EXHIBIT 10.28
SUBLEASE AGREEMENT
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This Sublease Agreement (the "Sublease") is made as of December 27, 1996,
by and between BLC PROPERTY, INC., a Delaware corporation ("Sublandlord"), and
BROOKDALE LIVING COMMUNITIES OF ARIZONA, INC., a Delaware corporation
("Subtenant").
RECITALS:
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A. Sublandlord is the lessee of that certain premises (the "Premises")
commonly known as 0000 Xxxx Xxxxxxxx Xxxx, Xxxx Xxxx, Xxxxxxx, pursuant to that
certain Master Lease Agreement (hereinafter referred to as the "Prime Lease")
dated December 27, 1996, with Health and Retirement Properties Trust, a
Maryland real estate investment trust ("Landlord") which is attached hereto as
EXHIBIT A.
B. Sublandlord desires to sublease the Premises to Subtenant and Subtenant
desires to sublease the Premises from Sublandlord, for the term and upon the
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Demise. Sublandlord hereby subleases the Premises to Subtenant, and
Subtenant hereby accepts and subleases the Premises from Sublandlord, for the
term and upon the conditions set forth herein.
2. Term. The term of this Sublease shall commence on December 27, 1996,
and shall end on December 31, 2019, unless sooner terminated as hereinafter
provided.
3. Prime Lease Incorporated. This Sublease is subject and subordinate to
the terms of the Prime Lease, and all of the provisions of the Prime Lease are
explicitly incorporated herein by reference and made a part hereof. Provided
however, no consent, waiver, amendment, or other change by Landlord of
Sublandlord's obligations and liabilities as tenant under the Prime Lease shall
modify Subtenant's obligations and liabilities to Sublandlord hereunder unless
Subtenant and Sublandlord shall have agreed in writing that such consent,
waiver, amendment or change shall be effective hereunder. Unless the context
requires otherwise, (i) references in the Prime Lease to Landlord shall refer to
Sublandlord, and (ii) references in the Prime Lease to Lessee shall refer to
Subtenant. Subtenant expressly assumes toward Sublandlord and agrees to perform
all of the obligations, responsibilities and covenants as tenant under the Prime
Lease.
Notwithstanding the incorporation herein of the Prime Lease, Sublandlord
shall not have any responsibility or liability to Subtenant on account of any
act or omission of Landlord, any default by Landlord under or breach by Landlord
of any term, covenant or condition of the Prime Lease, or any failure by
Landlord to perform any of its obligations under the Prime Lease. Provided
however, Sublandlord covenants and agrees that in the event of a breach by
Landlord under the Prime Lease, either it shall take all necessary actions and
pursue all rights and remedies set forth in the Prime Lease (all to be at the
sole cost and expense of Subtenant), or it shall permit Subtenant in the name of
Sublandlord as tenant under the Prime Lease to pursue all rights and remedies
set forth in the Prime Lease. Additionally, except as expressly set forth
herein, any right and remedy available to Sublandlord as tenant under the Prime
Lease shall be available to Subtenant under this Sublease as to the extent
permitted under the Prime Lease.
4. Property Located in or about the Subleased Premises. All improvements,
fixtures, equipment and personal property in or about the Premises shall be in
or about the Premises at the sole risk of Subtenant, and Sublandlord shall have
no liability for loss or damage to such fixtures, equipment or property from any
cause whatsoever.
5. Surrender. At the termination of this Sublease, by lapse of time or
otherwise, Subtenant shall surrender possession of the Premises to Sublandlord
and deliver all keys to the Premises and all locks therein to Sublandlord and
make known to Sublandlord the combination of all combination locks in the
Premises and shall return the Premises and all equipment and fixtures to
Sublandlord in broom clean condition and in as good condition as Subtenant
originally took possession, normal wear and tear excepted, failing which
Sublandlord may restore the Premises and such equipment and fixtures to such
condition and the Subtenant shall pay the cost thereof to Sublandlord on demand.
6. Indemnification. Subtenant agrees, to the extent not expressly
prohibited by law, to pay, and to protect, indemnify and save harmless
Sublandlord, and its shareholders, directors, officers, employees and agents
from and against, any liabilities, damages, costs or expenses (including, but
not limited to, attorneys' fees and expenses, including all costs of litigation
through post-judgment and appellate proceedings, if any) of any nature
whatsoever which may be imposed upon, incurred by, or asserted against
Sublandlord by reason of (a) any accident, injury to, or death of any person or
any damage to property occurring on or about the Premises, or (b) any breach by
Subtenant of any term or condition of the Prime Lease or this Sublease or any
failure by Subtenant to perform or comply with any of the terms of the Prime
Lease, or of this Sublease, or of any restrictions, statutes, laws, ordinances
or regulations affecting the Premises or any part
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thereof.
7. Insurance. Subtenant shall include Sublandlord and its shareholders,
directors, officers, agents and employees, as additional named insureds under
all insurance policies required under the terms of the Prime Lease and under all
insurance policies which Subtenant may carry with respect to the Premises, any
property located thereon, or with respect to any claim or accident arising on or
about the Premises. Prior to the commencement of the term of this Sublease,
Subtenant shall deliver to Sublandlord certified copies of the policies of such
insurance and certificates showing such policies to be valid and in effect. Any
rights of settlement allocated to Sublandlord as tenant under the Prime Lease
shall be the rights of Sublandlord hereunder.
8. Defaults. It shall be an Event of Default hereunder if:
a. Subtenant shall fail to pay when due any payments required to be
made as described in the Prime Lease; or
b. Subtenant shall fail to keep or perform any one or more of the
other terms, conditions, covenants or agreements of this Sublease or of
the Prime Lease.
9. Sublandlord's Remedies. In the event of a breach or threatened breach
by Subtenant of any of the covenants, agreements, terms or conditions which are
contained herein or in the Prime Lease herein, Sublandlord, in addition to or,
at its option, in lieu of, any or all other remedies provided for herein or in
the Prime Lease, shall be entitled to enjoin such breach or threatened breach.
10. Tenant Improvements. The Premises are leased to Subtenant in their
strictly "as is" condition and Sublandlord shall have no duty or obligation to
construct any improvements or perform any work in or about the Premises.
11. Alterations. Subtenant shall make no alterations or improvements to
the Premises except in accordance with the requirements of the Prime Lease, and
except with the prior written consent of Sublandlord. Upon the request of
Landlord and/or Sublandlord upon the expiration of the term of this Sublease,
whether by lapse of time or otherwise, any such alterations shall be removed by
Subtenant, at the sole cost and expense of Subtenant, and the Premises shall be
restored, at the sole cost and expense of Subtenant, to its original condition
at the commencement of this Sublease (ordinary wear and tear excepted).
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12. Notices. All notices and demands hereunder shall be in writing and
shall be served in person, by prepaid certified United States Mail, return
receipt requested, or by nationally recognized overnight courier, as follows:
If to Sublandlord:
____________________________
____________________________
____________________________
With a copy to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx, Esq.
If to Subtenant:
____________________________
____________________________
____________________________
Such notices shall be deemed served when delivered, if served in person, or two
(2) business days after the date mailed, if mailed, or on the next business day
after delivery to a nationally recognized overnight courier service. Either
party may change the address for notices to it by a notice given as described
herein. All notices received by Sublandlord from Landlord shall promptly be
delivered to Subtenant.
13. Brokers. Subtenant represents that Subtenant has not dealt with any
broker, finder or like third party in connection with the sublease of the
Premises. Subtenant hereby agrees to indemnify, defend and hold Sublandlord,
its shareholders, directors, officers, employees and agents harmless from and
against any and all loss, cost, liability or obligations (including attorneys'
fees and all costs of litigation through and including post-judgment and
appellate proceedings, if any) related to any fees or commissions claimed by any
party to the extent such claims are based on the acts or agreements of
Subtenant.
14. Miscellaneous.
a. Sublandlord and its agents shall have the right of access to the
Premises at all reasonable times, and after delivering oral or written
notice to Subtenant, in order to inspect or exhibit the Premises.
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b. This Sublease contains the entire agreement between the parties
hereto, and shall not be modified in any manner except by a writing signed
by the party against which such modification is sought to be enforced.
c. The agreements, terms, covenants, and conditions herein shall bind
and inure to the benefit of Sublandlord and Subtenant and their respective
heirs, personal representatives, successors, and except as otherwise
provided herein, their assigns.
d. Each of the indemnifications contained in this Sublease shall
survive the expiration or earlier termination of this Sublease.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Sublease as of the day
and year first above written.
SUBLANDLORD:
BLC PROPERTY, INC., a Delaware
corporation
/s/ Xxxx X. Xxxxxxx
By:______________________________
Executive Vice President
Title:________________________
SUBTENANT:
BROOKDALE LIVING COMMUNITIES OF
ARIZONA, INC., a Delaware
corporation
/s/ Xxxx X. Xxxxxxx
By:______________________________
Executive Vice President
Title:________________________
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EXHIBIT A
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[See Master Lease Agreement filed as Exhibit 10.27]
