Health Care Notices. (i) Each Borrower shall provide Lender annually with evidence, satisfactory to Lender, of such Borrower’s or Property Manager’s, if applicable, compliance, in all material respects, with all applicable local, state and federal laws, rules and regulations regarding the operation of Borrower’s Individual Property, including, but not limited to: (A) a copy of the current Healthcare Permits authorizing Borrower’s Individual Property to be operated as a Senior Living Facility, and a copy of any other Healthcare Permits required and/or in place for such Individual Property’s operation as a Senior Living Facility; Prudential Loan Nos. 706109321 - 706109336 and 706109394 CNL BV Portfolio Second Amended and Restated Loan Agreement (B) copies of all state surveys, where applicable, dated within the immediately preceding twelve (12) months and produced in connection with the performance and/or compliance of Borrower’s Individual Property, Borrower, Property Manager and any other licensee, as applicable, with standards regulating the use of such Individual Property; (C) the form of Resident Agreement utilized at Borrower’s Individual Property; (D) any notices, complaints, claims or waivers which Borrower has received, or was provided notice of, within the immediately preceding twelve (12) months from any federal and state governmental authority (such as the CMS) or other governmental, quasi-governmental or regulatory agency or agencies having jurisdiction over Borrower’s Individual Property, Borrower, Property Manager and any other licensee, including, without limitation, any deficiency notices, notices of investigations or notices of audit that have had, or can reasonably be expected to have, a material adverse effect on the business of operating an Individual Property as a Senior Living Facility (in addition to such annual reporting obligations, Borrower shall also deliver to Lender copies of any of the foregoing within ten (10) Business Days after Borrower, Property Manager or any other licensee first receives notice of or otherwise becomes aware of the same); (E) descriptions of any litigation with respect to residents or former residents that is pending, ongoing or otherwise unresolved and was initiated within the last three (3) years of which Borrower has actual knowledge, which shall include copies of pleadings with respect thereto, if requested by Lender; (F) descriptions of any known criminal charges filed against any employees, agents, independent contractors or others performing services at Borrower’s Individual Property, if requested by Lender (in addition to such annual reporting obligations, Borrower shall also deliver to Lender any of the foregoing within ten (10) Business Days after Borrower, Property Manager or any other licensee first receives notice of or otherwise becomes aware of the same); (G) a copy of any new CON (if applicable); and (H) a copy of any additions or amendments to the administrative policy manual for Borrower’s Individual Property. In addition, following the occurrence of an Event of Default, Lender reserves the right to increase the frequency of any of the foregoing reporting requirements to quarterly. (ii) Each Borrower agrees to furnish, pursuant to the notice provisions of Section 9.02 herein, each of the following with respect to its Individual Property: (A) (1) within five (5) Business Days of receipt a copy of any healthcare related licensure and annual or biannual certification survey report and any statement of deficiencies and any survey (other than the annual or biannual survey) indicating a violation or deficiency, and (2) within the time period required by the particular agency for submission, a copy of the plan of correction with respect thereof if such plan of correction is required by such agency issuing the statement of deficiency or notice of violation, and correct or cause to be corrected any deficiency or violation within the time period required for cure by such agency, subject to such agency’s normal appeal process, if such deficiency or violation could adversely affect either the right to continue participation in Medicare or other Third Party Payor Programs for existing patients or the right to admit new Medicare patients or other Third Party Payor Program patients or result in the loss or suspension of Borrower’s licenses and permits to operate Borrower’s business; Prudential Loan Nos. 706109321 - 706109336 and 706109394 CNL BV Portfolio Second Amended and Restated Loan Agreement (B) within five (5) Business Days of the receipt by Borrower, any and all notices disclosing an adverse finding from any licensing, certifying and/or reimbursement agencies that Borrower’s license, Medicare certification or entitlement to payments pursuant to any Third Party Payor Program of Borrower is being downgraded to a substandard category, revoked, or suspended, or that action is pending or being considered to downgrade to a substandard category, revoke, or suspend any rights pursuant to Borrower’s license, certification or Third Party Payor Program; and (C) within five (5) Business Days of the date of the required filing of cost reports of Borrower with Medicare or other applicable agency or pursuant to any reimbursement contract or program, or the date of actual filing of such cost report of Borrower, whichever is earlier, a complete and accurate copy of the annual Medicare and other cost reports for Borrower, which will be prepared by an independent certified public accountant or by an experienced cost report preparer reasonably acceptable to Lender, and promptly furnish to Lender any amendments filed with respect to such reports and all responses, audit reports or inquiries with respect to such reports. (iii) Any expiration, termination, suspension or revocation of any of the Healthcare Permits described in Sections 11.02(b)(i)(A) and 11.02(b)(i)(C) above or any other Healthcare Permits held by any Borrower, any Property Manager or other Affiliate that is a health care provider (a “Provider”) that are necessary for the operation of any Borrower’s Individual Property as a Senior Living Facility (provided that any provisional Healthcare Permit shall be deemed an acceptable Healthcare Permit for purposes of this provision so long as the operations of Borrower’s Individual Property are not impacted in any material manner, as determined by Lender in its sole discretion), shall be, without any notice or cure period (except where such cure can be obtained on or before the date on which the failure to cure causes any material adverse impact with respect to such Borrower, the operation of Borrower’s Individual Property or Lender and except where the applicable State agency specifies a cure period to reinstate, in which event such cure period shall be the cure period specified by such State agency), an Event of Default under the Documents. Any expiration, termination, suspension or revocation of any of the Healthcare Permits held by any unaffiliated operator, tenant, manager or Provider described in Sections 11.02(b)(i)(A) and 11.02(b)(i)(C) above or any other Healthcare Permits held by any unaffiliated operator, tenant, manager or Provider, shall be, without any notice or cure period (except where such cure can be obtained on or before the date on which the failure to cure causes any material adverse impact with respect to such Borrower, the operation of Borrower’s Individual Property or Lender and except where the applicable State agency specifies a cure period to reinstate, in which event such cure period shall be the cure period specified by such State agency), an Event of Default under the Documents, unless all of the following are true: (i) no payment default occurs under the Documents, (ii) such Borrower has procured a replacement licensed operator satisfactory to Lender, in Lender’s reasonable discretion, within one hundred twenty (120) days after any such de-licensure, provided that if the applicable authority requires or recommends a replacement of the licensed operator at any time, then Borrower shall be required to promptly procure a replacement licensed operator, (iii) the replacement operator executes and delivers a subordination agreement in favor of Lender in form and content satisfactory to Lender, in Lender’s reasonable discretion, (iv) all such Healthcare Permits described in Sections 11.02(b)(i)(A) and 11.02(b)(i)(C) above have been reinstated or reissued in favor of such Borrower and/or the replacement operator, or Borrower or replacement operator is actively Prudential Loan Nos. 000000000 - 706109336 and 706109394 CNL BV Portfolio Second Amended and Restated Loan Agreement pursuing the reinstatement or reissuance of such Healthcare Permits, Lender has received satisfactory evidence that such reinstatement or reissuance efforts are reasonably likely to succeed, such reinstatement or reissuance shall have occurred not later than one hundred twenty (120) days after any such de-licensure and the operations of the applicable Individual Property are not impacted in any material manner during the pendency of such efforts; provided, however, said one hundred twenty (120) day period may be extended for up to an additional sixty (60) days if (A) there is no material adverse effect on the business of operating the affected Individual Property as a Senior Living Facility or on Operator’s ability to operate such business as a result of applicable expiration, termination, suspension or revocation of any Healthcare Permit, as determined by Lender in its sole discretion, and (B) Lender has received evidence demonstrating, to Lender’s satisfaction, exercised in good faith, that the reinstatement or reissuance efforts have been proceeding with all due diligence and that such efforts are likely to be successful within said period of up to sixty (60) days, and (v) such Borrower’s Individual Property has not been required to cease operations as a Senior Living Facility. (iv) Each Borrower shall (i) provide full and prompt disclosure to Lender of any violation of Healthcare Laws that can be reasonably expected to have a material adverse effect on the business of operating Borrower’s Individual Property as a Senior Living Facility, and (ii) conduct all appropriate (1) investigation of any violations or alleged violations of applicable Healthcare Laws and (2) correction of any violations of applicable Healthcare Laws, all at Borrower’s sole cost and expense; and (iii) indemnify Lender from all costs and risks relating to violations or alleged violations of Healthcare Laws; provided, however, that this indemnity shall not apply if Borrower can conclusively prove that (A) the violation of Healthcare Laws was caused solely by actions, conditions, or events that occurred after the date that Lender (or any purchaser at a foreclosure sale) actually acquired title to Borrower’s Individual Property, and (B) the violation of Healthcare Laws was not caused by, or attributable to, the direct or indirect actions or inaction of any of the Recourse Parties or any general partner or managing member of any Borrower, any general partner or managing member of any general partner of any Borrower, any guarantor of the Loan, or any indemnitor under the Documents. In addition, Borrower shall grant licenses enabling Lender and its healthcare consultants to (x) make appropriate inquiries with respect to any alleged violations of applicable Healthcare Laws and (y) if required by written notice from Lender to Borrower, negotiate in cooperation with Borrower with any licensing authorities with respect to such alleged violations of applicable Healthcare Laws and to the extent permitted by applicable law, in cooperation with Borrower, to take other ameliorative steps with respect to the Healthcare Permits (whether before or after Lender or any other party succeeds to the interest of Borrower as owner of the applicable Individual Property in any manner, including but not limited to foreclosure, exercise of any power of sale, succession by deed in lieu or other conveyance), all at Borrower’s sole cost and expense; provided, however, Lender shall only have the right to exercise such licenses following an Event of Default These provisions shall survive any termination, satisfaction or foreclosure of the Instrument and Cross Collateral Mortgage signed by Borrower and shall be personal and full recourse obligations.
Appears in 1 contract
Health Care Notices. (i) Each Borrower shall provide Lender annually with evidence, satisfactory to Lender, of such Borrower’s or Property Manager’s, if applicable, compliance, in all material respects, with all applicable local, state and federal laws, rules and regulations regarding the operation of Borrower’s Individual Property, including, but not limited to:
(A) a copy of the current Healthcare Permits authorizing Borrower’s Individual Property to be operated as a Senior Living Facility, and a copy of any other Healthcare Permits required and/or in place for such Individual Property’s operation as a Senior Living Facility; Prudential Loan Nos. 706109321 - 706109336 and 706109394 CNL BV Portfolio Second Amended and Restated Loan Agreement;
(B) copies of all state surveys, where applicable, dated within the immediately preceding twelve (12) months and produced in connection with the performance and/or compliance of Borrower’s Individual Property, Borrower, Property Manager and any other licensee, as applicable, with standards regulating the use of such Individual Property;
(C) the form of Resident Agreement utilized at Borrower’s Individual Property;
(D) any notices, complaints, claims or waivers which Borrower has received, or was provided notice of, within the immediately preceding twelve (12) months from any federal and state governmental authority (such as the CMS) or other governmental, quasi-governmental or regulatory agency or agencies having jurisdiction over Borrower’s Individual Property, Borrower, Property Manager and any other licensee, including, without limitation, any deficiency notices, notices of investigations or notices of audit that have had, or can reasonably be expected to have, a material adverse effect on the business of operating an Individual Property as a Senior Living Facility (in addition to such annual reporting obligations, Borrower shall also deliver to Lender copies of any of the foregoing within ten (10) Business Days after Borrower, Property Manager or any other licensee first receives notice of or otherwise becomes aware of the same);; Prudential Loan Nos. 706109322, 706109323, 706109324, 706109325, 706109326, 706109327, 706109328, 706109329, 706109333, 706109334, 706109335 and 706109336 CNL BV Portfolio Loan Agreement
(E) descriptions of any litigation with respect to residents or former residents that is pending, ongoing or otherwise unresolved and was initiated within the last three (3) years of which Borrower has actual knowledge, which shall include copies of pleadings with respect thereto, if requested by Lender;
(F) descriptions of any known criminal charges filed against any employees, agents, independent contractors or others performing services at Borrower’s Individual Property, if requested by Lender (in addition to such annual reporting obligations, Borrower shall also deliver to Lender any of the foregoing within ten (10) Business Days after Borrower, Property Manager or any other licensee first receives notice of or otherwise becomes aware of the same);
(G) a copy of any new CON (if applicable); and
(H) a copy of any additions or amendments to the administrative policy manual for Borrower’s Individual Property. In addition, following the occurrence of an Event of Default, Lender reserves the right to increase the frequency of any of the foregoing reporting requirements to quarterly.
(ii) Each Borrower agrees to furnish, pursuant to the notice provisions of Section 9.02 herein, each of the following with respect to its Individual Property:
(A) (1) within five (5) Business Days of receipt a copy of any healthcare related licensure and annual or biannual certification survey report and any statement of deficiencies and any survey (other than the annual or biannual survey) indicating a violation or deficiency, and (2) within the time period required by the particular agency for submission, a copy of the plan of correction with respect thereof if such plan of correction is required by such agency issuing the statement of deficiency or notice of violation, and correct or cause to be corrected any deficiency or violation within the time period required for cure by such agency, subject to such agency’s normal appeal process, if such deficiency or violation could adversely affect either the right to continue participation in Medicare or other Third Party Payor Programs for existing patients or the right to admit new Medicare patients or other Third Party Payor Program patients or result in the loss or suspension of Borrower’s licenses and permits to operate Borrower’s business; Prudential Loan Nos. 706109321 - 706109336 and 706109394 CNL BV Portfolio Second Amended and Restated Loan Agreement;
(B) within five (5) Business Days of the receipt by Borrower, any and all notices disclosing an adverse finding from any licensing, certifying and/or reimbursement agencies that Borrower’s license, Medicare certification or entitlement to payments pursuant to any Third Party Payor Program of Borrower is being downgraded to a substandard category, revoked, or suspended, or that action is pending or being considered to downgrade to a substandard category, revoke, or suspend any rights pursuant to Borrower’s license, certification or Third Party Payor Program; and
(C) within five (5) Business Days of the date of the required filing of cost reports of Borrower with Medicare or other applicable agency or pursuant to any reimbursement contract or program, or the date of actual filing of such cost report of Borrower, whichever is earlier, a complete Prudential Loan Nos. 706109322, 706109323, 706109324, 706109325, 706109326, 706109327, 706109328, 706109329, 706109333, 706109334, 706109335 and 706109336 CNL BV Portfolio Loan Agreement and accurate copy of the annual Medicare and other cost reports for Borrower, which will be prepared by an independent certified public accountant or by an experienced cost report preparer reasonably acceptable to Lender, and promptly furnish to Lender any amendments filed with respect to such reports and all responses, audit reports or inquiries with respect to such reports.
(iii) Any expiration, termination, suspension or revocation of any of the Healthcare Permits described in Sections 11.02(b)(i)(A) and 11.02(b)(i)(C) above or any other Healthcare Permits held by any Borrower, any Property Manager or other Affiliate that is a health care provider (a “Provider”) that are necessary for the operation of any Borrower’s Individual Property as a Senior Living Facility (provided that any provisional Healthcare Permit shall be deemed an acceptable Healthcare Permit for purposes of this provision so long as the operations of Borrower’s Individual Property are not impacted in any material manner, as determined by Lender in its sole discretion), shall be, without any notice or cure period (except where such cure can be obtained on or before the date on which the failure to cure causes any material adverse impact with respect to such Borrower, the operation of Borrower’s Individual Property or Lender and except where the applicable State agency specifies a cure period to reinstate, in which event such cure period shall be the cure period specified by such State agency), an Event of Default under the Documents. Any expiration, termination, suspension or revocation of any of the Healthcare Permits held by any unaffiliated operator, tenant, manager or Provider described in Sections 11.02(b)(i)(A) and 11.02(b)(i)(C) above or any other Healthcare Permits held by any unaffiliated operator, tenant, manager or Provider, shall be, without any notice or cure period (except where such cure can be obtained on or before the date on which the failure to cure causes any material adverse impact with respect to such Borrower, the operation of Borrower’s Individual Property or Lender and except where the applicable State agency specifies a cure period to reinstate, in which event such cure period shall be the cure period specified by such State agency), an Event of Default under the Documents, unless all of the following are true: (i) no payment default occurs under the Documents, (ii) such Borrower has procured a replacement licensed operator satisfactory to Lender, in Lender’s reasonable discretion, within one hundred twenty (120) days after any such de-licensure, provided that if the applicable authority requires or recommends a replacement of the licensed operator at any time, then Borrower shall be required to promptly procure a replacement licensed operator, (iii) the replacement operator executes and delivers a subordination agreement in favor of Lender in form and content satisfactory to Lender, in Lender’s reasonable discretion, (iv) all such Healthcare Permits described in Sections 11.02(b)(i)(A) and 11.02(b)(i)(C) above have been reinstated or reissued in favor of such Borrower and/or the replacement operator, or Borrower or replacement operator is actively Prudential Loan Nos. 000000000 - 706109336 and 706109394 CNL BV Portfolio Second Amended and Restated Loan Agreement pursuing the reinstatement or reissuance of such Healthcare Permits, Lender has received satisfactory evidence that such reinstatement or reissuance efforts are reasonably likely to succeed, such reinstatement or reissuance shall have occurred not later than one hundred twenty (120) days after any such de-licensure and the operations of the applicable Individual Property are not impacted in any material manner during the pendency of such efforts; provided, however, said one hundred twenty (120) day period may be extended for up to an additional sixty (60) days if (A) there is no material adverse effect on the business of operating the affected Individual Property as a Senior Living Facility or on Operator’s ability to operate such business as a result of applicable expiration, termination, suspension or revocation of any Healthcare Permit, as determined by Lender in its sole discretion, and (B) Lender has received evidence demonstrating, to Lender’s satisfaction, exercised in good faith, that the reinstatement or reissuance efforts have been proceeding with all due diligence and that such efforts are likely to be successful within said period of up to sixty (60) days, and (v) such Borrower’s Individual Property has not been required to cease operations as a Senior Living Facility.. Prudential Loan Nos. 706109322, 706109323, 706109324, 706109325, 706109326, 706109327, 706109328, 706109329, 706109333, 706109334, 706109335 and 706109336 CNL BV Portfolio Loan Agreement
(iv) Each Borrower shall (i) provide full and prompt disclosure to Lender of any violation of Healthcare Laws that can be reasonably expected to have a material adverse effect on the business of operating Borrower’s Individual Property as a Senior Living Facility, and (ii) conduct all appropriate (1) investigation of any violations or alleged violations of applicable Healthcare Laws and (2) correction of any violations of applicable Healthcare Laws, all at Borrower’s sole cost and expense; and (iii) indemnify Lender from all costs and risks relating to violations or alleged violations of Healthcare Laws; provided, however, that this indemnity shall not apply if Borrower can conclusively prove that (A) the violation of Healthcare Laws was caused solely by actions, conditions, or events that occurred after the date that Lender (or any purchaser at a foreclosure sale) actually acquired title to Borrower’s Individual Property, and (B) the violation of Healthcare Laws was not caused by, or attributable to, the direct or indirect actions or inaction of any of the Recourse Parties or any general partner or managing member of any Borrower, any general partner or managing member of any general partner of any Borrower, any guarantor of the Loan, or any indemnitor under the Documents. In addition, Borrower shall grant licenses enabling Lender and its healthcare consultants to (x) make appropriate inquiries with respect to any alleged violations of applicable Healthcare Laws and (y) if required by written notice from Lender to Borrower, negotiate in cooperation with Borrower with any licensing authorities with respect to such alleged violations of applicable Healthcare Laws and to the extent permitted by applicable law, in cooperation with Borrower, to take other ameliorative steps with respect to the Healthcare Permits (whether before or after Lender or any other party succeeds to the interest of Borrower as owner of the applicable Individual Property in any manner, including but not limited to foreclosure, exercise of any power of sale, succession by deed in lieu or other conveyance), all at Borrower’s sole cost and expense; provided, however, Lender shall only have the right to exercise such licenses following an Event of Default These provisions shall survive any termination, satisfaction or foreclosure of the Instrument and Cross Collateral Mortgage signed by Borrower and shall be personal and full recourse obligations.
Appears in 1 contract
Health Care Notices. (i) Each Borrower shall provide Lender annually with evidence, satisfactory to Lender, of such Borrower’s or Property Manager’s, if applicable, compliance, in all material respects, with all applicable local, state and federal laws, rules and regulations regarding the operation of Borrower’s Individual Property, including, but not limited to:
(A) a copy of the current Healthcare Permits authorizing Borrower’s Individual Property to be operated as a Senior Living Facility, and a copy of any other Healthcare Permits required and/or in place for such Individual Property’s operation as a Senior Living Facility; Prudential Loan Nos. 706109321 - 706109336 and 706109394 CNL BV Portfolio Second Amended and Restated Loan Agreement;
(B) copies of all state surveys, where applicable, dated within the immediately preceding twelve (12) months and produced in connection with the performance and/or compliance of Borrower’s Individual Property, Borrower, Property Manager and any other licensee, as applicable, with standards regulating the use of such Individual Property;
(C) the form of Resident Agreement utilized at Borrower’s Individual Property;
(D) any notices, complaints, claims or waivers which Borrower has received, or was provided notice of, within the immediately preceding twelve (12) months from any federal and state governmental authority (such as the CMS) or other governmental, quasi-governmental or regulatory agency or agencies having jurisdiction over Borrower’s Individual Property, Borrower, Property Manager and any other licensee, including, without limitation, any deficiency notices, notices of investigations or notices of audit that have had, or can reasonably be expected to have, a material adverse effect on the business of operating an Individual Property as a Senior Living Facility (in addition to such annual reporting obligations, Borrower shall also deliver to Lender copies of any of the foregoing within ten (10) Business Days after Borrower, Property Manager or any other licensee first receives notice of or otherwise becomes aware of the same);
(E) descriptions of any litigation with respect to residents or former residents that is pending, ongoing or otherwise unresolved and was initiated within the last three (3) years of which Borrower has actual knowledge, which shall include copies of pleadings with respect thereto, if requested by Lender;
(F) descriptions of any known criminal charges filed against any employees, agents, independent contractors or others performing services at Borrower’s Individual Property, if requested by Lender (in addition to such annual reporting obligations, Borrower shall also deliver to Lender any of the foregoing within ten (10) Business Days after Borrower, Property Manager or any other licensee first receives notice of or otherwise becomes aware of the same);
(G) a copy of any new CON (if applicable); and
(H) a copy of any additions or amendments to the administrative policy manual for Borrower’s Individual Property. In addition, following the occurrence of an Event of Default, Lender reserves the right to increase the frequency of any of the foregoing reporting requirements to quarterly.
(ii) Each Borrower agrees to furnish, pursuant to the notice provisions of Section 9.02 herein, each of the following with respect to its Individual Property:
(A) (1) within five (5) Business Days of receipt a copy of any healthcare related licensure and annual or biannual certification survey report and any statement of deficiencies and any survey (other than the annual or biannual survey) indicating a violation or deficiency, and (2) within the time period required by the particular agency for submission, a copy of the plan of correction with respect thereof if such plan of correction is required by such agency issuing the statement of deficiency or notice of violation, and correct or cause to be corrected any deficiency or violation within the time period required for cure by such agency, subject to such agency’s normal appeal process, if such deficiency or violation could adversely affect either the right to continue participation in Medicare or other Third Party Payor Programs for existing patients or the right to admit new Medicare patients or other Third Party Payor Program patients or result in the loss or suspension of Borrower’s licenses and permits to operate Borrower’s business; Prudential Loan Nos. 706109321 - 706109336 and 706109394 CNL BV Portfolio Second Amended and Restated Loan Agreement;
(B) within five (5) Business Days of the receipt by Borrower, any and all notices disclosing an adverse finding from any licensing, certifying and/or reimbursement agencies that Borrower’s license, Medicare certification or entitlement to payments pursuant to any Third Party Payor Program of Borrower is being downgraded to a substandard category, revoked, or suspended, or that action is pending or being considered to downgrade to a substandard category, revoke, or suspend any rights pursuant to Borrower’s license, certification or Third Party Payor Program; and
(C) within five (5) Business Days of the date of the required filing of cost reports of Borrower with Medicare or other applicable agency or pursuant to any reimbursement contract or program, or the date of actual filing of such cost report of Borrower, whichever is earlier, a complete and accurate copy of the annual Medicare and other cost reports for Borrower, which will be prepared by an independent certified public accountant or by an experienced cost report preparer reasonably acceptable to Lender, and promptly furnish to Lender any amendments filed with respect to such reports and all responses, audit reports or inquiries with respect to such reports.
(iii) Any expiration, termination, suspension or revocation of any of the Healthcare Permits described in Sections 11.02(b)(i)(A) and 11.02(b)(i)(C) above or any other Healthcare Permits held by any Borrower, any Property Manager or other Affiliate that is a health care provider (a “Provider”) that are necessary for the operation of any Borrower’s Individual Property as a Senior Living Facility (provided that any provisional Healthcare Permit shall be deemed an acceptable Healthcare Permit for purposes of this provision so long as the operations of Borrower’s Individual Property are not impacted in any material manner, as determined by Lender in its sole discretion), shall be, without any notice or cure period (except where such cure can be obtained on or before the date on which the failure to cure causes any material adverse impact with respect to such Borrower, the operation of Borrower’s Individual Property or Lender and except where the applicable State agency specifies a cure period to reinstate, in which event such cure period shall be the cure period specified by such State agency), an Event of Default under the Documents. Any expiration, termination, suspension or revocation of any of the Healthcare Permits held by any unaffiliated operator, tenant, manager or Provider described in Sections 11.02(b)(i)(A) and 11.02(b)(i)(C) above or any other Healthcare Permits held by any unaffiliated operator, tenant, manager or Provider, shall be, without any notice or cure period (except where such cure can be obtained on or before the date on which the failure to cure causes any material adverse impact with respect to such Borrower, the operation of Borrower’s Individual Property or Lender and except where the applicable State agency specifies a cure period to reinstate, in which event such cure period shall be the cure period specified by such State agency), an Event of Default under the Documents, unless all of the following are true: (i) no payment default occurs under the Documents, (ii) such Borrower has procured a replacement licensed operator satisfactory to Lender, in Lender’s reasonable discretion, within one hundred twenty (120) days after any such de-licensure, provided that if the applicable authority requires or recommends a replacement of the licensed operator at any time, then Borrower shall be required to promptly procure a replacement licensed operator, (iii) the replacement operator executes and delivers a subordination agreement in favor of Lender in form and content satisfactory to Lender, in Lender’s reasonable discretion, (iv) all such Healthcare Permits described in Sections 11.02(b)(i)(A) and 11.02(b)(i)(C) above have been reinstated or reissued in favor of such Borrower and/or the replacement operator, or Borrower or replacement operator is actively Prudential Loan Nos. 000000000 - 706109336 and 706109394 CNL BV Portfolio Second Amended and Restated Loan Agreement pursuing the reinstatement or reissuance of such Healthcare Permits, Lender has received satisfactory evidence that such reinstatement or reissuance efforts are reasonably likely to succeed, such reinstatement or reissuance shall have occurred not later than one hundred twenty (120) days after any such de-licensure and the operations of the applicable Individual Property are not impacted in any material manner during the pendency of such efforts; provided, however, said one hundred twenty (120) day period may be extended for up to an additional sixty (60) days if (A) there is no material adverse effect on the business of operating the affected Individual Property as a Senior Living Facility or on Operator’s ability to operate such business as a result of applicable expiration, termination, suspension or revocation of any Healthcare Permit, as determined by Lender in its sole discretion, and (B) Lender has received evidence demonstrating, to Lender’s satisfaction, exercised in good faith, that the reinstatement or reissuance efforts have been proceeding with all due diligence and that such efforts are likely to be successful within said period of up to sixty (60) days, and (v) such Borrower’s Individual Property has not been required to cease operations as a Senior Living Facility.
(iv) Each Borrower shall (i) provide full and prompt disclosure to Lender of any violation of Healthcare Laws that can be reasonably expected to have a material adverse effect on the business of operating Borrower’s Individual Property as a Senior Living Facility, and (ii) conduct all appropriate (1) investigation of any violations or alleged violations of applicable Healthcare Laws and (2) correction of any violations of applicable Healthcare Laws, all at Borrower’s sole cost and expense; and (iii) indemnify Lender from all costs and risks relating to violations or alleged violations of Healthcare Laws; provided, however, that this indemnity shall not apply if Borrower can conclusively prove that (A) the violation of Healthcare Laws was caused solely by actions, conditions, or events that occurred after the date that Lender (or any purchaser at a foreclosure sale) actually acquired title to Borrower’s Individual Property, and (B) the violation of Healthcare Laws was not caused by, or attributable to, the direct or indirect actions or inaction of any of the Recourse Parties or any general partner or managing member of any Borrower, any general partner or managing member of any general partner of any Borrower, any guarantor of the Loan, or any indemnitor under the Documents. In addition, Borrower shall grant licenses enabling Lender and its healthcare consultants to (x) make appropriate inquiries with respect to any alleged violations of applicable Healthcare Laws and (y) if required by written notice from Lender to Borrower, negotiate in cooperation with Borrower with any licensing authorities with respect to such alleged violations of applicable Healthcare Laws and to the extent permitted by applicable law, in cooperation with Borrower, to take other ameliorative steps with respect to the Healthcare Permits (whether before or after Lender or any other party succeeds to the interest of Borrower as owner of the applicable Individual Property in any manner, including but not limited to foreclosure, exercise of any power of sale, succession by deed in lieu or other conveyance), all at Borrower’s sole cost and expense; provided, however, Lender shall only have the right to exercise such licenses following an Event of Default These provisions shall survive any termination, satisfaction or foreclosure of the Instrument and Cross Collateral Mortgage signed by Borrower and shall be personal and full recourse obligations.
Appears in 1 contract
Health Care Notices. (i) Each Borrower shall provide Lender annually with evidence, satisfactory to Lender, of such Borrower’s or Property Manager’s, if applicable, compliance, in all material respects, with all applicable local, state and federal laws, rules and regulations regarding the operation of Borrower’s Individual Property, including, but not limited to:
(A) a copy of the current Healthcare Permits authorizing Borrower’s Individual Property to be operated as a Senior Living Facility, and a copy of any other Healthcare Permits required and/or in place for such Individual Property’s operation as a Senior Living Facility; Prudential Loan Nos. 706109321 - 706109336 and 706109394 CNL BV Portfolio Second Amended and Restated Loan Agreement;
(B) copies of all state surveys, where applicable, dated within the immediately preceding twelve (12) months and produced in connection with the performance and/or compliance of Borrower’s Individual Property, Borrower, Property Manager and any other licensee, as applicable, with standards regulating the use of such Individual Property;
(C) the form of Resident Agreement utilized at Borrower’s Individual Property;; Prudential Loan Nos. 706109321 - 706109336 CNL BV Portfolio Amended and Restated Loan Agreement
(D) any notices, complaints, claims or waivers which Borrower has received, or was provided notice of, within the immediately preceding twelve (12) months from any federal and state governmental authority (such as the CMS) or other governmental, quasi-governmental or regulatory agency or agencies having jurisdiction over Borrower’s Individual Property, Borrower, Property Manager and any other licensee, including, without limitation, any deficiency notices, notices of investigations or notices of audit that have had, or can reasonably be expected to have, a material adverse effect on the business of operating an Individual Property as a Senior Living Facility (in addition to such annual reporting obligations, Borrower shall also deliver to Lender copies of any of the foregoing within ten (10) Business Days after Borrower, Property Manager or any other licensee first receives notice of or otherwise becomes aware of the same);
(E) descriptions of any litigation with respect to residents or former residents that is pending, ongoing or otherwise unresolved and was initiated within the last three (3) years of which Borrower has actual knowledge, which shall include copies of pleadings with respect thereto, if requested by Lender;
(F) descriptions of any known criminal charges filed against any employees, agents, independent contractors or others performing services at Borrower’s Individual Property, if requested by Lender (in addition to such annual reporting obligations, Borrower shall also deliver to Lender any of the foregoing within ten (10) Business Days after Borrower, Property Manager or any other licensee first receives notice of or otherwise becomes aware of the same);
(G) a copy of any new CON (if applicable); and
(H) a copy of any additions or amendments to the administrative policy manual for Borrower’s Individual Property. In addition, following the occurrence of an Event of Default, Lender reserves the right to increase the frequency of any of the foregoing reporting requirements to quarterly.
(ii) Each Borrower agrees to furnish, pursuant to the notice provisions of Section 9.02 herein, each of the following with respect to its Individual Property:
(A) (1) within five (5) Business Days of receipt a copy of any healthcare related licensure and annual or biannual certification survey report and any statement of deficiencies and any survey (other than the annual or biannual survey) indicating a violation or deficiency, and (2) within the time period required by the particular agency for submission, a copy of the plan of correction with respect thereof if such plan of correction is required by such agency issuing the statement of deficiency or notice of violation, and correct or cause to be corrected any deficiency or violation within the time period required for cure by such agency, subject to such agency’s normal appeal process, if such deficiency or violation could adversely affect either the right to continue participation in Medicare or other Third Party Payor Programs for existing patients or the right to admit new Medicare patients or other Third Party Payor Program patients or result in the loss or suspension of Borrower’s licenses and permits to operate Borrower’s business; Prudential Loan Nos. 706109321 - 706109336 and 706109394 CNL BV Portfolio Second Amended and Restated Loan Agreement;
(B) within five (5) Business Days of the receipt by Borrower, any and all notices disclosing an adverse finding from any licensing, certifying and/or reimbursement agencies that Borrower’s license, Medicare certification or entitlement to payments pursuant to any Third Party Payor Program of Borrower is being downgraded to a substandard category, revoked, or suspended, or that action is pending or being considered to downgrade to a substandard category, revoke, or suspend any rights pursuant to Borrower’s license, certification or Third Party Payor Program; andand Prudential Loan Nos. 706109321 - 706109336 CNL BV Portfolio Amended and Restated Loan Agreement
(C) within five (5) Business Days of the date of the required filing of cost reports of Borrower with Medicare or other applicable agency or pursuant to any reimbursement contract or program, or the date of actual filing of such cost report of Borrower, whichever is earlier, a complete and accurate copy of the annual Medicare and other cost reports for Borrower, which will be prepared by an independent certified public accountant or by an experienced cost report preparer reasonably acceptable to Lender, and promptly furnish to Lender any amendments filed with respect to such reports and all responses, audit reports or inquiries with respect to such reports.
(iii) Any expiration, termination, suspension or revocation of any of the Healthcare Permits described in Sections 11.02(b)(i)(A) and 11.02(b)(i)(C) above or any other Healthcare Permits held by any Borrower, any Property Manager or other Affiliate that is a health care provider (a “Provider”) that are necessary for the operation of any Borrower’s Individual Property as a Senior Living Facility (provided that any provisional Healthcare Permit shall be deemed an acceptable Healthcare Permit for purposes of this provision so long as the operations of Borrower’s Individual Property are not impacted in any material manner, as determined by Lender in its sole discretion), shall be, without any notice or cure period (except where such cure can be obtained on or before the date on which the failure to cure causes any material adverse impact with respect to such Borrower, the operation of Borrower’s Individual Property or Lender and except where the applicable State agency specifies a cure period to reinstate, in which event such cure period shall be the cure period specified by such State agency), an Event of Default under the Documents. Any expiration, termination, suspension or revocation of any of the Healthcare Permits held by any unaffiliated operator, tenant, manager or Provider described in Sections 11.02(b)(i)(A) and 11.02(b)(i)(C) above or any other Healthcare Permits held by any unaffiliated operator, tenant, manager or Provider, shall be, without any notice or cure period (except where such cure can be obtained on or before the date on which the failure to cure causes any material adverse impact with respect to such Borrower, the operation of Borrower’s Individual Property or Lender and except where the applicable State agency specifies a cure period to reinstate, in which event such cure period shall be the cure period specified by such State agency), an Event of Default under the Documents, unless all of the following are true: (i) no payment default occurs under the Documents, (ii) such Borrower has procured a replacement licensed operator satisfactory to Lender, in Lender’s reasonable discretion, within one hundred twenty (120) days after any such de-licensure, provided that if the applicable authority requires or recommends a replacement of the licensed operator at any time, then Borrower shall be required to promptly procure a replacement licensed operator, (iii) the replacement operator executes and delivers a subordination agreement in favor of Lender in form and content satisfactory to Lender, in Lender’s reasonable discretion, (iv) all such Healthcare Permits described in Sections 11.02(b)(i)(A) and 11.02(b)(i)(C) above have been reinstated or reissued in favor of such Borrower and/or the replacement operator, or Borrower or replacement operator is actively Prudential Loan Nos. 000000000 - 706109336 and 706109394 CNL BV Portfolio Second Amended and Restated Loan Agreement pursuing the reinstatement or reissuance of such Healthcare Permits, Lender has received satisfactory evidence that such reinstatement or reissuance efforts are reasonably likely to succeed, such reinstatement or reissuance shall have occurred not later than one hundred twenty (120) days after any such de-licensure and the operations of the applicable Individual Property are not impacted in any material manner during the pendency of such efforts; provided, however, said one hundred twenty (120) day period may be extended for up to an additional sixty (60) days if (A) there is no material adverse effect on the business of operating the affected Individual Property as a Senior Living Facility or on Operator’s ability to operate such business as a result of Prudential Loan Nos. 706109321 - 706109336 CNL BV Portfolio Amended and Restated Loan Agreement applicable expiration, termination, suspension or revocation of any Healthcare Permit, as determined by Lender in its sole discretion, and (B) Lender has received evidence demonstrating, to Lender’s satisfaction, exercised in good faith, that the reinstatement or reissuance efforts have been proceeding with all due diligence and that such efforts are likely to be successful within said period of up to sixty (60) days, and (v) such Borrower’s Individual Property has not been required to cease operations as a Senior Living Facility.
(iv) Each Borrower shall (i) provide full and prompt disclosure to Lender of any violation of Healthcare Laws that can be reasonably expected to have a material adverse effect on the business of operating Borrower’s Individual Property as a Senior Living Facility, and (ii) conduct all appropriate (1) investigation of any violations or alleged violations of applicable Healthcare Laws and (2) correction of any violations of applicable Healthcare Laws, all at Borrower’s sole cost and expense; and (iii) indemnify Lender from all costs and risks relating to violations or alleged violations of Healthcare Laws; provided, however, that this indemnity shall not apply if Borrower can conclusively prove that (A) the violation of Healthcare Laws was caused solely by actions, conditions, or events that occurred after the date that Lender (or any purchaser at a foreclosure sale) actually acquired title to Borrower’s Individual Property, and (B) the violation of Healthcare Laws was not caused by, or attributable to, the direct or indirect actions or inaction of any of the Recourse Parties or any general partner or managing member of any Borrower, any general partner or managing member of any general partner of any Borrower, any guarantor of the Loan, or any indemnitor under the Documents. In addition, Borrower shall grant licenses enabling Lender and its healthcare consultants to (x) make appropriate inquiries with respect to any alleged violations of applicable Healthcare Laws and (y) if required by written notice from Lender to Borrower, negotiate in cooperation with Borrower with any licensing authorities with respect to such alleged violations of applicable Healthcare Laws and to the extent permitted by applicable law, in cooperation with Borrower, to take other ameliorative steps with respect to the Healthcare Permits (whether before or after Lender or any other party succeeds to the interest of Borrower as owner of the applicable Individual Property in any manner, including but not limited to foreclosure, exercise of any power of sale, succession by deed in lieu or other conveyance), all at Borrower’s sole cost and expense; provided, however, Lender shall only have the right to exercise such licenses following an Event of Default These provisions shall survive any termination, satisfaction or foreclosure of the Instrument and Cross Collateral Mortgage signed by Borrower and shall be personal and full recourse obligations.
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