "Rent" shall mean and be
defined as all Base Rent and Additional Rent due from Tenant to Landlord
hereunder.
3.4 Sales Tax. In addition to the Rent and any other sums or amounts
required to be paid by Tenant to Landlord pursuant to the provisions of this
Lease, Tenant shall also pay to Landlord, simultaneously with such payment of
such Rent or other sums or amounts, the amount of any applicable sales, use or
excise tax on any such Rent or other sums or amounts so paid by Tenant to
Landlord, whether the same be levied, imposed or assessed by the State in which
the Leased Property is located or any other federal, state, county or municipal
governmental entity or agency. Any such sales, use or excise taxes shall be paid
by Tenant to Landlord at the same time that each of the amounts with respect to
which such taxes are payable are paid by Tenant to Landlord.
3.5 Payment of Rent. Each of the foregoing amounts of Rent and other
sums shall be paid to Landlord without demand and without deduction, set-off,
claim or counterclaim of any nature whatsoever which Tenant may have or allege
to have against Landlord, and all such payments shall, upon receipt by Landlord,
be and remain the sole and absolute property of Landlord. All such Rent and
other sums shall be paid to Landlord in legal tender of the United States by
wire transfer of immediately available federal funds or by other means
acceptable to Landlord in its sole discretion. If Landlord shall at any time
accept any such Rent or other sums after the same shall become due and payable,
such acceptance shall not excuse a delay upon subsequent occasions, or
constitute or be construed as a waiver of any of Landlord's rights hereunder.
3.6 Past Due Rent. If Tenant fails to make any payment of Rent or any
other sums or amounts to be paid by Tenant hereunder on or before the date such
payment is due and payable, Tenant shall pay to Landlord an administrative late
charge of five percent (5%) of the amount of such payment. In addition, such
past due payment shall bear interest at the maximum interest rate then allowable
under the laws of the State in which the Leased Property is located from the
date such payment became due to the date of payment thereof by Tenant. Such late
charge and interest shall constitute Additional Rent and shall be due and
payable with the next installment of Rent due hereunder.
3.7 No Abatement of Rent. Except as expressly provided in other
sections of this Lease, if any, no abatement, diminution or reduction (a) of
Rent, charges or other compensation, or (b) of Tenant's other obligations
hereunder shall be allowed to Tenant or any person claiming under Tenant, under
any circumstances or for any reason whatsoever.
ARTICLE IV.
RESERVE DEPOSIT
4.1 Reserve Deposit. On the Commencement Date Tenant shall deposit with
Landlord, in cash or in the form of a letter of credit acceptable to Landlord in
its reasonable discretion, the sum of One Million Three Hundred Three Thousand
Seven Hundred Eighty-Three and 78/100 Dollars ($1,303,783.78), as a reserve
deposit (the "Reserve Deposit"), in order to secure Tenant's faithful
performance of all of Tenant's obligations under this Lease. If Tenant fails to
pay Rent or Additional Charges due hereunder, fails to pay the full Option
Purchase Price under the conditions and as provided in Section 24.2 below, or
otherwise defaults with respect to any provision of this Lease , then in
addition to and not exclusive of any other remedies available under this Lease,
Landlord may use, apply or retain all or any portion of the Reserve Deposit for
the payment of any Rent, the funding of any charges in default or other amount
due to landlord hereunder, or for the payment of any sum to which Landlord may
become obligated by reason of Tenant's default. If Landlord so uses or applies
all or any portion of the Reserve Deposit, Tenant shall, within five (5) days
after written demand therefor, deposit cash with Landlord in an amount
sufficient to fully restore the Reserve Deposit to the required amount as set
forth above. Landlord shall maintain the Reserve Deposit in an interest-bearing
account, and all interest accruing thereon shall be added to the Reserve
Deposit. Landlord shall not be required to keep the Reserve Deposit separate
from its general accounts, but shall maintain reasonable records showing the
current balance of the Reserve Deposit and the amounts of interest earned
thereon each year. If Tenant performs all of Tenant's obligations hereunder, at
the expiration of the Term, after Tenant has vacated the Leased Property, and
after all purchase options or mortgages encumbering the Leased Property which
have been granted or which arise by, through or under Tenant have expired or
been satisfied or released, the Reserve Deposit, or so much thereof as has not
been applied or used by Landlord as provided herein, shall be returned to
Tenant, together with any interest which has accrued thereon.. No trust
relationship is created herein between Landlord and Tenant with respect to the
Reserve Deposit. The Reserve Deposit shall be paid by Tenant to Landlord upon
the Commencement Date.
4.2 Security Agreement. Tenant hereby grants to Landlord a security
interest in the Reserve Deposit, as security for all obligations of the Tenant
to Landlord hereunder, including without limitation Tenant's obligations to pay
the full amount of the Option Purchase Price due to Landlord as provided under
Section 24.2 below, and agrees to execute and deliver all such instruments as
may be required by Landlord to evidence and perfect this security interest.
ARTICLE V.
USE AND OPERATION OF LEASED PROPERTY
------------------------------------
5.1 Permitted Use. Tenant covenants and agrees that it, and its
sub-tenant and Improvements lessee, Brooksby Village, Inc. ("Facility Tenant")
shall, throughout the Term of this Agreement, continuously use and occupy the
Leased Property solely and exclusively for the development and operation of the
first class licensed (as applicable) continuing care retirement community known
as "Brooksby Village" (the "Community"), and for such other uses as may be
necessary or incidental to such use (the foregoing being referred to as the
"Permitted Use"). No use shall be made or permitted to be made of the Leased
Property and no acts shall be done thereon which will cause the cancellation of
any insurance policy covering the Leased Property or any part thereof (unless
another adequate policy is available), nor shall Tenant sell or otherwise
provide or permit to be kept, used or sold in or about the Leased Property any
article which may be prohibited by law or by the standard form of fire insurance
policies, or any other insurance policies required to be carried hereunder, or
fire underwriter's regulations. Tenant shall, at its sole cost, comply with all
insurance requirements set forth in this Lease. Tenant shall not take or omit to
take any action, the taking or omission of which materially impairs the value or
the usefulness of the Leased Property or any part thereof for its Permitted Use.
5.2 Necessary Approvals. Tenant shall maintain, or cause Facility
Tenant to maintain, in good standing all Permits and approvals necessary to use
and operate, for its Permitted Use, the Leased Property and the continuing care
retirement community, independent living units and assisted living and skilled
nursing facilities, and related commercial service use facilities, located or to
be located thereon (the "Facility") under all applicable laws and shall provide
to Landlord a copy of Tenant's (or Facility Tenant's) annual federal, state and
Medicare survey regarding the Facility, and such other information or documents
pertaining to said approvals. Landlord shall at no cost or liability to Landlord
cooperate with Tenant or Facility Tenant in this regard, limited to executing
all applications and consents required to be signed by Landlord in order for
Tenant or Facility Tenant to obtain and maintain such approvals and to permit,
develop, construct, lease and occupy the existing and to-be-constructed
Improvements, including but not limited to, the granting of easements, licenses
or other rights to third parties which are typical and necessary for the orderly
development of the Property (which matters approved by Landlord in its
reasonable discretion shall constitute additional "Permitted Exceptions"
hereunder).
5.3 Lawful Use, Etc. Tenant shall not use or suffer or permit the use
of the Leased Property for any unlawful purpose. Tenant shall not commit or
suffer to be committed any waste on the Leased Property, or in the Facility, nor
shall Tenant cause or permit any unlawful nuisance thereon or therein. Tenant
shall not suffer nor permit the Leased Property, or any portion thereof, to be
used in such a manner as (i) might reasonably impair Landlord's title thereto or
to any portion thereof, or (ii) might reasonably allow a claim or claims for
adverse usage or adverse possession by the public, as such, or of implied
dedication of the Leased Property or any portion thereof.
5.4 Environmental Matters. Except as permitted by applicable law,
Tenant shall at all times keep the Leased Property free of Hazardous Substances
(as hereafter defined). Neither Tenant nor any of its employees, agents,
invitees, licensees, contractors, guests, or subtenants shall use, generate,
manufacture, refine, treat, process, produce, store, deposit, handle, transport,
release, or dispose of Hazardous Substances in, on or about the Leased Property
or the groundwater thereof, in violation of any federal, state or municipal law,
decision, statute, rule, ordinance or regulation currently in existence or
hereafter enacted or rendered. Tenant shall give Landlord prompt Notice of any
claim received by Tenant from any person, entity, or Governmental Agencies that
a release or disposal of Hazardous Substances has occurred on the Leased
Property or the groundwater thereof. As used herein, "Hazardous Materials" shall
mean and be defined as any and all toxic or hazardous substances, chemicals,
materials or pollutants, of any kind or nature, which are regulated, governed,
restricted or prohibited by any federal, state or local law, decision, statute,
rule or ordinance currently in existence or hereafter enacted or rendered, and
shall include (without limitation), all oil, gasoline and petroleum-based
substances.
Tenant shall not discharge or permit to be discharged into any septic facility
or sanitary sewer system serving the Leased Property any toxic or hazardous
sewage or waste other than that which is permitted by Applicable Law or which is
normal domestic waste water for the type of business contemplated by this
Agreement to be conducted by Tenant on, in or from the Leased Property. Any
toxic or hazardous sewage or waste which is produced or generated in connection
with the use or operation of the Leased Property shall be handled and disposed
of as required by and in compliance with all applicable local, state and federal
laws, ordinances and rules or regulations or shall be pre-treated to the level
of domestic wastewater prior to discharge into any septic facility or sanitary
sewer system serving the Leased Property.
Tenant shall comply with any and all conditions, restrictions and limitations
imposed by the Massachusetts Department of Environmental Protection relating to
the development and use of the Leased Property, including, without limitation,
any "Activity Use Limitation" or any other condition, restriction or limitation
imposed by virtue of any landfill or former landfill areas within the Leased
Property
5.5 Compliance With Restrictions, Etc. Tenant, at its expense, shall
comply with all restrictive covenants and other title exceptions affecting the
Leased Property and comply with and perform all of the obligations set forth in
the same to the extent that the same are applicable to the Leased Property or to
the extent that the same would, if not complied with or perform, impair or
prevent the continued use, occupancy and operation of the Leased Property for
the purposes set forth in this Lease. Further, in addition to Tenant's payment
obligations under this Lease, Tenant shall pay all sums charged, levied or
assessed under any restrictive covenants, declaration, reciprocal easement
agreement or other title exceptions, equipment leases, leases and all other
agreements affecting the Leased Property as of the date of this Lease promptly
as the same become due.
5.6 Survival. As to conditions and uses of Tenant existing or occurring
prior to the expiration or sooner termination of this Lease, the provisions of
this Article 5 shall survive the expiration or sooner termination of this Lease
to extent of any ongoing effects on Landlord or its successors with respect to
the Leased Property.
ARTICLE VI.
TAXES AND ASSESSMENTS
---------------------
Throughout the entire term of this Lease, Tenant shall bear, pay and
discharge all taxes, assessments and other governmental impositions and charges
of every kind and nature whatsoever, extraordinary as well as ordinary, and each
and every installment thereof which shall or may during the term hereof be
charged, laid, levied, assessed, or imposed upon, or arise in connection with,
the use, occupancy or possession of the Leased Property or any part thereof,
including, without limitation, ad valorem real and personal property taxes, and
all taxes charged, laid, levied, assessed or imposed in lieu of or in addition
to any of the foregoing by virtue of all present or future laws, ordinances,
requirements, orders, directions, rules or regulations of federal, state, county
and municipal governments and of all other governmental authorities whatsoever.
Tenant shall not be obligated to bear, pay or discharge Landlord's U.S. income
tax(es). Upon request of Landlord, Tenant shall promptly furnish to Landlord
satisfactory evidence of the payment of any tax, assessment, imposition or
charge required to be paid by Tenant pursuant to the foregoing.
ARTICLE VII.
UTILITIES
---------
Tenant shall be liable for and shall pay directly all charges and fees,
including impact, connection and/or reservation fees, (together with any
applicable taxes or assessments thereon) when due for water, gas, electricity,
air conditioning, heat, septic, sewer, refuse collection, telephone and any
other utility charges or similar items in connection with the development, use
or occupancy of the Leased Property. Landlord shall not be responsible or liable
in any way whatsoever for the quality, quantity, impairment, interruption,
stoppage, or other interference with any utility service, including, without
limitation, water, air conditioning, heat, gas, electric current for light and
power, telephone, or any other utility service provided to or serving the Leased
Property. No such interruption, termination or cessation of utility services
shall relieve Tenant of its duties and obligations pursuant to this Lease,
including, without limitation, its obligation to pay all Rent as and when the
same shall be due hereunder.
ARTICLE VIII.
LICENSE, PERMITS, FEES, ETC.
----------------------------
Tenant shall keep and maintain in full force during the entire term of
this Lease all licenses, permits or other approvals necessary for the operation
of the Leased Property for its Permitted Use. Tenant shall, at its sole cost and
expense, pay all license fees, permit fees, governmental impact fees or other
expenses of any kind or nature whatsoever in connection with its development and
operation of the Leased Property for its Permitted Use.
ARTICLE IX.
INSURANCE
---------
9.1 Insurance by Tenant. Throughout the term of this Lease, Tenant
shall, at its sole cost and expense, maintain, or cause to be maintained, in
full force and effect the following types and amounts of insurance coverage as
set forth in this Article IX.
9.2 Hazard Insurance. Special form insurance on the Improvements,
including all permitted alterations, changes, additions and replacements thereof
and thereto, including without limitation, insurance against loss or damage
caused by: (i) fire, windstorm and other hazards and perils generally included
under extended coverage; (ii) sprinkler leakage; (iii) vandalism and malicious
mischief; and (iv) boiler and machinery, all in an amount which reasonably
assures there will be sufficient proceeds to replace the Improvements in the
event of a loss against which such insurance is issued. Such insurance shall (i)
include contingent liability from Ordinance or Law Coverage, Demolition Costs
and Increased Cost of Construction Endorsements, (ii) contain an agreed amount
endorsement with respect to the Improvements, (iii) provide for a deductible in
an amount approved by Landlord, but in no event in excess of ONE HUNDRED
THOUSAND AND NO/100 DOLLARS ($100,000.00) per occurrence, and (iv) contain an
"Ordinance or Law Coverage" or "Enforcement" endorsement if any of the
Improvements or the use of the Leased Property shall at any time constitute
legal non-conforming structures or uses. All insurance required hereunder, and
all other insurance maintained by Tenant on the Improvements in excess of or in
addition to that required hereunder, shall be carried in favor of Landlord and
Tenant, as their respective interests may appear.
9.3 Liability Insurance. Tenant shall provide and keep in full force
and effect a policy of broad form comprehensive general public liability and
property damage insurance providing coverage against liability for personal
injury, death and property damage having limits of not less than THREE MILLION
AND NO/100 DOLLARS ($3,000,000.00) per person and THREE MILLION AND NO/100
DOLLARS ($3,000,000.00) per occurrence, with an excess liability policy in the
amount of FIVE MILLION AND NO/100 DOLLARS ($5,000,000.00). Such insurance shall
cover at least the following hazards: (1) premises and operations; (2) products
and completed operations; (3) independent contractors; (4) blanket contractual
liability for all written and oral contracts; and (5) contractual liability.
Such insurance, and any and all other liability insurance maintained by Tenant
in excess of or in addition to that required hereunder, shall name Landlord as
an additional insured.
Landlord acknowledges that a formally funded program of self-insurance on the
part of Tenant may fulfill some insurance requirements contained in this
Agreement now or in the future. However, this shall not in any way limit the
insurance obligations of Tenant. Tenant agrees that any self-insurance program
will provide for the coverages required under this Agreement.
9.4 Worker's Compensation Insurance. Tenant shall provide and keep in
full force and effect workers' compensation insurance, in a form prescribed by
the laws of the State in which the Leased Property is located, and employers'
liability insurance.
9.5 Builder's Risk Insurance. Tenant shall, prior to the commencement
of and during the construction of the Improvements and any permitted
rehabilitation, replacement, reconstruction, restoration, renovation or
alteration to the Leased Property, provide and keep in full force and effect
builders' risk insurance in accordance with the requirements of this Article.
9.6 Loss of Rent Insurance. Tenant shall provide, keep and maintain in
full force and effect loss of rent insurance in favor of Landlord, without a
provision for co-insurance, in an amount sufficient to pay Rent, for the Leased
Property for a period of at least one (1) year in the event Tenant's obligation
to pay Rent abates hereunder for any reason whatsoever.
9.7 Flood Hazard Insurance. Flood hazard insurance if any portion of
the Improvements is currently or at any time in the future located in a
federally designated "special flood hazard area" and in which flood insurance
has been made available under the National Flood Insurance Act of 1968 (and any
successor thereto) in an amount which reasonably assures that there will be
sufficient proceeds to replace the Improvements and any personalty located on
the Leased Property in the event of a loss against which such insurance is
issued.
9.8 Malpractice Insurance/Professional Liability Insurance. Malpractice
insurance/professional liability insurance of not less than $1,000,000 per claim
and $3,000,000 in the aggregate, to cover the facility and professional medical
care providers employed within the assisted living and skilled nursing
facilities within the Community, or otherwise employed therein by Tenant or the
Facility Tenant or their affiliates or agents, in substance and form as is
reasonably acceptable to Landlord. Tenant agrees to adjust its malpractice
insurance/professional liability insurance as required over the term of this
Agreement to maintain levels of such insurance equal to that generally held by
hospitals in the Boston, Massachusetts area.
9.9 Other Insurance. In addition, Tenant shall, at Landlord's request,
provide, keep and maintain in full force and effect such other insurance for
such risks and in such amounts as may from time to time be commonly insured
against in the case of business operations similar to those contemplated by this
Lease to be conducted by Tenant on the Leased Property.
9.10 Carriers and Features. All insurance policies required to be
carried by Tenant as provided in this Article shall be issued by insurance
companies which have an A- or better rating by Best's Insurance Rating Service.
All such policies shall be for periods of not less than one year and Tenant
shall renew the same at least thirty (30) days prior to the expiration thereof.
All such policies shall require not less than thirty (30) days written notice to
Landlord prior to any cancellation thereof. The policies of insurance required
in Section 9.1 above shall contain clauses allowing or recognizing waiver of
subrogation rights against the Landlord to the extant this is available in the
insurance market.
Tenant shall pay the premiums for all insurance policies which Tenant
is obligated to carry under this Article and, at least ten (10) days prior to
the date any such insurance must be in effect, deliver to Landlord a copy of the
policy or policies, or a certificate or certificates thereof.
9.11 Failure to Procure Insurance. In the event Tenant shall fail to
procure insurance required under this Article and fail to maintain the same in
full force and effect continuously during the term of this Lease, Landlord shall
be entitled, although not obligated, to procure the same and Tenant shall
immediately reimburse Landlord for such premium expense as Additional Rent.
9.12 Waiver of Subrogation. Tenant agrees that, if any property owned
by it and located in the Leased Property shall be stolen, damaged or destroyed
by an insured peril, Landlord shall not have any liability to Tenant, nor to any
insurer of Tenant, for or in respect of such theft, damage or destruction, and
Tenant shall require all policies of risk insurance carried by it on its
property in the Leased Property to contain or be endorsed with a provision in
and by which the insurer designated therein shall waive its right of subrogation
against Landlord.
ARTICLE X.
DAMAGE OR DESTRUCTION
---------------------
10.1 Restoration and Repair. If, during the term of this Lease, any
improvements to the Improvements (as hereafter defined) shall be destroyed or
damaged in whole or in part by fire, windstorm or any other cause whatsoever,
Tenant shall give Landlord immediate notice thereof and shall repair,
reconstruct or replace the Improvements, or the portion thereof so destroyed or
damaged (whichever is reasonably required), at least to the extent of the value
and character thereof existing immediately prior to such occurrence. All work
shall be started as soon as practicable and completed, at Tenant's sole cost and
expense. Tenant shall, however, immediately take such action as is necessary to
assure that the Leased Property (or any portion thereof) does not constitute a
nuisance or otherwise presents a health or safety hazard.
10.2 Uninsured Losses. Nothing contained herein shall relieve Tenant of
its obligations under this Article if the destruction or damage is not covered,
either in whole or in part, by insurance.
ARTICLE XI.
CONSTRUCTION, ADDITIONS, ALTERATIONS AND REMOVALS
-------------------------------------------------
11.1 Prohibition. Except as hereinafter expressly provided, no
structural portion of the Improvements shall be demolished, removed or altered
by Tenant in any manner whatsoever without the prior written consent and
approval of Landlord, which will not be unreasonably withheld or delayed.
Notwithstanding the foregoing, however, Tenant shall be obligated to undertake
all alterations to the Improvements required by any applicable law or ordinance
including, without limitation, any alterations required by any accessibility
laws including without limitation the Americans with Disabilities Act and any
other federal, state or local law governing accessibility to and within the
Improvements ("Accessibility Laws"), and, in such event, Tenant shall comply
with the provisions hereof.
11.2 Permitted and Required Construction and Renovation. Landlord and
Tenant acknowledge and agree that Tenant intends and has the right, and has
agreed and shall be required as a lease covenant, obligation and condition
hereunder to continue to develop, construct, expand and build out the continuing
care retirement community and related improvements located on the Leased
Property, including the construction and installation of all to-be-constructed
Improvements as more particularly depicted on the site plan attached hereto as
Exhibit B (the "Site Plan") to complete the building out of the Community, and
that from time to time, various minor, non-material alterations may be
undertaken by Tenant. Notwithstanding the foregoing, at such time as the
encumbrance, lien and effect of the Brooksby Village Bond Facility and all
related Bond Facility Documents has been released from the Tenant's and
Landlord's interests in the Community, and amounts payable to Tenant by the
Facility Tenant under any remaining purchase rights or option exceed in any
event the full amount of the potential Option Purchase Price hereunder, or if
Tenant has otherwise fully secured any potential obligation of Tenant to pay the
full Option Purchase Price hereunder in a manner reasonably approved by Landlord
in writing, then Tenant shall be allowed to discontinue development of any
further improvements on the Leased Property (which have not already been
commenced or which Tenant is not otherwise obligated to construct). Tenant
hereby acknowledges and agrees that all construction and/or renovation of the
Improvements shall be conducted and completed in accordance with the following
terms and conditions:
(a) Before the commencement of work on each new development
phase within the Leased Property ("Phase"), final plans and
specifications for such Phase shall be made available for Landlord's
review and approval (not to be unreasonably withheld or delayed so long
as the plans and specifications (i) comply with all applicable
governmental regulations and (ii) all easements, covenants and
restrictions of record, including without limitation the Permitted
Exceptions).
(b) Before the commencement of work on any new Phase, Tenant
shall obtain (and make available to Landlord evidence of) the approval
thereof by all governmental departments or authorities having or
claiming jurisdiction of or over the Leased Property, if required by
such departments or authorities, and with any public utility companies
having an interest therein, if required by such utility companies. In
any such work, Tenant shall comply with all applicable laws,
ordinances, requirements, order, directions, rules and regulations of
the federal, state, county and municipal governments and of all other
governmental authorities having or claiming jurisdiction of or over the
Leased Property and of all their respective departments, bureaus and
offices, and with the requirements and regulations, if any, of such
public utilities, of the insurance underwriting board or insurance
inspection bureau having or claiming jurisdiction, or any other body
exercising similar functions, and of all insurance companies then
writing policies covering the Leased Property or any part thereof.
(c) Before the commencement of work on any new Phase, Tenant
shall make available to Landlord a copy of its general construction
contract for the construction of the subject Improvements (the "General
Contract"). Tenant shall, upon request of Landlord, make Landlord a
co-obligee, additional insured or beneficiary of any general
contractor's payment bonds or performance bonds for the subject
Improvements. Proceeds of any such Bonds shall be used to complete the
construction of the Improvements.
(d) Tenant represents and warrants to Landlord that all work on
the Improvements will be performed in a good and workmanlike manner and
in accordance with the terms, provisions and conditions of this Lease
and all governmental requirements.
(e) Landlord shall have the right to inspect any such
construction work at all times during normal working hours and to
maintain at the Leased Property for that purpose (at its own expense)
such inspector(s) as it may deem necessary so long as such inspections
do not interfere with Tenant's work (but Landlord shall not thereby
assume any responsibility for the proper performance of the work in
accordance with the terms of this Lease, nor any liability arising from
the improper performance thereof).
(f) All such work shall be performed at no cost, expense or
liability to Landlord, and free of any liens (including mechanics or
construction liens) on Landlord's fee simple interest on or Tenant's
leasehold interest in the Leased Property, other than the Permitted
Encumbrances.
(g) Upon substantial completion of work on the Improvements,
Tenant shall procure and provide to Landlord a copy of an original
final certificate of occupancy, if applicable, from the appropriate
governmental authorities verifying the substantial completion thereof.
(h) Tenant shall, and hereby agrees to, indemnify and save and
hold Landlord harmless from and against and reimburse Landlord for any
and all loss, damage, cost and expense (including, without limitation,
reasonable attorneys' fees at both trial and all appellate levels)
incurred by or asserted against Landlord which is occasioned by or
results, directly or indirectly, from any construction or renovation
activities conducted upon the Leased Property by Tenant or otherwise
pursuant to the Third Party Documents; whether or not the same is
caused by or the fault of Tenant or any contractor, subcontractor,
laborer, supplier, materialman or any other third party.
Landlord and Tenant acknowledge and agree that the foregoing provisions shall
only be applied to Community Improvements currently under construction on a
prospective or "going forward" basis.
11.3 Ownership of Improvements. Subject to the respective rights of the
parties herein set forth, Tenant shall continue to own the existing Improvements
and any new Improvements constructed by Tenant on the Leased Property during the
Term of this Lease. Upon expiration or early termination hereof, title to the
Improvements shall pass to Landlord subject, however, to the Community Lease (as
defined below).
ARTICLE XII.
MAINTENANCE AND REPAIRS
-----------------------
12.1 Repairs by Tenant. Tenant shall, at all times during the term of
this Lease and at its sole cost and expense, put, keep, replace and maintain the
Leased Property and the Improvements in good repair and in good, safe and
substantial order and condition, shall make all repairs thereto, both inside and
outside, structural and non-structural, ordinary and extraordinary, howsoever
the necessity or desirability for repairs may occur, and whether or not
necessitated by wear, tear, obsolescence or defects, latent or otherwise, and
shall use all reasonable precautions to prevent waste, damage or injury. Tenant
shall also, at its own cost and expense, put, keep, replace and maintain all
landscaping, signs, sidewalks, roadways, driveways and parking areas within the
Leased Property in good repair and in good, safe and substantial order and
condition and free from dirt, standing water, rubbish and other obstructions or
obstacles.
12.2 Landlord's Obligation. Landlord shall not be required to make any
alterations, reconstructions, replacements, changes, additions, improvements or
repairs of any kind or nature whatsoever to the Leased Property or any portion
thereof (including, without limitation, any portion of the Improvements) at any
time during the term of this Lease.
ARTICLE XIII.
LANDLORD'S RIGHT OF INSPECTION AND ENTRY
----------------------------------------
13.1 Inspection. Landlord and its agents shall have the right to enter upon the
Leased Property or any portion thereof at any reasonable time to inspect the
operation, sanitation, safety, maintenance and use of the same, or any portions
of the same and to assure itself that Tenant is in full compliance with its
obligations under this Lease (but Landlord shall not thereby assume any
responsibility for the performance of any of Tenant's obligations hereunder, nor
any liability arising from the improper performance thereof). In making any such
inspections, Landlord shall not unduly interrupt or interfere with the residents
and commercial tenants within the Community or the conduct of Tenant's business.
ARTICLE XIV.
ASSIGNMENT AND SUBLETTING
-------------------------
14.1 Transfers by Tenant. Tenant may not assign this Lease or sublet
the Leased Property without Landlord's prior written consent, which consent may
be withheld in Landlord's sole and absolute discretion. If given, the consent of
Landlord to an assignment, transfer, subletting or encumbrance shall in not
relieve Tenant or such assignee or subtenant from the obligation of obtaining
the express consent in writing of Landlord to any further assignment, transfer,
subletting or encumbrance. In addition, any such approved assignee shall
expressly assume this Lease by an agreement in recordable form, an original
executed counterpart of which shall be delivered to Landlord prior to any
assignment of the Lease. Landlord's consent to any assignment of this Lease
shall not operate to release any Tenant-assignor from its obligations hereunder,
with respect to which said Tenant-assignor shall remain personally liable.
Notwithstanding the foregoing, Landlord acknowledges and expressly
approves of Tenant's sublease of the Leased Property and of all Improvements on
the Leased Property to Facility Tenant pursuant to the "Community Lease" (as
identified as one of the "Third Party Documents" in Exhibit E attached hereto
and by this reference made a part hereof, and referred to herein as the
"Community Lease"), and of the other interests and obligations as the same are
reflected in the Third Party Documents and the Permitted Exceptions. Further,
Landlord acknowledges that any duties and responsibilities of Tenant under this
Lease may be performed and all rights of Tenant may be enjoyed by Facility
Tenant as and to the extent provided in the Community Lease. Tenant, however,
acknowledges that its duty to perform is in no way diminished by such approval
and shall remain primary under the Lease such that Tenant shall be responsible
for performing any and all duties, acts or responsibilities under this Lease
which Facility Tenant fails to perform. Landlord has acquired the Leased
Property subject to certain existing purchase options in favor of the Facility
Tenant as identified in the Third Party Documents.
14.2 Leasehold Mortgages. From and after the Effective Date of this
Lease, Tenant shall be permitted to grant a mortgage encumbering its leasehold
interest in the Leased Property subject to and only in accordance with the
following requirements:
(a) Landlord shall not under any circumstances be deemed to
have joined in the mortgage and/or subordinated or subjected its
interest in and to the Leased Property to the lien and encumbrance of
the mortgage; and
(b) the term of any such mortgage shall not exceed the term of
this Lease and may only run concurrently with an extension of the term
provided that Tenant has exercised its option to extend the term as
provided in Section 2.3 hereof; and
(c) the mortgagee must be an institutional financial entity;
and
(d) the Mortgage shall contain an express statement by the
mortgagee acknowledging that the fee simple title to the Leased
Property is not encumbered thereby and that Landlord shall have no
liability thereunder; and
(e) the Mortgage shall include the agreement of the mortgagee
to simultaneously provide to Landlord a copy of any notice sent to
mortgagor/Tenant thereunder.
Except as expressly provided elsewhere herein, any assignment, transfer,
sublease or encumbrance in violation of this Article shall be voidable at
Landlord's option. Landlord agrees and acknowledges that the mortgages reflected
in the Third Party Documents and/or the Permitted Exceptions ("Existing
Mortgages") are expressly permitted and allowed hereunder and shall not be
subject to the terms, conditions or limitations set forth above.
14.3 Existing
Mortgagees. Landlord herein specifically grants to the mortgagees under the
Existing Mortgages, inclusive of their successors and assigns as holders thereof
("Existing Mortgagees") the right to notice of and the right to cure any
default(s) or Event(s) of Default which may occur or arise under this Lease.
Landlord agrees to furnish to the Existing Mortgagees a copy of any formal
notice of or relating to any Event of Default under this Lease (a "Default
Notice") contemporaneously with the sending of such Default Notice to Tenant
pursuant to the terms of this Lease. Default Notices to the Existing Mortgagees
shall be given in accordance with the notice provisions hereof, to the address
for notice of the Existing Mortgagees as set forth in the Third Party Documents,
and the Existing Mortgagees shall be entitled to the following notice and cure
rights in respect of any Event of Default:
(a) Upon receipt of Default Notice with respect to a monetary
payment default ("Payment Event of Default"), the Existing Mortgagees
shall have the opportunity (but not the obligation) to cure any such
Payment Event of Default by tendering to Landlord, within five (5)
business days after receipt of the relevant Default Notice [or any
longer period provided or available under this Lease ("Cure Period")],
the aggregate amount due and payable as set forth in and relating to
the Default Notice. In the event and provided that any such Payment
Event of Default is timely and fully cured within the applicable Cure
Period, Landlord shall be deemed to have waived the subject Payment
Event of Default, and Landlord shall fully reinstate this Lease as to
any action or remedy taken in respect to such cured Payment Event of
Default which is timely cured before the expiration of such applicable
Cure Period. For purposes of this Agreement, should any Cure Period end
on a holiday or any other day that is not a business day, such Cure
Period shall be deemed to end at the end of the next business day.
(b) Upon receipt of Default Notice with respect to a default
not related to unpaid monetary payments ("Non-Payment Event of
Default"), the Existing Mortgagees shall have the opportunity (but not
the obligation) to cure any such Non-Payment Event of Default in any
manner such that the omitted performance, condition or occurrence is
completed or substituted for within thirty (30) days after receipt of
the relevant Default Notice [or any longer period provided or available
under this Lease (also, a "Cure Period")]. In the event and provided
that any such Non-Payment Event of Default is timely and fully cured
within the applicable Cure Period, Landlord shall fully reinstate this
Lease as to any action or remedy taken in respect to such cured
Non-Payment Event of Default which is timely cured before the
expiration of such applicable Cure Period.
(c) In the event that either of the Existing Mortgagees shall
undertake to pay any amount due to Landlord, or shall expend any sum to
cure any Non-Payment Event of Default, as provided under the foregoing
provisions, the said Existing Mortgagee shall be subrogated to rights
of Landlord in respect thereof provided, however, that such subrogation
shall not be effective in any respect until such time as Landlord shall
have been paid in full all amounts due and owing to it under this
Lease, and such right of subrogation shall be deemed subordinate in any
and all respects, including without limitation in right of payment of
any amount, to the rights and claims of the Landlord hereunder (except
to the extent that any such right is secured, evidence or actionable
under any of the Third Party Documents which are superior to the rights
and interests of Landlord in the Leased Property).
14.4 Assignment by Landlord. Landlord may assign its interest in this
Lease during the term hereof, and upon the assumption in writing by Landlord's
assignee of all of Landlord's obligations under this Lease which arise from and
after the date of the assignment, Landlord shall be released from any obligation
or liability under the Lease arising after the date thereof; provided, however,
that (a) any such assignee shall be a single-purpose entity with constituent
documents and governance provisions comparable to Landlord's, and shall
acknowledge in writing that its interests are acquired subject in all respects
to and it is bound by applicable provisions of the Third Party Documents, and
(b) Landlord shall remain liable for any obligation or liability of Landlord
under the Lease (i) which was to be performed or which became due during the
period in which Landlord owned the Leased Property, or (ii) which arises after
the date of the assumption and relates to acts or omissions occurring prior to
the date of the assumption during the period Landlord owned the Leased Property.
ARTICLE XV.
LANDLORD'S INTEREST NOT SUBJECT TO LIENS
----------------------------------------
15.1 Liens, Generally. Subject to the provisions hereof permitting and
acknowledging the lien and operation of the Third Party Documents and other
Permitted Exceptions, and applicable provisions of Section 5.2, Tenant shall not
create or cause to be imposed, claimed or filed upon the Landlord's interest in
the Leased Property, or any portion thereof, any lien, charge or encumbrance
whatsoever. If, because of any act or omission of Tenant, any such lien, charge
or encumbrance shall be imposed, claimed or filed, Tenant shall, at its sole
cost and expense, cause the same to be discharged of record (by release,
bonding, or obtaining a declaratory judgment confirming that the lien, charge or
encumbrance does not affect Landlord's interest) and Tenant shall indemnify and
save and hold Landlord harmless from and against any and all costs, liabilities,
suits, penalties, claims and demands whatsoever, and from and against any and
all attorneys' fees, at both trial and all appellate levels, resulting therefrom
or on account thereof. In the event that Tenant shall fail to timely pursue,
with reasonable diligence, removal of the lien, charge or encumbrance from
Landlord's interest, Landlord shall have the option of paying, satisfying or
otherwise discharging (by bonding or otherwise) such lien, charge or encumbrance
and Tenant agrees to reimburse Landlord, upon demand and as Additional Rent, for
all sums so paid and for all costs and expenses incurred by Landlord in
connection therewith, together with interest thereon, until paid.
15.2 Mechanics Liens. Landlord's interest in the Leased Property shall
not be subjected to liens of any nature by reason of Tenant's construction,
alteration, renovation, repair, restoration, replacement or reconstruction of
the Improvements or any improvements on or in the Leased Property, or by reason
of any other act or omission of Tenant (or of any person claiming by, through or
under Tenant) including, but not limited to, mechanics' and materialmen's liens.
All persons dealing with Tenant are hereby placed on notice that such persons
shall not look to Landlord or to Landlord's credit or assets (including
Landlord's interest in the Leased Property) for payment or satisfaction of any
obligations incurred in connection with the construction, alteration,
renovation, repair, restoration, replacement or reconstruction thereof by or on
behalf of Tenant. Tenant has no power, right or authority to subject Landlord's
interest in the Leased Property to any mechanic's or materialmen's lien or claim
of lien. Landlord and Tenant acknowledge and agree to execute and record in the
Public Records of Essex County, Massachusetts, a memorandum of lease which
includes the prohibition of Landlord's liability for liens, all in the form
attached hereto as Exhibit C. If a lien, a claim of lien or an order for the
payment of money shall be imposed against the Leased Property on account of work
performed, or alleged to have been performed, for or on behalf of Tenant, Tenant
shall, within thirty (30) days after written demand by Landlord to do so, cause
the Leased Property to be released therefrom by the payment of the obligation
secured thereby or by furnishing a bond or by any other method prescribed or
permitted by law. If Tenant causes the lien to be released or bonded within said
thirty (30) days, the filing of same shall not constitute an Event of Default.
If a lien is released, Tenant shall thereupon furnish Landlord with a written
instrument of release in form for recording or filing in the appropriate office
of land records of Essex County, Massachusetts and otherwise sufficient to
establish the release as a matter of record.
15.3 Contest of Liens. Tenant may, at its option, contest the validity
of any lien or claim of lien if Tenant shall have first posted an appropriate
and sufficient bond in favor of the claimant or paid the appropriate sum into
court, if permitted by law, and thereby obtained the release of the Leased
Property from such lien. If judgment is obtained by the claimant under any lien,
Tenant shall pay the same immediately after such judgment shall have become
final and the time for appeal therefrom has expired without appeal having been
taken. Tenant shall, at its own expense, defend the interests of Tenant and
Landlord in any and all such suits; provided, however, that Landlord may, at its
election, engage its own counsel and assert its own defenses, in which event
Tenant shall cooperate with Landlord and make available to Landlord all
information and data which Landlord deems necessary or desirable for such
defense.
15.4 Notices of Commencement of Construction. If specifically provided
for under applicable law, prior to commencement by Tenant of work on any new
Phase of construction on the Leased Property, or other material construction not
already substantially under way as of the Effective Date hereof, Tenant shall
record or file a notice or affidavit of the commencement of such work (the
"Notice of Commencement") in the land records of Essex County, Massachusetts,
identifying Tenant as the party for whom such work is being performed, stating
such other matters as may be required by law and requiring the service of copies
of all notices, liens or claims of lien upon Landlord. Any such Notice of
Commencement shall clearly reflect that the interest of Tenant in the Leased
Property is that of a leasehold estate and shall also clearly reflect that, to
the extent permitted by law, the interest of Landlord as the fee simple owner of
the Leased Property shall not be subject to mechanics or materialmen's liens on
account of the work which is the subject of such Notice of Commencement. A copy
of any such Notice of Commencement shall be furnished to and approved by
Landlord and its attorneys prior to the recording or filing thereof, as
aforesaid.
ARTICLE XVI.
CONDEMNATION
------------
16.1 Total Taking. If the whole of the vertical building Improvements
shall be taken or condemned for any public or quasi-public use or purpose, by
right of eminent domain or by purchase in lieu thereof, then a "Total Taking"
will be deemed to have occurred and this Lease and the term hereby granted shall
cease and terminate as of the date on which the condemning authority takes
possession and all Rent shall be paid by Tenant to Landlord up to that date or
refunded by Landlord to Tenant if Rent has previously been paid by Tenant beyond
that date. If a taking of a portion of the Leased Property results in the loss
of such a substantial portion of access to and from adjacent roadways that, in
the mutual reasonable judgment of Landlord and Tenant, the remaining access to
the Leased Property is not sufficient and suitable for the continued operation
of the business contemplated by this Lease, then in such event Tenant may, at
any time during the ninety (90) day period after the date the condemning
authority requires possession of the portion of the Leased Property and
Improvements so taken or condemned, and upon written notice to Landlord,
terminate this Lease. If Tenant so terminates this Lease, a "Constructive Total
Taking" will be deemed to have occurred.
In the event of such Total Taking or Constructive Total Taking the
award or awards for such taking (the "Condemnation Proceeds") shall be allocated
between the Landlord and Tenant in the following manner and in the following
order of priority:
(a) Landlord shall be entitled to receive such portion of the
Condemnation Proceeds, with interest thereon to the extent payable by
the condemning authority, equal to the Option Purchase Price (as set
forth in Section 24.2 below) in effect as of the date of the taking,
plus all Rent and other amounts due hereunder to and including the date
of payment to Landlord, at which time the Tenant's option to purchase
shall be deemed to have been exercised and consummated such that all
remaining interests of Landlord shall be conveyed to Tenant.
(b) Tenant shall thereafter be entitled to receive any
remaining proceeds of the award for the taking, including, without
limitation, the value of the Improvements, plus severance damages, if
any, with interest thereon, if and to the extent payable by the
condemning authority.
16.2 Partial Taking. A "Partial Taking" shall be deemed to have
occurred if there is a condemnation taking or a deed in lieu thereof which does
not constitute a Total Taking or Constructive Total Taking. In such event, the
Tenant shall promptly restore the remaining portion or portions thereof to a
condition comparable to their condition at the time of such taking or deed in
lieu thereof less the portion or portions lost by the taking, and this Lease
shall continue in full force and effect, without the Base Rent being reduced
throughout the remaining Term of the Lease, and any extensions, except as
expressly provided hereinbelow.
In the event of such Partial Taking, then the Condemnation Proceeds for
such Partial Taking shall be allocated, with interest thereon if and to the
extent payable by the condemning authority, in the following manner and in the
following order of priority:
(a) First, to Landlord in an amount equal, on a pro-rata basis
according to that portion of the Leased Property taken, and an
appraisal-based allocation reasonably acceptable to Landlord of the
Landlord's Original Investment to that portion of the Leased Property
taken, to the Option Purchase Price (as set forth in Section 24.2
below).
(b) Thereafter, to Tenant.
Insofar as this provision in the event of a Partial Taking is intended to
allocate to Landlord an amount relating to the agreed-upon price for the
Landlord's fee simple interests in the land only, all costs of restoration shall
be paid separately by Tenant, from any condemnation proceeds received by Tenant
or otherwise. To the extent of condemnation proceeds paid to Landlord under this
Section 16.2, the Base Rent for the Leased Property shall be reduced
proportionately, as shall the remaining amount of the Option Purchase Price,
based upon the proportion that the funds actually received by Landlord bear to
the full Option Purchase Price which would have been payable to Landlord had the
Tenant's option to purchase been exercised as of the date of any payment of
Partial Taking condemnation proceeds to Landlord. Such reduction shall be
effective as of the date such condemnation proceeds are paid to and accepted by
Landlord.
16.3 Business Damages. Tenant shall be entitled to separately claim for
and recover all business damages which may be awarded as a result of any
condemnation proceeding or settlement in lieu thereof, regardless of whether
taking is a Total Taking, Constructive Total Taking or Partial Taking.
16.4 Restoration. If this Lease does not terminate due to a taking or
condemnation, Tenant shall, with due diligence, restore the remaining portion or
portions of the Leased Property in the manner hereinabove provided. In such
event, the proceeds of the award to be applied to restoration shall be deposited
with a bank or financial institution designated by Landlord (or Tenant's senior
Existing Mortgagee or other permitted leasehold mortgagee as contemplated under
Section 14.2 hereof) until the restoration has been completed and Tenant has
been reimbursed for all the costs and expenses thereof. If the award is
insufficient to pay for the restoration, Tenant shall be responsible for the
remaining cost and expense of such restoration.
16.5 Temporary Taking. If all or any part of the Leased Property or
Tenant's Leasehold estate under this Lease shall be taken in condemnation
proceedings or by any right of eminent domain for temporary use or occupancy,
the foregoing provisions of this Article shall not apply and Tenant shall
continue to pay, in the manner and at the time herein specified, the full
amounts of the Rent and all other charges payable by Tenant hereunder. Except
only to the extent that Tenant may be prevented from so doing pursuant to the
terms of the order of the condemning authority, Tenant shall perform and observe
all of the other terms, covenants, conditions and obligations hereof to be
performed by it, as though such taking had not occurred. In such event, Tenant
shall be entitled to receive the entire amount of Condemnation Proceeds made for
such taking, whether paid by way of damages, rent or otherwise; provided, that
Landlord shall be entitled to receive any portion of the same applicable to any
period beyond the scheduled expiration date of this Lease.
16.6 Notices of Action: Representation. In the event any action is
filed to condemn the Leased Property or the Improvements or Tenant's Leasehold
estate or any part thereof, the party having knowledge of such filing shall
promptly give notice thereof to the other party. Landlord, Tenant and any
mortgagee shall each have the right at its own cost and expense to represent its
respective interest in each proceeding, negotiation and settlement with respect
to any taking or threatened taking and to make full proof of its claim. 16.7
Disputes. If Landlord and Tenant cannot agree in respect of any matters to be
determined under this Article, a determination shall be requested of the court
having jurisdiction over the taking or condemnation; provided, however, that if
said court will not accept such matters for determination, either party may have
the matters determined by a court otherwise having jurisdiction over the
parties.
ARTICLE XVII.
SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE
---------------------------------------------
17.1 Intentionally Omitted.
17.2 Attornment. Tenant shall and hereby agrees to attorn, and be bound
under all of the terms, provisions, covenants and conditions of this Lease, to
any successor of the interest of Landlord under this Lease for the balance of
the term of this Lease remaining at the time of the succession of such interest
to such successor. In particular, in the event that any proceedings are brought
for the foreclosure of any mortgage or security interest encumbering or
collateral assignment of Landlord's interest in the Leased Property, or any
portion thereof, Tenant shall attorn to the purchaser at any such foreclosure
sale and recognize such purchaser as Landlord under this Lease, subject,
however, to all of the terms and conditions of this Lease. Tenant agrees that
neither the purchaser at any such foreclosure sale nor the foreclosing mortgagee
or holder of such security interest or collateral assignment shall have any
liability for any act or omission of Landlord, be subject to any offsets or
defenses which Tenant may have as claim against Landlord.
17.3 Rights of Mortgagees and Assignees. At the time of giving any
notice of default to Landlord, Tenant shall mail or deliver to the holders of
any mortgage on the Leased Property or holder of security interest in or
collateral assignment of this Lease who have, in writing, notified Tenant of
their interests (individually a "Mortgagee") a copy of any such notice. No
notice of default or termination of this Lease by Tenant shall be effective
until any Mortgagee shall have been furnished a copy of such notice by Tenant.
In the event Landlord fails to cure any default by it under this Lease, the
Mortgagee shall have, at its option, a period of thirty (30) days within which
to remedy such default of Landlord or to cause such default to be remedied. In
the event that the Mortgagee elects to cure any such default by Landlord, then
Tenant shall accept such performance on the part of such Mortgagee as though the
same had been performed by Landlord, and for such purpose Tenant hereby
authorizes any Mortgagee to enter upon the Leased Property to the extent
necessary to exercise any of Landlord's rights, powers and duties under this
Lease. If, in the event of any default by Landlord which is reasonably capable
of being cured by a Mortgagee, the Mortgagee promptly commences and diligently
pursues to cure the default, then Tenant will not unreasonably withhold its
consent to a further extension of the foregoing cure period by up to an
additional thirty (30) days before Tenant would attempt to terminate this Lease
or cease to perform any of its obligations under this Lease so long as the
Mortgagee is, with due diligence, engaged in the curing of such default.
ARTICLE XVIII.
LANDLORD'S RESERVATIONS AND RESTRICTIONS
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18.1 Surrender of Leased Property. Tenant shall, on or before the last
day of the term of this Lease or upon the sooner termination thereof, peaceably
and quietly surrender and deliver to Landlord the Leased Property (including,
without limitation, all Improvements), in good order, condition and repair,
reasonable wear and tear excepted, and free and clear of all liens and
encumbrances except the Permitted Exceptions. Tenant acknowledges and agrees
that upon termination hereof the Improvements shall be and belong to the
Landlord free and clear of any interest of Tenant or third party therein and/or
any encumbrance thereupon, other than Tenant's rights to acquire the Leased
Property pursuant to Section 24.2 of this Lease which, under certain
circumstances as set forth under Section 24.3 of this Lease, can survive
termination of this Lease for up to thirty (30) days.
18.2 Holding Over. If Tenant or any other person or party shall remain
in possession of the Leased Property or any part thereof following the
expiration of the term or earlier termination of this Lease without an agreement
in writing between Landlord and Tenant with respect thereto, the person or party
remaining in possession shall be deemed to be a tenant at sufferance, and during
any such holdover, the Rent payable under this Lease by such tenant at
sufferance shall be double the rate or rates in effect immediately prior to the
expiration of the term or earlier termination of this Lease. In no event,
however, shall such holding over be deemed or construed to be or constitute a
renewal or extension of this Lease.
ARTICLE XIX.
LIABILITY OF LANDLORD; INDEMNIFICATION
--------------------------------------
19.1 Liability of Landlord. Landlord shall not be liable to Tenant, its
employees, agents, business invitees, licensees, customers, clients, family
members or guests for any damage, injury, loss, compensation or claim arising
out of or resulting from any act or event occurring within the Leased Property,
including, but not limited to: (a) repairs to any portion of the Leased
Property; (b) interruption in Tenant's use of the Leased Property; (c) any
accident or damage resulting from the use or operation by Tenant or any other
person or persons of any equipment within the Leased Property, including without
limitation, heating, cooling, electrical or plumbing equipment or apparatus; (d)
the termination of this Lease by reason of the condemnation or destruction of
the Leased Property in accordance with the provisions of this Lease; (e) any
fire, robbery, theft, mysterious disappearance or other casualty occurring
within the Leased Property; (f) the actions of any other person or persons; and
(g) any leakage or seepage in or from any part or portion of the Leased
Property, whether from water, rain or other precipitation that may leak into, or
flow from, any part of the Leased Property, or from drains, pipes or plumbing
fixtures in the Improvements. Any goods, property or personal effects stored or
placed by the Tenant or its employees in or about the Leased Property shall be
at the sole risk of the Tenant.
19.2 Indemnification of Landlord. Tenant shall defend, indemnify and
save and hold Landlord harmless from and against and reimburse Landlord for, any
and all liabilities, obligations, losses, damages, injunctions, suits, actions,
fines, penalties, claims, demands, costs and expenses of every kind or nature,
including reasonable attorneys' fees and court costs, incurred by Landlord,
arising directly or indirectly from or out of: (a) any failure by Tenant to
perform any of the terms, provisions, covenants or conditions of this Lease on
Tenant's part to be performed; (b) any accident, injury or damage which shall
happen at, in or upon the Leased Property, occurring during the term of this
Lease or any extension hereof; (c) any matter or thing growing out of the
condition, occupation, maintenance, alteration, repair, use or operation by any
person of the Leased Property, or any part thereof, or the operation of the
business contemplated by this Lease to be conducted thereon, thereat, therein,
or therefrom; (d) any failure of Tenant to comply with any laws, ordinances,
requirements, orders, directions, rules or regulations of any governmental
authority, including, without limitation, the Accessibility Laws; (e) any
contamination of the Leased Property, or the groundwaters thereof, occurring
after Tenant takes possession of the Leased Property and before the end of the
term of this Lease and its extensions, and occasioned by the use,
transportation, storage, spillage or discharge thereon, therein or therefrom of
any toxic or hazardous chemicals, compounds, materials or substances, whether by
Tenant or by any agent or invitee of Tenant; (f) any discharge of toxic or
hazardous sewage or waste materials from the Leased Property into any septic
facility or sanitary sewer system serving the Leased Property occurring after
Tenant takes possession of the Leased Property and before the end of the term of
this Lease and its extensions, whether by Tenant or by any agent of Tenant; or
(g) any other act or omission of Tenant, its employees, agents, invitees,
customers, licensees or contractors.
Tenant's indemnity obligations under this Article and elsewhere in this
Lease arising prior to the termination, expiration or assignment of this Lease
shall survive any such termination, expiration or assignment (except to the
extent that any such obligations arise out of acts occurring following any such
termination, expiration or assignment hereof.
19.3 Notice of Claim or Suit. Tenant shall promptly notify Landlord of
any claim, action, proceeding or suit instituted or threatened against Tenant or
Landlord of which Tenant receives notice or of which Tenant acquires knowledge.
In the event Landlord is made a party to any action for damages or other relief
against which Tenant has indemnified Landlord, as aforesaid, Tenant shall defend
Landlord, pay all costs and shall provide effective counsel to Landlord in such
litigation or, at Landlord's option, shall pay all attorneys' fees and costs
incurred by Landlord in connection with its own defense or settlement of said
litigation.
19.4 Limitation on Liability. In the event Tenant is awarded a money
judgment against Landlord, Tenant's sole recourse for satisfaction of such
judgment shall be limited to execution against the Leased Property and the
proceeds thereof. In no event shall any stockholder or shareholder of Landlord
be personally liable for the obligations of Landlord hereunder.
19.5 Landlord a Single Purpose Entity. Landlord represents, agrees and
warrants that Landlord is, and throughout the Term will remain, a single purpose
entity consistent with the present constituent documents of Landlord.
ARTICLE XX.
THIRD PARTY RIGHTS AND OBLIGATIONS
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20.1 Third Party Documents. Landlord and Tenant acknowledge that the
Community and/or the interests of Landlord, Tenant and Facility Tenant therein
are subject to various documents involving other parties, relating to the
development, financing, leasing, occupancy and management of the Community on
the Leased Property, including without limitation the documents described and
identified in Exhibit E attached hereto (referred to herein collectively as the
"Third Party Documents," and otherwise as defined in said Exhibit E). Tenant has
agreed and does hereby agree with and in favor of Landlord to fully and timely
perform all of its material obligations under and relating to the Third Party
Documents.
20.2 Landlord's Rights Subject to Provisions of LaSalle Bank Tri-Party
Agreement. Notwithstanding anything contained herein to the contrary, the
interests and rights of Landlord pursuant to this Lease are subject in all
respects to the terms, covenants and limitations as set forth in that certain
Ground Lessor Tri-Party Agreement ("Tri-Party Agreement") effectively dated of
even date herewith among LaSalle Bank National Association, Landlord and CNL
Retirement Partners, LP, a Delaware limited partnership ("CNL Partners"), and
with the approval and joinder of Tenant, relevant provisions of which Tri-Party
Agreement are incorporated herein by specific reference thereto to the same
extent as if fully set forth herein. In the event of a conflict between the
terms of this Lease and the terms of the Tri-Party Agreement, the terms of the
Tri-Party Agreement shall control.
20.3 Landlord's Rights Subject to Provisions of Brooksby Village
Non-Disturbance Agreement. Notwithstanding anything contained herein to the
contrary, the treatment of the Community Lease and the Community Loan, and the
relative priorities relating to the Community Loan, Purchase Option Agreement
and Purchase Deposit Mortgage shall be subject in all respects to the terms,
covenants and limitations as set forth in that certain Brooksby Village
Non-Disturbance, Attornment, Recognition and Release Agreement ("BVI Agreement")
effectively dated of even date herewith among Facility Tenant, Tenant and
Landlord, relevant provisions of which BVI Agreement are incorporated herein by
specific reference thereto to the same extent as if fully set forth herein.
ARTICLE XXI.
DEFAULT
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21.1 Events of Default. Each of the following events shall be an Event
of Default hereunder by Tenant and shall constitute a breach of this Lease:
(a) If Tenant shall fail to pay, within ten (10) days of when
due, any Rent, or portion thereof.
(b) If Tenant shall violate or fail to comply with or perform
any other term, provision, covenant, agreement or condition to be
performed or observed by Tenant under this Lease, and such violation or
failure shall continue for a period of thirty (30) days after written
notice from Landlord of such default. In the event of a default other
than a monetary default, if the nature of the default is such that it
cannot reasonably be cured within the time period specified above, then
Tenant shall have such additional time as is reasonable to effect such
cure provided that (i) Tenant has commenced and diligently pursued such
curative actions within the time period specified above, (ii) Tenant at
all times diligently and continuously pursue such curative actions, and
(iii) Tenant is not otherwise in default hereunder.
(c) If any assignment, transfer, sublease or encumbrance shall
be made or deemed to be made that is in violation of the provisions of
this Lease.
(d) If, at any time during the term of this Lease, Tenant shall
file in any court, pursuant to any statute of either the United States
or of any State, a petition in bankruptcy or insolvency, or for
reorganization or arrangement, or for the appointment of a receiver or
trustee of all or any portion of Tenant's property, including, without
limitation, its leasehold interest in the Leased Property, or if Tenant
shall make an assignment for the benefit of its creditors or petitions
for or enters into an arrangement with its creditors.
(e) If, at any time during the term of this Lease, there shall
be filed against Tenant in any courts pursuant to any statute of the
United States or of any State, a petition in bankruptcy or insolvency,
or for reorganization, or for the appointment of a receiver or trustee
of all or a portion of Tenant's property, including, without
limitation, its leasehold interest in the Leased Property, and any such
proceeding against Tenant shall not be dismissed within sixty (60) days
following the commencement thereof.
(f) If Tenant's leasehold interest in the Leased Property or
property therein shall be seized under any levy, execution, attachment
or other process of court where the same shall not be vacated or stayed
on appeal or otherwise within thirty (30) days thereafter, or if
Tenant's leasehold interest in the Leased Property is sold by judicial
sale and such sale is not vacated, set aside or stayed on appeal or
otherwise within thirty (30) days thereafter. The provisions of this
subsection (f) shall not apply to any foreclosure of any leasehold
mortgage permitted hereunder encumbering Tenant's interest under this
Lease.
(g) If Tenant defaults under any of the Third Party Documents
and does not cure any such default within the applicable notice and
cure period.
(h) If Facility Tenant defaults under any of the Third Party
Documents and does not cure any such default within the applicable
notice and cure period.
In the event that any Existing Mortgagee elects to cure any default by
Tenant as permitted under Section 14.3 hereof, then Landlord shall accept such
performance on the part of such Existing Mortgagee as though the same had been
performed by Tenant, and for such purpose Landlord hereby authorizes any
Existing Mortgagee to enter upon the Leased Property to the extent necessary to
exercise any of Tenant's rights, powers and duties under this Lease.
21.2 Remedies on Default. Upon the occurrence of an Event of Default
hereinabove specified:
(a) Landlord may, subject to the limitations hereinafter set
forth, terminate this Lease and, peaceably or pursuant to appropriate
legal proceedings, re-enter, retake and resume possession of the Leased
Property and Improvements for Landlord's own account and, for Tenant's
breach of and default under this Lease, recover immediately from Tenant
any and all rents and other sums and damages due or in existence at the
time of such termination, including, without limitation, (i) all Rent
and other sums, charges, payments, costs and expenses agreed and/or
required to be paid by Tenant to Landlord hereunder, (ii) all costs and
expenses of Landlord in connection with the recovery of possession of
the Leased Property, including reasonable attorneys' fees and court
costs, and (iii) all costs and expenses of Landlord in connection with
any reletting or attempted reletting of the Leased Property or any part
or parts thereof, including, without limitation, brokerage fees,
attorneys' fees and the cost of any alterations or repairs which may be
reasonably required to so relet the Leased Property, or any part or
parts thereof;
(b) Landlord may, pursuant to any prior notice required by law,
and without terminating this Lease, peaceably or pursuant to
appropriate legal proceedings, re-enter, retake and resume possession
of the Leased Property for the account of Tenant, make such alterations
of and repairs to the Leased Property as may be reasonably necessary in
order to relet the same or any part or parts thereof and relet or
attempt to relet the Leased Property or any part or parts thereof for
such term or terms (which may be for a term or terms extending beyond
the term of this Lease), at such rents and upon such other terms and
provisions as Landlord, in its sole, but reasonable, discretion, may
deem advisable. If Landlord relets or attempts to relet the Leased
Property, Landlord shall at its sole discretion determine the terms and
provisions of any new lease or sublease and whether or not a particular
proposed new tenant or subtenant is acceptable to Landlord. Upon any
such reletting, all rents received by the Landlord from such reletting
shall be applied, (a) first, to the payment of all costs and expenses
of recovering possession of the Leased Property, (b) second, to the
payment of any costs and expenses of such reletting, including
brokerage fees, attorneys' fees and the cost of any alterations and
repairs reasonably required for such reletting; (c) third, to the
payment of any indebtedness, other than Rent, due hereunder from Tenant
to the Landlord, (d) fourth, to the payment of all Rent and other sums
due and unpaid hereunder, and (e) fifth, the residue, if any, shall be
held by the Landlord and applied in payment of future Rents as the same
may become due and payable hereunder. If the rents received from such
reletting during any period shall be less than that required to be paid
during that period by the Tenant hereunder, Tenant shall promptly pay
any such deficiency to the Landlord and failing the prompt payment
thereof by Tenant to Landlord, Landlord shall immediately be entitled
to institute legal proceedings for the recovery and collection of the
same. Such deficiency shall be calculated and paid at the time each
payment of rent shall otherwise become due under this Lease, or, at the
option of Landlord, at the end of the term of this Lease. Landlord
shall, in addition, be immediately entitled to xxx for and otherwise
recover from Tenant any other damages occasioned by or resulting from
any abandonment of the Leased Property or other breach of or default
under this Lease other than a default in the payment of rent. No such
re-entry, retaking or resumption of possession of the Leased Property
by the Landlord for the account of Tenant shall be construed as an
election on the part of Landlord to terminate this Lease unless a
written notice of such intention shall be given to the Tenant or unless
the termination of this Lease be decreed by a court of competent
jurisdiction. Notwithstanding any such re-entry and reletting or
attempted reletting of the Leased Property or any part or parts thereof
for the account of Tenant without termination, Landlord may at any time
thereafter, upon written notice to Tenant, elect to terminate this
Lease or pursue any other remedy available to Landlord for Tenant's
previous breach of or default under this Lease.
(c) Landlord may, without re-entering, retaking or resuming
possession of the Leased Property, xxx for all Rent and all other sums,
charges, payments, costs and expenses due from Tenant to Landlord
hereunder either: (i) as they become due under this Lease, or (ii) at
Landlord's option, accelerate the maturity and due date of the whole or
any part of the Rent for the entire then-remaining unexpired balance of
the term of this Lease, as well as all other sums, charges, payments,
costs and expenses required to be paid by Tenant to Landlord hereunder,
including, without limitation, damages for breach or default of
Tenant's obligations hereunder in existence at the time of such
acceleration, such that all sums due and payable under this Lease
shall, following such acceleration, be treated as being and, in fact,
be due and payable in advance as of the date of such acceleration.
Landlord may then proceed to recover and collect all such unpaid Rent
and other sums so sued for from Tenant by distress, levy, execution or
otherwise. Regardless of which of the foregoing alternative remedies is
chosen by Landlord under this subparagraph (c), Landlord shall not be
required to relet the Leased Property nor exercise any other right
granted to Landlord pursuant to this Lease, nor shall Landlord be under
any obligation to minimize or mitigate Landlord's damages or Tenant's
loss as a result of Tenant's breach of or default under this Lease.
(d) Subject to the terms of the Tri-Party Agreement, and any
consent and approval rights of parties (other than Tenant and
Guarantor) to the Third Party Documents, Landlord shall have the right
to replace or cause the replacement of the developer under the
Development Agreement with a qualified replacement developer, which
shall be paid market rate development management fees of not less than
Five Percent (5%) of initial Entrance Deposits (as defined in the
Facility Lease and the Development Agreement).
In addition to the remedies hereinabove specified and enumerated,
Landlord shall have and may exercise the right to invoke any other remedies
allowed at law or in equity as if the remedies of re-entry, unlawful detainer
proceedings and other remedies were not herein provided. Accordingly, the
mention in this Lease of any particular remedy shall not preclude Landlord from
having or exercising any other remedy at law or in equity. Nothing herein
contained shall be construed as precluding the Landlord from having or
exercising such lawful remedies as may be and become necessary in order to
preserve the Landlord's right or the interest of the Landlord in the Leased
Property and in this Lease, even before the expiration of any notice periods
provided for in this Lease, if under the particular circumstances then existing
the allowance of such notice periods will prejudice or will endanger the rights
and estate of the Landlord in this Lease and in the Leased Property.
21.3 Landlord May Cure Tenant Defaults. If Tenant shall default in the
performance of any term, provisions, covenant or condition on its part to be
performed hereunder Landlord may, after notice to Tenant and a reasonable time
to perform after such notice (or without notice if, in Landlord's reasonable
opinion, an emergency involving a threat to life or health or of imminent
destruction of material property interests exists) perform the same for the
account and at the expense of Tenant. If, at any time and by reason of such
default, Landlord is compelled to pay, or elects to pay, any sum of money or do
any act which will require the payment of any sum of money, or is compelled to
incur any expense in the enforcement of its rights hereunder or otherwise, such
sum or sums, together with interest thereon at the highest rate allowed under
the laws of the State of Massachusetts, shall be deemed Additional Rent
hereunder and shall be repaid to Landlord by Tenant promptly when billed
therefor, and Landlord shall have all the same rights and remedies in respect
thereof as Landlord has in respect of the rents herein reserved.
21.4 Intentionally Omitted.
21.5 Rights Cumulative. The rights and remedies provided and available
to Landlord in this Lease are distinct, separate and cumulative remedies, and no
one of them, whether or not exercised by Landlord, shall be deemed to be in
exclusion of any other.
ARTICLE XXII.
NOTICES
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All notices, elections, requests and other communication hereunder
shall be in writing and shall be deemed given (i) when personally delivered, or
(ii) two (2) business days after being deposited in the United States mail,
postage prepaid, certified or registered, or (iii) the next business day after
being deposited with a recognized overnight mail or courier delivery service, or
(iv) when transmitted by facsimile or telecopy transmission, with receipt
acknowledge upon transmission; addressed as follows (or to such other person or
at such other address, of which any party hereto shall have given written notice
as provided herein):
If to Landlord: CNL Retirement ER1, LP
c/o CNL Retirement Corp.
CNL Center at City Commons
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Chief Operating Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Lowndes, Drosdick, Doster, Xxxxxx
& Xxxx, P.A.
000 Xxxxx Xxxx Xxxxx
Post Office Box 2809
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esquire
Phone: (000) 000-0000
Fax: (000) 000-0000
If to Tenant: Peabody Campus, LLC
000 Xxxxxx Xxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Phone: 000-000-0000
Fax: 000-000-0000
or such other address as may be designated by either party by written notice to
the other. Any notice mailed to the last designated address of any person or
party to which a notice may be or is required to be delivered pursuant to this
Lease shall not be deemed ineffective if actual delivery cannot be made due to a
change of address of the person or party to which the notice is directed or the
failure or refusal of such person or party to accept delivery of the notice.
ARTICLE XXIII.
ADDITIONAL COVENANTS OF TENANT
------------------------------
23.1 Conduct of Business. Tenant shall not engage in any business other
than the leasing and operation of the Leased Property for the Permitted Use and
activities incidental thereto, and shall do or cause to be done all things
necessary to preserve, renew and keep in full force and effect and in good
standing its corporate, limited partnership, limited liability company or other
entity status and existence and its rights and licenses necessary to conduct
such business.
23.2 Additional Covenants of Tenant. In addition to the other covenants
and representations of Tenant herein and in this Lease, Tenant hereby covenants,
acknowledges and agrees that Tenant shall:
(a) Undertake, or if requested by Landlord obtain, and provide
to Landlord a risk management audit and report regarding the operation
of the assisted living and skilled nursing uses within the Facility
periodically for compliance with all Applicable Laws governing the
ongoing use and operation of the Facility for the Permitted Use and
provide Landlord with a copy of the report and any other results of the
audit.
(b) Give prompt notice to Landlord of any litigation or any
administrative proceeding involving Tenant, Facility Tenant, Landlord
or the Leased Property of which Tenant has notice or actual knowledge
and which involves a potential uninsured liability equal to or greater
than $100,000.00 or which, in Tenant's reasonable opinion, may
otherwise result in any material adverse change in the business,
operations, property, prospects, results of operation or conditions,
financial or otherwise, of Tenant, Facility Tenant or the Facility.
23.3 Tenant a Single Purpose Entity. Tenant represents, agrees and
warrants that Tenant is, and throughout the Term will remain, a Single Purpose
Entity as described and contemplated on Exhibit G hereof. Such requirements
shall not be deemed to prohibit or conflict with the requirements of any of the
Third Party documents and all related instruments and undertakings.
23.4 Compliance with Development Agreement. Tenant shall comply with
all material terms and provisions of the Development Agreement, subject to
Tenant's right to pursue all available remedies, at law and in equity, with
respect to any alleged default in the performance of the developer/development
manager's duties and obligations under the Development Agreement, or otherwise
contest, in good faith and with due diligence, any such alleged default by
Tenant. Unless required by Applicable Laws, Tenant shall not enter into any
modifications or amendments of the Development Agreement, nor, except as
otherwise expressly set forth in this Lease, terminate the same prior to the
expiration thereof, without Landlord's prior written consent; nor shall Tenant
enter into any extension or replacement of the Development Agreement or elect
not to extend the term of the Development Agreement without Landlord's prior
written consent. In addition, in no event will the term of any Development
Agreement extend beyond the Term hereof. In addition to the obligations
contained herein, Tenant agrees to promptly deliver to Landlord copies of all
notices provided by the Developer to Tenant under the terms of the Development
Agreement concerning notices of default, notices of changes or modifications to
the Leased Property and the like.
23.5 Compliance with Management and Marketing Agreement. Intentionally
Deleted.
ARTICLE XXIV.
TENANT PURCHASE RIGHTS
24.1 Right of First Offer. Tenant has requested and Landlord has agreed
to provide to Tenant, under certain terms and conditions as more particularly
set forth below, a right of first offer in connection with any proposed sale of
the Leased Property by Landlord, under the following terms and conditions:
(a) Landlord hereby grants to Tenant a right of first offer to
purchase the Leased Property on the terms and subject to the conditions
set forth below:
(b) If Landlord desires to transfer or convey title to the
Leased Property then Landlord shall, before consummating such sale or
making such transfer, provide to Tenant written notice of such desire.
In the event that Tenant elects to exercise its right of first offer to
purchase the Leased Property, then Tenant shall have the right, for a
period of fifteen (15) business days from its receipt of such written
notice, to deliver to Landlord, a written offer to purchase the Leased
Property acknowledging Landlord's notice and specifying the purchase
price for the Leased Property offered by Tenant. Failure of Tenant to
deliver to Landlord an offer to purchase within such time period shall
be deemed to constitute a waiver of Tenant's right of first offer under
this Lease and Landlord shall be entitled to proceed to sell the Leased
Property, subject to the provisions of Section 24.1(d) below. If Tenant
delivers an offer to purchase meeting the requirements of this Section
24.1(b), then Landlord shall have fifteen (15) business days from
receipt of Tenant's written offer to deliver to Tenant written notice
of Landlord's acceptance or rejection of Tenant's offer. Failure of
Landlord to deliver such notice of acceptance within said time period
shall be deemed to constitute a rejection of Tenant's offer by
Landlord. If Landlord rejects Tenant's offer then Landlord shall be
entitled to proceed to sell the Leased Property at a purchase price
which is greater than the purchase price offered by Tenant, subject to
the provisions of Section 24.1(d) below, but Landlord shall not be
entitled to sell the Leased Property at a purchase price which is equal
to or less than the purchase price offered by Tenant unless Landlord
shall first offer to Tenant the right [exercisable if at all within
fifteen (15) business days from notice thereof] to purchase the Leased
Property for such equal or lesser price.
(c) If Landlord accepts Tenant's offer to purchase the Leased
Property, then the purchase and sale of the Leased Property shall be
consummated upon the following terms and conditions:
(i) Within five (5) business days of Landlord's acceptance
of Tenant's offer to purchase the Leased Property, Tenant shall
deliver to Landlord in federal funds an xxxxxxx money deposit
equal to ten percent (10%) of the proposed purchase price for
the Leased Property (the "Xxxxxxx Money Deposit"), which
Xxxxxxx Money Deposit shall be nonrefundable to Tenant except
in the event of a default by Landlord in the performance of its
obligations under this right of first offer, but shall be
applicable to the purchase price for the Leased Property at
closing.
(ii) The purchase price for the Leased Property shall be
equal to the purchase price offered by Tenant and accepted by
Landlord in accordance with the terms of this Section 24.1.
(iii) Conveyance of the Leased Property by Landlord must be
by Special Warranty Deed and subject only to such matters as
existed upon the Effective Date of the Lease and such
subsequent matters as are caused or incurred in good faith
pursuant the terms of the Lease, or with Tenant's written
consent or joinder or by Tenant's or Facility Tenant's actions
(but in no event subject to any mortgages, security interests
or other encumbrances or liens created or granted by Landlord).
(iv) Closing of the sale and purchase contemplated hereby
shall occur within ninety (90) days following Landlord's
delivery to Tenant of notice of Landlord's acceptance of
Tenant's offer to purchase.
(v) All closing costs incurred in connection with the
closing shall be paid by Tenant, except for Landlord's attorney
fees, which shall be paid by Landlord.
(vi) No prorations relating to operation of the Leased
Property shall be required, as the same is to remain leased to
Tenant on a net-lease basis throughout the term of this
Agreement. To the extent Landlord has received advance payment
of rent, or has advanced sums on behalf of Tenant for
proratable or reimbursable expenses under the Lease for which
Landlord has not been reimbursed through or as of the date of
any closing hereunder, the same shall be prorated. Tenant shall
be entitled for a credit against the purchase price hereunder
for any security or other deposits held by Landlord hereunder
the Lease.
(d) In the event that Tenant's right of first offer is either
waived or rejected, as applicable, pursuant to the provisions of
Section 24.1(b) hereof, Landlord may proceed to sell the Leased
Property in accordance with the provisions hereof; provided, however,
that if Landlord fails to enter into a valid contract for the purchase
and sale of the Leased Property within one hundred and twenty (120)
days of the date on which Tenant's right of first offer is either
waived or rejected, as applicable, as provided above, or if Landlord
enters into such a contract but the transaction contemplated thereby
does not close and the contract expires or is terminated, then Tenant's
right of first offer shall return to full force and effect and shall be
exercisable thereafter in accordance with the terms of this Section
24.1. In the event that Landlord sells the Leased Property in
accordance with the provisions hereof, then Tenant's right of first
offer granted herein shall be void and of no further force and effect.
(e) Intentionally Omitted.
(f) Notwithstanding anything contained herein to the contrary,
Tenant's aforesaid right of first offer shall not apply to any sale,
transfer or conveyance by Landlord to an affiliated entity which is
under common control with and at least directly or indirectly
majority-owned by Landlord, CNL Partners or their common ultimate
parent, CNL Retirement Properties, Inc.; provided, however, that
following any such transfer, there shall be no resulting default on the
part of any successor Landlord hereunder and Tenant's right of first
offer hereunder shall continue to remain in effect with respect to any
subsequent transfer by any such person or entities.
(g) The right of first offer established hereunder may not be
transferred or assigned separate from this Lease, and may only be
assigned to the assignee under a permitted assignment hereof.
(h) The right of first offer established hereunder shall
automatically terminate and be of no further force and effect upon the
occurrence of any of the following events:
(i) The existence of a Default or Event of Default under
this Lease or the Guaranty, of which notice has been given to
Tenant or Tenant or which otherwise is known to Tenant which is
uncured as of any date established hereunder for Tenant to
deliver to Landlord an offer to purchase the Leased Property,
provided that the Leased Property is sold within two hundred
and seventy (270) days following such date; or
(ii) A termination of the Lease or the Guaranty for any
reason other than a default of Landlord under the Lease.
24.2 Option to Purchase. In addition to the foregoing right, Tenant
shall have the option to purchase the Landlord's entire interest in and relating
to the Leased Property as follows:
(a) Tenant shall exercise its option hereunder by giving at
least sixty (60) days written notice to Landlord of Tenant's intent to
exercise the option.
(b) The "Option Purchase Price" to be paid by Tenant at closing
of the option, if exercised, shall be determined as follows:
(i) If closing pursuant to the Tenant's option to purchase
under this Section 24.2 (the "Option Closing") occurs prior to
October 30, 2006: Landlord's Original Investment, plus Fifty
Percent (50%) of all rent that would have been paid from the
date of closing of the Tenant's re-purchase of the Leased
Property hereunder (the "Repurchase Date") through October 30,
2006.
(ii) If the Option Closing occurs between October 1, 2006
and October 30, 2010: Landlord's Original Investment, plus an
additional percentage thereof equal to Fifty Percent (50%) of
any increases in the national Consumer Price Index for all
urban areas ("CPI") from October 1, 2006 through the Repurchase
Date.
(iii) If the Option Closing occurs after October 30, 2010:
Landlord's Original Investment, plus an additional percentage
thereof equal to the greater of (x) 100% of any increases in
the Consumer Price Index ("CPI") from October 1, 2006 through
the Repurchase Date, or (y) the FMV Percentage Increase from
the Commencement Date to the Repurchase Date.
(c) The Option Closing shall be held in the office of
Landlord's attorneys on or before a date which is sixty (60) days after
Landlord's receipt of Tenant's deposit as set forth under (i) above, or
at such other time or place as shall be mutually acceptable to Landlord
and Tenant.
(d) Tenant shall receive a credit for the Reserve Deposit being
held by Landlord, and the balance of the Option Purchase Price shall be
paid at closing in cash, by cashier's check on cleared local funds or
by wire transfer to Landlord's account.
(e) All expenses of closing shall be paid by Tenant.
(f) Tenant shall be deemed to have exercised and effected the
option to purchase hereunder, and shall be obligated to pay to Landlord
the full Option Purchase Price immediately and without offset or credit
except for amounts which would otherwise be refundable to Tenant upon
the proper termination of this Lease, in the event that title to the
Premises is transferred or conveyed to the Facility Tenant, or to the
holder of any mortgage or similar lien or encumbrance securing payment
or performance of obligations relating to the Brooksby Village Bond
Facility as described in Exhibit E attached hereto (a "Bond Facility
Mortgage"), or party claiming thereunder or purchasing at foreclosure
thereof, pursuant to an exercise of any purchase option or foreclosure
of any mortgage or other lien or encumbrance to which the Leased
Property has been or is subjected at the direction or with the consent
of Tenant.
24.3 Rights Subject to Lease. The right of first offer and option to
purchase as set forth in this Article XXIV shall be subject to the payment to
Landlord, no later that the right of first offer closing, or Option Closing, as
applicable, of all amounts due or payable to Landlord pursuant to the terms of
this Lease. In the event of an early termination of this Lease, the rights of
Tenant to acquire the Leased Property under Section 24.2 hereof shall, unless
Tenant has filed or otherwise becomes subject to any type of bankruptcy event or
filing, survive until thirty (30) days after Tenant's receipt of notice that
this Lease has been terminated.
ARTICLE XXV.
REIT AND UBTI REQUIREMENTS
--------------------------
Tenant understands that, in order for Landlord to qualify as a real estate
investment trust (a "REIT") under the Internal Revenue Code of 1986, as amended
(the "Code"), the following requirements must be satisfied. The parties intend
that amounts to be paid by Tenant hereunder and received or accrued, directly or
indirectly, by Landlord with respect to the Leased Property (including any rents
attributable to personal property that is leased with respect thereto) will
qualify as "rents from real property" (within the meaning of Code Section 856(d)
and Section 512(b)(3)). Consistent with this intent, the parties agree that:
25.1 Intentionally Omitted.
25.2 Basis for Sublease Rent Restricted. Tenant cannot sublet the
property that is leased to it by Landlord, or enter into any similar
arrangement, on any basis such that the rental or other amounts paid by the
sublessee thereunder would be based, in whole or in part, on either (a) the net
income or profits derived by the business activities of the sublessee or (b) any
other formula such that any portion of the rent paid by Tenant to Landlord would
fail to qualify as "rent from real property" within the meaning of Section
856(d) and Section 512(b)(3) of the Code and regulations promulgated thereunder.
Landlord and Tenant stipulate and agree that the Facility Lease complies with
this provision.
25.3 Landlord Affiliate Subleases Restricted. Anything to the contrary
in this Agreement notwithstanding, Tenant shall not sublease the Leased Property
to, or enter into any similar arrangement with, any person in which Landlord
owns, directly or indirectly, a ten percent (10%) or more interest, with the
meaning of Section 856(d)(2)(B) of the Code, and any such action shall be deemed
void ab initio. Anything to the contrary in this Agreement notwithstanding,
Tenant shall not sublease the Leased Property to, or enter into any similar
arrangement with, any Person that Landlord would be deemed to control within the
meaning of Section 512 (b)(13) of the Code.
25.4 Landlord Interests in Tenant Restricted. Anything to the contrary
in this Agreement notwithstanding, neither party shall take, or permit to take,
any action that would cause Landlord to own, directly or indirectly, a ten
percent (10%) or greater interest in the Tenant within the meaning of Section
856(d)(2)(B) of the Code, and any similar or successor provision thereto, and
any such action shall be deemed void ab initio. In addition, anything to the
contrary in this Agreement notwithstanding, Tenant shall not take or permit to
take, any action that would cause Landlord to own, directly or indirectly, such
interest in Tenant such that amounts received from Tenant would represent
amounts received from a controlled entity within the meaning of Section
512(b)(13) of the Code. This provision shall not be deemed to limit or affect,
however, Landlord's right to realize upon the pledge of the membership interests
of Tenant which has been provided by Guarantor as further security in the event
of an Event of Default hereunder.
25.5 Intentionally Omitted.Intentinoally Omitted.
25.7 Certain Subtenants Prohibited. Anything to the contrary in this
Agreement notwithstanding, Tenant shall not sublease the Leased Property to, or
enter into any similar arrangement with, any Person that would be described in
Section 514(c)(9)(B)(iii) or (iv) of the Code. This provision shall not be
construed in any way to limit Tenant's ability to lease its interests in the
Lease Property, the Improvements and other elements of the Community to the
Facility Tenant pursuant to the Facility Lease.
25.8 Future Amendment. Subject to the terms and conditions of the Third
Party Documents and the related agreements executed by Landlord, Tenant hereby
agrees to amend this Article XXV from time to time as Landlord deems necessary
or desirable in order to effectuate the intent hereof, provided that the same
does not result in any material change in the economic costs and benefits
derived and incurred hereunder, or affect Tenant's ability to use, develop,
construct, lease or repurchase the Leased Property.
ARTICLE XXVI.
MISCELLANEOUS
-------------
26.1 "Net" Lease. Landlord and Tenant acknowledge and agree that both
parties intend that this Lease shall be and constitute what is generally
referred to in the real estate industry as a "triple net" or "absolute net"
lease, such that Tenant shall be obligated hereunder to pay all costs and
expenses incurred with respect to, and associated with, the Leased Property and
the business operated thereon and therein, including, without limitation, all
taxes and assessments, utility charges, insurance costs, maintenance costs and
repair, replacement and restoration expenses (all as more particularly herein
provided) together with any and all other assessments, charges, costs and
expenses of any kind or nature whatsoever related to, or associated with, the
Leased Property and the business operated thereon and therein; provided,
however, that Landlord shall nonetheless be obligated to pay any debt service on
any mortgage encumbering Landlord's fee simple interest in the Leased Property,
and Landlord's personal income taxes with respect to the rents received by
Landlord under this Lease. Except as expressly hereinabove provided, Landlord
shall bear no cost or expense of any type or nature with respect to, or
associated with, the Leased Property.
26.2 Guaranty of Lease. Landlord has entered into this Lease in
reliance upon the Limited Guaranty and Indemnity Agreement by Xxxxxxxx
Retirement Communities, LLC, a Maryland limited liability company (the
"Guarantor") in favor of Landlord dated as of even date herewith (the
"Guaranty"), pursuant to which Guarantor has provided certain guarantees and
indemnities relating to Tenant's performance of its obligations under this
Lease, not including however obligations for the payment of Rent (except under
certain limited circumstances as set forth in the Guaranty).
26.3 Estoppel Certificates. Tenant shall from time to time, within
fifteen (15) days after request by Landlord and without charge, give a Tenant
Estoppel Certificate in the form attached hereto as Exhibit F and containing
such other matters as may be reasonably requested by Landlord to any person,
firm or corporation specified by Landlord and certifying as to the accuracy of
statements as set forth therein.
26.4 Brokerage. Landlord and Tenant hereby represent and warrant to
each other that they have not engaged, employed or utilized the services of any
business or real estate brokers, salesmen, agents or finders in the initiation,
negotiation or consummation of the business and real estate transaction
reflected in this Lease. On the basis of such representation and warranty, each
party shall and hereby agrees to indemnify and save and hold the other party
harmless from and against the payment of any commissions or fees to or claims
for commissions or fees by any real estate or business broker, salesman, agent
or finder resulting from or arising out of any actions taken or agreements made
by them with respect to the business and real estate transaction reflected in
this Lease.
26.5 No Partnership or Joint Venture. Landlord shall not, by virtue of
this Lease, in any way or for any purpose, be deemed to be a partner of Tenant
in the conduct of Tenant's business upon, within or from the Leased Property or
otherwise, or a joint venturer or a member of a joint enterprise with Tenant.
26.6 Entire Agreement. This Lease contains the entire agreement between
the parties and, except as otherwise provided herein, can only be changed,
modified, amended or terminated by an instrument in writing executed by the
parties. It is mutually acknowledged and agreed by Landlord and Tenant that
there are no verbal agreements, representations, warranties or other
understandings affecting the same; and that Tenant hereby waives, as a material
part of the consideration hereof, all claims against Landlord for rescission,
damages or any other form of relief by reason of any alleged covenant, warranty,
representation, agreement or understanding not contained in this Lease. This
Lease shall not be changed, amended or modified except by a written instrument
executed by Landlord and Tenant.
26.7 Waiver. No release, discharge or waiver of any provision hereof
shall be enforceable against or binding upon Landlord or Tenant unless in
writing and executed by Landlord or Tenant, as the case may be. Neither the
failure of Landlord or Tenant to insist upon a strict performance of any of the
terms, provisions, covenants, agreements and conditions hereof, nor the
acceptance of any Rent by Landlord with knowledge of a breach of this Lease by
Tenant in the performance of its obligations hereunder, shall be deemed a waiver
of any rights or remedies that Landlord or Tenant may have or a waiver of any
subsequent breach or default in any of such terms, provisions, covenants,
agreements and conditions.
26.8 Time. Time is of the essence in every particular of this Lease,
including, without limitation, obligations for the payment of money.
26.9 Costs and Attorneys' Fees. If either party shall bring an action
to recover any sum due hereunder, or for any breach hereunder, and shall obtain
a judgment or decree in its favor, the court may award to such prevailing party
its reasonable costs and reasonable attorneys' fees, specifically including
reasonable attorneys' fees incurred in connection with any appeals (whether or
not taxable as such by law). Landlord shall also be entitled to recover its
reasonable attorneys' fees and costs incurred in any bankruptcy action filed by
or against Tenant, including, without limitation, those incurred in seeking
relief from the automatic stay, in dealing with the assumption or rejection of
this Lease, in any adversary proceeding, and in the preparation and filing of
any proof of claim.
26.10 Captions and Headings. The captions and headings in this Lease
have been inserted herein only as a matter of convenience and for reference and
in no way define, limit or describe the scope or intent of, or otherwise affect,
the provisions of this Lease.
26.11 Severability. If any provision of this Lease shall be deemed to
be invalid, it shall be considered deleted therefrom and shall not invalidate
the remaining provisions of this Lease.
26.12 Successors and Assigns. The agreements, terms, provisions,
covenants and conditions contained in this Lease shall be binding upon and inure
to the benefit of Landlord and Tenant and, to the extent permitted herein, their
respective successors and assigns.
26.13 Applicable Law. This Lease shall be governed by, and construed in
accordance with, the laws of the State in which the Leased Property are located.
26.14 Waiver of Jury Trial. TENANT AND LANDLORD HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER OF THEM OR THEIR HEIRS,
PERSONAL REPRESENTATIVES, SUCCESSORS OR ASSIGNS MAY HAVE TO A TRIAL BY JURY IN
RESPECT TO ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS LEASE
OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT TO LANDLORD'S
ACCEPTING THIS LEASE.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
duly executed on or as of the day and year first above written.
Signed and sealed in TENANT:
the presence of:
PEABODY CAMPUS, LLC, a Maryland
limited liability company
By: Xxxxxxxx Retirement Communities, LLC,
a Maryland limited liability company.
Its: Sole Member/Authorized Agent
/s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------- -----------------------
Name: Xxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxxx,
----------------------- Managing Director
/s/ Xxxx X. Xxxxxxx
--------------------
Name: Xxxx X. Xxxxxxx
-----------------------
LANDLORD:
CNL RETIREMENT ER1, LP,
a Delaware limited partnership
By: CNL Retirement ER1 GP, LLC, a
Delaware limited liability company.
Its: General Partner
/s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxx
------------------------ ---------------------
Name: Xxxxx X. Xxxxxxxx
--------------------
Name: Xxxxxxx X. Xxxx
-------------------
/s/ Xxxxxx X. Xxxxxxxxxxx Title: Senior Vice President
-------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
-----------------------
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT B
SITE PLAN
EXHIBIT C
MEMORANDUM OF GROUND LEASE
EXHIBIT D
PERMITTED EXCEPTIONS
EXHIBIT E
THIRD PARTY DOCUMENTS
1. Management and Marketing Agreement dated September 16, 1999, between
Facility Tenant and Senior Campus Services, LLC, as manager (the rights
and obligations of the manager thereunder having been assigned to and
assumed by Guarantor pursuant to an Assignment and Assumption dated
June 30, 2000), and as amended by Amendment to Management and Marketing
Agreement dated as of September 1, 2002, or any replacement thereof,
together with any and all ancillary documents relating thereto (the
"Management and Marketing Agreement").
2. Brooksby Village Retirement Community Amended and Restated Master Lease
and Use Agreement dated as of September 16, 1999 and entered into by
and between Tenant and the Facility Tenant, as amended by Amendment to
Amended and Restated Master Lease and Use Agreement dated as of
September 1, 2002, and as further amended from time to time to add
additional completed phases of development thereunder as expressly
provided therein (the "Community Lease").
3. Community Loan Agreement dated as of September 16, 1999, between Tenant
and Facility Tenant, as amended by the Amended and Restated Community
Loan Agreement dated as of September 1, 2002, between the Facility
Tenant and Tenant (the "Community Loan Agreement"), the loan being made
pursuant thereto being referred to as the "Community Loan").
4. Amended and Restated Mortgage and Security Agreement and Financing
Statement dated as of September 1, 2002 from Tenant for the benefit of
Facility Tenant, and securing the Community Loan (the "Community Loan
Mortgage"), and all other documents evidencing, securing or affecting
the Community Loan (all documents relating to the Community Loan being
together referred to as the "Community Loan Documents").
5. Trust Indenture dated as of September 1, 2002 ("Trust Indenture")
between Facility Tenant and LaSalle Bank National Association
("LaSalle), relating to the Brooksby Village, Inc. Variable Rate Demand
Bonds, Series 2002 (the "Brooksby Village Bond Facility"), and any and
all documents relating thereto (the "Bond Facility Documents").
6. Letter of Credit Agreement dated as of September 1, 2002, between
Tenant, Facility Tenant and LaSalle, relating to the Bank's Letter of
credit securing the Brooksby Village Bond Facility, together with any
ancillary documents relating thereto ("Letter of Credit Agreement").
7. Mortgage, Security Agreement, Assignment of Leases and Rents and
Fixture Filing, dated as of September 1, 2002, from Tenant to LaSalle
and given to secure the Letter of Credit Agreement obligations and
other obligations of Tenant and/or Facility Tenant relating to the
Brooksby Village Bond Facility (the "LaSalle Mortgage").
8. Purchase Option Agreement dated as of September 1, 2002, between
Tenant, Facility Tenant and Guarantor, together with any and all
ancillary documents relating thereto ("Purchase Option Agreement").
9. Purchase Deposit Mortgage and Security Agreement, dated as of September
1, 2002, from Tenant to Facility Tenant and securing conditional
obligations to refund the purchase option deposit paid to or for the
benefit of Tenant under the Purchase Option Agreement (the "Purchase
Deposit Mortgage").
10. Amended and Restated Working Capital Loan Agreement, dated as of
September 1, 2002, between Tenant and Facility Tenant together with any
and all ancillary documents relating thereto (the "Working Capital Loan
Agreement").
11. Amended and Restated Development Agreement dated as of September 1,
2002, by and between Tenant and Guarantor, or any replacement thereof,
together with any and all ancillary documents relating thereto (the
"Development Agreement").
12. Forms of Agreements Between Owner and Contractor and Owner and
Architect and all other construction-related contracts relating to
Brooksby Village between Tenant and its development and construction
managers and Xxxxxxxx Xxxxxxx Associations, Inc., Xxxxxxx Xxxxxx & Xxxx
LLC, Xxxxxxxx Construction, LLC, Beaver Builders, LLC and/or any other
architects and general and other contractors now or hereafter providing
design, development or construction services relating to development of
the Facility, together with any and all documents relating thereto
("Construction Services Agreements")..
13. Construction Management Agreement dated as of September 1, 2002, by and
between Guarantor, as development manager, and Xxxxxxxx Construction,
LLC, or any replacement thereof, together with any and all ancillary
documents relating thereto (the "Construction Management Agreement").
EXHIBIT F
TENANT ESTOPPEL CERTIFICATE
---------------------------
THIS TENANT'S ESTOPPEL CERTIFICATE ("Certificate") is given this ___
day of _____________, 2002, by PEABODY CAMPUS, LLC, a Maryland limited liability
company ("Tenant") in favor of CNL RETIREMENT ER1, LP, a Delaware limited
partnership, with principal office and place of business at CNL Center at City
Commons, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 ("Landlord").
RECITALS:
A. Pursuant to the terms and conditions of that certain Lease Agreement
("Lease") dated October 10, 2002, Landlord leased to Tenant certain Premises in
Essex County, Massachusetts ("Leased Premises"), which Leased Premises are more
particularly described in the Lease.
B. Pursuant to the terms and conditions of the Lease, Landlord has
requested that the Tenant execute and deliver this Certificate with respect to
the Lease.
NOW, THEREFORE, in consideration of the above premises, the Tenant
hereby makes the following statements for the benefit of Landlord:
1. The copy of the Lease and all amendments, if any, attached hereto
and made a part hereof as Exhibit A is a true, correct and complete copy of the
Lease, which Lease is in full force and effect as of the date hereof, and has
not been modified or amended.
2. The Lease sets forth the entire agreement between the Landlord and
the Tenant relating to the leasing of the Leased Premises, and there are no
other agreements, written or oral, relating to the leasing of the Leased
Premises.
3. There exist no uncured or outstanding defaults or events of default
under the Lease, or events which, with the passage of time, and the giving of
notice, or both, would be a default or event of default under the Lease.
4. No notice of termination has been given by Landlord or Tenant with
respect to the Lease.
5. All payments due the Landlord under the Lease through and including
the date hereof have been made, including the monthly installment of Base Rent
(as defined in the Lease) for the period of ______________ to ________________
in the amount of $___________.
6. As of the date hereof, the annual Base Rent under the Lease is
$_________.
7. There are no disputes between the Landlord and the Tenant with
respect to any rental due under the Lease or with respect to any provision of
the Lease.
8. The Tenant represents and warrants that (a) all conditions and
requirements to be undertaken by Landlord under the Lease have been completed
and complied with, and (b) Tenant has no offsets, counterclaims or defenses with
respect to its obligations under the Lease.
9. The Tenant understands and acknowledges that Landlord is relying
upon the representations set forth in this Certificate, and may rely thereon in
connection with the [collateral] assignment of the Lease to ___________.
IN TESTIMONY WHEREOF, witness the signature of the Tenant as of the day
and year first set forth above.
TENANT:
PEABODY CAMPUS, LLC, a Maryland
limited liability company
By: Xxxxxxxx Retirement Communities, LLC, a
Maryland limited liability company.
Its: Sole Managing Member
By: _________________________
Xxxxxxx X. Xxxxxxxx,
Managing Director
STATE OF
------------------------------
COUNTY OF
-----------------------------
The foregoing instrument was acknowledged before me this ___ day of
October, 2002, by Xxxxxxx X. Xxxxxxxx, the Managing Director of Xxxxxxxx
Retirement Communities, LLC, a Maryland limited liability company, the Sole
Managing Member of Peabody Campus, LLC, a Maryland limited liability company on
behalf of said limited liability companies. He is personally known to me or
produced ____________________________________ as identification.
Printed Name:
------------------------------
Notary Public, State of
--------------------
Commission #:
------------------------------
My commission expires:
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(NOTARY SEAL)
EXHIBIT G
SINGLE PURPOSE ENTITY REQUIREMENTS
----------------------------------
Tenant or its assignee shall throughout the Term hereof do all things
necessary to continue to be and remain a Single Purpose Entity [including
without limitation, if Tenant is a partnership, insuring that each General
Partner of Tenant continues as a Single Purpose Entity and shall not amend its
Articles of Organization or Operating Agreement, or if Tenant is a corporation,
that Tenant shall not amend its Articles of Incorporation or Bylaws, or if
Tenant is a limited liability company, Tenant shall prevent any Member manager
of Tenant from amending such Member's Articles of Organization or Bylaws or
other formation documents). For purposes hereof, Single Purpose Entity shall
mean a person, other than an individual, which (a) is formed, organized or
reorganized solely for the purpose of holding, directly, the leasehold interest
in the Leased Property and undertaking the activities in respect thereof as
contemplated under the Lease, (b) does not engage in any business unrelated to
the Leased Property and the Permitted Use thereof under the Lease, (c) has not
and will not have any assets other than those related to its interest in the
Leased Property and has not and will not have any indebtedness other than
indebtedness contemplated or as permitted under the Lease or otherwise incurred
in the ordinary course of business, (d) maintains its own separate books and
records and its own accounts, in each case which are separate and apart from the
books and records of any other any individual, corporation, partnership, joint
venture, limited liability company, limited liability partnership, association,
joint stock company, trust, unincorporated organization, or other organization,
whether or not a legal entity, and any governmental authority ("Person"), (e)
holds itself out as being a Person separate and apart from any other Person, (f)
does not and will not commingle its funds or assets with those of any other
Person except as required under any of the Third Party Documents, (g) conducts
its own business in its own name, (h) maintains separate financial statements,
(i) pays its own liabilities out of its own funds, (j) observes all limited
liability company formalities, partnership formalities or corporate formalities,
as applicable, (k) maintains an arm's-length relationship with its Affiliated
Persons, (l) does not guarantee or otherwise obligate itself with respect to the
debts of any other Person or hold out its credit as being available to satisfy
the obligations of any other Person except as required or expressly authorized
under the Lease, (m) does not acquire obligations or securities of its partners,
members or shareholders, (n) allocates fairly and reasonably shared expenses,
including without limitation, any overhead for shared office space, (if any),
(o) uses separate stationary, invoices and checks, (p) except as required or
expressly authorized or contemplated under the Lease, and the Third Party
Documents, does not and will not pledge its assets for the benefit of any Person
other than Landlord or make any loans or advances to any other Person, (q) does
and will correct any known misunderstanding regarding its separate identity, (r)
maintains adequate capital in light of its contemplated business operations, and
(s) has and will have an Operating Agreement, partnership agreement, certificate
of incorporation or other organization document which complies with the
standards and requirements for a Single Purpose Entity set by Rating Agencies
(as hereinafter defined) as of the date hereof applicable to a limited liability
company, partnership or corporation, as applicable.
For purposes hereof, "Rating Agencies" shall mean any three of the
following: Standards & Poor's Rating Services, a division of the XxXxxx-Xxxx
Companies, Inc., Duff and Xxxxxx Credit Rating Co., Xxxxx'x Investors Services,
Inc. and Fitch Investors Services, L.P. or if any such corporation shall for any
reason no longer perform the functions of a securities rating agency, any other
nationally recognized statistical rating agency designated by Landlord.
In addition to the foregoing, and consistent with the Single Purpose
Entity requirements hereof, Tenant covenants and agrees that throughout the Term
hereof, Tenant shall not (i) voluntarily file or consent to the filing of a
petition for bankruptcy, insolvency, reorganization, assignment for the benefit
of creditors or similar proceedings under any federal or state bankruptcy,
insolvency, reorganization or other similar law or otherwise seek any relief
under any laws relating to the relief of debts or the protection of debtors
generally; (ii) merge into or consolidate with any Person, or dissolve,
terminate or liquidate in whole or in part, transfer or otherwise dispose of all
or substantially all of its assets (except as permitted herein) or convert to
another type of legal entity, without in each case Landlord's, consent; (iii)
own any subsidiary, or make any investment in, any Person without the consent of
Landlord; (iv) maintain its assets in such a manner that it will be costly or
difficult to segregate, ascertain or identify its individual assets from those
of any partners, members, shareholders, principals and Affiliates of the
Partnership, or any general partner, managing member, principal or Affiliate
thereof or any other Person; or (v) become insolvent or fail to pay its debts
and liabilities from its assets as the same shall become due.
EXHIBIT H
APPRAISAL REQUIREMENTS
----------------------
If Landlord and Tenant are unable to agree upon the fair market value of the
Leased Property within any relevant period provided in this Agreement, each
shall within ten (10) days after written demand by the other select one MAI
Appraiser to participate in the determination of fair market value. Within ten
(10) days of such selection, the MAI Appraisers so selected by Landlord and
Tenant shall select a third MAI Appraiser. The three (3) selected MAI Appraisers
shall each determine the fair market value of the Leased Property within thirty
(30) days of the selection of the third appraiser. To the extent consistent with
sound appraisal practices as then existing at the time of any such appraisal,
and if requested by Landlord, such appraisal, shall be made on a basis
consistent with the basis on which the Leased Property was appraised at the time
of its acquisition by Landlord. Tenant shall pay the fees and expenses of any
MAI Appraiser retained pursuant to this Exhibit.
In the event either Landlord or Tenant fails to select a MAI Appraiser within
the time period set forth in the foregoing paragraph, the MAI Appraiser selected
by the other party shall alone determine the fair market value of the Leased
Property in accordance with the provisions of this Exhibit and the fair market
value so determined shall be binding upon Landlord and Tenant.
In the event the MAI Appraisers selected by Landlord and Tenant are unable to
agree upon a third MAI Appraiser within the time period set forth in the first
paragraph of this Exhibit, either Landlord or Tenant shall have the right to
apply at Tenant's expense to the presiding judge of the court of original trial
jurisdiction in the county in which the Leased Property is located to name the
third MAI Appraiser.
Within five (5) days after completion of the third MAI Appraiser's appraisal,
all three MAI Appraisers shall meet and a majority of the MAI Appraisers shall
attempt to determine the fair market value of the Leased Property. If a majority
are unable to determine the fair market value at such meeting, the three
appraisals shall be added together and their total divided by three. The
resulting quotient shall be the fair market value of the Leased Property. If,
however, either or both of the low appraisal or the high appraisal are more than
ten percent (10%) lower or higher than the middle appraisal, any such lower or
higher appraisal shall be disregarded. If only one appraisal is disregarded, the
remaining two appraisals shall be added together and their total divided by two,
and the resulting quotient shall be such fair market value. If both the lower
appraisal and the higher appraisal are disregarded as provided herein, the
middle appraisal shall be such fair market value. In any event, the result of
the foregoing appraisal process shall be final and binding.
"MAI Appraiser" shall mean an appraiser licensed or otherwise qualified
to do business in the State and who has substantial experience in performing
appraisals of facilities similar to the Leased Property and is certified as a
member of the American Institute of Real Estate Appraisers or certified as a
SRPA by the Society of Real Estate Appraisers, or, if such organizations no
longer exist or certify appraisers, such successor organization or such other
organization as is approved by Landlord.
