AMENDED AND RESTATED DEVELOPMENT AGREEMENT
------------------------------------------
This AMENDED AND RESTATED DEVELOPMENT AGREEMENT (this "Agreement"),
dated as of August 24, 1999, is made and entered into by and between AH Battery
Park Owner, LLC, an Ohio limited liability company ("Owner"), and Brookdale
Living Communities of New York-BPC, Inc., a Delaware corporation ("Developer").
RECITALS
--------
WHEREAS, Owner is the ground lessee of certain real property located at
000 Xxxxx Xxx Xxxxxx, Xxxxxxx Xxxx Xxxx, Xxx Xxxx (the "Project") pursuant to
that certain Ground Lease dated as of August 24, 1999 (the "Ground Lease") by
and between Owner, as lessee, and the Battery Park City Authority, as lessor
(the "Lessor");
WHEREAS, Owner desires to develop the Project for use as a senior
congregate and non-licensed assisted living facility;
WHEREAS, Developer is experienced and qualified in the business of
developing facilities such as the Project, and Owner desires to engage Developer
to perform development services in connection with the construction of the
Project;
WHEREAS, Developer has commenced development of the Project and has
entered into or plans to enter into several contracts related thereto,
including, without limitation, (i) a construction contract with a general
contractor, (ii) an architectural contract with an architect and (iii) other
contracts related thereto, and hereafter shall enter into additional contracts
and amendments, change orders, modifications or supplements of or to any of the
foregoing (collectively, the "Construction Contracts");
WHEREAS, Owner desires to retain Developer to, and Developer is willing
to, perform development services in connection with the development and
construction of the Project on the terms and subject to the conditions set forth
in this Agreement; and
WHEREAS, Owner and Developer have entered into that certain Development
Agreement dated as of September 28, 1998 (the "Prior Development Agreement") and
have agreed to terminate the Prior Development Agreement pursuant to Section 21
hereof, and have agreed to enter into this Agreement, in each case effective as
of the date hereof.
AGREEMENTS
----------
NOW, THEREFORE, in consideration of the recitals and the mutual
promises and covenants herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1
1. Responsibilities of Developer. Owner hereby engages Developer to
perform the services in connection with the development and
construction of the Project normally and customarily performed by a
developer of a commercial real estate project similar to the Project
and as further described herein, and Developer hereby accepts such
engagement and, subject to the conditions set forth in this Agreement,
agrees to provide such services, at Owner's expense. During the term of
this Agreement, subject to the terms and conditions of the Ground
Lease, Developer shall have full authority to develop and construct the
Project or cause the Project to be constructed as a senior congregate
and non-licensed assisted living facility, and shall have full and
complete control and reign over, and use of, the entire Project,
including its common areas. Without limiting the generality of the
foregoing, Developer shall, at Owner's expense, have full authority as
follows, subject in all cases to the terms of the Ground Lease:
a. Regulatory Compliance. Developer shall use reasonable
efforts to obtain and maintain all licenses, permits,
qualifications and approvals from any applicable
governmental or regulatory authority required for the
construction of the Project. In addition, Developer
shall supervise and coordinate the preparation and
filing of (and, where required to do so under
applicable law or regulations, file) all reports or
other information required by all state or other
governmental agencies having jurisdiction over the
Project and shall deliver copies of all such reports
and information to Owner simultaneously with such
filings. Developer shall cooperate with governmental
inspection and enforcement activities.
b. Equipment and Improvements. Developer shall, on behalf
of Owner, acquire or effect the acquisition of
equipment and improvements, which are needed to operate
the Project or its services.
c. Reports. Developer shall supervise and coordinate the
preparation of any construction information if and to
the extent needed to comply with any reporting
obligations imposed on the Owner by any Lender (as
hereinafter defined), mortgagees or lessors of the
Project except for those reporting obligations which
relate to matters which are within the exclusive
control of the Owner or its affiliates. Developer shall
prepare or cause to be prepared, at Owner's expense,
the tax returns of Owner (but not Owner's partners or
affiliates) for Owner's signature. All originals of the
books, forms and records generated by Developer in
connection with the construction of the Project shall
be Developer's property.
d. Contracts. Developer shall have the right and
authority, at the Owner's expense, to enter into,
perform, and modify its obligations and duties under
the Construction Contracts and any and all construction
contracts, architectural contracts, engineering
contracts and all other contracts and agreements now or
hereafter in force relating to the development and
construction of the Project and to deal with, and
enforce the obligations of, all parties thereto.
e. Legal Proceedings. Developer shall have the right and
authority, on its own behalf or through legal counsel
designated by Developer, to direct all legal matters
and proceedings that are within the scope of
Developer's authority
2
pursuant to this Agreement. Without limiting the
generality of the foregoing, Developer is authorized
(without the prior written consent of Owner) to (i)
settle, in the name and on behalf of Owner and on such
terms and conditions as Developer may deem to be in the
best interests of the Project, any and all claims or
demands arising out of, or in connection with, the
operation of the Project, whether or not legal action
has been instituted and (ii) enter into such agreements
with any governmental agencies having jurisdiction over
the Project deemed necessary or desirable by Developer
in its sole and absolute judgment. All such amounts
paid in respect of any such settlements and agreements
shall be expenses of the Project and be paid by Owner
in addition to the Fees (as hereinafter defined).
Developer will give notice promptly to Owner of all
demands and claims and all settlements and legal
actions, but the failure to give such notice shall not
affect the preceding provisions of this paragraph.
f. Loan Documents. Developer shall, on its own behalf
and/or on Owner's behalf, be permitted to deal with the
providers of financing for the Project including,
without limitation, (A) the senior mortgage loans (the
"Mortgage Loan") made by Key Corporate Capital, Inc.,
Fleet National Bank and European American Bank
(collectively, "Senior Lender") secured by Owner's
interest in the Project and (B) any other equity or
mezzanine loans made to Owner or its member either as
of the date hereof or after the date of this
Agreement(the "Equity Loan") made by a lender
acceptable to Owner and Developer ("Equity Lender").
Senior Lender and Equity Lender shall be referred to
individually as a "Lender," and the loan documents
evidencing and/or securing the Mortgage Loan and the
Equity Loan are referred to collectively herein as the
"Loan Documents." The Loan Documents which evidence
and/or secure the Mortgage Loan are referred to
collectively herein as the "Mortgage Loan Documents."
Developer shall be responsible for complying with the
terms of the Loan Documents, at Owner's sole cost and
expense, with the exception of those provisions (i)
which are within the exclusive control of Owner and its
affiliates, e.g. filing of income tax returns and
certificates and notices relating to Owner's (and its
affiliates') organizational documents, etc., and (ii)
which relate to the repayment of the debt evidenced and
secured by the Loan Documents except to the extent that
Developer is administering the Mortgage Loan and Equity
Loan pursuant hereto and pursuant to that certain
Management Agreement (the "Management Agreement") of
even date herewith by and between Owner and Developer,
as manager. Owner (and its affiliates) shall not amend
or waive any provision of any of the Loan Documents
without the prior written consent of Developer.
3
g. Ground Lease. Developer shall have the right and
authority, at the Owner's expense, to enter into,
perform, and modify its obligations and duties under
the Ground Lease. Owner shall not amend or waive any
provision of any of the Loan Documents without the
prior written consent of Developer, which may be
withheld in Developer's sole discretion. Developer
shall be responsible for performing, at Owner's
expense, all of Owner's obligations under the Ground
Lease, including without limitation, the construction
and development obligations specifically set forth in
the Ground Lease, including the Substantial Completion
of Buildings and the Civic Facilities on or prior to
the Scheduled Completion Date (as such terms are
defined in the Ground Lease) and all provisions
relating to regulatory compliance, e.g., obtaining
licenses and permits.
h. Other Matters. Developer shall, on its own behalf or,
if necessary, on Owner's behalf, be permitted to enter
into such other agreements, contracts, easements and to
perform such other acts as are necessary or desirable,
in Developer's sole and absolute discretion, for the
completion and operation of the Project.
2. Responsibilities of Owner. Owner shall not interfere with Developer in
connection with the development and construction of the Project in
accordance with the terms of this Agreement. Owner acknowledges and
agrees that the development and construction of the Project is within
the exclusive control of Developer, and Owner hereby grants Developer
sole and exclusive possession and control over the Project.
3. Exclusive Representative/Attorney-in-Fact. It is understood and agreed
that, during the term of this Agreement, Developer shall be the
exclusive representative of Owner for the purposes described in this
Agreement, including, without limitation, all acts, functions and
activities which would normally and customarily be performed by a
developer of real estate in connection with the construction of a major
commercial project. Any communications with Lessor, any Lender,
regulatory authorities, governmental agencies, contractors, materialmen
suppliers, employees of the Project shall be directed through
Developer. Any and all notices received by Owner relating to the
Project, the Ground Lease, the Loan Documents, the Owner or the direct
or indirect owners of interests in Owner shall immediately be forwarded
by Owner to Developer. During the term of this Agreement, Owner hereby
appoints Developer as its attorney-in-fact throughout the term of the
Agreement to take any action and execute any instruments or agreements
that Owner is obligated under, or that Owner has covenanted and agreed
hereunder, under the Ground Lease, or under the Loan Documents to take
or execute, or which Developer determines is necessary or appropriate
for Developer to perform its duties or satisfy its obligations
hereunder or to develop the Project as contemplated hereby, which
appointment as attorney-in-fact is irrevocable and coupled with an
interest.
4. Insurance. Developer shall arrange for and maintain all necessary and
proper hazard insurance covering the Project, including the furniture,
fixtures and equipment situated thereon, and as otherwise required
pursuant to the Mortgage Loan Documents and the Ground Lease, all
necessary and proper public liability insurance for the protection of
Developer, Owner and, to the extent required under the Ground Lease and
the Loan Documents, the Lessor or any Lender, respectively. Developer
shall also arrange for and maintain all employee health and
4
worker's compensation insurance for the Project's personnel. Developer
shall maintain such other insurance as required pursuant to the
Mortgage Loan Documents and the Ground Lease. Any insurance provided
pursuant to this paragraph shall be an expense of the Project payable
by Owner.
5. Proprietary Interest. The systems, methods, procedures and controls
employed by Developer and any written materials or brochures developed
by Developer to document the same are to remain the property of
Developer and are not, at any time during or after the term of this
Agreement, to be utilized, distributed, copied or otherwise employed or
acquired by Owner, except as authorized by Developer.
6. Term of Agreement. Unless this Agreement is sooner terminated as
hereinafter expressly provided in Section 7 or as otherwise agreed in
writing by both parties, the term of this Agreement shall commence on
the date hereof and shall end upon Substantial Completion of the
Buildings and the Civic Facilities (as such terms are defined in the
Ground Lease), except with respect to the Owner's obligation to pay the
Fees and all other costs and expenses which are due and payable to
Developer under this Agreement, including without limitation the costs
and expenses described in Section 10 below, which shall survive until
the discharge in full of such obligations.
7. Events of Default and Remedies.
a. Event of Default. At the option of the non-defaulting
party, each of the following shall constitute an "Event
of Default" hereunder:
i. if Owner shall fail to pay or allow payment of
any installment of the Fees due to Developer in
accordance with Section 10 hereof or any other
amounts due to Developer under this Agreement
for a period of five (5) days after written
notice of such failure from Developer to Owner;
ii. if Owner fails to perform in any material
respect any term, provision, or covenant of
this Agreement (other than as set forth in
Section 7(a)(i)) and (A) such failure continues
for ten (10) days after written notice from
Developer to Owner specifying such failure to
perform (unless such failure cannot be cured by
the payment of money and cannot reasonably be
cured within such 10-day period, in which
event, Owner shall have an additional period,
not to exceed an additional thirty (30) days,
in which to cure the default) or (B) Owner
fails to endeavor diligently and continuously
to cure such default as promptly as is
practicable;
iii. if Developer fails to perform in any material
respect any term, provision, or covenant of
this Agreement and (A) subject to Section 8
below, such failure continues for thirty (30)
days after written notice from Owner specifying
such failure to perform (unless such failure
cannot reasonably be cured within such 30-day
period, in which event, Developer shall have an
additional period as
5
is necessary to cure the default) or (B)
Developer fails to endeavor diligently and
continuously to cure such default as promptly
as is practicable;
iv. if either Owner, on the one hand, or Developer,
on the other, is dissolved or liquidated,
applies for or consents to the appointment of a
receiver, trustee or liquidator of all or a
substantial part of its assets, files a
voluntary petition in bankruptcy or is the
subject of an involuntary bankruptcy filing,
makes a general assignment for the benefit of
creditors, or files a petition or an answer
seeking reorganization or arrangement with
creditors or to take advantage of any
insolvency law, or if an order, judgment or
decree shall be entered by any court of
competent jurisdiction, on the application of a
creditor, adjudicating Owner or Developer
bankrupt or insolvent or approving a petition
seeking reorganization of Owner or Developer or
appointing a receiver, trustee or liquidator
for such party of all or a substantial part of
its assets, and such order, judgment or decree
shall continue unstayed and in effect for any
period of sixty (60) consecutive days; or
v. if Owner or any affiliate of Owner is in breach
or default of any of its obligations under that
certain Equity Option Agreement of even date
herewith with Developer or under that certain
Property Option Agreement of even date herewith
with Developer.
b. Remedies. At any time after the occurrence and during
the continuance of any Event of Default caused by
Owner, Developer may, at its option, do one or more of
the following: (i) terminate this Agreement by giving
written notice to Owner and/or (ii) exercise all rights
and remedies available at law or in equity. At any time
after the occurrence and during the continuance of an
Event of Default caused by Developer, Owner may, as its
sole option, terminate this Agreement in accordance
with the terms hereof and Developer shall have no other
liability to Owner hereunder.
8. Force Majeure. The parties will not be deemed to be in violation or
breach of their respective non-monetary obligations under this
Agreement if they are prevented from performing any of their respective
obligations hereunder for any reason beyond their control, including,
without limitation, strikes, shortages, war, acts of God, or any
applicable statute, regulation or rule of federal, state or local
government or agency thereof having jurisdiction over the Project or
the operations thereof.
9. Withdrawal of Funds by Developer.
a. Owner and Developer acknowledge and agree that the
efficient operation of the Project requires that
Developer have ready access to the funds required
therefor, including without limitation, the proceeds of
the Mortgage Loan and Equity Loan (collectively, the
"Loan Proceeds") plus the capital contribution from
Owner's members (the "Capital Contribution").
Accordingly, during the term of this Agreement, Owner
(i) irrevocably grants Developer the authority on
Owner's behalf to make draw requests for the Loan
Proceeds in accordance with the Mortgage Loan
6
Documents, (ii) irrevocably authorizes each Lender to
disburse its Loan Proceeds directly to Developer in
accordance with such draw requests and the Loan
Documents, (including those provisions relating to
compliance with the Lien Law of the State of New York)
(iii) shall not be entitled to any portion of the Loan
Proceeds under the Loan Documents, and (iv) irrevocably
grants Developer the authority to establish and
maintain bank account(s) on Owner's behalf to deposit
and withdraw (without Owner's consent or approval) the
Loan Proceeds subject to compliance with the Loan
Documents and the Lien Law of the State of New York and
all funds necessary for the development, construction
and use of the Project. Concurrently with the execution
of this Agreement, Owner shall remit to Developer an
amount equal to the Capital Contribution to be used as
an advance payment on a portion of Developer's expected
construction costs.
b. Owner hereby assumes and agrees to pay with the
available Loan Proceeds and the Capital Contribution
(to the extent not previously disbursed to Developer)
as and when due (i) all costs, expenses and obligations
incurred by Developer through and including the date of
this Agreement in connection with the development and
construction of the Project which have not been paid as
of the date of this Agreement, which costs, expenses
and obligations include, but are not necessarily
limited to retainage held back from the general
contractor of the Project and accrued development fees
payable by Developer to its parent corporation,
Brookdale Living Communities, Inc. ("Brookdale"), and
(ii) all costs, expenses and obligations incurred by
Developer in connection with the development and
construction of the Project.
c. Owner acknowledges and agrees that the Loan Proceeds
and the Capital Contribution shall be used by
Developer, at its sole and absolute discretion but
subject to compliance with the Loan Documents and the
Lien Law of the State of New York, to pay all costs and
expenses incurred or to be incurred in connection with
the development and construction of the Project,
including, without limitation, to reimburse Developer,
Brookdale and their affiliates for any and all costs
and/or expenses paid or incurred by Developer,
Brookdale or their affiliates in connection with the
Ground Lease, any of the Loan Documents or the Project,
including, without limitation, ground rent, real estate
taxes, hard costs, soft costs, commitment fees, due
diligence deposits, draw fees, servicing fees and
extension fees or any other fees or expenses incurred
in connection with any of the Loan Documents or the
Ground Lease.
10. Fees. During the term of this Agreement, in addition to all other sums
owed by Owner to Developer under this Agreement, Developer shall be
entitled to receive development fees equal to the aggregate of Five
Million Dollars ($5,000,000) (collectively, the "Fees"), which shall be
payable by Owner as follows:
a. reimbursement to Developer of all corporate overhead
and administration costs, capitalized interest costs
and all other costs incurred by Developer (or its
affiliates) in connection with performing the services
under this Agreement up to an aggregate
7
amount of One Million Five Hundred and NO/100 Dollars
($1,500,000.00), which shall be due and payable by
Owner to Developer from time to time within ten (10)
days following invoice by Developer to Owner; Developer
acknowledges receipt of $1,500,411.42 on account of the
Fees owed pursuant to this Section 10(a);
b. an additional amount equal to One Million Five Hundred
Thousand and NO/100 Dollars ($1,500,000.00) less the
aggregate amount of all sums paid and/or owed under
Section 10(a) above, which amount shall be deemed
earned proportionately on the same date(s) that
Developer submits its invoice(s) to Owner under Section
10(a) above, but shall be due and payable by Owner to
Developer in the following manner: i) $750,000.00
during the second month following completion of the
Project and, ii) $750,000.00 during the sixth month
following completion of the Project; and
c. an additional amount equal to Two Million Dollars
($2,000,000.00), which amount shall be deemed earned in
an equal amount and on the same date(s) as the sums
described to Section 10(a) and (b), but shall be due
and payable by Owner to Developer upon the repayment of
the Mortgage Loan.
In addition to the Fees, Owner agrees that Developer shall be entitled
to any "cost savings" realized by Developer. For the purposes of this
Agreement, "cost savings" shall mean any sums remaining in the
construction budget (the "Budget") referenced in the Mortgage Loan
Documents. Developer acknowledges that its right to receive any Fees or
other sums due and owing hereunder shall be subject and unconditionally
subordinate to (i) the payment by Owner to Ground Lessor of all Rental
(as defined in the Ground Lease) and (ii) the payment by Owner or its
sole member to any Lender of any sums due under any Loan Documents.
11. Assignment. This Agreement shall not be assigned (including by
operation of law, whether by merger or consolidation (excluding a
merger effected solely for the purpose of changing Owner's jurisdiction
of incorporation that does not affect the ownership interests of Owner
in any material respect) or otherwise) by Owner, on the one hand, or by
Developer, on the other, without the prior written consent of the other
party; provided, however, that to the extent permitted by applicable
law and regulations, and subject to the receipt of all required
licenses, permits, approvals and authorizations of applicable
governmental agencies, this Agreement may be assigned by Developer
(with Lessor's and Lender's consent) to one or more corporations or
other legal entities which control, or are controlled by or are under
common control with, directly or indirectly, Developer or Brookdale and
may be assigned by Owner pursuant to the Collateral Assignment of
Contracts, Permits, Licenses and Approvals to be made by Owner to the
Senior Lender.
8
12. Notices. Any notices required or permitted to be sent hereunder shall
be delivered personally or by facsimile (with answer back acknowledged)
or mailed, certified mail, return receipt requested, or delivered by
overnight courier service to the following addresses, or such other
addresses as shall be given by notice delivered hereunder, and shall be
deemed to have been given upon delivery, if delivered personally, upon
receipt with answer back acknowledged, if delivered by facsimile, three
(3) business days after mailing, if mailed, or one business day after
delivery to the courier, if delivery by overnight courier service:
If to Owner, to:
AH Battery Park Owner, LLC
000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxx
Facsimile: 000-000-0000
With a copy to:
Squire, Sanders, & Xxxxxxx, LLP
0000 Xxxxxxxxxx Xxxxxx, 00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxxx Xxxxxx, Jr.
Facsimile: 000-000-0000
If to Developer, to:
Brookdale Living Communities of New York-BPC, Inc.
c/o Brookdale Living Communities, Inc.
00 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Xx.
Facsimile: (000) 000-0000
With a copy to:
c/o Brookdale Living Communities, Inc.
00 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
13. Relationship of the Parties. The relationship of Developer to Owner in
connection with this Agreement shall be that of an independent
contractor, and all acts performed by Developer
9
during the term hereof shall be deemed to be performed in Developer's
capacity as an independent contractor. Nothing contained in this
Agreement is intended to or shall be construed to give rise to or
create a partnership or joint venture or lease between Owner, its
successors and assigns, on the one hand, and Developer, its successors
and assigns, on the other hand.
14. Entire Agreement. This Agreement and any documents executed in
connection herewith contain the entire agreement among the parties with
respect to the subject matter hereof and, subject to the restrictions
contained in Section 11 above, shall be binding upon their respective
successors and assigns, and shall be construed in accordance with the
laws of the state where the Project is located. This Agreement may not
be modified or amended except by written instrument signed by the
parties hereto.
15. Contract Modifications for Certain Legal Events. In the event any state
or federal laws or regulations, whether now existing or enacted or
promulgated after the effective date of this Agreement, are interpreted
by judicial decision, a regulatory agency or legal counsel of both
parties in such a manner as to indicate that the structure of this
Agreement may be in violation of such laws or regulations, Owner and
Developer agree to cooperate in restructuring their relationship and
this Agreement to eliminate such violation or to reduce the risk
thereof to the extent such restructuring can be accomplished upon
commercially reasonable terms; provided, that any such restructuring
shall, to the maximum extent possible, preserve the underlying economic
and financial arrangements between Owner and Developer. The parties
agree that such amendment may require either or both parties to obtain
appropriate regulatory licenses and approvals.
16. Captions. The captions used herein are for convenience of reference
only and shall not be construed in any manner to limit or modify any of
the terms hereof.
17. Severability. In the event one or more of the provisions contained in
this Agreement is deemed to be invalid, illegal or unenforceable in any
respect under applicable law, the validity, legality and enforceability
of the remaining provisions hereof shall not in any way be impaired
thereby.
18. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, and each such
counterpart shall together constitute but one and the same Agreement.
19. Limitation of Personal Liability. Notwithstanding any other provision
of this Agreement to the contrary, in no event shall any officer,
director, member, partner, manager, shareholder, incorporator or agent
of Owner or Developer (or their affiliates) be personally liable for
any of Owner's or Developer's, respectively, obligations under this
Agreement.
20. Confidentiality. Owner acknowledges that Developer may suffer
irreparable harm if the information provided to Owner pursuant to this
Agreement or this Agreement was disclosed to any third parties.
Accordingly, Owner shall keep this Agreement and all such information
confidential and shall not disclose any of such information not already
known to the public
10
to any party except Owner's lenders, attorneys, accountants and other
professional advisors in connection with the transactions contemplated
by this Agreement or as otherwise required by law or court order. Owner
shall endeavor to minimize the number of persons who have copies of
this Agreement and shall inform each of such persons of the
confidential nature thereof. The provisions of this Section 20 shall
not prohibit any affiliate of Owner from participating in other similar
transactions with parties other than Brookdale, Developer or their
affiliates.
21. Termination of Prior Development Agreement. Effective as of the date
hereof, the Prior Development Agreement is hereby superceded in its
entirety by this Agreement.
22. Telecopy. This Agreement and the signatures thereto may be transmitted
via telecopy.
23. Agreement not to Terminate. Notwithstanding any contrary provision
contained herein, prior to the Substantial Completion of the Buildings
(as defined in the Ground Lease), Owner and Developer shall not
terminate this Agreement or modify Developer's obligations under this
Agreement without Lessor's consent except as required by Lender under
the Loan Documents.
24. Third Party Beneficiaries. Lessor and Lender shall be deemed
third-party beneficiaries of this Agreement.
25. Subordination to Ground Lease and the Mortgage Loan Documents.
Notwithstanding anything contained herein to the contrary, this
Agreement shall not be binding upon Lessor if the Project reverts to
Lessor pursuant to the express provisions of the Ground Lease or the
Senior Lender in the event of a foreclosure or a conveyance by power of
sale or in lieu of foreclosure.
26. Agreement Not to File Liens. Developer agrees not to file any liens
against the Project for any unpaid Fees.
27. Agreement Not to Record. Developer and Owner agree not to record this
Agreement or a memorandum thereof.
28. Notice of Changes. Developer and Owner agree to provide Lessor written
notice of any changes to this Agreement required by any Lender.
11
1
29. Conflict with Ground Lease or Mortgage Loan Documents. In the event of
a conflict between the obligations of the Developer hereunder and the
obligations of the Owner under the Ground Lease or the Mortgage Loan
Documents relating to the completion of the Project (and specifically
excluding any payment obligations under the Ground Lease), the terms of
the Ground Lease or the Mortgage Loan Documents, as the case may be
shall control in all cases.
30. Requirements of Ground Lease. Initially capitalized terms not defined
below shall have the same meanings ascribed to them in the Ground
Lease.
(a) Developer shall not discriminate against employees or
applicants for employment because of race, creed, color,
religion, national origin, ancestry, sex, age, disability or
marital status, shall comply with all applicable Federal, State
and local laws, ordinances, rules and regulations from time to
time in effect and the provisions of the Master Lease
prohibiting such discrimination or pertaining to equal
employment opportunities and shall undertake programs of
affirmative action to ensure that employees and applicants for
employment are afforded equal employment opportunities without
discrimination. Such action shall be taken with reference to,
but not limited to, recruitment, employment, job assignment,
promotion, upgrading, demotion, transfer, layoff or termination,
rates of pay or other forms of compensation, and selection for
training or retraining, including apprenticeship and on-the-job
training.
(b) Developer shall request each employment agency, labor union
and authorized representative of workers with which it has a
collective bargaining or other agreement or understanding, to
furnish it with a written statement that such employment agency,
labor union or representative will not discriminate because of
race, creed, color, religion, national origin, ancestry, sex,
age, disability or marital status and that such agency, union or
representative will cooperate in the implementation of
Developer's obligations hereunder.
(c) Developer shall state in all solicitations or advertisements
for employees placed by or on behalf of contractor that all
qualified applicants shall be afforded equal employment
opportunities without discrimination because of race, creed,
color, religion, national origin, ancestry, sex, age, disability
or marital status.
(d) Developer shall comply with all of the provisions of the
Civil Rights Law of the State of New York and Sections 291-299
of the Executive Law of the State of New York, shall upon
reasonable notice furnish all information and reports deemed
reasonably necessary by Landlord and shall permit access to its
relevant books, records and accounts for the purpose of
monitoring compliance with the Civil Rights Law and such
sections of the Executive Law.
12
31. Further Ground Lease Requirements. Developer agrees hereby agrees that
immediately upon the purchase by Developer of any building materials to
be incorporated in the Buildings (as said term is defined in the Ground
Lease), or of any building materials to be incorporated in improvements
made thereto, such materials shall become the sole property of Ground
Lessor, notwithstanding that such materials have not been incorporated
in, or made a part of, such Buildings at the time of such purchase;
provided, however, Ground Lessor shall not be liable in any manner for
payment or otherwise to Developer in connection with the purchase of
any such materials and Ground Lessor shall have no obligation to pay
any compensation to Developer by reason of such materials becoming the
sole property of Ground Lessor.
32. Senior Lender's Right to Terminate. Notwithstanding anything to the
contrary contained herein, upon a default under any Mortgage Loan
Document and Senior Lender's acquisition and/or obtaining control of
the Project through foreclosure, sale or other means, this Agreement
shall terminate upon Lender's written request at no cost to Senior
Lender.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
13
IN WITNESS WHEREOF, the parties hereto have caused this Development
Agreement to be executed and delivered in their names and on their behalf as of
the date first set forth above.
OWNER:
AH Battery Park Owner, LLC
By: AH Battery Park Member, LLC,
its sole member
By: Alliance Holdings, Inc.,
its sole manager and member
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
DEVELOPER:
Brookdale Living Communities of
New York-BPC, Inc.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
STATE OF PENNSYLVANIA )
) SS.
COUNTY OF XXXXXXXXXX )
The foregoing instrument was acknowledged before me this 18th day of
August, 1999, by Xxxxx X. Xxxxxxx, the President of Alliance Holdings, Inc., as
member and manager of AH Battery Park Member, LLC, which is the sole member of
AH Battery Park Owner, LLC.
NOTARY SEAL
/s/ Xxxxxx Xxxxxxxx
------------------------------
NOTARY PUBLIC
Xxxxxxxxxx County, Pennsylvania
STATE OF ILLINOIS )
) SS.
COUNTY OF XXXX )
The foregoing instrument was acknowledged before me this 16th day of
August, 1999, by Xxxx X. Xxxxxxx, the President of Brookdale Living Communities
of New York-BPC, Inc., on behalf of said corporation.
NOTARY SEAL
/s/ Xxxxx Xxxx Xxxxx
------------------------------
NOTARY PUBLIC
Xxxx County, Illinois
