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EXHIBIT 10.47
LEASEHOLD IMPROVEMENT AGREEMENT
AMONG
MEDITRUST ACQUISITION CORPORATION II
AND
BCC DEVELOPMENT AND MANAGEMENT CO.
AND
BLACK BOX OF LEWISBURG, INC.
DATED AS OF DECEMBER 31, 1997
(Lewisburg)
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LEASEHOLD IMPROVEMENT AGREEMENT
AMONG
MEDITRUST ACQUISITION CORPORATION II
AND
BCC DEVELOPMENT AND MANAGEMENT CO.
AND
BLACK BOX OF LEWISBURG, INC.
SUMMARY OF TABLE OF CONTENTS
1. BACKGROUND.................................................................................1
1.1 The Parties.......................................................................1
1.2 The Land and Existing Improvements................................................1
1.3 The Facility Lease................................................................1
1.4 Project...........................................................................1
1.5 Lessor's Agreement to Fund the Project and Developer's
Agreement to Supervise the Project................................................2
1.6 Plans; the Architect and Architect's Contract.....................................2
1.7 Construction Contracts............................................................2
1.8 Schedule of Work and Completion Date; Schedule of Draws...........................2
1.9 Project Budget....................................................................2
1.10 Use of Project Funds..............................................................3
1.11 Lessee's Agreement to Pay Rent....................................................3
1.12 Guaranties, Indemnities and Other Agreements......................................3
1.13 Access to the Leased Property.....................................................3
2. DEFINITIONS................................................................................4
3. FEES.......................................................................................4
3.1 Leasehold Improvement Fee.........................................................4
3.2 Development Fee...................................................................4
4. LEASE DOCUMENTS AND DEVELOPMENT DOCUMENTS; COLLATERAL SECURITY.............................5
4.1 Lease Documents...................................................................5
4.2 Lease Obligations and Development Obligations.....................................6
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4.3 Collateral Security...............................................................7
5. REPRESENTATIONS AND WARRANTIES.............................................................8
5.1 Architect's Contract and Construction Contract....................................8
5.2 Project Plans.....................................................................8
5.3 Prior Construction Work...........................................................8
5.4 Suitability of Project Plans......................................................9
5.5 Compliance with Legal Requirements and Applicable Agreements......................9
5.6 Permits and Contracts.............................................................9
5.7 First Advance....................................................................10
5.8 Prior Services...................................................................10
6. COVENANTS.................................................................................11
6.1 Collection and Enforcement Costs.................................................11
6.2 Agreements to Perform Certain Obligations........................................11
6.3 Continuing Effect of Representation and Warranties...............................12
6.4 Construction Covenants...........................................................12
6.4.01 Commencement of Construction............................................12
6.4.02 Quality of Materials and Workmanship....................................12
6.4.03 Project Budget..........................................................13
6.4.04 Architect Certificates..................................................13
6.4.05 Subcontractors..........................................................14
6.4.06 The Lessor's Consultant.................................................14
6.4.07 Title To Materials and Security Interest Granted to Lessor..............15
6.4.08 Compliance With Legal Requirements And Applicable Agreements............16
6.4.09 Liens 16
6.4.10 Books And Records.......................................................17
6.4.11 Inspection Of Construction..............................................17
6.4.12 Notice Of Delay.........................................................17
6.4.13 Bonds 17
6.4.14 Use of Project Funds....................................................17
6.4.15 Occupancy of the Project................................................18
7. ADVANCES OF PROJECT FUNDS.................................................................18
7.1 Conditions Precedent to First Advance of Project Funds...........................18
7.2 The Lessor's Right to Advance....................................................21
7.3 Submission of Requests for Advances..............................................21
7.4 Advances by Wire Transfer........................................................23
7.5 Conditions Precedent to All Advances.............................................23
7.6 Completion of the Project........................................................25
7.7 Condition of the Project.........................................................25
8. THE LESSOR'S RIGHT TO MAKE PAYMENTS AND TAKE OTHER ACTION.................................26
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9. INSURANCE; CASUALTY; TAKING...............................................................28
9.1 General Insurance Requirements...................................................28
9.2 Fire or Other Casualty or Condemnation...........................................28
10. EVENTS OF DEFAULT.........................................................................28
11. REMEDIES IN EVENT OF DEFAULT..............................................................29
12. GENERAL...................................................................................31
13. TERM......................................................................................31
EXHIBIT A DESCRIPTION OF THE LAND
EXHIBIT B PLANS AND SPECIFICATIONS
EXHIBIT C SCHEDULE OF CONSTRUCTION
EXHIBIT D PROJECT BUDGET
EXHIBIT E DEFINITIONS
EXHIBIT F FUTURE PERMITS AND CONTRACTS REQUIRED
FOR COMPLETION OF CONSTRUCTION AND
COMMENCEMENT OF OPERATION
EXHIBIT G SURVEY
EXHIBIT H SURVEYOR'S CERTIFICATE
EXHIBIT I ARCHITECT'S CERTIFICATE AND CIVIL ENGINEER'S CERTIFICATE
EXHIBIT J BCC DEVELOPMENT AND MANAGEMENT CO. REQUISITION CERTIFICATE
EXHIBIT K GENERAL CONTRACTOR'S REQUISITION CERTIFICATE
EXHIBIT L ARCHITECT'S REQUISITION CERTIFICATE
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LEASEHOLD IMPROVEMENT AGREEMENT (Lewisburg)
THIS LEASEHOLD IMPROVEMENT AGREEMENT is made as of December 31, 1997 by and
among BCC DEVELOPMENT AND MANAGEMENT CO., a Delaware corporation (the
"Developer"), BLACK BOX OF LEWISBURG, INC., a Delaware corporation (the
"Lessee"), and MEDITRUST ACQUISITION CORPORATION II, a Delaware corporation (the
"Lessor").
1. BACKGROUND
1.1 THE PARTIES
The Lessee is a Delaware corporation. The Developer is (A) a Delaware
corporation with a principal place of business at 0000 Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxxxxx, Xxxxxxxxxxxx 00000 and (B) a wholly-owned subsidiary of the
Guarantor (as hereinafter defined). The Guarantor is a Delaware corporation with
a principal place of business at 0000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxxxx,
Xxxxxxxxxxxx 00000.
1.2 THE LAND AND EXISTING IMPROVEMENTS.
The Lessor is the owner of a certain parcel of land located in East Buffalo
Township, Union County, Pennsylvania and more particularly described on EXHIBIT
A (the "Land"), together with the existing buildings and other improvements, if
any, located thereon (collectively, the "Existing Improvements")
1.3 THE FACILITY LEASE.
The Lessor and the Lessee have entered into that certain Facility Lease
Agreement of even date herewith (the "Facility Lease") relating to the Land and
the Improvements (as hereinafter defined), a notice of which is to be recorded
with the Clerk/Prothonotary of Union County, Pennsylvania.
1.4 PROJECT
The Lessor proposes to cause the Developer to construct a personal care
home with seventy (70) licensed beds (located in forty-four (44) units) and
certain other improvements more particularly described on the Project Plans (as
hereinafter defined), including, without limitation, accessory parking and
landscaping on the Land (collectively, the "Improvements"). The Land, the
Existing Improvements and the Improvements are collectively referred to herein
as the "Project".
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1.5 LESSOR'S AGREEMENT TO FUND THE PROJECT AND DEVELOPER'S AGREEMENT TO
SUPERVISE THE PROJECT.
The Lessee and the Lessor have agreed that the Project will be a benefit to
the premises demised under the Facility Lease and to the Lessee's and the
Lessor's respective interests therein. The Lessor and the Lessee have further
agreed that, pursuant to, and in accordance with, the terms and conditions of
this Agreement, the Lessor shall fund to the Developer an amount not to exceed
TWO MILLION NINE HUNDRED TWENTY-EIGHT THOUSAND THREE HUNDRED SIXTY-SEVEN DOLLARS
($2,928,367.00) of the cost of the Project (the "Project Funds") and, in
accordance with the terms hereof, the Developer has agreed to supervise and
manage, the construction of the Project. Subject to the terms and conditions
hereof, the Lessor hereby agrees to advance to the Developer an amount not to
exceed the Project Funds to pay for the cost of the construction of the Project
and the Developer hereby agrees to supervise and manage the construction of the
Project; all pursuant to the terms and conditions of this Agreement.
1.6 PLANS; THE ARCHITECT AND ARCHITECT'S CONTRACT.
The Project is to be constructed and equipped in accordance with the plans
and specifications (collectively, the "Project Plans"), listed on EXHIBIT B
prepared by Xxxxxxxx Engineering, Inc. (the "Architect") pursuant to the
contract dated as of September 8, 1997, by and between the Developer and the
Architect (the "Architect's Contract"), as the same may be revised in accordance
with the terms hereof.
1.7 CONSTRUCTION CONTRACT
All of the Improvements are to be constructed pursuant to a guaranteed
maximum price contract (the "Construction Contract"), dated as of December 3,
1997, by and between the Developer and Xxxxxxx Construction, Inc. (the "General
Contractor"), as the same may be revised in accordance with the terms hereof.
1.8 SCHEDULE OF WORK AND COMPLETION DATE; SCHEDULE OF DRAWS
The work necessary to complete and fully equip the Project is to be (a)
undertaken and completed in accordance with the schedule which is annexed hereto
as EXHIBIT C and (b) substantially completed by June 30, 1999 (the "Completion
Date").
1.9 PROJECT BUDGET
The Developer has submitted to the Lessor and the Lessee a line item budget
(the "Project Budget"), a copy of which is annexed hereto as EXHIBIT D, setting
forth a total cost of TWO MILLION NINE HUNDRED TWENTY-EIGHT THOUSAND THREE
HUNDRED SIXTY-SEVEN DOLLARS ($2,928,367.00) for the acquisition cost of the Land
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and the design and construction of the Project, including (a) the cost of the
Land, (b) a breakdown of construction costs (itemized as to trade category,
subdivision of the work to be performed and the names of each contractor), (c) a
breakdown of all soft costs in connection with the construction of the Project,
including, without limitation, costs for such items as real estate taxes, legal
and accounting fees, survey costs, permits and inspection fees, insurance
premiums, architect's and engineer's fees, marketing, management, leasing and
advertising expenses, and all amounts due in connection with the advance of
Project Funds pursuant to this Agreement, (d) the Working Capital Reserve (as
hereinafter defined) in an amount equal to the original principal balance of the
Note (as hereinafter defined), (e) a projected draw schedule and (f) a projected
progress schedule for the construction of the Project.
1.10 USE OF PROJECT FUNDS
The Project Funds are to be used, to the extent sufficient therefore,
solely for the payment of Project costs set forth in the Project Budget. Without
limiting any other provision set forth herein, in the event that the total
amount of the Project Funds is not sufficient for the payment of the Project
costs set forth in the Project Budget (or the actual costs incurred in
connection with the completion of construction of the Project), the Developer
shall, nevertheless, remain obligated, at its sole cost and expense, to complete
the construction of the Project in accordance with the terms hereof.
1.11 LESSEE'S AGREEMENT TO PAY RENT
Subject to all of the terms, conditions and provisions of this Agreement,
and of the agreements and instruments referred to herein, the Lessee, in
consideration of the Lessor (a) arranging for the construction of the Project,
which shall inure to the benefit of the Lessee, and (b) advancing sums hereunder
to fund such construction, agrees to pay the Rent (as hereinafter defined) due
under the Facility Lease (as the same may from time to time be adjusted pursuant
to the terms and conditions set forth therein); it being understood that the
Lessee shall be liable for the payment of Rent regarding all such sums as shall
have been advanced by the Lessor from time to time under this Agreement,
including, without limitations, all amounts which the Lessor may, but, is not
obligated to advance, in excess of the Project Funds, pursuant to the provisions
of Section 6.1, Section 6.4.06, Section 8 and/or Section 11 hereof.
1.12 GUARANTIES, INDEMNITIES AND OTHER AGREEMENTS
As an inducement to the Lessor to acquire the Land, enter into this
Agreement, advance the Project Funds and enter into the Facility Lease, (i) the
Guarantor has agreed to furnish certain guaranties as hereinafter described and
certain working capital loans as more particularly described in the Working
Capital Assurance Agreement (as hereinafter defined) and (ii) the Pledgor (as
hereinafter defined) has agreed to make equity contributions to the Lessee, in
amounts equal to the advances from time to time made to the Pledgor by the
Lessor
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under the Note, to provide the Lessee with funds to fulfill its working
capital obligations.
1.13 ACCESS TO THE LEASED PROPERTY.
Without limiting any provisions set forth in this Agreement or any of the
other Lease Documents with respect to the Lessor's rights of access to the
Leased Property, the Lessee shall allow the Developer and the Developer's
agents, contractors, subcontractors, employees, representatives, consultants and
invitees to have such access to the Leased Property as the Developer deems
necessary in order to allow the Developer to complete the construction of the
Project in accordance with the terms hereof and to perform all of its
obligations hereunder.
2. DEFINITIONS
In this Agreement, except as otherwise expressly provided in the text of
this Agreement or unless the context otherwise requires, all capitalized terms
shall have the meaning ascribed to them in EXHIBIT E.
3. FEES.
3.1 LEASEHOLD IMPROVEMENT FEE.
The Lessee shall pay the Leasehold Improvement Fee to the Lessor
simultaneously with the execution of this Agreement (which Leasehold Improvement
Fee shall be included in the Project Budget and shall be advanced hereunder in
connection with the initial advance of the Project Funds); provided, however,
that, at the Lessor's option, the Leasehold Improvement Fee shall be held in an
escrow account established with a Person designated by the Lessor pursuant to an
escrow arrangement satisfactory to the Lessor, with interest thereon benefiting
the Lessor. If the Lessor exercises its option to require that the Leasehold
Improvement Fee be held in such an escrow account (a) the Leasehold Improvement
Fee shall be disbursed from said escrow account only upon the joint instructions
of the Lessee and the Lessor (which instructions from the Lessee shall be
immediately given upon the request of the Lessor) and in no event shall the
Leasehold Improvement Fee be disbursed therefrom, in whole or in part, unless
and until so requested by the Lessor and (b) the Lessor shall bear the risk of
loss of or misappropriation of the Leasehold Improvement Fee by such escrow
agent.
3.2 DEVELOPMENT FEE.
As compensation for the performance of the Developer's obligations
hereunder, the Lessor agrees that the Development Fee shall be included within
the Project Budget and shall be payable to the Developer, subject to the
Lessor's right to set-off any amounts owed to the Lessor by the Developer
hereunder or under any of the other Development Documents, as follows: (a) TWO
HUNDRED TWENTY FIVE THOUSAND DOLLARS ($225,000.00) upon the first advance of
Project Funds hereunder and (b) from and after the completion of
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seventy-five percent (75%) of the Project, the remainder of the Development Fee
shall be disbursed in equal installments in connection with the monthly advances
of Project Funds. Notwithstanding the foregoing, the Lessee acknowledges and
agrees that any amounts that are set-off by the Lessor against the sums that are
due hereunder from the Developer to the Lessor, shall nevertheless, for all
purposes of this Agreement, be deemed to have been advanced hereunder (even if
the aggregate amount of such sums so advanced and all amounts previously
advanced hereunder exceed the amount of the Project Funds which the Lessor has
agreed to advance hereunder) and the Lessee agrees to pay to the Lessor Rent
under the Facility Lease, calculated, in part, thereunder based upon all sums
advanced hereunder.
4. LEASE DOCUMENTS; COLLATERAL SECURITY
4.1 LEASE DOCUMENTS AND DEVELOPMENT DOCUMENTS
The Project Funds shall be advanced, evidenced and administered, in
accordance with the terms of this Agreement and shall be secured and governed by
all of the terms, conditions and provisions of each of the following:
A. this Agreement;
B. a Collateral Assignment of Permits, Approvals, Licenses, and Contracts
of even date granted by the Developer to the Lessor (the "Developer
Permits Assignment") and related UCC Financing Statements;
C. an Environmental Indemnity Agreement of even date by and among the
Lessee, the Developer, and the Lessor (the "Environmental Indemnity
Agreement");
D. a Guaranty of even date executed by the Guarantor for the benefit of
the Lessor guarantying the completion of the Project and the
satisfaction of the other Guarantied Obligations (the "Guaranty");
E. an Assignment of Construction Contract of even date granted by the
Developer to the Lessor and containing the consent of the General
Contractor (the "Construction Assignment");
F. an Assignment of Architect's Contract of even date granted by the
Developer to the Lessor and containing the consent of the Architect
(the "Architect's Assignment"); and
G. all other documents, instruments, or agreements now or hereafter
evidencing or securing the obligations of the Developer under this
Agreement.
Items (A) through (G) above, as the same from time to time may be hereinafter
amended,
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modified or supplemented, are referred to herein as the "Development Documents".
The Lessee's obligations with respect to the Land and the Project shall be
evidenced, administered, secured and governed by all of the terms, conditions
and provisions of each of the following:
i. this Agreement;
ii. the Facility Lease;
iii. a Collateral Assignment of Permits, Approvals, Licenses, and Contracts
of even date granted by the Lessee to the Lessor (the "Lessee Permits
Assignment") and related UCC Financing Statements;
iv. a Security Agreement of even date by and between the Lessee and the
Lessor (the "Security Agreement");
v. the Environmental Indemnity Agreement;
vi. a Deposit Pledge Agreement of even date by and between the Lessee and
the Lessor (the "Deposit Pledge Agreement");
vii. a Pledge Agreement of even date by and among the Lessee, the Lessor
and Black Box Holding Company (the "Pledgor"), pursuant to which the
Pledgor granted the Lessor a security interest in all of the
outstanding capital stock of the Lessee (the "Pledge Agreement") and
related stock powers;
viii.an Affiliated Party Subordination Agreement of even date by and among
the Lessee, the Guarantor, the Current Manager, the Black Box Parties
(as hereinafter defined) and the Lessor (the "Affiliated Party
Subordination Agreement");
ix. the Amended and Restated Agreement Regarding Related Lease
Transactions of even date by and among the Lessee, the Tenant Parties
and the Lessor (the "Agreement Regarding Related Lease Transactions");
and
x. all other documents, instruments, or agreements now or hereafter
evidencing or securing the obligations of the Lessee under this
Agreement and/or the Facility Lease, including, without limitation,
the Lessee's Guaranty (as hereinafter defined).
Items (i) through (x) above, as the same from time to time may be hereinafter
amended, modified or supplemented, are referred to herein as the "Lease
Documents".
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4.2 LEASE OBLIGATIONS AND DEVELOPMENT OBLIGATIONS
The Lessee agrees to pay and perform all of its indebtedness, covenants,
liabilities, obligations, agreements and undertakings under this Agreement and
all of the other Lease Documents (collectively, the "Lease Obligations"). The
Developer agrees to pay and perform all of its indebtedness, covenants,
liabilities, obligations, agreements and undertakings under this Agreement and
all of the other Development Documents (collectively, the "Development
Obligations").
4.3 COLLATERAL SECURITY
The Lease Obligations shall be secured by the following:
A. a perfected first priority security interest in the Lessee's interest
in all Permits and Contracts pursuant to the Lessee Permits
Assignment;
B. a perfected first priority security interest in Tangible Personal
Property, Receivables and certain other Collateral pursuant to the
Security Agreement;
C. the Environmental Indemnity Agreement;
D. a perfected first priority security interest in all of the outstanding
capital stock of the Lessee pursuant to the Pledge Agreement;
E. a perfected first priority interest in the Cash Collateral pursuant to
the Deposit Pledge Agreement;
F. all other security interests in such other property for which
provision is made in the Lease Documents or at law or in equity; and
G. certain other Related Party Agreements.
All of the property in which security interests are granted (i) as described in
items (A) through (G) above and (ii) pursuant to any other Lease Document is
collectively referred to herein as the "Lessee Collateral".
The Development Obligations shall be secured by the following:
1. a perfected first security interest in the Developer's interest in all
Permits and Contracts pursuant to the Developer Permits Assignment;
2. the Guaranty;
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3. the Environmental Indemnity Agreement; and
4. all other security interests in such other property for which
provision is made in the Development Documents or at law or in equity.
All of the property in which security interests are granted (i) as
described in items (1) through (4) above and (ii) pursuant to any other
Development Document is collectively referred to herein as the "Developer
Collateral."
5. REPRESENTATIONS AND WARRANTIES
In order to induce (a) the Lessor to advance the Project Funds pursuant to
the terms and conditions of this Agreement and (b) the Lessee to agree to be
liable for the payment of Rent regarding such sums as shall have been advanced
from time to time under this Agreement, the Developer represents and warrants to
the Lessor and the Lessee that:
5.1 ARCHITECT'S CONTRACT
The Architect's Contract has been validly executed by and is binding upon
the parties thereto and is in full force and effect in accordance with the terms
thereof. All of the parties to the Architect's Contract have faithfully
performed all of their respective obligations thereunder to the extent accrued
as of the date hereof, and none of the parties to the Architect's Contract has
asserted any claim of default thereunder.
5.2 PROJECT PLANS
The two (2) copies of the Project Plans delivered to the Lessor and the
Lessee by the Developer (a) are true and correct and satisfactory to the
Developer and (b) have been filed with and approved by all appropriate
Governmental Authorities. All necessary Permits relating to the Project Plans to
be issued or granted by any applicable Governmental Authority having or claiming
jurisdiction over the Leased Property have been obtained and all such Permits
are in full force and effect, are not subject to any unexpired appeal periods or
any appeals or challenges which have not been fully resolved in favor of the
Leased Property, the Project or Developer, as the case may be, and do not
contain any conditions or terms relating to the Leased Property which have not
been fully satisfied or which will not be fully satisfied by the completion of
the construction of the Project (in accordance with the Project Plans and the
terms and provisions of this Agreement). Furthermore, the Project Plans have
been approved in writing by the Lessor and the Lessee, any construction
heretofore performed on the Project has been performed in accordance with the
Project Plans and all future construction on the Project shall be performed in
accordance with the Project Plans and the terms and conditions of this
Agreement. There are no structural defects in the Project of which the Developer
has been advised or of which the Developer has notice or knowledge. The
Developer has not received any notice claiming that, and the Developer has no
knowledge
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that, the Project Plans violate any Legal Requirement.
5.3 PRIOR CONSTRUCTION WORK
No Person has commenced or performed any construction work or furnished any
services in connection with any construction carried on or to be carried on at
the Leased Property meaning, without limitation, that no lumber, brick, pipe,
tile or other building material has been delivered to the Leased Property, there
has been no grading or excavating of the Leased Property, no lines or grade
stakes have been laid out, and no existing structure has been demolished, and no
Person will commence or perform any such construction work or services or
furnish such materials on the Leased Property until after this Agreement, the
Facility Lease and the other Lease Documents have been executed by all parties
thereto and a memorandum or notice of the Facility Lease has been filed of
record in the office of the Clerk/Prothonotary in the county in which the Leased
Property is situated.
5.4 SUITABILITY OF PROJECT PLANS
The Project Plans provide (a) for the construction and renovation of all
buildings and related improvements necessary, both legally and practically, for
the proper and efficient construction of the Project in accordance with the
terms of this Agreement and (b) after the completion of the construction of the
Project, for the operation of the Project for its Primary Intended Use.
5.5 COMPLIANCE WITH LEGAL REQUIREMENTS AND APPLICABLE AGREEMENTS
Upon the completion of construction of the Project, which shall be
constructed in accordance with the Project Plans and the terms and provisions of
this Agreement, the Project shall be in compliance with (a) all Legal
Requirements; (b) all Permits and Contracts and (c) all applicable by-laws,
codes, rules, regulations and restrictions of the Board of Fire Underwriters or
other insurance underwriters or similar bodies.
5.6 PERMITS AND CONTRACTS
All Permits and Contracts required by or entered into with any Governmental
Authority or quasi-governmental authority or agency for, or in connection with,
the construction of the Project that can be obtained in the ordinary course as
of the date hereof have been obtained or executed, as the case may be. All such
Permits and Contracts are in full force and effect, are not subject to any
unexpired appeal periods or any appeals or challenges which have not been
conclusively resolved in favor of any member of the Leasing Group, and do not
contain any conditions or terms which have not been fully satisfied or which
will not be fully satisfied by the completion of the construction of the Project
(if constructed in accordance with the Project Plans and the terms and
provisions of this Agreement). There is no action pending, or, to the best
knowledge and belief of the Developer, recommended by the applicable
Governmental
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Authority having jurisdiction thereof, either to revoke, repeal, cancel, modify,
withdraw or suspend any such Permit or Contract relating to the construction of
the Project, or any other action of any other type which would have a material
adverse effect on the Project. All other Permits and Contracts required for the
completion of the construction of the Project and the commencement of the
operation of the Facility are described on EXHIBIT F and the Developer knows of
no impediment to the future issuance or execution of such Permits and Contracts
and has no reason to believe that such Permits and Contracts will not be
obtained as and when needed.
5.7 FIRST ADVANCE
As of the date of the first advance of Project Funds to the Developer
pursuant to this Agreement, the amount of the money expended by the Developer on
account of the construction of the Project in accordance with the Project Plans
and the items listed on Project Budget will not be less than the amount of such
first advance.
5.8 PRIOR SERVICES
Prior to the date of this Agreement, the Developer has performed the
following services in connection with the Project:
(a) completing a market analysis to confirm bed need;
(b) finding a suitable site and obtaining rights thereto;
(c) obtaining the Project Plans;
(d) retaining and supervising engineers, architects, land planners,
surveyors, consultants, independent contractors, subcontractors,
attorneys, service agents, suppliers and other providers of materials
or services;
(e) pursuing with the appropriate Governmental Authorities obtaining any
necessary Permits to allow the use and development of the Project in a
manner reflected in the Project Plans and as required hereunder;
(f) negotiating and/or entering into contracts for labor, materials and
services;
(g) coordinating with all applicable Governmental Authorities and securing
all necessary Permits to allow the use of the Project in accordance
with its Primary Intended Use;
(h) negotiating for the provision of utilities to serve the Leased
Property and the Project;
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(i) creating and filing and, where required, arranging for the execution
of any easements, plats, maps, plans, declarations of covenants and
restrictions, right-of-way deeds and other similar instruments
necessary to the development of the Project.
6. COVENANTS
6.1 COLLECTION AND ENFORCEMENT COSTS
Upon demand, the Developer and the Lessee shall reimburse the Lessor for
all costs and expenses, including, without limitation, attorneys' fees and
expenses and court costs, paid or reasonably incurred by the Lessor in
connection with the collection of any sum due hereunder, or in connection with
the enforcement of (a) any of the Lessor's rights under this Agreement and/or
any of the other Development Documents and/or (b) the obligations of the
Developer and/or any other member of the Leasing Group under this Agreement or
any of the other Development Documents. Any amount due and payable to the Lessor
pursuant to the provisions of this Section shall be a demand obligation and, to
the extent permitted by law, shall be added to the Development Obligations and
the Lease Obligations and shall be secured by the Liens created by the
Development Documents and the Lease Documents as fully and effectively and with
the same priority as every other obligation of the Developer and/or the Lessee,
as the case may be, secured thereby and, if not paid within ten (10) days after
demand, shall thereafter, to the extent permitted by applicable law, bear
interest at the Overdue Rate until the date of payment. The obligations of the
Developer and the Lessee to pay all costs, charges and sums due hereunder shall
continue in full force and effect and in no way shall be impaired, until the
actual payment thereof to the Lessor. In the event of (a) a sale, conveyance,
transfer or other disposition of the Leased Property, (b) any further agreement
given to secure the payment of the obligations set forth herein or (c) any
agreement or stipulation extending the time or modifying the terms of payment
set forth herein; the Developer and the Lessee shall nevertheless remain
obligated to pay their respective indebtedness evidenced by this Agreement, as
extended or modified by any such agreement or stipulation, unless the Developer
and/or the Lessee, as the case may be, are released and discharged from such
obligation by a written agreement executed by the Lessor. Notwithstanding the
foregoing, and without limiting any other provision set forth in this Agreement,
at the Lessor's option, all amounts due and payable hereunder may be advanced by
Lessor (even if the aggregate amount of such sums expended and all amounts
previously advanced hereunder exceed the amount of the Project Funds which the
Lessor has agreed to advance hereunder) and the Lessee agrees to pay to the
Lessor Rent under the Facility Lease, calculated, in part, thereunder based upon
all sums advanced hereunder.
6.2 AGREEMENTS TO PERFORM CERTAIN OBLIGATIONS.
(a) The Developer agrees faithfully to perform, pay and observe all
agreements,
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covenants, indebtedness, obligations and liabilities of the Developer to the
Lessor, whether such agreements, covenants, indebtedness, obligations and
liabilities are direct or indirect, absolute or contingent, due or to become
due, existing or hereafter arising, including, without limitation, all of the
Developer's obligations under all of the Development Documents. The payment of
all obligations and the performance of all covenants of and agreements by the
Developer under the Development Documents shall be absolute and unconditional,
irrespective of any defense or any rights or set-off, recoupment or counterclaim
the Developer might otherwise have against the Lessor, and the Developer shall
pay absolutely net during the Term all payments to be made as prescribed in all
of the Development Documents, free of any deductions and without abatement,
diminution or set-off.
(b) The Lessee agrees faithfully to perform, pay and observe all
agreements, covenants, indebtedness, obligations and liabilities of the Lessee
to the Lessor, whether such agreements, covenants, indebtedness, obligations and
liabilities are direct or indirect, absolute or contingent, due or to become
due, existing or hereafter arising, including, without limitation, all of the
Lessee's obligations under all of the Lease Documents. The payment of all
obligations and the performance of all covenants of and agreements by the Lessee
under the Lease Documents shall be absolute and unconditional, irrespective of
any defense or any rights or set-off, recoupment or counterclaim the Lessee
might otherwise have against the Lessor, and the Lessee shall pay absolutely net
during the Term all payments to be made as prescribed in the all of the Lease
Documents, free of any deductions and without abatement, diminution or set-off.
6.3 CONTINUING EFFECT OF REPRESENTATION AND WARRANTIES
All representations and warranties contained in this Agreement shall
constitute continuing representations and warranties which shall remain true,
correct and complete throughout the Term and shall survive the expiration of the
Term.
6.4 CONSTRUCTION COVENANTS
6.4.1 COMMENCEMENT OF CONSTRUCTION.
The Developer shall commence construction of the Project immediately
upon the execution and delivery of this Agreement. The Developer shall
diligently and continuously cause the Project to be constructed and
completed and made ready for occupancy and use in accordance with the
Project Plans all in a manner satisfactory to the Lessor on or before the
Completion Date. Notwithstanding anything to the contrary contained herein,
the Developer shall be and shall remain unconditionally liable to the
Lessor for (a) the complete construction of the Project in accordance with
the Project Plans on or before the Completion Date and whether or not
proceeds of the Project Funds remaining to be disbursed hereunder, if any,
are sufficient to cover all costs of construction and (b) the complete
performance of all other obligations, covenants,
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agreements and liabilities of the Developer hereunder.
6.4.2 QUALITY OF MATERIALS AND WORKMANSHIP.
The materials used in the Project shall be of the quality called for
by the Project Plans, and the workmanship shall be in conformity with the
Construction Contract and this Agreement, and both the quality of such
materials and such workmanship shall be satisfactory to the Lessor. The
Developer shall not make any changes in, and shall not permit the General
Contractor or the Architect to make any changes in, the quality of such
materials, the Project Plans or the Project Budget, whether by change order
or otherwise, without the prior written consent of the Lessor, in each
instance (which consent may be withheld in the Lessor's sole and absolute
discretion); provided, however, that such consent shall not be required for
any individual change (necessitated by job conditions) which has been
approved by the Architect, which does not materially affect the structure
or exterior of the Project, and the cost of which does not exceed
TWENTY-FIVE THOUSAND DOLLARS ($25,000) or which changes, in the aggregate,
do not exceed TWO HUNDRED THOUSAND DOLLARS ($200,000) in cost.
Notwithstanding the foregoing, prior to making any change in the Project
Plans, copies of all change orders shall be submitted by the Developer to
the Lessor and the Lessee, and the Developer shall also deliver to the
Lessor and the Lessee evidence satisfactory to the Lessor, in its
reasonable discretion, that all necessary Permits and/or Contracts required
by any Governmental Authority in connection therewith have been obtained or
entered into, as the case may be. The Lessee acknowledges and agrees that
the Developer may make any changes in, and may permit the General
Contractor and the Architect to make any changes in, the quality of the
materials for the Project, the Project Plans or the Project Budget without
the Lessee's consent provided that (a) the Lessor's consent to any such
change is not required hereunder or (b) the Developer has obtained the
Lessor's consent to any such change.
6.4.3 PROJECT BUDGET.
Upon the request of the Lessor, the Developer shall furnish the Lessor
and the Lessee with revisions for the Project Budget to reflect (a) any
changes approved by the Lessor to the Project Budget, (b) the total cost of
the construction of the Project completed through any specific date and (c)
the remaining cost to complete the construction of the Project in
accordance with the Project Plans and the terms and provisions of this
Agreement. The Lessee acknowledges that any such revisions to the Project
Budget that are provided to it pursuant to the terms hereof shall be
furnished to the Lessee for informational purposes only.
6.4.4 ARCHITECT CERTIFICATES.
The Developer agrees to cause the Architect to furnish to the Lessor
and the
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Lessee such statements as to progress and certificates of completion as the
Lessor may reasonably require from time to time during such period as this
Agreement may be in effect, all without expense to the Lessor or the
Lessee. The Lessee acknowledges that any such statements and certificates
that are provided to it pursuant to the terms hereof shall be furnished to
the Lessee for informational purposes only. The Developer agrees to cause
the Architect to make the Project Plans available to the Lessor without
expense to the Lessor, and to agree that, in the event that the Lessor
shall take over the Project by reason of an occurrence of an Event of
Default, the Lessor shall be entitled to use said Project Plans without any
additional compensation to the Architect above what is required (and was
not previously paid) under the Architect's Contract.
6.4.5 SUBCONTRACTORS.
Within sixty (60) days after the date of the execution of this
Agreement, the Developer agrees to provide the Lessor with a list of the
major subcontractors working on the Project, including an identification by
trade and the amount of each subcontract. The Lessor reserves the right of
reasonable approval of all subcontractors (collectively, the "Major
Subcontractors") under any subcontract the aggregate amount due under which
is equal to or greater than ONE HUNDRED THOUSAND DOLLARS ($100,000). The
Lessee acknowledges that the Lessee shall have no rights of approval with
respect to any subcontractor. The Developer further agrees that the
Developer shall not permit any Major Subcontractors working on the Project
to change without the Lessor's prior written consent, in each instance,
which consent shall not be unreasonably withheld.
6.4.6 THE LESSOR'S CONSULTANT.
The Developer agrees to pay, from the Project Funds to be advanced
hereunder, the costs and expenses reasonably incurred by the Lessor to
retain the Consultants to perform various services to the Lessor in
connection with the construction of the Project and the advances of Project
Funds contemplated hereunder (or, to pay the Lessor to perform the services
that would otherwise be performed by the Consultants), including, without
limitation, the following:
A. to review and analyze the Project Plans and advise the Lessor
whether the same are satisfactory for the intended purposes
thereof;
B. to make periodic inspections of the Leased Property for the
purpose of assuring that construction performed in connection
with the Project prior to the date of such inspection has been
completed in accordance with the Project Plans and this
Agreement;
C. to review the Developer's then current requisition to determine
whether
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it is consistent with the obligations of the Developer under this
Agreement, and to advise the Lessor of the anticipated costs of,
and the time for, the completion of the Project in accordance
with the Project Plans, and the adequacy of reserves and
contingencies related thereto;
D. to review and analyze any proposed changes to the Project Plans
and advise the Lessor regarding the same;
E. to review and analyze the Project Budget and advise the Lessor as
to the sufficiency thereof; and
F. to review and analyze the Architect's Contract, Construction
Contract and all subcontracts entered into by the Developer or
the General Contractor in connection with the construction of the
Project and advise the Lessor regarding the same.
Except as otherwise expressly provided herein, the Developer agrees
promptly to make such changes or corrections, or to cause the General Contractor
to make such changes or corrections, in the construction of the Project as may
be required by the Lessor, based on the recommendation of any of the
Consultants, unless the Developer demonstrates to the Lessor's satisfaction that
such corrective work is inconsistent with the Project Plans.
6.4.7 TITLE TO MATERIALS AND SECURITY INTEREST GRANTED TO LESSOR.
Except as otherwise expressly provided herein, the Developer shall not
suffer or permit the use in connection with any construction relating to the
Project of any materials, fixtures or equipment intended to become part of the
Project which are purchased upon lease or conditional xxxx of sale or to which
the Developer does not have absolute and unencumbered title. The Developer
covenants to cause to be paid punctually all sums becoming due for labor,
materials, fixtures or equipment used or purchased in connection with any such
construction and, in recognition of the fact that it is intended that the
Project Funds be used to pay for the cost of the construction of the Project on
behalf of the Lessor, the Developer agrees that title to all materials, fixtures
and equipment that are incorporated into the Improvements shall automatically
pass to the Lessor upon such incorporation without the need for the execution or
delivery of any further instrument of conveyance.
Notwithstanding the foregoing, in order to more fully secure the Lessor
with reference to all advances of Project Funds made hereunder, the Developer
hereby conveys to the Lessor a security interest in all of the Developer's
right, title and interest in materials on the Leased Property which are not at
any relevant time incorporated into the Project and materials, wherever located,
intended for incorporation into the
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Project. The Developer agrees:
A. that the Lessor shall have all the rights, with reference to such
security, as a secured party is entitled to hold with reference
to any security interest under the UCC;
B. that such security interest shall cover cash and non-cash
proceeds of such materials;
C. that such materials will not be held for sale to others or
disposed of by the Developer without the prior written consent of
the Lessor and, if at any time located on the Leased Property
shall be suitably stored, secured and insured and furthermore,
shall not be removed from the Leased Property; and
D. that such security interest shall be prior to the rights of any
other Person.
The undertakings of the Developer in this Section shall also be applicable
to any personal property owned by the Developer and used (or to be used) in
connection with the Project, whether or not the purchase thereof was financed by
advances of Project Funds made by the Lessor.
The Developer agrees to execute such instruments as the Lessor may from
time to time request to perfect the security interest of the Lessor in any and
all rights under this Agreement and the other Development Documents, and any and
all property of the Developer which, under applicable provisions of this
Agreement and/or any of the other Developer Documents, may or shall stand as
security for advances of Project Funds under this Agreement and for the complete
payment and performance of the Development Obligations.
6.4.8 COMPLIANCE WITH LEGAL REQUIREMENTS AND APPLICABLE AGREEMENTS.
The Developer, the Lessee, the Project Plans and the Leased Property and
all uses thereof (including, without limitation, the construction of the
Project) shall comply with (a) all Legal Requirements, (b) all Permits and
Contracts, (c) all applicable by-laws, codes, rules, regulations and
restrictions of the Board of Fire Underwriters or other insurance underwriters
or similar body, (d) the Development Documents and (e) the Lease Documents.
6.4.9 LIENS.
The Leased Property shall at all times be free from any attachment,
encumbrance, lis pendens, mechanic's or materialmen's lien or notice arising
from the
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furnishing of materials or labor and, with the exception of the Permitted
Encumbrances, all other Liens of any kind, except to the extent that any such
Liens are being duly contested in accordance with the terms of the Facility
Lease or the terms hereof. The Developer shall not permit the recording of any
notice of contract or mechanic's or materialmen's lien relating to construction
of the Project. Notwithstanding the foregoing provisions of this Section 6.4.09,
the existence of an attachment or lis pendens for a period not in excess of
thirty (30) days shall not be deemed to be a default hereunder provided that (a)
there shall be no cessation of construction of the Project, (b) an Event of
Default has not occurred and (c) the Developer shall proceed promptly to cause
such attachment or lis pendens to be removed, but the Lessor shall not be
obliged to make any further advance under this Agreement while such attachment
or lis pendens remains outstanding, unless a bond, satisfactory to the Lessor,
has been posted as security for such attachment or lis pendens.
6.4.10 BOOKS AND RECORDS.
The Developer shall cause to be kept and maintained, and shall permit the
Lessor and its representatives to inspect at all reasonable times, accurate
books of accounts in which complete entries will be made in accordance with GAAP
reflecting all financial transactions of the Developer (showing, without
limitation, all materials ordered and received and all disbursements, accounts
payable and accounts receivable in connection with the construction of the
Project of the Leased Property). Such books and records must accurately reflect
that all funds advanced hereunder for construction of the Project have been used
solely for the payment of obligations and expenses properly incurred in
connection with said construction in accordance with the terms of the Project
Budget.
6.4.11 INSPECTION OF CONSTRUCTION.
The Lessor and its representatives including, without limitation, the
Consultants, shall, at all times as long as this Agreement remains in effect,
have the right to enter the Leased Property, upon reasonable notice to the
Developer and at reasonable times (except in the event of an emergency) for the
purpose of inspecting the Project and the progress of the work and materials
thereon, and if any such inspection reveals that the Developer is not in
compliance herewith (in its sole and absolute discretion), then the Lessor shall
not be obligated to make any further advances under this Agreement to the
Developer.
6.4.12 NOTICE OF DELAY.
The Developer shall give to the Lessor and the Lessee prompt written notice
of any fire, explosion, accident, flood, storm, earthquake or other casualty or
strike, lock
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out, act of God or interruption of the construction of the Project which is
reasonably anticipated to interfere with the ability of the Developer to
complete the Project by the Completion Date.
6.4.13 BONDS.
Within thirty (30) days after the execution of this Agreement, performance,
payment and xxxx xxxxx, in form and substance and guaranteed by sureties
satisfactory to the Lessor (in its sole and absolute discretion), shall be
obtained by the Developer in connection with the Construction Contract in an
amount at least equivalent to the contract sum due under the Construction
Contract, naming the Lessor as a dual obligee and shall be furnished to the
Lessor.
6.4.14 USE OF PROJECT FUNDS.
The Developer shall utilize all advances by the Lessor pursuant to the
terms of this Agreement only for those items for which requisitions are
permitted under this Agreement or for reimbursement of expenditures already made
for items for which requisitions are so permitted. The Developer agrees to hold
all advances by the Lessor hereunder as a trust fund for the purpose of payment
of the costs and expenses permitted under this Agreement.
6.4.15 OCCUPANCY OF THE PROJECT.
The Developer and the Lessee shall not permit any occupancy of the Project
(other than such occupancy as is required in connection with the construction
thereto) prior to (a) the substantial completion of that portion of the Project
being occupied and (b) the issuance by the appropriate Governmental Authorities
of a Certificate of Occupancy (or its equivalent) permitting the occupancy of
the Project for its Primary Intended Use. The Project shall not be deemed to
have been completed unless and until constructed in accordance with this
Agreement and a Certificate of Occupancy (or its equivalent) permitting the
occupancy of the Project for its Primary Intended Use has been issued by the
applicable Governmental Authorities.
6.5 CONSTRUCTION CONTRACT.
The Construction Contract is binding upon the parties thereto in accordance
with the terms thereof and shall remain in full force and effect. All of the
parties to the Construction Contract shall faithfully perform all of their
obligations thereunder.
7. ADVANCES OF PROJECT FUNDS
7.1 CONDITIONS PRECEDENT TO FIRST ADVANCE OF PROJECT FUNDS
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Prior to the first advance of Project Funds contemplated by this Agreement,
and as a condition of the Developer's right to receive any of the proceeds of
the Project Funds, the following items shall have been furnished to the Lessor
at the Developer's sole cost and expense (which may be paid from the initial
advance of the Project Funds as long as such costs are included in the Project
Budget):
A. An owner's title insurance policy in form and substance satisfactory
to the Lessor, in its sole and absolute discretion, issued by a title
insurance company or companies satisfactory to the Lessor (the "Title
Company") with such endorsements, reinsurance and/or co-insurance as
the Lessor may require, insuring the Lessor's fee title to the Leased
Property free from all Liens and without exception for (i) filed or
unfiled mechanics' liens, (ii) survey matters, (iii) rights of parties
in possession, (iv) environmental liens and (v) any other matters of
any kind or nature whatsoever other than the Permitted Encumbrances
(the "Title Policy");
B. Such evidence as the Lessor may require that the use contemplated for
the Project, and all of the improvements and construction contemplated
by the Project Plans, comply with all applicable Legal Requirements,
to the extent in force and applicable;
C. Insurance policies and/or Certificates of Insurance required pursuant
to the terms and provisions of the Facility Lease and this Agreement;
D. Such evidence as the Lessor may require to determine that the total
cost of completion of the Project in all respects, including all
related direct and indirect costs as previously approved by the
Lessor, will not exceed the total amount set forth in the Project
Budget;
E. Such evidence as the Lessor may require that the Developer's
representations and warranties contained herein and in all of the
other Development Documents are true and correct in every material
respect and such evidence as the Lessor may require that the Lessee's
representations and warranties set forth in the Lease Documents are
true and correct in every material respect;
F. Such evidence as the Lessor may require as to the satisfaction of such
of the terms and conditions of this Agreement and of the other
Development Documents as may by their nature be satisfied prior to the
making of such advance;
G. Such evidence as the Lessor may require that all outstanding
Impositions pertaining to the Leased Property have been paid in full;
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H. A current instrument survey, satisfactory in form and content to the
Lessor, prepared in accordance with the requirements set forth in
EXHIBIT G (the "Survey") and a certificate substantially in the form
of EXHIBIT H (the "Surveyor's Certificate"), prepared and signed by a
surveyor licensed to do business in the state where the Leased
Property is located with his or her seal affixed thereto;
I. True and correct copies of the executed Architect's Contract, all
major subcontracts in effect with respect to the Project and the
executed Construction Contract, as well as all receipted bills paid by
the Developer to the General Contractor and the Architect for goods
and/or services rendered with respect to the Project prior to the date
hereof;
J. True and correct copies of (i) the Project Budget and (ii) the Project
Plans, each of which shall be in form and content satisfactory to the
Lessor (in its sole and absolute discretion);
K. Certificates from engineers and an architect, registered as such in
the state where the Leased Property is located, substantially in the
forms attached hereto as EXHIBIT I, certifying as to the (i)
compliance of the Leased Property with all applicable Legal
Requirements, (ii) the availability and adequacy of access/egress to
and from the Leased Property and (iii) the availability and adequacy
of sewer, drainage, water, electric and other utility services to the
lot line of the Leased Property; together with such other assurances
concerning the design of the Project as the Lessor may require;
L. Opinions, in forms satisfactory to the Lessor (in its sole and
absolute discretion), addressed to the Lessor and the Lessee from the
Developer's counsel, the Lessee's counsel and the Guarantor's counsel,
regarding (i) the due execution, authority and enforceability of the
Development Documents and the Lease Documents; (ii) the valid issuance
of all Permits required for the construction of the Project, the
continuing effectiveness of said Permits and the Developer's and
Project's compliance therewith and (iii) such other matters as the
Lessor may reasonably request (collectively, the "Opinions");
M. Payment of the Leasehold Improvement Fee (subject, however, to the
provisions of Section 3.1 hereof);
N. True and correct copies of all Permits and Contracts relating to the
construction and operation of the Project (including, without
limitation, an unconditional building permit or a building permit that
is subject only to such conditions as will be fully satisfied by the
completion of the construction of the Project in
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accordance with the Project Plans and this Agreement);
O. Such evidence as the Lessor may require that there has been no
material adverse change in the financial condition and strength of the
Lessee, the Guarantor and the Developer, and that the Leased Property
shall have sustained no impairment, reduction, loss or damage which
has not been fully restored and repaired, and that no Condemnation
proceedings or other governmental action is or shall be pending
against or with respect thereto;
P. Such evidence as the Lessor may require that the General Contractor
and the Architect maintain adequate insurance, as determined in the
Lessor's reasonable discretion;
Q. A fully-executed and authorized Architect's Assignment, in form and
substance satisfactory to the Lessor; and
R. A fully-executed and authorized Construction Assignment, in form and
substance satisfactory to the Lessor.
7.2 THE LESSOR'S RIGHT TO ADVANCE THE PROJECT FUNDS
Without at any time waiving any of the Lessor's rights hereunder, the
Lessor shall have the right to make the first advance of a portion of the
Project Funds hereunder without the satisfaction of each and every condition
precedent to the Lessor's obligation to make such advance, and the Developer
agrees to accept such advance as the Lessor may elect to make. The making of any
advance hereunder shall not constitute an approval or acceptance by the Lessor
of any work on the Project theretofore completed.
7.3 SUBMISSION OF REQUESTS FOR ADVANCES OF THE PROJECT FUNDS.
Advances under this Agreement shall be made not more than once each month
and at least ten (10) Business Days before the date upon which an advance is
requested, the Developer shall give notice to the Lessor, specifying the total
advance which will be desired, accompanied by:
A. Itemized requisitions for advances or, at the Developer's option, for
reimbursements to the Developer for prepaid items, signed by the
Developer, the Architect and the General Contractor on A.I.A. Forms
G702, G702A or G703 or such other form(s) as the Lessor may reasonably
require (together with copies of invoices or receipted bills relating
to items covered by such requisitions when so requested by the
Lessor). All such requisitions shall include an indemnification of the
Lessor by the Developer and the General Contractor, jointly and
severally, to the extent such indemnification is available from the
General Contractor upon the Developer's best efforts to obtain such
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indemnification, against any and all claims of any subcontractors,
laborers and suppliers;
B. A certificate executed by the Developer substantially in the form
attached hereto as EXHIBIT J;
C. A certificate executed by the General Contractor substantially in the
form attached hereto as EXHIBIT K;
D. A certificate executed by the Architect substantially in the form
attached hereto as EXHIBIT L;
E. At the Lessor's request, certificates executed by the Consultants in
such form as the Lessor may reasonably require;
F. An endorsement of the Title Policy issued by the Title Company,
satisfactory in form and substance to the Lessor, redating the Title
Policy to the date that the then current advance will be made,
increasing the coverage afforded by the Title Policy so that the same
shall constitute insurance in an amount at least equal to the sum of
the amount of the insurance then existing under the Title Policy plus
the amount of the then current advance of Project Funds to be
disbursed under this Agreement and subject to no additional exceptions
other than the Permitted Encumbrances;
G. If and when reasonably requested by the Lessor, satisfactory assurance
that the construction of the Project has been performed in accordance
with the requirements of the Construction Contract, the Project Plans,
this Agreement and all of the other Lease Documents and has been
inspected and found satisfactory by the parties hereto;
H. If and when reasonably requested by the Lessor, an updated Surveyor's
Certificate substantially in the form attached hereto as EXHIBIT H
and/or updated Engineer's/Architect's Certificates substantially in
the forms attached hereto as EXHIBIT I;
I. If and when reasonably requested by the Lessor, updated Opinions from
the Developer's counsel and the Guarantor's counsel (in form and
substance satisfactory to the Lessor in its sole and absolute
discretion);
J. If and when requested by the Lessor, satisfactory evidence that the
Project Funds remaining unadvanced under this Agreement are sufficient
for the payment of all related direct and indirect costs for the
completion of the Project in accordance with the terms and provisions
hereof. If the evidence furnished
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shall not be reasonably satisfactory to the Lessor, in its sole and
absolute discretion, it shall be a condition to the making of any
further advance hereunder that the Developer will provide the Lessor
with such financial guaranties (whether in the form of a bond, cash
deposit, letter of credit or otherwise) as are acceptable to the
Lessor, in its sole and absolute discretion, to assure the completion
of the construction of the Project in accordance with the Project
Plans and the terms and conditions of this Agreement. In the event
that the Lessor requires a cash deposit from the Developer, the
Developer shall deposit with the Lessor such funds, to be held in an
interest bearing account with the interest accruing thereon to the
benefit of the Developer, which, together with such unadvanced Project
Funds, shall be sufficient to pay all of the aforesaid costs. All
funds so deposited with the Lessor, along with the proceeds thereof,
shall be disbursed prior to any further advance hereunder;
K. A certification of work completed by any Major Subcontractor working
on the Project, together with a statement of the payment due therefor;
L. Partial lien waivers from the General Contractor, all other
contractors and all subcontractors and suppliers for all work
theretofore performed;
M. If and when reasonably requested, the Developer shall deliver to the
Lessor an updated Survey of the Leased Property, acceptable to the
Lessor (in its reasonable discretion); and
N. Such evidence as the Lessor may require that there has been no
material adverse change in the financial condition and strength of the
Lessee, the Developer and the Guarantor, and that the Leased Property
shall have sustained no impairment, reduction, loss or damage which
has not been fully restored and repaired and that no condemnation is
or shall be pending against or with respect thereto.
The Developer hereby designates Xxxxx Xxxxxx with authority to approve
requisitions and to execute certificates to be delivered pursuant to Section
7.3B on behalf of the Developer.
7.4 ADVANCES BY WIRE TRANSFER
All advances hereunder shall be made by wire transfer of funds into a bank
account maintained by either the Developer or an authorized agent of the
Developer.
7.5 CONDITIONS PRECEDENT TO ALL ADVANCES
A. Advances hereunder shall be made solely for the payment of the costs
and expenses incurred by the Developer directly in connection with the
construction of the Project, consistent with the Project Budget, which
are required to be paid out-of-pocket to all other Persons and no
advances of Project Funds
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may be used to refund any part of expenditures from the Developer's
own resources on the Project, except to the extent that any Project
Funds are used to reimburse the Developer for out-of-pocket expenses
incurred by it in accordance with the terms of the Project Budget. No
funds advanced by the Lessor shall be utilized for any purpose other
than as specified herein and none of the Project Funds shall be paid
over to any officer, partner, stockholder or employee of any member of
the Leasing Group or to any of the Persons collectively constituting
any member of the Leasing Group or those holding a beneficial interest
in any member of the Leasing Group, or any employee thereof, except to
the extent that Project Funds are used to pay compensation to an
employee for and with respect to activity of such employee in
construction of the Project.
B. The amount of each requisition shall represent (i) the cost of the
work completed on the Project as of the date of such requisition which
has not been covered by prior requisitions, (ii) the cost of all
equipment, fixtures and furnishings included within the Project
Budget, but not incorporated into any contract approved by the Lessor,
which have been delivered to the Leased Property for incorporation
into the Project and have not been covered by prior requisitions;
provided, that, in the Lessor's judgment, such materials are suitably
stored, secured and insured and that the Developer can furnish the
Lessor with evidence satisfactory to the Lessor of the Developer's
unencumbered title thereto and (iii) approved soft costs, which have
not been covered by prior requisitions.
C. All requisitions shall be subject to a ten percent (10%) retainage for
the completion of the Project. It is understood that such retainage is
intended to provide a contingency fund to assure that the construction
of the Project shall be fully completed in accordance with the Project
Plans and the terms and provisions of this Agreement. All amounts so
withheld shall be disbursed after (i) construction of the Project has
been fully completed in accordance with the Project Plans and the
terms and provisions of this Agreement, (ii) all of the items set
forth in Section 7.6 hereof have been delivered to the Lessor and
(iii) the expiration of the period during which liens may be perfected
with respect to any work performed or labor or materials supplied in
connection with the construction of the Project or the receipt of such
evidence as may be required to assure the Lessor that no claim may
thereafter arise with respect to any work performed or labor or
materials supplied in connection with the construction of the Project.
D. At the time of each advance, no event which constitutes, or which,
with notice or lapse of time, or both, could constitute, an Event of
Default or a Lease Default shall have occurred and be continuing.
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E. Without at any time waiving any of the Lessor's rights under this
Agreement, the Lessor shall always have the right to make an advance
hereunder without satisfaction of each and every condition upon the
Lessor's obligation to make an advance under this Agreement, and (i)
the Developer and the Lessee, as the case may be, agree to accept any
advance which the Lessor may elect to make under this Agreement and
(ii) the Lessee agrees to be liable for the payment of Rent regarding
all such sums as the Lessor may elect to advance under this Agreement.
Notwithstanding the foregoing, the Lessor shall have the right,
notwithstanding a waiver relative to the first advance or any
subsequent advance hereunder, to refuse to make any and all subsequent
advances under this Agreement until each and every condition set forth
in this Section has been satisfied. The making of any advance
hereunder shall not constitute an approval or acceptance by the Lessor
of any work on the Project theretofore completed.
F. If, while this Agreement is in effect, a claim is made that the
Project does not comply with any Legal Requirement or an action is
instituted before any Governmental Authority with jurisdiction over
the Leased Property or the Developer in which a claim is made as to
whether the Project does so comply, the Lessor shall have the right to
defer any advance of Project Funds which the Lessor would otherwise be
obligated to make until such time as any such claim
is finally disposed of favorably to the position of the Developer (or any other
member of the Leasing Group), without any obligation on the part of the Lessor
to make a determination of, or judgment on, the merits of any such claim. For
the purposes of the foregoing sentence, the term "claim" shall mean an assertion
by any Governmental Authority or Person as to which, in each case, the Lessor
has made a good faith determination that the assertion may properly be made by
the party asserting the same, that the assertion, on its face, is not without
foundation and that the interests of the Lessor require that the assertion be
treated as presenting a bona fide risk of liability or adverse effect on the
Project.
If any such proceeding is not favorably resolved within thirty (30)
days after the commencement thereof, the Lessor shall also have the
right, at its option, to treat the commencement of such action as an
Event of Default, for which the Lessor shall have all rights herein
specified for an Event of Default. As aforesaid, the Lessor shall have
no obligation to make a determination with reference to the merits of
any such claim. No waiver of the foregoing right shall be implied from
any forbearance by the Lessor in making such election or any
continuation by the Lessor in making advances under this Agreement.
In all events, the Developer agrees to notify the Lessor and the
Lessee forthwith upon learning of the assertion of any such claim or
the commencement of any such proceedings.
G. It is contemplated, except with respect to the Leasehold Improvement
Fee and
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advances made under Sections 6.1, 6.4.06, 8 and/or 11 hereof, that all
advances of the Project Funds will be made by the Lessor to the
Developer pursuant to this Agreement.
7.6 COMPLETION OF THE PROJECT
Upon the completion of the construction of the Project in accordance with
the Project Plans and the terms and provisions of this Agreement, the Developer
shall provide the Lessor with (A) true, correct and complete copies of (i) a
final unconditional Certificate of Occupancy (or its equivalent) issued by the
appropriate Governmental Authorities, permitting the occupancy and use of the
Project for its Primary Intended Use and (ii) all Permits issued by the
appropriate Governmental Authorities which are necessary in order to operate the
Project as a personal care home with seventy (70) licensed beds (located in
forty-four (44) units), (B) a certification from the Architect or the
Consultants stating that the Project was completed in accordance with the
Project Plans, (C) an updated Survey of the Leased Property, acceptable to the
Lessor (in its sole and absolute discretion), (D) updated Opinions and (E) such
other items relating to the operation and/or construction of the Project as may
be reasonably requested by the Lessor.
7.7 CONDITION OF THE PROJECT
The Developer and the Lessee each acknowledge and agree that: (a) no
inspections or any approvals of the Project during or after construction shall
constitute a warranty or representation by the Lessor or any of the Consultants
as to the technical sufficiency, adequacy or safety of any structure or any of
its component parts, including, without limitation, any fixtures, equipment or
furnishings, or as to the subsoil conditions or any other physical condition or
feature pertaining to the Leased Property and (b) all acts, including any
failure to act, relating to the Leased Property by any agent, representative or
designee of the Lessor (including, without limitation, the Consultants) are
performed solely for the benefit of the Lessor to assure the payment and
performance of the Development Obligations and are not for the benefit of the
Lessee or the benefit of any other Person.
WITHOUT LIMITING THE FOREGOING, THE LESSOR MAKES NO WARRANTY OR
REPRESENTATION TO THE LESSEE OR THE DEVELOPER, EXPRESS OR IMPLIED, WITH RESPECT
TO THE LEASED PROPERTY OR THE PROJECT, EITHER AS TO ITS FITNESS FOR ANY
PARTICULAR PURPOSE OR USE, ITS DESIGN OR CONDITION OR OTHERWISE, OR AS TO
DEFECTS IN THE QUALITY OF THE MATERIAL OR WORKMANSHIP NOW OR HEREAFTER, LATENT
OR PATENT; IT BEING AGREED BY AND BETWEEN THE LESSOR AND THE LESSEE, THAT ALL
RISKS RELATING TO THE DESIGN, CONDITION AND/OR USE OF THE LEASED PROPERTY AND
THE PROJECT ARE, AS BETWEEN THE LESSOR AND THE LESSEE, TO BE BORNE BY LESSEE. IN
ADDITION, AS BETWEEN THE LESSOR AND THE LESSEE, THE LESSEE
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HEREBY ASSUMES ALL RISK OF THE PHYSICAL CONDITION OF THE LEASED PROPERTY AND THE
PROJECT, THE SUITABILITY OF THE LEASED PROPERTY AND THE PROJECT FOR LESSEE'S
PURPOSES, AND THE COMPLIANCE OR NON-COMPLIANCE OF THE LEASED PROPERTY AND THE
PROJECT WITH ALL APPLICABLE REQUIREMENTS OF LAW, INCLUDING BUT NOT LIMITED TO
ENVIRONMENTAL LAWS AND ZONING OR LAND USE LAWS.
Nothing set forth in this Section 7.7 shall, however, limit in any manner
whatsoever (i) any of the Developer's obligations hereunder or any of the other
Development Documents, including, without limitation, the Developer's
obligations to construct the Project in accordance with the terms hereof and
(ii) any claims that the Lessor and/or the Lessee may now or hereafter have
against the Developer hereunder or at law or in equity as a result of any acts
or omissions by the Developer.
8. THE LESSOR'S RIGHT TO MAKE PAYMENTS AND TAKE OTHER ACTION
The Developer and the Lessee acknowledge and agree that the Lessor may,
after ten (10) Business Days' prior notice to the Developer and Lessee of its
intention so to do (except in an emergency when such shorter notice shall be
given as is reasonable under the circumstances), pay any sums due or claimed to
be due for labor or materials furnished in connection with the ownership,
construction, development, maintenance, management, repair, use or operation of
the Leased Property, and any other sums which in the reasonable opinion of the
Lessor, or its attorneys, it is expedient to pay, and may take such other and
further action which in the reasonable opinion of the Lessor is necessary in
order to secure (A) the completion of the Project in accordance with the Project
Plans and the terms and conditions of this Agreement, (B) the protection and
priority of the security interests granted to the Lessor pursuant to the Lease
Documents and the Development Documents and (C) the performance of all
obligations under the Lease Documents and the Development Documents. The Lessor,
in its sole and absolute discretion, may charge any such payments against any
advance that may otherwise be due hereunder to the Developer or may otherwise
collect such amounts from the Developer, and the Lessee agrees to be liable for
the payment of Rent regarding all such amounts advanced hereunder,
notwithstanding that the aggregate amount that may be advanced hereunder may
exceed the aggregate amount the Lessor has agreed to advance hereunder as the
Project Funds. Any amount which is not so charged against advances due hereunder
and all costs and expenses reasonably incurred by the Lessor in connection
therewith (including, without limitation, attorneys' fees and expenses and court
costs) shall be a demand obligation of the Developer and, to the extent
permitted by applicable law, shall be added to the Development Obligations and
secured by the Liens created by the Development Documents, as fully and
effectively and with the same priority as every other obligation of the
Developer thereunder and, if not paid within ten (10) days after demand, shall
thereafter, to the extent permitted under applicable law, bear interest at the
Overdue Rate until the date of payment.
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If the Developer fails to observe or cause to be observed any of the
provisions of this Agreement and such failure continues beyond any applicable
notice or cure period provided for under this Agreement, the Lessor or a
lawfully appointed receiver of the Leased Property, at their respective options,
from time to time may perform, or cause to be performed, any and all repairs and
such other work as they deem necessary to bring the Leased Property into
compliance with the provisions of this Agreement and may enter upon the Leased
Property for any of the foregoing purposes, and the Lessee hereby waives any
claim against the Lessor or such receiver arising out of such entry or out of
any other act carried out pursuant to this Section. All amounts so expended or
incurred by the Lessor and by such receiver and all costs and expenses
reasonably incurred in connection therewith (including, without limitation,
attorneys' fees and expenses and court costs), shall be, at the option of the
Lessor, which may be exercised from time to time (i) a demand obligation of the
Developer to the Lessor or such receiver, and, to the extent permitted by law,
shall be added to the Development Obligations and shall be secured by the Liens
created by the Development Documents as fully and effectively and with the same
priority as every other obligation of the Lessee secured thereunder and, if not
paid within ten (10) days after demand, shall thereafter, to the extent
permitted by applicable law, bear interest at the Overdue Rate until the date of
payment or (ii) may be advanced hereunder (even if the aggregate amount of such
sums so advanced and all amounts previously advanced hereunder exceed the amount
of the Project Funds which the Lessor has agreed to advance hereunder) and the
Lessee agrees to pay to the Lessor Rent under the Facility Lease, calculated, in
part, thereunder based upon all sums advanced hereunder.
9. INSURANCE; CASUALTY; TAKING
9.1 GENERAL INSURANCE REQUIREMENTS
The Lessee, at its sole cost and expense, shall keep the Leased Property
and the business operations conducted thereon insured as required under the
Facility Lease.
9.2 FIRE OR OTHER CASUALTY OR CONDEMNATION
In the event of any damage or destruction to the Leased Property by reason
of fire or other hazard or casualty (a "Casualty") or a taking by power of
eminent domain or conveyance in lieu thereof of all or any portion of the Leased
Property (a "Condemnation"), the Developer shall give immediate written notice
thereof to the Lessor and the Lessee and the Lessee and the Developer shall
comply with the provisions of the Facility Lease governing Casualties and
Condemnations, mutatis, mutandis. Notwithstanding the foregoing, in no event
shall the Completion Date be extended as a result of any Casualty or
Condemnation.
10. EVENTS OF DEFAULT
Each of the following shall constitute an "Event of Default" hereunder and
shall entitle the Lessor to exercise its remedies hereunder and under any of the
other Development Documents and/or Lease Documents:
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A. any failure of the Developer to pay any amount due hereunder or under
any of the other Development Documents or any failure of the Lessee to
pay any amount due under any of the Lease Documents within ten (10)
days following the date when such payment was due;
B. any failure in the observance or performance of any other covenant,
term, condition or warranty provided in this Agreement, any of the
other Development Documents or any of the Lease Documents, other than
the payment of any monetary obligation and other than as specified in
subsections (C) through (G) below (referred to herein as a "Failure to
Perform"), continuing for thirty (30) days after the giving of notice
by the Lessor to the Developer and/or the Lessee, as the case may be,
specifying the nature of the Failure to Perform; except as to matters
not susceptible to cure within thirty (30) days, provided that with
respect to such matters, (i) the Developer and/or the Lessee, as the
case may be, commences the cure thereof within thirty (30) days after
the giving of such notice by the Lessor to the Developer and/or the
Lessee, as the case may be, (ii) the Developer and/or the Lessee, as
the case may be, continuously prosecutes such cure to completion,
(iii) such cure is completed within ninety (90) days after the giving
of such notice by the Lessor to the Developer and/or the Lessee, as
the case may be, and (IV) such Failure to Perform does not impair the
Lessor's rights with respect to the Leased Property or otherwise
impair any of the Collateral or the Lessor's security interest
therein;
C. the occurrence of any default or breach of condition continuing beyond
the expiration of the applicable notice and grace periods, if any,
under any of the Development Documents or any of the Lease Documents;
D. if any representation, warranty or statement contained herein proves
to be untrue in any material respect as of the date when made or at
any time during the Term if such representation or warranty, other
than those contained in Sections 5.2, 5.5 and in the third sentence of
Section 5.6, is a continuing representation or warranty pursuant to
Section 6.3;
E. without limiting any of the terms of the other Development Documents
or the Lease Documents, if any representation, warranty or statement
contained in Section 5.2, 5.5 or in the third sentence of Section 5.6
proves to be untrue in any material respect at any time during the
Term after the date when made, beyond the notice and grace periods set
forth in Section 10(B);
F. except as a result of any Casualty or a partial or complete
Condemnation, if a suspension of any work in connection with the
construction of the Project occurs
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for a period in excess of ten (10) Business Days, irrespective of the
cause thereof, provided that the Developer shall not be deemed to be
in default under this Subsection if such suspension is for
circumstances not reasonably within its control, but only if the
Lessor, in its sole and absolute discretion, shall determine that such
suspension shall not create any risk that the construction of the
Project will not be completed (in accordance with the Project Plans
and the terms and conditions of this Agreement) on or before the
Completion Date; and
G. if construction of the Project shall not be completed in accordance
with the Project Plans and this Agreement (including, without
limitation, satisfaction of the conditions set forth in Section 7.6)
on or before the Completion Date.
11. REMEDIES IN EVENT OF DEFAULT
Upon the occurrence of an Event of Default, at the option of the Lessor,
which may be exercised at any time after an Event of Default shall have
occurred, the Lessor shall have all rights and remedies available to it, at law
or in equity, including, without limitation, all of the rights and remedies
under the Development Documents and the Lease Documents. Subject to the
requirements of applicable law, all materials at that time on or near the Leased
Property which are the property of the Developer and which are to be used in
connection with the completion of the Project shall be subject to the Liens
created by the Development Documents.
In addition to, and without limitation of, the foregoing, the Lessor is
authorized, at the Lessor's option, which may be exercised from time to time,
(a) to offset all amounts expended hereunder by the Lessor to complete the
construction of the Project and/or exercise any of its other remedies hereunder
against any portion of the Development Fee due hereunder and (b) to charge all
money expended for completion of the Project against sums hereunder which have
not already been advanced (even if the aggregate amount of such sums expended
and all amounts previously advanced hereunder exceed the amount of the Project
Funds which the Lessor has agreed to advance hereunder); and the Lessee agrees
to pay to the Lessor Rent under the Facility Lease, calculated, in part,
thereunder based upon all sums advanced hereunder (including, without
limitation, all sums expended in good faith by the Lessor in connection with the
completion of the Project), and, in addition thereto, the Lessee agrees to pay
to the Lessor (as Rent under the Facility Lease), for services in connection
with said completion of the Project, such additional sums as shall compensate
the Lessor for the time and effort the Lessor and its employees shall have
expended in connection therewith. The Lessor is authorized, but not obligated in
any event, to do all such things in connection with the construction of the
Project as the Lessor, in its sole and absolute discretion, may deem advisable,
including, without limitation, the right to make any payments with respect to
any obligation of the Developer to the Lessor or to any other Person in
connection with the completion of construction of the Project and to make
additions and changes in the Project Plans to employ contractors, subcontractors
and agents and to take any and all such action, either in the Lessor's own name
or in the name of the Developer, and the Developer hereby
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grants the Lessor an irrevocable power of attorney to act in its name in
connection with the foregoing. This power of attorney, being coupled with an
interest, shall be irrevocable until all of the Development Obligations are
fully paid and performed and shall not be affected by any disability or
incapacity which the Developer may suffer and shall survive the same. The power
of attorney conferred on the Lessor by the provisions of this Section 11 is
provided solely to protect the interests of the Lessor and shall not impose any
duty on the Lessor to exercise any such power and neither the Lessor nor such
attorney-in-fact shall be liable for any act, omission, error in judgment or
mistake of law, except as the same may result from its gross negligence or
wilful misconduct. Notwithstanding the foregoing, the Lessee and the Developer
acknowledge and agree that, in the event that the Lessor takes possession of the
Leased Property and assumes control of the Project as aforesaid, the Lessor
shall not be obligated to continue the construction of the Project for any
period of time longer than the Lessor shall see fit (in its sole and absolute
discretion), and the Lessor may thereafter, at any time, abandon its efforts and
refuse to make further payments for the account of the Project, whether or not
the Project has been completed.
In addition, at the Lessor's option and without demand, notice or protest,
the occurrence of any Event of Default shall also constitute a default under any
one or more of the Related Party Agreements.
12. GENERAL
The provisions set forth in Articles 22 and 23 and Sections 2.2, 16.8
through 16.10, 24.2 through 24.6, and 24.8 through 24.12 of the Facility Lease
are hereby incorporated herein by reference, mutatis, mutandis, and shall be
applicable to this Agreement as if set forth in full herein.
13. TERM
This Agreement shall remain in force and effect until such time as the
Project is constructed in accordance with the terms hereof and, without limiting
the foregoing, the obligations set forth under Section 7.6 have been satisfied.
The period from the date hereof until such time as the construction of the
Project shall have been completed as aforesaid shall be referred to herein as
the "Term."
[SIGNATURES BEGIN ON THE NEXT PAGE.]
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EXECUTED as a sealed instrument as of the day and year first above
mentioned.
WITNESS: LESSOR:
MEDITRUST ACQUISITION CORPORATION II,
a Delaware corporation
/s/ Signature Illegible By: /s/ Signature Illegible
---------------------------------- ----------------------------------
Name: Name:
DEVELOPER:
WITNESS: BCC DEVELOPMENT AND MANAGEMENT CO.,
a Delaware corporation
/s/ Signature Illegible By: /s/ Signature Illegible
---------------------------------- ----------------------------------
Name: Name:
WITNESS: LESSEE:
BLACK BOX OF LEWISBURG, INC.,
a Delaware corporation
/s/ Signature Illegible By: /s/ Signature Illegible
---------------------------------- ----------------------------------
Name: Name:
Title:
37
Schedule to Exhibit 10.47 filed pursuant to Instruction 2 to Item 601(a) of
Regulation S-K
Leasehold Improvement Agreement
Development Project Total Working Leasehold
Project Parties Date Land Cost Fee Budget Budget Capital Loan Imp Fee
------- ------- ---- --------- ----------- --------- ------ ------------ ---------
Chippewa, PA Meditrust Acquisition 1/7/98 300,000 350,000 4,613,345 5,130,810 517,464 51,308
Corporation II,
BCC Development
and Management Co.,
TC Realty of Chippewa,
Inc.
Berwick, PA Meditrust Acquisition 1/7/98 195,000 300,000 3,043,121 3,405,346 362,225 34,053
Corporation II,
BCC Development
and Management Co.,
TC Realty of Berwick, Inc.
Lewistown, Meditrust Acquisition 1/7/98 250,000 300,000 3,061,120 3,423,345 362,225 34,233
PA Corporation II,
BCC Development
and Management Co.,
TC Realty of Lewistown,
Inc.
Dillsburg, PA Meditrust Acquisition 12/31/97 340,000 350,000 4,412,975 4,930,439 517,564 49,305
Corporation II,
BCC Development
and Management Co.,
Black Box of Dillsburg,
Inc.
38
Development Project Total Working Leasehold
Project Parties Date Land Cost Fee Budget Budget Capital Loan Imp Fee
------- ------- ---- --------- ----------- --------- ------ ------------ ---------
Martinsburg, Meditrust Acquisition 12/31/97 348,638 350,000 4,830,692 5,348,156 517,464 53,482
WV Corporation II,
BCC Development
and Management Co.,
Black Box of Martinsburg,
Inc.
Peckville, PA Meditrust Acquisition 12/31/97 120,000 300,000 2,493,099 2,648,338 155,239 26,483
Corporation II,
BCC Development
and Management Co.,
Black Box of Peckville,
Inc.
