Common use of Occupancy Covenant Clause in Contracts

Occupancy Covenant. Commencing with the quarter ending March 31, 2010, Borrower shall maintain at all times, tested as of the end of each fiscal quarter during the term of the Loan, a minimum average daily occupancy of eighty percent (80%), measured on the basis of the one hundred and twelve (112) beds in the Facility.” 4. The parties hereto acknowledge and agree that this Agreement represents a settlement agreement between the parties only as to the maturity of Loan B and this Agreement does not represent a settlement agreement between the parties as to any other obligations of Borrower or Guarantor under Loan B or pursuant to the Financing Documents or as to Loan A or Loan B as a whole. 5. Borrower hereby issues, ratifies and confirms the representations, warranties and covenants contained in the Loan Agreement, as amended hereby. Borrower agrees that this Agreement is not intended to and shall not cause a novation with respect to any or all of the obligations of Borrower under the Loan Agreement. Except as expressly modified herein, the terms, provisions and covenants of the Loan Agreement are in all other respects hereby ratified and confirmed and remain in full force and effect. 6. The Borrower shall pay at the time this Agreement is executed and delivered all fees, commissions, costs, charges, taxes and other expenses incurred by the Lender and its counsel in connection with this Agreement, including, but not limited to, a commitment fee in the aggregate amount of Seventy-Three Thousand One Hundred Two and No/100 Dollars ($73,102.00) (the “Commitment Fee”) for Loan A and Loan B, $18,275.50 of which Commitment Fee is due and payable to MB Financial Bank, N.A and $54,826.50 of which Commitment Fee is due and payable to Lender, and the reasonable fees and expenses of the Lender’s counsel and all recording fees, taxes and charges. Borrower hereby agrees to pay all appraisal and appraisal review costs and expenses incurred by Lender in connection with a new appraisal of the Property ordered by Lender. 7. Nothing in this Agreement nor any subsequent conduct, actions, settlements or accommodations made by Lender shall constitute a waiver, amendment or termination of the terms, conditions, rights or remedies that Lender holds under the Financing Documents or in regard to any other direct or indirect obligation of Borrower to Lender. No failure or delay on the part of Lender in the exercise of any right, power or remedy shall operate as a waiver thereof or of any past, present or future defaults of Borrower, nor shall any single or partial exercise of any right, power or remedy or subsequent conduct, actions or accommodations made by Lender preclude any other or further exercise thereof, or the exercise of any other right, power or remedy. Lender expressly reserves and preserves all of its rights and remedies provided to it under the Financing Documents and available by law or in equity. No notice to or demand upon Borrower in any instance shall, in itself, entitle such party to any other or further notice or demand in similar or other circumstances or constitute a waiver of the right of Lender to any other or further action in any circumstance without notice or demand. Borrower hereby acknowledges and agrees that Borrower has no offsets, defenses, claims or counterclaims against (i) Lender, (ii) any obligations owed to Lender under the Financing Documents or (iii) Lender’s respective officers, directors, employees, attorneys, representatives, predecessors, successors and assigns (the foregoing jointly “Lender’s Representatives”) with respect to Loan B, the Financing Documents, or this Agreement, and that if Borrower now has, or ever did have, any such offsets, defenses, claims, or counterclaims against Lender or Lender’s Representatives, whether known or unknown, all of them are hereby expressly waived, released, acquitted and forever discharged and Borrower hereby releases Lender and Lender’s Representatives from any liability therefor. 8. This Agreement may be executed in any number of duplicate originals or counterparts, each of such duplicate originals or counterparts shall be deemed to be an original and all taken together shall constitute but one and the same instrument. Borrower agrees that Lender may rely on a telecopy of any signature of Borrower. Lender agrees that Borrower may rely on a telecopy of this Agreement executed by Lender.

Occupancy Covenant. Commencing with the quarter ending March 31, 2010, Borrower shall maintain at all times, tested as of the end of each fiscal quarter during the term of the Loan, a minimum average daily occupancy of eighty percent (80%), measured on a unit basis. For purposes of clarity, the basis of occupancy covenant provided in this Section 7.30 will not be tested with respect to the one hundred and twelve (112) beds in the Facilityfiscal quarter ending December 31, 2009.” 49. Section 8.15 (Distributions) is hereby amended and restated in its entirety as follows: “Pay distributions to members of Borrower; provided, however, commencing with the quarter ending March 31, 2010, Borrower shall be permitted to make distributions to its Sole Member only to the extent the Borrower is (i) in compliance with Section 7.29 and (ii) able to maintain a Debt Service Ratio for the Facility of not less than 1.0 to 1.0 after payment of the Management Fees and such distributions to its Sole Member.” 10. The parties hereto acknowledge and agree that this Agreement represents a settlement agreement between the parties only as to the maturity of Loan B A and the waiver of the Event of Default caused by the Borrower’s failure to comply with the Occupancy Covenant for the fiscal quarter ending September 30, 2009 and this Agreement does not represent a settlement agreement between the parties as to any other obligations of Borrower or Guarantor under Loan B A or pursuant to the Financing Documents or as to Loan A or Loan B as a whole. 511. Borrower hereby issues, ratifies and confirms the representations, warranties and covenants contained in the Loan Agreement, as amended or waived hereby. Borrower agrees that this Agreement is not intended to and shall not cause a novation with respect to any or all of the obligations of Borrower under the Loan Agreement. Except as expressly modified herein, the terms, provisions and covenants of the Loan Agreement are in all other respects hereby ratified and confirmed and remain in full force and effect. 612. The Borrower shall pay at the time this Agreement is executed and delivered all fees, commissions, costs, charges, taxes and other expenses incurred by the Lender Agent and its counsel in connection with this Agreement, including, but not limited to, a commitment fee in the aggregate amount of Seventy-Three Five Thousand One Hundred Two and No/100 Dollars ($73,102.0075,000.00) (the “Commitment Fee”) for Loan A and Loan B, $18,275.50 18,750 of which Commitment Fee is due and payable to MB Financial Bank, N.A and $54,826.50 56,250 of which Commitment Fee is due and payable to LenderAgent, and the reasonable fees and expenses of the LenderAgent’s counsel and all recording fees, taxes and charges. Borrower hereby agrees to pay all appraisal and appraisal review costs and expenses incurred by Lender in connection with a new appraisal of the Property ordered by Lender. 713. Nothing in this Agreement nor any subsequent conduct, actions, settlements or accommodations made by Lender shall constitute a waiver, amendment or termination of the terms, conditions, rights or remedies that Lender holds under the Financing Documents or in regard to any other direct or indirect obligation of Borrower to Lender. No failure or delay on the part of Lender in the exercise of any right, power or remedy shall operate as a waiver thereof or of any past, present or future defaults of Borrower, nor shall any single or partial exercise of any right, power or remedy or subsequent conduct, actions or accommodations made by Lender preclude any other or further exercise thereof, or the exercise of any other right, power or remedy. Lender expressly reserves and preserves all of its rights and remedies provided to it under the Financing Documents and available by law or in equity. No notice to or demand upon Borrower in any instance shall, in itself, entitle such party to any other or further notice or demand in similar or other circumstances or constitute a waiver of the right of Lender to any other or further action in any circumstance without notice or demand. Borrower hereby acknowledges and agrees that Borrower has no offsets, defenses, claims or counterclaims against (i) Lender, (ii) any obligations owed to Lender under the Financing Documents or (iii) Lender’s respective officers, directors, employees, attorneys, representatives, predecessors, successors and assigns (the foregoing jointly “Lender’s Representatives”) with respect to Loan BA, the Financing Documents, or this Agreement, and that if Borrower now has, or ever did have, any such offsets, defenses, claims, or counterclaims against Lender or Lender’s Representatives, whether known or unknown, all of them are hereby expressly waived, released, acquitted and forever discharged and Borrower hereby releases Lender and Lender’s Representatives from any liability therefor. 814. This Agreement may be executed in any number of duplicate originals or counterparts, each of such duplicate originals or counterparts shall be deemed to be an original and all taken together shall constitute but one and the same instrument. Borrower agrees that Lender Agent may rely on a telecopy of any signature of Borrower. Lender Agent agrees that Borrower may rely on a telecopy of this Agreement executed by LenderAgent.

Occupancy Covenant. Commencing with the quarter ending March 31, 2010, Borrower shall maintain at all times, tested as of the end of each fiscal quarter during the term of the Loan, a minimum average daily occupancy of eighty percent (80%), measured on the basis of the one hundred and twelve (112) beds in the Facility.” 4. The parties hereto acknowledge and agree that this Agreement represents a settlement agreement between the parties only as to the maturity of Loan B A and this Agreement does not represent a settlement agreement between the parties as to any other obligations of Borrower or Guarantor under Loan B A or pursuant to the Financing Documents or as to Loan A or Loan B as a whole. 5. Borrower hereby issues, ratifies and confirms the representations, warranties and covenants contained in the Loan Agreement, as amended or waived hereby. Borrower agrees that this Agreement is not intended to and shall not cause a novation with respect to any or all of the obligations of Borrower under the Loan Agreement. Except as expressly modified herein, the terms, provisions and covenants of the Loan Agreement are in all other respects hereby ratified and confirmed and remain in full force and effect. 6. The Borrower shall pay at the time this Agreement is executed and delivered all fees, commissions, costs, charges, taxes and other expenses incurred by the Lender Agent and its counsel in connection with this Agreement, including, but not limited to, a commitment fee in the aggregate amount of Seventy-Three Thousand One Hundred Two and No/100 Dollars ($73,102.00) (the “Commitment Fee”) for Loan A and Loan B, $18,275.50 of which Commitment Fee is due and payable to MB Financial Bank, N.A and $54,826.50 of which Commitment Fee is due and payable to LenderAgent, and the reasonable fees and expenses of the LenderAgent’s counsel and all recording fees, taxes and charges. Borrower hereby agrees to pay all appraisal and appraisal review costs and expenses incurred by Lender Agent in connection with a new appraisal of the Property ordered by LenderAgent. 7. Nothing in this Agreement nor any subsequent conduct, actions, settlements or accommodations made by Lender shall constitute a waiver, amendment or termination of the terms, conditions, rights or remedies that Lender holds under the Financing Documents or in regard to any other direct or indirect obligation of Borrower to Lender. No failure or delay on the part of Lender in the exercise of any right, power or remedy shall operate as a waiver thereof or of any past, present or future defaults of Borrower, nor shall any single or partial exercise of any right, power or remedy or subsequent conduct, actions or accommodations made by Lender preclude any other or further exercise thereof, or the exercise of any other right, power or remedy. Lender expressly reserves and preserves all of its rights and remedies provided to it under the Financing Documents and available by law or in equity. No notice to or demand upon Borrower in any instance shall, in itself, entitle such party to any other or further notice or demand in similar or other circumstances or constitute a waiver of the right of Lender to any other or further action in any circumstance without notice or demand. Borrower hereby acknowledges and agrees that Borrower has no offsets, defenses, claims or counterclaims against (i) Lender, (ii) any obligations owed to Lender under the Financing Documents or (iii) Lender’s respective officers, directors, employees, attorneys, representatives, predecessors, successors and assigns (the foregoing jointly “Lender’s Representatives”) with respect to Loan BA, the Financing Documents, or this Agreement, and that if Borrower now has, or ever did have, any such offsets, defenses, claims, or counterclaims against Lender or Lender’s Representatives, whether known or unknown, all of them are hereby expressly waived, released, acquitted and forever discharged and Borrower hereby releases Lender and Lender’s Representatives from any liability therefor. 8. This Agreement may be executed in any number of duplicate originals or counterparts, each of such duplicate originals or counterparts shall be deemed to be an original and all taken together shall constitute but one and the same instrument. Borrower agrees that Lender Agent may rely on a telecopy of any signature of Borrower. Lender Agent agrees that Borrower may rely on a telecopy of this Agreement executed by LenderAgent.

Occupancy Covenant. Commencing with the quarter ending March 31, 2010, Borrower shall maintain at all times, tested as of the end of each fiscal quarter during the term of the Loan, a minimum average daily occupancy of eighty percent (80%), measured on a unit basis. For purposes of clarity, the basis of occupancy covenant provided in this Section 7.30 will not be tested with respect to the one hundred and twelve (112) beds in the Facilityfiscal quarter ending December 31, 2009.” 49. Section 8.15 (Distributions) is hereby amended and restated in its entirety as follows: “Pay distributions to members of Borrower; provided, however, commencing with the quarter ending March 31, 2010, Borrower shall be permitted to make distributions to its Sole Member only to the extent the Borrower is (i) in compliance with Section 7.29 and (ii) able to maintain a Debt Service Ratio for the Facility of not less than 1.0 to 1.0 after payment of the Management Fees and such distributions to its Sole Member.” 10. The parties hereto acknowledge and agree that this Agreement represents a settlement agreement between the parties only as to the maturity of Loan B and the waiver of the Event of Default caused by the Borrower’s failure to comply with the Occupancy Covenant for the fiscal quarter ending September 30, 2009 and this Agreement does not represent a settlement agreement between the parties as to any other obligations of Borrower or Guarantor under Loan B or pursuant to the Financing Documents or as to Loan A or Loan B as a whole. 511. Borrower hereby issues, ratifies and confirms the representations, warranties and covenants contained in the Loan Agreement, as amended hereby. Borrower agrees that this Agreement is not intended to and shall not cause a novation with respect to any or all of the obligations of Borrower under the Loan Agreement. Except as expressly modified herein, the terms, provisions and covenants of the Loan Agreement are in all other respects hereby ratified and confirmed and remain in full force and effect. 612. The Borrower shall pay at the time this Agreement is executed and delivered all fees, commissions, costs, charges, taxes and other expenses incurred by the Lender and its counsel in connection with this Agreement, including, but not limited to, a commitment fee in the aggregate amount of Seventy-Three Five Thousand One Hundred Two and No/100 Dollars ($73,102.0075,000.00) (the “Commitment Fee”) for Loan A and Loan B, $18,275.50 18,750 of which Commitment Fee is due and payable to MB Financial Bank, N.A and $54,826.50 56,250 of which Commitment Fee is due and payable to Lender, and the reasonable fees and expenses of the Lender’s counsel and all recording fees, taxes and charges. Borrower hereby agrees to pay all appraisal and appraisal review costs and expenses incurred by Lender in connection with a new appraisal of the Property ordered by Lender. 713. Nothing in this Agreement nor any subsequent conduct, actions, settlements or accommodations made by Lender shall constitute a waiver, amendment or termination of the terms, conditions, rights or remedies that Lender holds under the Financing Documents or in regard to any other direct or indirect obligation of Borrower to Lender. No failure or delay on the part of Lender in the exercise of any right, power or remedy shall operate as a waiver thereof or of any past, present or future defaults of Borrower, nor shall any single or partial exercise of any right, power or remedy or subsequent conduct, actions or accommodations made by Lender preclude any other or further exercise thereof, or the exercise of any other right, power or remedy. Lender expressly reserves and preserves all of its rights and remedies provided to it under the Financing Documents and available by law or in equity. No notice to or demand upon Borrower in any instance shall, in itself, entitle such party to any other or further notice or demand in similar or other circumstances or constitute a waiver of the right of Lender to any other or further action in any circumstance without notice or demand. Borrower hereby acknowledges and agrees that Borrower has no offsets, defenses, claims or counterclaims against (i) Lender, (ii) any obligations owed to Lender under the Financing Documents or (iii) Lender’s respective officers, directors, employees, attorneys, representatives, predecessors, successors and assigns (the foregoing jointly “Lender’s Representatives”) with respect to Loan B, the Financing Documents, or this Agreement, and that if Borrower now has, or ever did have, any such offsets, defenses, claims, or counterclaims against Lender or Lender’s Representatives, whether known or unknown, all of them are hereby expressly waived, released, acquitted and forever discharged and Borrower hereby releases Lender and Lender’s Representatives from any liability therefor. 8. This Agreement may be executed in any number of duplicate originals or counterparts, each of such duplicate originals or counterparts shall be deemed to be an original and all taken together shall constitute but one and the same instrument. Borrower agrees that Lender may rely on a telecopy of any signature of Borrower. Lender agrees that Borrower may rely on a telecopy of this Agreement executed by Lender.