Common use of Deferred Maintenance Clause in Contracts

Deferred Maintenance. If a Change in Control Transaction occurs, then within three (3) months before or after the date that is twenty-four (24) months prior to the expiration of the then-current Term (with respect to any Pool), Lessor may obtain, at Lessor’s cost, updated property condition assessments (each a “PCA”) for each of the Facilities in the applicable Pool. Based on the PCAs, Lessor shall (i) identify to Lessee items of deferred maintenance existing at such Facilities, if any (each a “Required Maintenance Project”), and (ii) propose to Lessee the Annual Minimum Capital Project Amount for the last twenty-four (24) months of such Term. Lessor shall provide Lessee with written notice detailing any Required Maintenance Projects and the proposed new Annual Minimum Capital Project Amount for such Pool within a reasonable time after Lessor’s receipt of the PCAs for all of such Facilities. Lessor and Lessee shall cooperate diligently and attempt in good faith to agree upon the Required Maintenance Projects and the new Annual Minimum Capital Project Amount for such Pool. To the extent that Lessor and Lessee are unable to reach agreement within twenty (20) days following Lessee’s receipt of Lessor’s notice, such dispute shall be resolved by one, two or three independent Persons having not less than ten (10) years of experience in performing assessments of the maintenance and condition of properties similar to the Facilities, which Persons shall (a) be selected and paid in the same manner in which Appraisers would be selected and paid pursuant to Article XXXIV and (b) make a determination with respect to the Required Maintenance Projects and/or the new Annual Minimum Capital Project Amount, as the case may be, for the applicable Pool in the same manner in which Appraisers would make a determination with respect to Fair Market Value, Fair Market Rental or Leasehold FMV pursuant to Article XXXIV (it being acknowledged, for avoidance of doubt, that (x) the fourth sentence of Section 34.1 shall not apply for purposes of this sentence and (y) with respect to determining the Required 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. Maintenance Projects, the first sentence of Section 34.1.1 shall not apply and a third Person shall be selected to make such determination if the first two Persons are unable to agree on the same). During a commercially reasonable period following the final determination of the Requirement Maintenance Projects, Lessee shall commence and thereafter use commercially reasonable efforts to complete each Required Maintenance Project prior to the end of the then-current Term. Within thirty (30) days after the Required Maintenance Projects and new Annual Minimum Capital Project Amount for a Pool are determined as aforesaid, Lessee shall deposit with Landlord in the Replacement Reserve an additional amount equal to the excess, if any, of (I) the new Annual Minimum Capital Project Amount for the last Lease Year of the then-current Term, as applicable, over (II) the amount of the Security Deposit allocable to such Pool, as reasonably determined by Lessor (it being agreed that none of the Security Deposit shall be allocable to a Pool for such purpose if an Event of Default shall have occurred and be continuing hereunder). Notwithstanding anything to the contrary contained herein, each of Lessor and Lessee acknowledges and agrees that for purposes of Section 9.5, (A) funds expended by Lessee to complete any Required Maintenance Projects shall be deemed funds expended as part of the Annual Minimum Capital Project Amount, and (B) the Required Maintenance Projects shall be deemed Capital Projects.

Deferred Maintenance. If a Change in Control Transaction occurs, then within Within three (3) months before or after the date that is twenty-four (24) months prior to the expiration of the then-current Term (with respect to and any Pool)Extended Term, Lessor may shall obtain, at Lessor’s cost, updated property condition assessments (each a “PCA”) for each of the Facilities in the applicable PoolFacilities. Based on the PCAs, Lessor shall (i) identify to Lessee items of deferred maintenance existing at such the Facilities, if any (each a “Required Maintenance Project”), and (ii) propose to Lessee the Annual Minimum Capital Project Amount for the last twenty-four (24) months of such next succeeding Extended Term, if applicable. Lessor shall provide Lessee with written notice detailing any Required Maintenance Projects and the proposed new Annual Minimum Capital Project Amount for such Pool within a reasonable time after Lessor’s receipt of the PCAs for all of such Facilities. Lessor and Lessee shall cooperate diligently and attempt in good faith to agree upon the Required Maintenance Projects and the new Annual Minimum Capital Project Amount for such PoolAmount. To the extent that Lessor and Lessee are unable to reach agreement within twenty (20) days following Lessee’s receipt of Lessor’s notice, such dispute shall be resolved by one, two or three independent Persons having not less than ten (10) years of experience in performing assessments of the maintenance and condition of properties similar to the Facilities, which Persons shall (a) be selected and paid in the same manner in which Appraisers would be selected and paid pursuant to Article XXXIV and (b) make a determination with respect to the Required Maintenance Projects and/or the new Annual Minimum Capital Project Amount, as the case may be, for the applicable Pool in the same manner in which Appraisers would make a determination with respect to Fair Market Value, Fair Market Rental or Leasehold FMV pursuant to Article XXXIV (it being acknowledged, for avoidance of doubt, that (x) the fourth sentence of Section 34.1 shall not apply for purposes of this sentence and (y) with respect to determining the Required 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. Maintenance Projects, the first sentence of Section 34.1.1 shall not apply and a third Person shall be selected to make such determination if the first two Persons are unable to agree on the same). During a commercially reasonable period following the final determination of the Requirement Maintenance Projects, Lessee shall commence and thereafter use commercially reasonable efforts to complete each Required Maintenance Project prior to the end of the then-current Term. Within thirty (30) days after the Required Maintenance Projects and new Annual Minimum Capital Project Amount for a Pool are determined as aforesaid, Lessee shall deposit with Landlord in the Replacement Reserve an additional amount equal to the excess, if any, of (I) the new Annual Minimum Capital Project Amount for the last Lease Year of the then-current Term, as applicable, over (II) the amount of the Security Deposit allocable to such Pool, as reasonably determined by Lessor (it being agreed that none of the Security Deposit shall be allocable to a Pool for such purpose if an Event of Default shall have occurred and be continuing hereunder). Notwithstanding anything to the contrary contained herein, each of Lessor and Lessee acknowledges and agrees that for purposes of Section 9.5, (A) funds expended by Lessee to complete any Required Maintenance Projects shall be deemed funds expended as part of the Annual Minimum Capital Project Amount, and (B) the Required Maintenance Projects shall be deemed Capital Projects.which