Common use of Certain Other Transfers Clause in Contracts

Certain Other Transfers. Notwithstanding anything to the contrary in this Article XXIV (including Section 24.1.10), but subject to the provisions of Section 24.1.8 above, and without limiting Lessee’s rights under the other provisions of this Article XXIV, any Transfer resulting from (a) (i) any sale, transfer, distribution or other disposition of all or a controlling interest in the outstanding capital stock, partnership, membership or other interests (whether equity or otherwise) of Brookdale (whether or not such Transfer results in Brookdale’s stock becoming privately owned) or a sale or transfer of all or substantially all of the assets of Brookdale, in each case directly or indirectly or through one or more step transactions or tiered transactions, or (ii) a merger, consolidation, stock exchange or other business combination to which Brookdale is a party, and (b) any Restructuring Transaction (including, without limitation, any transfer of Brookdale’s management and operations (and related assets) in accordance with the definition of Restructuring Transaction to any entity (which entity may or may not be, in Brookdale’s discretion, an Affiliate of Brookdale) that will enter into a management arrangement, sublease or similar agreement with Brookdale or its Affiliates (such entity, a “Restructured Manager”)) or Permitted Affiliate Transaction (in each case) implemented in connection with (and on or about the effective date of) a Transfer permitted under clause (a) of this Section 24.1.11 (any such transaction or series of related transactions described in clause (a) above and, if applicable, clause (b) above, a “Permitted Transaction”), and any agreement to enter into a Permitted Transaction, shall be permitted under this Article XXIV without Lessor’s consent, and the provisions of Section 24.1.2 shall not apply (i.e., there shall not be any Transfer Consideration payable), and (except as provided below in this Section 24.1.11) no additional guaranty shall be required, in connection with or related to such Permitted Transaction, in each case so long as each of the following conditions is met: 24.1.11.1 [Intentionally omitted]; 24.1.11.2 The purchaser or transferee or successor pursuant to clause (a) above, as the case may be, shall have sufficient experience with respect to a business of the nature and type of the business of Brookdale as the same exists prior to the effectiveness of such Transfer. Such purchaser, transferee or successor, as the case may be, shall be deemed to have “sufficient experience” if (A) the senior management team that will be managing the lessee under this Lease (or, if applicable, the Restructured Manager which manages and operates the Facilities) immediately following the effectiveness of such Transfer has an average of not less than three (3) years’ operating experience with respect to the operation and management of senior living or health care facilities, (B) such purchaser, transferee or successor (or, if applicable, the Restructured Manager which manages and operates the Facilities), as the case may be, shall immediately following the effectiveness of such Transfer, and for a period of not less than one (1) year thereafter, directly or indirectly retain and/or hire in a full-time management or consulting capacity a majority of the principal officers of Brookdale who were in the employment of Brookdale prior to the effectiveness of such Transfer, or (C) Brookdale shall Portions of this exhibit that have been marked by [***] have been omitted pursuant to a request for confidential treatment filed separately with the Securities and Exchange Commission. engage the Restructured Manager to manage and operate the Facilities and the Restructured Manager shall satisfy the conditions set forth in clause (A) or (B) above; 24.1.11.3 If any interest of Lessee under this Lease is being assigned, Lessee shall execute and deliver to Lessor a written (valid and enforceable) affirmation of its obligations under this Lease and the assignee (which shall be an Affiliate of Lessee) shall execute and deliver to Lessor a written (valid and enforceable) assumption of Lessee’s obligations under this Lease. In addition, each existing Guarantor shall execute and deliver to Lessor a written (valid and enforceable) affirmation of its obligations under the applicable Guaranty or, in the case of Brookdale (and if applicable), the entity surviving a merger, consolidation, stock exchange or other business combination with Brookdale pursuant to clause (a)(ii) above is a domestic entity and shall execute and deliver to Lessor a written (valid and enforceable) assumption of the obligations of Brookdale under the applicable Guaranty or a new Guaranty in the same form as the existing Guaranty, which new Guaranty shall be retroactive to the Effective Date and expressly cover all matters arising from and after the Effective Date. 24.1.11.4 No monetary Event of Default shall have occurred and be continuing hereunder; 24.1.11.5 Such Permitted Transaction shall not result in any violation, in any material respect, of any regulatory requirements. Without limiting the generality of the foregoing, the purchaser or transferee resulting from a Transfer pursuant to clause (a)(i) above or the other party(ies) to the Transfer pursuant to clause (a)(ii) above, as the case may be, and the Restructured Manager (if any), shall be in compliance with the requirements of the Orders, and none of them, nor any of their respective Affiliates, (a) is listed on the Specially Designated Nationals and Blocked Person List maintained by OFAC pursuant to the Order and/or on any other Lists, (b) is a Person (as defined in the Orders) who has been determined by competent authority to be subject to the prohibitions contained in the Orders; or (c) is directly or indirectly owned (to its knowledge, in the case of any indirect owner with less than a twenty-five (25%) indirect ownership interest) or controlled by (including without limitation by virtue of such Person being a director or owning voting shares or interests), or acts for or on behalf of, any person on the Lists or any other person who has been determined by competent authority to be subject to the prohibitions contained in the Orders; 24.1.11.6 In connection with such Permitted Transaction, (a) any Commercial Occupancy Arrangement (including any Master Sublease) and the engagement of any Person for the management or operation of all or any portion of the Leased Property shall comply with the provisions of Section 24.1.4, and the Occupant, manager or operator thereunder shall grant to Lessor (as additional security for Lessee’s obligations under this Lease and the obligations of the Occupant, manager or operator under such Commercial Occupancy Arrangement or engagement) a valid and enforceable security interest with respect to the personal property (whether tangible or intangible) of such Occupant, manager or operator consistent with (and subject to the same limitations and exclusions (if any) on and from such grant as) the security interest granted to Lessor pursuant to Section 16.8 by Lessee, and a copy of the Commercial Occupancy Agreement or agreement with the manager or operator (as applicable) and (if different) the instrument granting such security interest shall be delivered to Lessor along with the notice of the Permitted Transaction specified in 24.1.11.7 below, (b) any Portions of this exhibit that have been marked by [***] have been omitted pursuant to a request for confidential treatment filed separately with the Securities and Exchange Commission. Master Sublease shall contain provisions (running to the benefit of Lessor) substantially similar to those described in Sections 24.1.5.1 through 24.1.5.4, (c) there shall be no change in the use of the Leased Property of any Facility from its Primary Intended Use, (d) any assignment of this Lease shall be subject to the provisions of Section 24.1.12.3 (provided that the reference therein to the notice specified in Section 24.1.12.7 shall be deemed to refer to the notice of the Permitted Transaction specified in Section 24.1.11.7), and (e) Lessee shall reimburse Lessor for Lessor’s reasonable costs and expenses incurred in conjunction with the processing and documentation of the requirements of this Section 24.1.11 (whether or not the Permitted Transaction is actually consummated); and 24.1.11.7 Lessee shall have given Lessor: (a) not less than thirty (30) days’ prior written notice of such Permitted Transaction; and (b) not less than forty-eight (48) hours’ prior notice of the execution of any agreement to enter into such Permitted Transaction, which notice may be oral and only needs to identify the counterparty to such Permitted Transaction and that Brookdale and/or its Affiliates intend to enter into an agreement to effect a Permitted Transaction hereunder (it being agreed that Lessee shall not be required to deliver any supporting documentation prior to the execution of such agreement). Lessor shall keep any notice given pursuant to clause (b) of this Section 24.1.11.7 confidential in accordance with Section 45.1.7.

Certain Other Transfers. Notwithstanding anything to the contrary in this Article XXIV (including Section 24.1.10), but subject to the provisions of Section 24.1.8 above, and without limiting Lessee’s rights under the other provisions of this Article XXIV, any Transfer resulting from (a) (i) any sale, transfer, distribution or other disposition of all or a controlling interest in the outstanding capital stock, partnership, membership or other interests (whether equity or otherwise) of Brookdale (whether or not such Transfer results in Brookdale’s stock becoming privately owned) or a sale or transfer of all or substantially all of the assets of Brookdale, in each case directly or indirectly or through one or more step transactions or tiered transactions, or (ii) a merger, consolidation, stock exchange or other business combination to which Brookdale is a party, and (b) any Restructuring Transaction (including, without limitation, any transfer of Brookdale’s management and operations (and related assets) in accordance with the definition of Restructuring Transaction to any entity (which entity may or may not be, in Brookdale’s discretion, an Affiliate of Brookdale) that will enter into a management arrangement, sublease or similar agreement with Brookdale or its Affiliates (such entity, a “Restructured Manager”)) or Permitted Affiliate Transaction (in each case) implemented in connection with (and on or about the effective date of) a Transfer permitted under clause (a) of this Section 24.1.11 (any such transaction or series of related transactions described in clause (a) above and, if applicable, clause (b) above, a “Permitted Transaction”), and any agreement to enter into a Permitted Transaction, shall be permitted under this Article XXIV without Lessor’s consent, and the provisions of Section 24.1.2 shall not apply (i.e., there shall not be any Transfer Consideration payable), and (except as provided below in this Section 24.1.11) no additional guaranty shall be required, in connection with or related to such Permitted Transaction, in each case so long as each of the following conditions is met: 24.1.11.1 [Intentionally omitted]; 24.1.11.2 The purchaser or transferee or successor pursuant to clause (a) above, as the case may be, shall have sufficient experience with respect to a business of the nature and type of the business of Brookdale as the same exists prior to the effectiveness of such Transfer. Such purchaser, transferee or successor, as the case may be, shall be deemed to have “sufficient experience” if (A) the senior management team that will be managing the lessee under this Lease (or, if applicable, the Restructured Manager which manages and operates the Facilities) immediately following the effectiveness of such Transfer has an average of not less than three (3) years’ operating experience with respect to the operation and management of senior living or health care facilities, (B) such purchaser, transferee or successor (or, if applicable, the Restructured Manager which manages and operates the Facilities), as the case may be, shall immediately following the effectiveness of such Transfer, and for a period of not less than one (1) year thereafter, directly or indirectly retain and/or hire in a full-time management or consulting capacity a majority of the principal officers of Brookdale who were in the employment of Brookdale prior to the effectiveness of such Transfer, or (C) Brookdale shall Portions of this exhibit that have been marked by [***] have been omitted pursuant to a request for confidential treatment filed separately with the Securities and Exchange Commission. engage the Restructured Manager to manage and operate the Facilities and the Restructured Manager shall satisfy the conditions set forth in clause (A) or (B) above; 24.1.11.3 If any interest of Lessee under this Lease is being assigned, Lessee shall execute and deliver to Lessor a written (valid and enforceable) affirmation of its obligations under this Lease and the assignee (which shall be an Affiliate of Lessee) shall execute and deliver to Lessor a written (valid and enforceable) assumption of Lessee’s obligations under this Lease. In addition, each existing Guarantor shall execute and deliver to Lessor a written (valid and enforceable) affirmation of its obligations under the applicable Guaranty or, in the case of Brookdale (and if applicable), the entity surviving a merger, consolidation, stock exchange or other business combination with Brookdale pursuant to clause (a)(ii) above is a domestic entity and shall execute and deliver to Lessor a written (valid and enforceable) assumption of the obligations of Brookdale under the applicable Guaranty or a new Guaranty in the same form as the existing Guaranty, which new Guaranty shall be retroactive to the Effective Commencement Date and expressly cover all matters arising from and after the Effective Commencement Date.; 24.1.11.4 No monetary Event of Default shall have occurred and be continuing hereunder; 24.1.11.5 Such After giving effect to any approvals or consents obtained in connection with the applicable transaction, such Permitted Transaction shall not result in any violation, in any material respect, violation of any regulatory requirementsrequirements other than any such violation(s) that, individually and in the aggregate, are not and would not reasonably be expected to be (x) material to the entities comprising Lessee, taken as a whole, and/or (y) material to Brookdale and its Affiliates, taken as a whole. Without limiting the generality of the foregoing, after giving effect to any approvals or consents obtained in connection with the applicable transaction, the purchaser or transferee resulting from a Transfer pursuant to clause (a)(i) above or the other party(ies) to the Transfer pursuant to clause (a)(ii) above, as the case may be, and the Restructured Manager (if any), shall be in compliance with the requirements of the Orders, and none of them, nor any of their respective Affiliates, (a) is listed on the Specially Designated Nationals and Blocked Person List maintained by OFAC pursuant to the Order and/or on any other Lists, (b) is a Person (as defined in the Orders) who has been determined by competent authority to be subject to the prohibitions contained in the Orders; or (c) is directly or indirectly owned (to its knowledge, in the case of any indirect owner with less than a twenty-five (25%) indirect ownership interest) or controlled by (including without limitation by virtue of such Person being a director or owning voting shares or interests), or acts for or on behalf of, any person on the Lists or any other person who has been determined by competent authority to be subject to the prohibitions contained in the Orders; 24.1.11.6 In connection with such Permitted Transaction, (a) any Commercial Occupancy Arrangement (including any Master Sublease) Sublease and the engagement of any Person for the management or operation of all or any portion substantially all of the Leased Property at a Facility shall comply with the provisions of Section 24.1.4, and the Occupant, manager or operator thereunder shall grant to Lessor (as additional security for Lessee’s obligations under this Lease and the obligations of the Occupant, manager or operator under such Commercial Occupancy Arrangement Master Sublease or engagement) a valid and enforceable security interest with respect to the personal property (whether tangible or intangible) of such Occupant, manager or operator consistent with (and subject to the same limitations and exclusions (if any) on and from such grant as) the security interest granted to Lessor pursuant to Section 16.8 by Lessee, and a copy of the Commercial Occupancy Agreement Master Sublease or agreement with the manager or operator (as applicable) and (if different) the instrument granting such security interest shall be delivered to Lessor along with the written notice of the Permitted Transaction specified in 24.1.11.7 belowSection 24.1.11.7, (b) any Portions of this exhibit that have been marked by [***] have been omitted pursuant to a request for confidential treatment filed separately with the Securities and Exchange Commission. Master Sublease shall contain provisions (running to the benefit of Lessor) substantially similar to those described in Sections 24.1.5.1 through 24.1.5.4, (c) there shall be no change in the use of the Leased Property of any Facility from its Primary Intended Use, (d) any assignment of this Lease shall be subject to the provisions of Section 24.1.12.3 (provided that the reference therein to the notice specified in Section 24.1.12.7 shall be deemed to refer to the notice of the Permitted Transaction specified in Section 24.1.11.7), and (e) Lessee shall reimburse Lessor for Lessor’s reasonable costs and expenses incurred in conjunction with the processing and documentation of the requirements of this Section 24.1.11 (whether or not the Permitted Transaction is actually consummated); and 24.1.11.7 Lessee shall have given Lessor: (a) not less than thirty (30) days’ prior written notice of such Permitted Transaction; and (b) not less than forty-eight (48) hours’ prior notice of the execution of any agreement to enter into such Permitted Transaction, which notice may be oral and only needs to identify the counterparty to such Permitted Transaction and that Brookdale and/or its Affiliates intend to enter into an agreement to effect a Permitted Transaction hereunder (it being agreed that Lessee shall not be required to deliver any supporting documentation prior to the execution of such agreement). Lessor shall keep any notice given pursuant to clause (b) of this Section 24.1.11.7 confidential in accordance with Section 45.1.7.