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EXHIBIT 10.33
AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT (the "Loan Agreement") dated
as of December 10, 1997, is made by and between BANK ONE, TEXAS, N.A., a
national banking association ("Lender"), whose address is 0000 Xxxx Xxxxxx,
Xxxxxx, Xxxxx 00000, Attention: Xxxxx X. Xxxxxxxx, Senior Vice President, and
CAPITAL SENIOR LIVING PROPERTIES, INC., a Texas corporation ("Borrower"), whose
address is 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, with respect to
a loan in the principal sum of $20,000,000.00.
RECITALS
A. Reference is made to (i) that certain Loan Agreement dated as of
July 29, 1994 (the "First Agreement"), between Lender and Capital Senior Living
Communities, L.P. ("Original Borrower"), (ii) that certain Restatement of Loan
Agreement dated as of June 30, 1995 (the "Second Agreement") between Lender and
Original Borrower, (iii) that certain Amended and Restated Loan Agreement dated
as of June 30, 1997 between Original Borrower and Xxxxxx Brothers Holdings Inc.
d/b/a Xxxxxx Capital, a division of Xxxxxx Brothers Holdings Inc. ("Xxxxxx")
(the "Third Agreement"), and (iv) that certain Loan Assumption and Modification
Agreement dated November 3, 1997 between Xxxxxx, Original Borrower and Borrower
(the "Assumption and Modification") . Lender and Borrower desire to amend the
First Agreement, Second Agreement, Third Agreement and Assumption and
Modification in accordance with the terms of this Loan Agreement and restate
those agreements in their entirety.
B. Lender and Borrower agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Loan Agreement, the following terms shall have the
respective meanings assigned to them.
1.1 Advances. The term "Advances" shall mean a disbursement by Lender
of any of the proceeds of the Loan which shall be used solely for the purposes
set forth in Section 1.28 herein.
1.2 Affidavit of Borrower. The term "Affidavit of Borrower" shall mean
a sworn affidavit of Borrower (and such other parties as Lender may reasonably
require) to be delivered to Lender no later than forty-five (45) days after the
end of each calendar quarter in the form of Exhibit "D".
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1.3 Appraisals. The term "Appraisals" shall mean appraisals of the
Property in form and containing substance (including all assumptions and methods
of valuation) reasonably satisfactory to Lender and each prepared by an
independent appraiser who is a member of the American Institute of Real Estate
Appraisers and is satisfactory to Lender.
1.4 Assignment of Landlord's Interest in Leases. The term "Assignment
of Landlord's Interest in Leases" shall mean an assignment by Borrower to Lender
of Borrower's interest in all leases covering all or a part of the Property and
all rights derived therefrom.
1.5 Borrower. The term "Borrower" shall mean all parties named Borrower
in the first paragraph of this Loan Agreement and any and all subsequent record
owners of the Property.
1.6 Borrowing Base. The term "Borrowing Base" shall mean sixty-two and
one-half percent (62.5%) of the value of the Property (in the aggregate) as
determined from the Appraisals.
1.7 Canton Regency. The term "Canton Regency" shall mean that certain
congregate community owned by Borrower in Canton, Ohio commonly known as Canton
Regency Retirement Community as further described in Exhibit "A".
1.8 Code. The term "Code"shall mean the Uniform Commercial Code as in
force in the State of Texas.
1.9 Commitment. The term "Commitment" shall mean the Commitment issued
by Lender with respect to the Loan dated December 1, 1997, and any subsequent
amendment in writing by Lender and Borrower.
1.10 CSLC. The term "CSLC" shall mean Capital Senior Living
Corporation, a Delaware corporation.
1.11 Current Assets. The term "Current Assets" shall mean all cash,
cash equivalents, customers' accounts and other receivables due within one year
from statement date, inventory, deposits, marketable securities, and prepaid
expenses to be consumed within one year from statement date.
1.12 Current Liabilities. The term "Current Liabilities" shall mean all
amounts due or to become due for payment within twelve (12) months of statement
date.
1.13 Current Ratio. The term "Current Ratio" shall mean the ratio of
Current Assets to Current Liabilities.
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1.14 Debtor Relief Laws. The term "Debtor Relief Laws" shall mean any
applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement,
insolvency, reorganization, or similar laws affecting the rights or remedies of
creditors generally, as in effect from time to time.
1.15 Environmental Indemnity Agreements. The term "Environmental
Indemnity Agreements" shall mean environmental indemnity agreements made by
Borrower in favor of Lender with respect to the Property.
1.16 Event of Default. The term "Event of Default" shall mean the
occurrence of any one or more of the following.
(a) A failure by Borrower to make any payment of principal or
interest on the Note within five (5) days of the due date.
(b) Except as otherwise specifically addressed elsewhere in
this Section 1.15, a failure by Borrower to materially comply with any
of the other terms or conditions specified herein or in any other Loan
Document or the occurrence of an event of default under any of such
instruments and the continuation of such failure for a period of thirty
(30) days following written notice to Borrower of such failure;
provided, however, that in no event shall Lender be requested to give
notice of any Event of Default more than two (2) times in any twelve
(12) month period.
(c) There shall be an event of default in connection with any
other obligation of Borrower payable to Lender and the continuation of
such failure for a period of thirty (30) days following written notice
to Borrower of such failure; provided however, in no event shall Lender
be requested to give notice of any Event of Default more than two (2)
times in any twelve (12) month period.
(d) The failure of Borrower to maintain the various financial
ratio tests and financial status called for herein and the continuation
of such failure for a period of thirty (30) days following written
notice to Borrower of such failure; provided however, in no event shall
Lender be requested to give notice of any Event of Default more than
two (2) times in any twelve (12) month period.
(e) The incorrectness of any material representation or
warranty made by Borrower to Lender in any of the Loan Documents;
(f) The failure by Borrower and/or the Property and
Improvements materially to comply with any Governmental Requirements
including, without limitation, environmental laws, The Americans With
Disabilities Act of 1990, The Judicial Fair Housing Act, and any other
law, rule or regulation mandating accessibility; and the continuation
of such failure for a period of thirty (30) days
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following written notice to Borrower of such failure; provided,
however, in no event shall Lender be obligated to give notice of an
Event of Default more than two (2) times in any twelve (12) month
period.
(g) The appointment of a receiver, trustee, conservator, or
liquidator of Borrower, any of the Property, or any other property of
Borrower, and such appointment is not rescinded within ninety (90) days
following the appointment;
(h) The filing of any voluntary petition seeking an entry of
an order for relief as a debtor in a proceeding under the United States
Bankruptcy Code or seeking reorganization or rearrangement or taking
advantage of any Debtor Relief Laws, concerning Borrower or CSLC or the
admitting of material allegations of a petition filed against Borrower
or any one or more of said parties, in any bankruptcy, reorganization,
insolvency, conservatorship, or similar proceeding, or an admission in
writing by Borrower, or any one or more of said parties of an inability
to pay its, his or their debts as they become due;
(i) The filing of any involuntary petition seeking an entry of
an order for relief as a debtor in a proceeding under the United States
Bankruptcy Code or seeking reorganization or rearrangement or taking
advantage of any Debtor Relief Laws, concerning Borrower or CSLC and
any such petition is not rescinded or dismissed within ninety (90) days
following such filing;
(j) The making of a general assignment for the benefit of
creditors by Borrower;
(k) There shall be a material adverse change in the financial
circumstances of Borrower;
(l) Any sale, exchange, assignment or other transfer or
conveyance of the Property or any interest therein;
(m) A replacement of the Manager without Lender's prior
written approval;
(n) Borrower is adjudged in a final administrative decision to
have committed fraud or abuse against Medicare, Medicaid or any other
governmental health care program;
(o) The failure of Borrower to maintain any insurance coverage
required by this Agreement or any of the Mortgages and such failure
continues for five (5) business days after receipt by Borrower of
written notice of such failure;
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(p) The failure of Borrower to correct, within the time
deadlines set by any applicable Medicaid, Medicare or licensing agency,
any deficiency related to the Property which would result in:
1. a termination of any Permit or Reimbursement
Contract; or
2. a ban on new admissions with respect to the
Property; or
(q) The Borrower, Manager, or the Property shall be assessed
fines or penalties by any state health or licensing agency having
jurisdiction over such Persons or the Property in excess of $100,000,
which fine or penalty may not be appealed;
(r) The Property or any portion thereof is taken on execution
or other process of law in any action against Borrower;
(s) The holder of any lien or security interest on any of the
Property (without implying the consent of Lender to the existence or
creation of any such lien or security interest), declares a default
thereunder or institutes foreclosure or other proceedings for
enforcement of its remedies thereunder and such default is not cured
within ninety (90) days; or
(t) Borrower abandons all or any portion of the Property.
1.17 Existing Loan. The term "Existing Loan" shall mean the "Loan" as
defined in the Third Agreement.
1.18 Existing Loan Documents. The term "Existing Loan Documents" shall
mean the "Loan Documents" as defined in the Third Agreement.
1.19 Financial Statements. The term "Financial Statements" shall mean
such balance sheets, profit and loss statements, schedules of sources and
applications of funds, operating statements, with respect to Borrower, Capital
Senior Living Corporation and the Property, and other financial information of
Borrower, as shall be reasonably required by Lender, from time to time. All
annual Financial Statements of CSLC shall be certified by a certified public
accountant, acceptable to Lender. Ernst & Young, L.L.P. is acceptable to Lender.
All other Financial Statements shall be certified by an officer of Borrower. All
Financial Statements shall be in form reasonably satisfactory to Lender using
generally accepted accounting principles, consistently applied.
1.20 Financing Statements. The term "Financing Statements" shall mean
the Form UCC-1 or other financing statements, to be filed in the appropriate
offices for the perfection of a security interest in any of the personal
property securing the Loan.
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1.21 Governmental Authority. The term "Governmental Authority" shall
mean the United States, the state, the county, the city, or any other political
subdivision in which the Property is located, and any other political
subdivision, agency, or instrumentality exercising jurisdiction over Borrower,
with respect to the Property.
1.22 Governmental Requirements. The term "Governmental Requirements"
shall mean all laws, ordinances, rules, and regulations of any Governmental
Authority applicable to Borrower or the Property, including but not limited to
those described above.
1.23 The Xxxxxxxx. The term "The Xxxxxxxx" or "Eagle Valley" shall mean
that certain congregate care community owned by Borrower in Indianapolis,
Indiana known as The Xxxxxxxx or Eagle Valley Retirement Community and as
further described on Exhibit "A".
1.24 Improvements. The term "Improvements" shall mean the buildings,
structures and other improvements located on the real property constituting
portions of the Property.
1.25 Insurance Policies. The term "Insurance Policies" shall mean the
insurance policies required pursuant to the terms of the Mortgages.
1.26 Land. The term "Land" shall mean those certain parcels or tracts
of the real property described on Exhibit "A" attached hereto and incorporated
herein by reference.
1.27 Lender. The term "Lender" shall mean the Lender named in the first
paragraph of this Loan Agreement and its successors and assigns.
1.28 Loan. The term "Loan" shall mean the Loan by Lender to Borrower,
in an amount not to exceed $20,000,000, to (i) pay or otherwise take-out the
Existing Loan and to take by assignment the Third Agreement and the Existing
Loan Documents from Xxxxxx, (ii) fund the tender and solicitation for purchase
by Borrower of partnership interests in Healthcare Properties, L.P. ("HCP") and
limited partnership interests and pension notes in NHP Retirement Housing
Partners I Limited Partnership ("NHP"); (iii) fund the acquisition of other
senior living communities; (iv) fund the construction of improvements to
properties owned by Borrower, and (v) fund working capital of Borrower.
1.29 Loan Documents. The term "Loan Documents" shall mean this Loan
Agreement, the Mortgages, the Note, the Assignments of Landlord's Interest in
Leases, the Financing Statements, the Security Agreement, the Environmental
Indemnity Agreements, the Notice of Final Agreement of even date herewith
between Borrower and Lender, the Specific Assignment, Subordination and
Attornment Agreement of even date herewith between Borrower, Lender and Manager,
the Extension, Assumption and Modification Agreement (Xxxxxx County, Indiana) of
even date herewith between Borrower and Lender, the Extension, Assumption and
Modification Agreement (Lake County, Indiana) of even date herewith between
Borrower and Lender, the Extension, Assumption and Modification Agreement (Ohio)
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of even date herewith between Borrower and Lender, the Modification and
Assumption of Amended and Restated Security Agreement of even date herewith
between Borrower and Lender, all other documents executed by Borrower in
connection with this Agreement, and such other instruments securing the First
Agreement, Second Agreement and Third Agreement (as amended and restated hereby)
and the Loan as shall, from time to time, be executed and delivered by Borrower,
or any other party to Lender pursuant to the First Agreement, Second Agreement
or Third Agreement (as amended and restated hereby) and this Loan Agreement,
including, without limitation, each Affidavit of Borrower.
1.30 Loan Fees. The term "Loan Fees" shall mean the fees described in
Section 4.16.
1.31 Management Agreements. The term "Management Agreements" shall mean
the three management agreements pertaining to the Property, each dated November
3, 1997, between Borrower and Manager.
1.32 Manager. The term "Manager" shall mean Capital Senior Living,
Inc., a Texas corporation.
1.33 Medicaid. The term "Medicaid" shall mean that certain program of
medical assistance, funded jointly by the federal government and the States, for
impoverished individuals who are aged, blind and/or disabled, and for members of
families with dependent children, which program is more fully described in Title
XIX of the Social Security Act (42 U.S.C. xx.xx. 1396 et seq.) and the
regulations promulgated thereunder.
1.34 Medicare. The term "Medicare" shall mean that certain federal
program providing health insurance for eligible elderly and other individuals,
under which physicians, hospitals, skilled nursing homes, home health care and
other providers are reimbursed for certain covered services they provide to the
beneficiaries of such program, which program is more fully described in Title
XVIII of the Social Security Act (42 U.S.C. xx.xx. 1395 et seq.) and the
regulations promulgated thereunder.
1.35 Mortgages. The term "Mortgages" shall mean the mortgages described
in Exhibit "C" attached hereto and made a part hereof. Each of the foregoing
documents secures payment of the Note and the payment and performance of all
obligations specified in the Mortgages and this Loan Agreement, and evidences a
valid and enforceable first lien on the Property subject only to the matters
reflected in the Title Insurance.
1.36 Note. The term "Note" shall mean that certain Promissory Note
dated of even date herewith, in the stated principal amount of $20,000,000.00,
executed by Borrower and payable to the order of Lender.
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1.37 Permits. The term "Permits" shall mean all licenses, permits and
certificates used or useful in connection with the ownership, operation, use or
occupancy of the Property, including, without limitation, business licenses,
state health department licenses, food service licenses, licenses to conduct
business, certificates of need and all such other permits, licenses and rights,
obtained from any governmental, quasi-governmental or private person or entity
whatsoever.
1.38 Permitted Exceptions. The term "Permitted Exceptions" with respect
to the Property shall mean (i) title exceptions set forth in the Title
Insurance, (ii) liens for ad valorem real property taxes, ad valorem personal
property taxes and general or special assessments against real property and
other governmental charges not yet due or payable, (iii) liens created pursuant
to the Loan Documents, (iv) unrecorded leases of residents or patients, (v)
easements, rights of way, restrictions, reservations, conditions, minor defects
or irregularities in title and other similar charges or encumbrances, none of
which individually or in the aggregate have a material adverse affect upon the
Property as security for the Loan or interfere with the ordinary conduct of
business at the Property, and (vi) statutory liens of mechanics and materialmen
and other similar liens, in respect of liabilities which are not yet due or
which are being contested by Borrower in good faith.
1.39 Property. The term "Property" shall mean collectively: (a) Canton
Regency, The Xxxxxxxx and Towne Centre, as well as the Land and Improvements and
all other property (real and personal, fixture or otherwise) related thereto
which is subject to the Mortgages, and (b) the Collateral (as such term is
defined in the Security Agreement). The term "any of the Properties" shall mean
any one or more of Canton Regency, The Xxxxxxxx and Xxxxx Centre and the term
"any of the Property" shall mean any of the Land, Improvements and Collateral.
Further, in those instances where required by the context in which it is used,
the term "Property" shall also mean "any of the Property" or "any of the
Properties".
1.40 Reimbursement Contracts. The term "Reimbursement Contracts" shall
mean all third party reimbursement contracts for the Property which are now or
hereafter in effect with respect to residents qualifying for coverage under the
same, including private insurance agreements.
1.41 Security Agreement. The term "Security Agreement" shall mean the
Amended and Restated Security Agreement dated June 30, 1997 between Xxxxxx and
Original Borrower, as modified by Modification and Assumption of Amended and
Restated Security Agreement dated of even date herewith between Borrower and
Lender.
1.42 Subsidiary. The term "Subsidiary" means any corporation, limited
liability company, association, partnership, joint venture or other business or
corporate entity, enterprise or organization which is directly or indirectly
(through one or more intermediaries) controlled by or owned fifty percent or
more by CSLC.
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1.43 Survey. The term "Survey" shall mean a current certified as built
ALTA survey of each of the senior living communities constituting the Property
satisfactory to Lender.
1.44 Title Company. The term "Title Company" shall mean Lawyers Title
Insurance Company.
1.45 Title Insurance. The term "Title Insurance" shall mean the
policies of mortgage title insurance issued by Lawyers Title Insurance
Corporation with respect to the Mortgages.
1.46 Towne Centre. The term "Towne Centre" shall mean that certain
congregate care community owned by Borrower in Merrillville, Indiana commonly
known as Towne Centre Retirement Community as further described in Exhibit "A".
1.47 Treasury Note Rate. The term "Treasury Note Rate" shall mean the
Treasury Constant Maturity Series yields reported, for the latest day for which
such yields shall have been so reported as of the applicable Business Day, in
Federal Reserve Statistical Release H.15 (519) (or any comparable successor
publication) for actively traded U.S. Treasury securities having a constant
maturity equal to ten years. Such implied yield shall be determined, if
necessary, by (i) converting U.S. Treasury xxxx quotations to bond-equivalent
yields in accordance with accepted financial practice and (ii) interpolating
linearly between reported yields. The term "Business Day" as used in this
paragraph means a day on which banks are open for business in New York, New
York.
ARTICLE 2
AGREEMENTS OF LENDER
2.1 Commitment of Lender. Subject to the conditions hereof, and
provided that an Event of Default has not occurred, Lender will make Advances to
Borrower in accordance with this Loan Agreement and solely for the purposes set
forth in Section 1.28.
Notwithstanding anything to the contrary in this Loan Agreement or any other
instrument executed hereunder or in connection herewith, Borrower shall not use
any Advance to pay fees, commissions, salaries, or other compensation of any
kind to Borrower or to any affiliates or any persons or entities deemed by
Lender to be affiliates of Borrower, whether directly or indirectly under any
agreement, including, without limitation, management agreements, unless such
fees, commissions, salaries or other compensation are specifically approved in a
separate written instrument signed by Lender; provided however, Lender hereby
acknowledges its approval of Borrower's reimbursement of actual expenses
incurred and the payment of fees payable under the Management Agreements and
development agreements.
2.2 Interest on the Loan: Adjustment of Interest. Interest on the Loan,
at the rate specified in the Note, shall be computed on the outstanding balance
of Advances and shall be
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computed with respect to each Advance only from the date of such Advance. Since
the term of the Loan may be reduced to less than the full stated term under
various circumstances, it is not possible at the time of execution of this
Agreement to determine whether interest charged under the Note together with
other loan charges constituting interest (herein called "Loan Finance Charges")
will exceed the maximum interest rate permitted by applicable law for the actual
term of the Loan. Therefore, the parties agree that at the end of the actual
term of the Loan (as it may be renewed or extended), the following calculations
will be made: (i) first, the Loan Fees (to the extent that they constitute
interest) shall be added to the interest charged, collected or received by
Lender under the Note, such total being hereinafter called the "Stated
Interest"; and (ii) second, the maximum amount of interest that may be charged
under applicable law (including, without limitation, Section 501 of the
Depository Institutions Deregulation and Monetary Control Act of 1980, Public
Law No. 96-221 ) for the actual term of the Loan on the principal balance
remaining unpaid from time to time shall be calculated. If the Stated Interest
exceeds the Maximum Interest (as defined in the Note), the amount of such excess
shall be credited to the principal amount of the Note or refunded immediately to
Borrower if such principal amount has theretofore been entirely paid. In no
event shall the amount of the Loan Fees together with the interest charged,
collected or received by Lender under the Note exceed the highest interest rate
permitted by applicable law for the actual term of the Loan.
2.3 Limitation on Aggregate Amount of Advances. In no event shall
Lender be required to make any Advances in excess of the stated principal amount
of the Loan or if the making of such Advance would cause Lender to violate any
law, rule or regulation to which Lender is subject limiting the amount that may
be advanced by Lender as contemplated in this Loan Agreement.
2.4 Conditions to Advances. As a condition precedent to each Advance
hereunder, in addition to all other requirements herein, Borrower must satisfy
the following requirements and, if required by Lender, deliver to Lender
evidence of such satisfaction:
(a) Borrower shall deliver to Lender a Request for Advance in
the form attached hereto as Exhibit "B" at least two (2) business days
prior to the date such advance is to be made.
(b) There shall then exist no Event of Default;
(c) The representations and warranties made in this Loan
Agreement shall be true and correct on and as of the date of each
Advance, with the same effect as if made on that date;
(d) There shall be no material adverse change or modification
in the financial condition of Borrower; and
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(e) The total of all outstanding Advances together with the
requested Advance shall not exceed the Borrowing Base.
No Advance will be made under the Loan after December 1, 2000.
2.5 Future Acquisitions. Furthermore, Borrower understands and agrees
that so long as Borrower has outstanding obligations to Lender related to the
Loan, Borrower shall not, without the prior written consent of Lender, which
consent shall not be unreasonably withheld: incur any third party purchase money
indebtedness related to any other retirement community, nursing home facility,
or other real estate property without the Lender's prior written consent if such
property, development or proposed investment is not generating positive cash
flow from operations after payment of operating expenses, maintenance capital
expenditures and debt service of third party financing.
2.6 No Waiver. No Advance shall constitute a waiver of any condition
precedent to the obligation of Lender to make any further Advance or preclude
Lender from thereafter declaring the failure of Borrower to satisfy such
condition precedent to be an Event of Default.
2.7 Conditions Precedent for the Benefit of Lender. All conditions
precedent to the obligation of Lender to make any Advance are imposed hereby
solely for the benefit of Lender, and no other party may require satisfaction of
any such condition precedent or be entitled to assume that Lender will refuse to
make any Advance in the absence of strict compliance with such conditions
precedent. All requirements of this Loan Agreement may be waived by Lender, in
whole or in part, at any time, in a writing signed by Lender.
2.8 Payment Procedure. All payments and prepayments made by Borrower
under the Note or this Loan Agreement shall be made to Lender at its offices
specified herein in immediately available funds before 2:00 p.m. Dallas time, on
the date that such payment is required to be made. Any payment received and
accepted by Lender after such time shall be considered for all purposes
(including the calculation of interest) to the extent permitted by law, as
having been made to Lender on the next following business day.
2.9 Recourse. Borrower shall be liable for the indebtedness evidenced
by the Note and for the performance of all agreements in the Mortgages and the
other Loan Documents to the full extent of the Property and other assets owned
by Borrower, whether pledged to Lender or subject to a separate lien or
otherwise. If there is an Event of Default, any judicial proceedings brought by
Lender against Borrower shall be limited initially to the protection of the
Property and the enforcement and foreclosure of the liens and security interests
created by the Loan Documents. The collection of any deficiency remaining after
Lender has sought to satisfy the indebtedness and reasonable expenses incurred
subsequent to foreclosure of the liens and security interests created by the
Loan Documents shall be against the remaining assets of Borrower.
Notwithstanding the foregoing, Lender shall not be required to exercise its
rights and remedies with respect to a Property (including the Land, Improvements
and
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Collateral related to such Property) (the "Affected Property") which is affected
by any Hazardous Substance (as such term is defined in the Environmental
Indemnity Agreements) if as a result thereof, the value of all of the Property
after the exercise of such rights and remedies (taking into account the costs to
be incurred to clean up, remove, resolve, or minimize the impact of, or
otherwise deal with the Hazardous Substance) would be less than the outstanding
principal balance of the Loan prior to the exercise of such rights and remedies.
In the event of the circumstances described in the preceding sentence, Lender
shall only be required to exercise its rights and remedies with respect to the
Property other than the Affected Property before proceeding directly against
Borrower for the indebtedness and the performance of its obligations under the
Loan Documents. Nothing contained in this Section 2.9 shall alter, affect or
impair or relieve Borrower from any of its obligations under the Environmental
Indemnity Agreements.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BORROWER
Borrower hereby represents and warrants as follows:
3.1 Organization and Authority of Borrower. Borrower is a duly
organized, validly existing Texas corporation and in good standing under the
applicable laws of Texas, and is qualified to do business and is in good
standing in each state where its business activities require such qualification,
with full power, and authority to enter into this Agreement. If the issuance of
any interest in Borrower, or in any constituent business entity of Borrower is
subject to any state or federal securities laws and/or the rules and regulations
of the Securities and Exchange Commission, each such issuance has been and will
be in compliance with all said laws and regulations to which it is subject.
3.2 Execution and Delivery of Loan Documents. The execution and
delivery of the Loan Documents executed or delivered by Borrower, and the
consummation of the transactions contemplated thereby: (i) have been duly
authorized by all actions required under the terms and provisions of their
governing instruments, the laws of the State of Texas, and any applicable
requirement of a Governmental Authority; (ii) create legal, valid and binding
obligations on Borrower; (iii) do not require the approval or consent of any
Governmental Authority having jurisdiction over Borrower, or the property of
Borrower; and (iv) do not and will not constitute a violation of, or default
under, the governing instruments of Borrower, any requirement of a Governmental
Authority applicable to Borrower, or any mortgage, indenture, agreement,
commitment, or instrument to which Borrower is a party or by which any of its
assets are bound, nor create or cause to be created any mortgage, lien,
encumbrance, or charge against the assets of Borrower other than those expressly
permitted by the Loan Documents.
3.3 Information Supplied by Borrower. The Financial Statements of
Borrower and CSLC heretofore delivered to Lender are true, complete and correct
in all material respects,
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have been prepared on a consistent basis and fairly and accurately present the
respective financial conditions of the subjects thereof as of the respective
dates thereof. No material adverse change has occurred since the respective
dates thereof.
3.4 Compliance With Laws. To Borrower's knowledge, the use of the
Property and Improvements comply with all Governmental Requirements, applicable
zoning ordinances, regulations and restrictive covenants affecting the Property
and all other requirements of a Governmental Authority, and all requirements for
such use have been satisfied.
3.5 Licenses; Permits. Borrower represents and warrants to Lender that,
to Borrower's knowledge, all necessary licenses, Permits and other necessary
certificates are in full force and effect and have been issued in Borrower's or
Manager's name with respect to the Property and Borrower and Manager are in good
standing with all Governmental Authorities in connection with all beds or units
required to be licensed and other facilities constituting a portion of the
Property. Borrower further represents and warrants that all necessary and
applicable certificates of occupancy, permits and other appropriate
authorization and approval matters from Governmental Authorities have been
issued and are in existence with regard to the Property. No funds have been
received by Borrower or any other person or entity with respect to the Property
pursuant to Title VI of the Public Health Service Act, 42 U.S.C. ss. 291 et
seq., as amended (the "Xxxx-Xxxxxx Act"), and the Property is not subject to any
provision or requirements of the Xxxx-Xxxxxx Act.
3.6 No Defaults. Borrower is not in default under any of the Loan
Documents, and no event has occurred which by notice, the passage of time or
otherwise would constitute an event of default under any of the Loan Documents.
Borrower is not in default in the payment of any indebtedness for borrowed money
or under the terms and provisions of any agreement or instrument evidencing any
such indebtedness, and, to Borrower's knowledge, it is not in default with
respect to any order, writ, injunction, decree or demand of any court or of any
other requirement of a Governmental Authority.
3.7 Access and Utilities. The Property has adequate rights of access to
public ways and all water, sanitary sewer and storm drain facilities. All public
utilities necessary or convenient to the full use and enjoyment of the Property
are available at the boundaries of the Property and same are in service. All
roads necessary for the full utilization of the Property for their intended
purposes are present or the necessary rights of way therefor have been acquired.
3.8 Lien Potential. Borrower has not made any contract or arrangement
of any kind which has given rise to (or the performance of which by the other
party thereto would give rise to) a lien or claim of lien on the Property, or
other collateral covered by the Loan Documents, except for the collateral
documents executed in connection with the Loan.
3.9 Complete Information. No representation or warranty of Borrower
contained in any of the Loan Documents, and no statement contained in any
certificate, schedule, list,
AMENDED AND RESTATED LOAN AGREEMENT Page 13
14
financial statement or other instrument furnished to Lender by or on behalf of
Borrower contains, or will intentionally contain, any untrue statement of a
material fact, or omits, or will intentionally omit, to state a material fact
necessary to make the statements contained herein or therein not misleading. To
Borrower's knowledge, all information material to the transactions contemplated
herein has been expressly disclosed in writing by Borrower to Lender.
3.10 Investment Company Act. Borrower is not an investment company as
defined in the Investment Company Act of 1940, as amended.
3.11 Payment of Taxes. Borrower has filed all federal, state and other
tax returns and reports required to be filed, and has paid all taxes as shown on
said returns and reports and all assessments received by it to the extent that
such taxes and assessments have become due (except to the extent that the same
are being contested in good faith by appropriate proceedings diligently
prosecuted and as to which adequate reserves have been set aside in conformity
with generally accepted accounting principles).
3.12 The Financial Statements. Except with respect to the initial
Financial Statements of Borrower which were proformas only, the Financial
Statements are true, correct, and complete as of the dates specified therein and
fully and accurately present the financial condition of Borrower as of the dates
specified. No material adverse change has occurred in the financial condition of
Borrower since the date of the Financial Statements.
3.13 Suits, Actions. etc. There are no actions, suits, or proceedings
pending or, to Borrower's knowledge, threatened in any court or before or by any
individual, entity or Governmental Authority against or affecting Borrower which
could have a material adverse effect on the ability of each of any such parties
to perform their respective obligations under the Loan Documents or otherwise,
or against or affecting the Property, or involving the validity, enforceability,
or priority of any of the Loan Documents, at law or in equity. The consummation
of the transactions contemplated hereby, and the performance of any of the terms
and conditions hereof and of the other Loan Documents by Borrower, will not
result in a breach of, or constitute a default in, any mortgage, deed of trust,
lease, promissory note, loan agreement, credit agreement. partnership agreement,
or other agreement to which Borrower or by which Borrower may be bound.
3.14 Title to the Property. Borrower holds full legal and equitable
title to the Property subject only to the Permitted Exceptions.
3.15 ERISA Compliance.
(a) As of the date hereof and throughout the term of the Loan,
(i) Borrower is not and will not be an "employee benefit plan" as
defined in Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), which is
AMENDED AND RESTATED LOAN AGREEMENT Page 14
15
subject to Title I of ERISA, and (ii) the assets of Borrower do not and
will not constitute "plan assets" of one or more such plans for
purposes of Title I of ERISA; and
(b) As of the date hereof and throughout the term of the Loan
(i) Borrower is not and will not be a "governmental plan" within the
meaning of Section 3(3) of ERISA and (ii) transactions by or with
Borrower are not and will not be subject to state statutes applicable
to Borrower regulating investments of and fiduciary obligations with
respect to governmental plans.
3.16 Management Agreements. The Management Agreements are in full force
and effect and there are no defaults by the Manager or Borrower thereunder.
3.17 Reimbursement Contracts. There is no action pending or threatened
to terminate (a) any Medicare or Medicaid Reimbursement Contract of any of the
Properties or to fail to renew any Medicare or Medicaid Reimbursement Contract,
or (b) any material Reimbursement Contract (other than Medicare and Medicaid) or
to fail to renew any material Reimbursement Contract (other than Medicare and
Medicaid).
ARTICLE 4
COVENANTS AND AGREEMENTS OF BORROWER
Borrower hereby covenants and agrees as follows:
4.1 Compliance with Governmental Requirements. Borrower shall timely
comply in all material respects with all Governmental Requirements and, if
requested by Lender, deliver to Lender evidence of such compliance.
4.2 Correction of Defects. Borrower shall correct or cause to be
corrected (a) any material defect in the Improvements, or (b) any encroachment
by any part of the Improvements or any other structure located on the Property
on any building line, easement, property line, or restricted area.
4.3 Underground Storage Tanks. Borrower represents and warrants: (i)
Borrower has formally registered underground storage tanks ("UST's") located at
Towne Centre and Canton Regency with all Governmental Authorities; (ii) the
UST's are in full compliance with all Governmental Requirements; (iii) to the
best of Borrower's knowledge, the UST's do not leak and are in first class
condition; (iv) Borrower has conducted tightness tests on the UST's and has
provided or shall upon request provide Lender with copies of all such test
results, and shall comply with all future requirements, requests and
recommendations of Lender concerning the UST's; (v) Borrower will conduct
additional tightness tests of the UST's on or before the expiration of twelve
(12) months from the date hereof; and (vi) Borrower shall fully comply
AMENDED AND RESTATED LOAN AGREEMENT Page 15
16
with all future obligations and otherwise maintain said UST's in a manner so as
to comply with all future Governmental Requirements.
4.4 Inspection of the Property. Borrower shall permit Lender, any
Governmental Authority, and their agents and representatives, to enter upon the
Property and any location for the purpose of inspection of the Property at all
reasonable times.
4.5 Notices by Governmental Authority, Fire and Casualty Losses, etc.
Borrower shall timely comply with and promptly furnish to Lender true and
complete copies of any official notice or claim by any Governmental Authority
pertaining to the Property. Borrower shall promptly notify Lender of any fire or
other casualty or any notice of taking or eminent domain action or proceeding
affecting the Property.
4.6 Expenses. Whether or not the transactions contemplated under this
Loan Agreement and the Loan Documents shall be consummated, Borrower shall pay
all expenses in connection with such transactions, including, without
limitation, the cost and expenses of preparation of this Loan Agreement and of
any other document or instrument Lender considers necessary or appropriate with
respect to the Loan, the cost and expenses of or incident to the enforcement or
performance of and compliance with any of the provisions of this Loan Agreement
or any agreement or condition contained in any other document or instrument
required by Lender, and any other costs and expenses related to the transactions
contemplated under this Loan Agreement. Furthermore, Borrower agrees to
reimburse Lender for all other expenses incurred by Lender associated with the
due diligence examination of the Property, review of all materials and records
presented to Lender, travel expenses incurred for inspection of the Property,
attorney's fees incurred and other costs and expenses related to the Loan.
4.7 Additional Acts. In addition to the acts recited herein and
contemplated to be performed, executed and/or delivered by Borrower, Borrower
hereby agrees, at any time, and from time to time, to perform, execute and/or
deliver to Lender any and all such further acts, additional instruments, or
further assurances as may be necessary or proper to (i) implement the intent of
the parties under this Loan Agreement; (ii) correct any errors in this Loan
Agreement or any other instrument relating thereto; (iii) assure Lender a valid
and direct first lien and prior first perfected security interest under the Loan
Documents or any of them on the Property; (iv) create, perfect, preserve,
maintain and protect the liens and security interests created or intended to be
created by the Loan Documents; and (v) provide the rights and remedies to Lender
granted or provided for by the Loan Documents.
4.8 Inspection of Property. Books and Records. Borrower shall permit
Lender, at all reasonable times: (i) to examine and inspect the Property; and
(ii) examine, inspect and copy the books and records of Borrower pertaining to
the Loan and the Property, and all contracts, statements, invoices, bills, and
claims related thereto. All such books and records shall be maintained and kept
in accordance with generally accepted accounting principles, consistently
applied.
AMENDED AND RESTATED LOAN AGREEMENT Page 16
17
4.9 Defense of Actions. Lender may (but shall not be obligated to)
commence, appear in, or defend any action or proceeding purporting to affect the
Loan, the Property, or the respective rights and obligations of Lender and
Borrower pursuant to this Loan Agreement. Lender may (but shall not be obligated
to) pay all necessary expenses, including attorneys' fees and expenses incurred
in connection with such proceedings or actions, which Borrower agrees to repay
to Lender upon demand.
4.10 Prohibition of Assignment or Debt.
(a) Except as otherwise expressly permitted herein or in the
Mortgage, Borrower shall not assign or encumber any interest in the
Property without the prior written consent of Lender. Borrower shall
not (i) pledge any part of the Property, or (ii) dispose of any asset
(personal property or real property) related to the Property belonging
to Borrower without the prior written consent of Lender; provided,
however, that with respect to the purchase of inventory, supplies and
equipment necessary for the day-to-day operation of any one or more of
the facilities comprising the Property, and the purchase of any
equipment necessary for the repair and/or replacement of any equipment
or improvement used or operated in connection with any one or more of
the facilities comprising the Property, nothing herein shall prohibit
such purchases, replacements or dispositions or require Lender's
approval; further provided however, nothing herein is intended to
revise or diminish Borrower's rights stated in Section 2.5 above in
connection with the acquisition of other properties which meet the
financial criteria set forth therein. Borrower shall make no loans
whatsoever to anyone other than CSLC and Subsidiaries of CSLC without
the prior written consent of Lender.
(b) Without the prior written consent of Lender, Borrower
shall not enter into any merger or consolidation with, or sell, lease,
transfer or dispose of all or substantially all of its assets to, any
entity.
(c) Borrower shall carry on and conduct its business in
substantially the same manner and substantially the same field of
enterprise as it is presently conducted.
4.11 Payment of Claims. Borrower shall promptly pay or cause to be paid
when due all costs and expenses incurred in connection with the Property and the
Improvements, and Borrower shall keep the Property free and clear of any liens,
charges, or claims other than the lien of the Mortgages and other liens approved
in writing by Lender. Notwithstanding anything to the contrary contained in this
Loan Agreement, Borrower, provided it does so in good faith and in diligent and
continuous manner, may (a) contest the validity or amount of any claim of any
contractor, consultant, or other person providing labor, materials, or services
with respect to the Property, and (b) contest any tax or special assessments
levied by any Governmental Requirements, and such contest on the part of
Borrower shall not be a default hereunder and shall not release Lender from its
obligations to make Advances hereunder; provided, however, that during the
pendency of any such contest, Borrower shall furnish to Lender and the Title
AMENDED AND RESTATED LOAN AGREEMENT Page 17
18
Company an indemnity bond with a corporate surety satisfactory to Lender and the
Title Company, a letter of credit issued by a financial institution approved by
Lender and the Title Company, or other security acceptable to them, in an amount
equal to twice the amount being contested plus a reasonable additional sum to
cover possible costs, interest, and penalties, and provided further that
Borrower shall pay any amount adjudged by a court of competent jurisdiction to
be due, with all costs, interest, and penalties thereon, before such judgment
becomes a lien on the Property.
4.12 Restrictions and Annexation. Borrower shall not impose any
restrictive covenants or encumbrances upon the Property, execute or file any
subdivision plat affecting the Property, take any action whatsoever to convert
the Property or any part thereof to a condominium or cooperative, or consent to
any action taken by any Governmental Authority without the prior written consent
of Lender.
4.13 Current Financial Statements.
(a) On or before the expiration of 45 days after each fiscal
quarter during the term of the Loan, Borrower shall deliver to Lender
Financial Statements of Borrower. On or before the expiration of 120
days after each fiscal year during the term of the Loan, Borrower shall
deliver to Lender annual audited Financial Statements of Capital Senior
Living Corporation (on a consolidated and consolidating basis).
(b) With respect to the Property, Borrower shall deliver to
Lender:
(1) Within 45 days after each fiscal quarter, monthly
and year-to-date Financial Statements of the operations of the
Property, in the form of Exhibit "E", certified by an officer
of Borrower to be true and correct to the best of the
officer's knowledge and belief.
(2) If and when applicable, within twenty (20) days
of receipt, copies of all licensure and certification survey
reports and statements of deficiencies, and, attached thereto,
a copy of any plan of correction generated by the Borrower or
Manager in connection with such survey or report; and to
correct, in requisite time, any deficiency the curing of which
is a condition to continued licensure or ability to operate.
(3) If and when applicable, within three (3) days of
receipt, any and all notices (regardless of form) from any and
all licensing and/or certifying agencies that the Property is
being downgraded to a substandard category, revoked, or
suspended or that any such action is pending or being
considered.
(4) If requested by Lender, within fifteen (15) days
of Lender's request, an aged accounts receivable report of the
Property.
AMENDED AND RESTATED LOAN AGREEMENT Page 18
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(5) Within twenty (20) days of filing or receipt, all
Medicaid cost reports and amendments thereto filed with
respect to the Property, and all responses, audit reports or
other inquiries with respect to such cost reports.
(6) Within ten (10) days of receipt, a copy of the
Medicaid rate calculation worksheet (or the equivalent
thereof) issued by the appropriate Medicaid agency for the
Property.
(c) If Borrower routinely prepares more frequent Financial
Statements (unaudited) for interim periods, Borrower shall furnish
Lender copies of such interim statements (unaudited) when they are
prepared. In addition Borrower will promptly prepare and deliver, or
cause to be prepared and delivered, to Lender such other Financial
Statements as Lender may from time to time reasonably request. All
Financial Statements shall be prepared in accordance with generally
accepted accounting principles, consistently applied. Furthermore,
Borrower shall execute and deliver to Lender its Affidavit of Borrower
in accordance with the terms set forth in paragraph 1.2.
4.14 Tax Receipts. Borrower shall furnish Lender with receipts, or tax
statements marked "Paid" to evidence the payment of all taxes levied on the
Property on or before thirty (30) days prior to the date such taxes become
delinquent.
4.15 Financial Covenants. Borrower shall, at all times, comply with the
following financial covenants, maintain such amounts and ratios as set forth
herein, which shall in each instance be calculated on a basis of generally
accepted accounting principles, consistently applied. Compliance with the
financial covenant requirements shall be determined as of the dates of the
financial statements to be provided to Lender, and Borrower shall deliver
schedules reflecting the calculation of such amounts and the ratios concurrently
with each set of financial statements.
(a) Current Ratio. Borrower shall maintain a minimum Current
Ratio of 1.0 to 1.0 at all times. The Current Ratio shall be calculated
based upon Current Assets divided by Current Liabilities equals Current
Ratio:
As of the quarter ending :
--------------------
$ /$ =
--------------- ------------------ -------------
Current Assets / Current Liabilities Current Ratio
For purposes of this calculation pre-paid expenses will be classified
as non-current assets.
AMENDED AND RESTATED LOAN AGREEMENT Page 19
20
(b) Tangible Net Worth. Borrower shall maintain a minimum of
$45,000,000 as Tangible Net Worth (as defined below) through the end of
each current fiscal year.
As of the year ending :
------------------------
Total Assets $
-------------
Less: Total Liabilities $
-------------
Intangibles $
-------------
Goodwill $
-------------
Other $
-------------
Equals: Tangible Net Worth $
-------------
(c) Loan to Value Ratio. Throughout the term of the Loan,
Borrower will maintain a Loan to Value Ratio not to exceed sixty-two
and one-half percent (62.5%) as to the outstanding indebtedness payable
to Lender under the Loan.
(d) Leverage Ratio. Borrower shall maintain a Leverage Ratio
less than 0.35 to 1.0 at all times. The Leverage Ratio will be
calculated as Borrower's total liabilities divided by Market
Capitalization of CSLC, where Market Capitalization of CSLC equals the
total number of outstanding shares of stock of CSLC multiplied by the
price of such shares. The Leverage Ratio shall be computed as of the
first day of the applicable quarter.
(e) Cash Flow Coverage. The Property (in the aggregate) shall
maintain a minimum Cash Flow Coverage ratio of 1.3 to 1.0, calculated
based on the prior three (3) months of operation. This ratio shall be
calculated as (1) net income from the normal operations of the Property
(without deduction for actual management fees paid or incurred), plus
interest expense (to the extent deducted in calculating net income) and
allowances for depreciation and amortization of the Property for said
period, less (i) the greater of actual capital expenditures for that
period or $150 per unit per year, and (ii) the greater of actual
management fees during that period or a five percent (5%) management
fee, divided by (2) an amount equivalent to the sum of (i) interest on
the Loan during such period at a rate of interest equal to 2.50% per
annum above the Treasury Note Rate and (ii) an amount equivalent to the
monthly installment of principal payable under the Loan during such
period assuming a 25-year amortization.
4.16 Loan Fees. On each anniversary date of the Loan, Borrower shall
pay Lender a fee equal to one eighth of one percent (0.125%) of the then unused
portion (i.e., not outstand ing) of the principal amount of the Loan commitment
set forth in the first paragraph of this Loan Agreement if such unused portion
is not more than $14,000,000, and one-quarter of one
AMENDED AND RESTATED LOAN AGREEMENT Page 20
21
percent (0.250%) of the then unused portion of the principal amount of the Loan
commitment if such unused portion is more than $14,000,000.
4.17 Affiliated Transactions. Borrower agrees that all transactions
with third party entities will be fully negotiated and shall be on an
"arms-length" bona fide type basis. Although Borrower is not prohibited from
entering into service agreements or other contracts with affiliated entities,
any such agreements shall be on competitive terms, and shall otherwise be fair
and equitable. Any agreement with a third party affiliated entity shall be
subject to review and approval by Lender and shall be subject to termination if
same does not meet with Lender's reasonable approval; provided however, Lender
acknowledges its consent and approval of the fees and reimbursements payable
under the Management Agreements and development agreements.
4.18 Operation of Business. Borrower shall conduct, or cause the
Manager to conduct, the operation of the Property at all times in a manner
consistent with the following:
(a) to maintain the standard of care for the residents of the
Property at all times at a level necessary to ensure quality
care for the residents of the Property in accordance with
customary and prudent industry standards;
(b) to operate the Property in a prudent manner and in
compliance with applicable laws and regulations relating
thereto and cause all Permits, Reimbursement Contracts, and
any other agreements necessary for the use and operation of
the Property or as may be necessary for applicable
reimbursement programs to remain in effect without reduction
in the number of licensed units or units authorized for use in
applicable reimbursement programs;
(c) to maintain sufficient inventory and equipment types and
quantities at the Property to enable Borrower adequately to
perform operations of the Property;
(d) to keep all improvements and equipment located on or used
or useful in connection with the Property in good repair,
working order and condition, reasonable wear and tear
excepted, and from time to time make all needed and proper
repairs, renewals, replacements, additions, and improvements
thereto to keep the same in good operating condition; and
(e) to maintain sufficient cash in the operating accounts of
the Property in order to satisfy the working capital needs of
the Property .
4.19 ERISA. Borrower has not in the past and does not presently
maintain any "employee benefit plan" as defined in Section 3(3) of ERISA.
AMENDED AND RESTATED LOAN AGREEMENT Page 21
22
4.20 Management Agreements. Maintain the Management Agreements in full
force and effect and timely perform all of Borrower's obligations thereunder and
enforce performance of all obligations of the Manager thereunder and not permit
the termination, amendment or assignment of the Management Agreements unless the
prior written consent of Lender is first obtained, which consent may be in the
sole and absolute discretion of Lender. Borrower will not enter into any other
management agreement regarding the Property without Lender's prior written
consent, which may be in the sole and absolute discretion of Lender.
4.21 Notice of Fees or Penalties. Borrower shall immediately notify
Lender, upon Borrower's knowledge thereof, of the assessment by any state or any
Medicare, Medicaid, health or licensing agency of any fine or penalties against
Borrower, Manager or the Property.
4.22 Assignment of Licenses and Permits. Borrower shall not assign or
transfer any of its interest in any Permits or Reimbursement Contracts
(including rights to payment thereunder) pertaining to the Property, or assign,
transfer, or remove or permit any other person to assign, transfer, or remove
any records pertaining to the Property including, without limitation, resident
records, medical and clinical records (except for removal of such resident
records as directed by the residents owning such records), without Lender's
prior written consent, which consent may be granted or refused in Lender's sole
discretion.
4.23 Periodic Surveys. Borrower shall furnish to Lender, or cause the
Manager to furnish to Lender, within twenty (20) days of receipt, a copy of any
Medicare, Medicaid, or other licensing agency survey or report and any statement
of deficiencies and/or any other report required in Section 4.13 indicating that
any action is pending or being considered to downgrade the Property (or any
portion thereof) to a substandard category, and within the time period required
by the particular agency for furnishing a plan of correction also furnish or
cause to be furnished to Lender a copy of the plan of correction generated from
such survey or report to the Property, and correct or cause to be corrected any
deficiency, the curing of which is a condition of continued licensure or for
full participation in Medicaid/Medicare or other reimbursement programs pursuant
to any Reimbursement Contract for existing patients or for new patients to be
admitted with Medicaid or Medicare coverage, by the date required for cure by
such agency (plus extensions granted by such agency).
4.24 Further Assurances. Borrower will, on request of Lender, (i)
promptly correct any defect or error which may be discovered in the contents of
any Loan Document now or hereafter executed in connection herewith or in the
execution or acknowledgment thereof; (ii) execute, acknowledge, deliver and
record or file such further instruments (including without limitation further
deeds of trust, security agreements, financing statements, continuation
statements and assignments of rents or leases) and do such further acts as may
be necessary, desirable or proper to carry out more effectively the purposes of
the Loan Documents and to subject to the liens and security interests thereof
any property intended by the terms hereof and thereof to be covered hereby and
thereby including specifically, but without limitation, any renewals, additions,
substitutions, replacements, or appurtenances to the Property; and (iii)
AMENDED AND RESTATED LOAN AGREEMENT Page 22
23
execute, acknowledge, deliver, procure and record or file any document or
instrument (including specifically any financing statement) deemed advisable by
the Lender to protect the liens or the security interests under the Loan
Documents against the rights or interests of third persons.
4.25 Ownership and Liens. Borrower will maintain good and marketable
title to all of the Property free and clear of all liens, security interests,
encumbrances or adverse claims, except for the liens and security interests
created by the Loan Documents and the Permitted Encumbrances. Borrower will not
permit any dispute, right of setoff, counterclaim or defense to exist with
respect to all or any part of the Property. Borrower will cause any lien,
financing statement or other security instrument with respect to the Property to
be terminated, except as may exist or as may have been filed in favor of Lender.
Borrower will defend at its expense Lender's right, title and security interest
in and to the Property against the claims of any third party.
4.26 Transfer or Encumbrance. Borrower will not (i) sell, assign by
operation of law or otherwise), transfer, exchange, lease or otherwise dispose
of any of the Property, (ii) xxxxx x xxxx or security interest in or execute,
file or record any financing statement or other security instrument with respect
to the Property to any party other than Lender, or (iii) deliver actual or
constructive possession of any of the Property to any party other than Lender,
except for (A) sales and leases of inventory in the ordinary course of business,
and (B) the sale or the disposal of any item of equipment which is worn out or
obsolete and which has been replaced by an item of equal suitability and value,
owned by Borrower and made subject to the liens and security interests under the
Loan Documents, but which is otherwise free and clear of any lien, security
interest, encumbrance or adverse claim; provided, however, the exceptions
permitted in clauses (A) and (B) above shall automatically terminate upon the
occurrence of an Event of Default.
ARTICLE 5
RIGHTS AND REMEDIES OF LENDER
5.1 Acceleration. Upon the occurrence of an Event of Default, subject
to the terms and conditions of the Note, Lender may, at its option, declare the
Loan immediately due and payable without notice of any kind.
5.2 Cessation of Advances. Upon the occurrence of an Event of Default,
the obligation of Lender to disburse the Loan and all other obligations of
Lender hereunder shall, at Lender's option, immediately terminate.
5.3 No Waiver or Exhaustion. No waiver by Lender of any of its rights
or remedies hereunder, in the other Loan Documents, or otherwise, shall be
considered a waiver of any other or subsequent right or remedy of Lender; no
delay or omission in the exercise or enforcement by Lender of any rights or
remedies shall ever be construed as a waiver of any
AMENDED AND RESTATED LOAN AGREEMENT Page 23
24
right or remedy of Lender; and no exercise or enforcement of any such rights or
remedies shall ever be held to exhaust any right or remedy of Lender.
ARTICLE 6
INDEMNIFICATION
Borrower agrees to and does hereby indemnify Lender (for purposes of
this Article 6 the term "Lender" shall include the directors, officers,
employees and agents of Lender and any persons or entities owned or controlled
by, owning or controlling, or under common control or affiliated with Lender)
and hold Lender harmless as follows:
(a) against any and all claims, demands, causes of action,
judgments, penalties, loss, damage, liabilities, costs and expenses
(including, without limitation, attorneys' fees and court costs)
asserted against or incurred by Lender by reason of, arising out of, or
in connection with, any bodily injury or death or property damage
occurring in or upon or in the vicinity of the Property through any
cause whatsoever;
(b) against any and all claims, demands, causes of action,
judgments, penalties, loss, damage, liabilities, costs and expenses
(including, without limitation, attorneys' fees and court costs)
asserted against or incurred by Lender by reason of, arising out of, or
in connection with, any violation or breach by Borrower of any of the
terms and provisions of the Loan Documents or any of them; and
(c) against any and all claims, demands, causes of action,
judgments, penalties, loss, damage, liabilities, costs and expenses
(including, without limitation, attorneys' fees and court costs)
asserted against or incurred by Lender by reason of, arising out of, or
in connection with, the Loan, any of the Loan Documents, or the
Property.
WITHOUT LIMITATION, IT IS THE INTENTION OF BORROWER AND BORROWER AGREES THAT THE
FOREGOING INDEMNITIES SHALL APPLY TO EACH INDEMNIFIED PARTY WITH RESPECT TO
CLAIMS, DEMANDS, LIABILITIES, LOSSES, DAMAGES, CAUSES OF ACTION, JUDGMENTS,
PENALTIES, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE
ATTORNEY'S FEES) WHICH IN WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF THE
NEGLIGENCE OF SUCH (AND/OR ANY OTHER) INDEMNIFIED PARTY OR ANY STRICT LIABILITY.
HOWEVER, SUCH INDEMNITIES SHALL NOT APPLY TO ANY INDEMNIFIED PARTY TO THE EXTENT
THE SUBJECT OF THE INDEMNIFICATION IS CAUSED BY OR ARISES OUT OF THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH INDEMNIFIED PARTY.
AMENDED AND RESTATED LOAN AGREEMENT Page 24
25
ARTICLE 7
PARTIAL RELEASES
Borrower may, at any time and from time to time, obtain a release from
the lien and security interest created by a Mortgage and the Security Agreement
of that portion of the Property related to such Mortgage (the "Related
Property") as Borrower may designate, upon satisfaction of the following terms
and conditions:
(a) After giving effect to the release from the lien of a
Mortgage of the Related Property, the remaining Property (in the
aggregate) shall have (a) a Cash Flow Coverage of 1.3 to 1.0, and (b) a
Loan to Value Ratio of 62.5% or less. If Lender, in its sole
discretion, requires new Appraisals in order to make such calculation,
Lender will order and Borrower will reimburse Lender the costs of such
Appraisals, which Appraisals must be in form and substance reasonably
satisfactory to Lender.
(b) At least seven (7) days prior to the date of such release,
Borrower shall deliver to the Lender at the Borrower's expense the form
of the release to be executed by the Lender (which form of release must
be satisfactory to the Lender in form and substance).
(c) At the time of such release, there shall exist no Event of
Default, and no event shall have occurred which with the passage of
time or the giving of notice or both would constitute such an Event of
Default.
ARTICLE 8
GENERAL TERMS AND CONDITIONS
8.1 Notices. All notices, demands requests, and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been given and received when presented personally or three (3) days after being
deposited in a regularly maintained receptacle for the United States Postal
Service, postage prepaid, registered or certified, return receipt requested,
addressed to Borrower or Lender, as the case may be, at the respective addresses
set forth on the first page of this Loan Agreement, or such other address as
Borrower or Lender may from time to time designate by written notice to the
other as herein required.
8.2 Modifications. No provision of this Loan Agreement or the other
Loan Documents may be modified, waived, or terminated except by instrument in
writing executed by the party against whom a modification, waiver, or
termination is sought to be enforced.
AMENDED AND RESTATED LOAN AGREEMENT Page 25
26
8.3 Severability. In case any of the provisions of this Loan Agreement
shall for any reason be held to be invalid, illegal, or unenforceable, such
invalidity, illegality, or unenforce ability shall not affect any other
provision hereof, and this Loan Agreement shall be construed as if such invalid,
illegal, or unenforceable provision had never been contained herein.
8.4 Election of Remedies. Lender shall have all of the rights and
remedies granted in the Loan Documents and available at law or in equity, and
these same rights and remedies shall be cumulative and may be pursued
separately, successively, or concurrently against Borrower or any property
covered under the Loan Documents at the sole discretion of Lender. The exercise
of, or failure to exercise, any of the same shall not constitute a waiver or
release thereof or of any other right or remedy, and the same shall be
nonexclusive.
8.5 Form and Substance. All documents. certificates, insurance
policies, and other items required under this Loan Agreement to be executed
and/or delivered to Lender shall be in form and substance satisfactory to
Lender.
8.6 Usury. It is the intent of Lender and Borrower in the execution of
the Note, this Agreement and all other instruments now or hereafter securing the
Note or executed in connection therewith or under any other written or oral
agreement by Borrower in favor of Lender to contract in strict compliance with
applicable usury law. In furtherance thereof, Lender and Borrower stipulate and
agree that none of the terms and provisions contained in the Note, this Loan
Agreement or any other instrument securing the Note or executed in connection
herewith, or in any other written or oral agreement by Borrower in favor of
Lender, shall ever be construed to create a contract to pay for the use,
forbearance or detention of money, interest at a rate in excess of the maximum
interest rate permitted to be charged by applicable law; that neither Borrower
nor any guarantors, endorsers or other parties now or hereafter becoming liable
for payment of the Note or the other indebtedness secured by the Loan Documents
shall ever be obligated or required to pay interest on the Note or on
indebtedness arising under any instrument securing the Note or executed in
connection therewith, or in any other written or oral agreement by Borrower in
favor of Lender, at a rate in excess of the maximum interest that may be
lawfully charged under applicable law; and that the provisions of this Section
shall control over all other provisions of the Note, this Loan Agreement and any
other instruments now or hereafter securing the Note or executed in connection
herewith or any other oral or written agreements which may be in apparent
conflict herewith. Lender expressly disavows any intention to charge or collect
excessive unearned interest or finance charges in the event the maturity of the
Note is accelerated. If the maturity of the Note shall be accelerated for any
reason or if the principal of the Note is paid prior to the end of the term of
the Note, and as a result thereof the interest received for the actual period of
existence of the Loan exceeds the applicable maximum lawful rate, Lender shall,
at its option, either refund to Borrower the amount of such excess or credit the
amount of such excess against the principal balance of the Note then outstanding
and thereby shall render inapplicable any and all penalties of any kind provided
by applicable law as a result of such excess interest. In the event that Lender
shall contract for, charge or receive any amounts
AMENDED AND RESTATED LOAN AGREEMENT Page 26
27
and/or any other thing of value which are determined to constitute interest
which would increase the effective interest rate on the Note or the other
indebtedness secured by the Loan Documents to a rate in excess of that permitted
to be charged by applicable law, an amount equal to interest in excess of the
lawful rate shall, upon such determination, at the option of Lender, be either
immediately returned to Borrower or credited against the principal balance of
the Note then outstanding or the other indebtedness secured by the Loan
Documents, in which event any and all penalties of any kind under applicable law
as a result of such excess interest shall be inapplicable. By execution of this
Loan Agreement, Borrower acknowledges that it believes the Loan to be
non-usurious and agrees that if, at any time, Borrower should have reason to
believe, that the Loan is in fact usurious, it will give Lender notice of such
condition and Borrower agrees that Lender shall have ninety (90) days after
receipt of such notice in which to make appropriate refund or other adjustment
in order to correct such condition if in fact such exists. The term "applicable
law" as used in this Section shall mean the laws of the State of Texas or the
laws of the United States, whichever laws allow the greater rate of interest, as
such laws now exist or may be changed or amended or come into effect in the
future.
8.7 No Third Party Beneficiary. This Loan Agreement is for the sole
benefit of Lender, its successors and assigns, and Borrower, and is not for the
benefit of any third party.
8.8 Number and Gender. Whenever used herein the singular number shall
include the plural and the singular, and the use of any gender shall be
applicable to all genders. The duties, covenants, obligations, and warranties of
Borrower in this Loan Agreement shall be joint and several obligations of
Borrower, and of each Borrower, if more than one.
8.9 Captions. The captions, headings, and arrangements used in this
Loan Agreement are for convenience only and do not in any way affect, limit,
amplify, or modify the terms and provisions hereof.
8.10 APPLICABLE LAW. THIS LOAN AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE LAWS OF THE
UNITED STATES APPLICABLE TO TRANSACTIONS WITHIN SUCH STATE. THIS LOAN AGREEMENT
IS FULLY PERFORMABLE IN DALLAS COUNTY, TEXAS.
8.11 Entire Agreement. The Loan Documents constitute the entire
understanding and agreement between Borrower and Lender with respect to the
transactions arising in connection with the Loan and supersede all prior written
or oral understandings and agreements between Borrower and Lender with respect
to the matters addressed in the Loan Documents. Borrower hereby acknowledges
that, except as incorporated in writing in the Loan Documents, there are not,
and were not, and no persons are or were authorized by Lender to make, any
representations, understandings, stipulations, agreements or promises, oral or
written, with respect to the matters addressed in the Loan Documents.
AMENDED AND RESTATED LOAN AGREEMENT Page 27
28
8.12 Lender Not a Joint Venturer. Notwithstanding anything to the
contrary herein contained, Lender, by entering into this Agreement or by any
action taken pursuant hereto, will not be deemed a partner or joint venturer
with Borrower, and Borrower will indemnify and hold Lender harmless from any and
all damages resulting from such a construction of the parties and their
relationship.
8.13 Loan Participation. Borrower acknowledges and agrees that Lender
may, from time to time, sell or offer to sell interests in the Loan and Loan
Documents to one or more participants; provided, however, Lender shall continue
to be responsible for administration of the Loan. Borrower authorizes Lender to
disseminate to such participant or prospective participant, any information it
has pertaining to the Loan, including without limitation, complete and current
credit information on the Borrower, any of its principals and any guarantor.
THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
8.14 Renewal and Modification. This Loan Agreement is being executed in
renewal and modification of the First Agreement, Second Agreement and Third
Agreement. To the extent the terms and provisions of this Loan Agreement
conflict with or otherwise contradict the terms and provisions of the First
Agreement, Second Agreement, Third Agreement or Assumption and Modification,
Borrower and Lender hereby agree that this Loan Agreement shall be controlling.
8.15 Extension of Loan. At any time during the term of the Loan,
Borrower may request an extension of the maturity date of the Loan, which
maturity date is December 10, 2000. Lender, in its sole discretion, may reject
such request or may approve such request upon such terms and conditions as it
deems advisable. A request for extension shall be in writing and submitted on
the form attached as Exhibit "F".
8.16 Release of Original Borrower. As of this date, Lender hereby
releases and discharges the Original Borrower from any and all liability or
obligation relating to the Loan and the Loan Documents.
AMENDED AND RESTATED LOAN AGREEMENT Page 28
29
EXECUTED and DELIVERED as of the date first recited.
LENDER
BANK ONE, TEXAS, N.A.
By: /s/ XXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
BORROWER:
CAPITAL SENIOR LIVING PROPERTIES,
INC., a Texas corporation
By: /s/ XXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
AMENDED AND RESTATED LOAN AGREEMENT Page 29
00
XXX XXXXX XX XXXXX )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on December ____, 1997, by
Xxxxx X. Xxxxxxxx, Senior Vice President of BANK ONE, TEXAS, N.A., a national
banking association, on behalf of said association.
-----------------------------------
Notary Public, State of Texas
-----------------------------------
(printed name)
My Commission Expires:
---------------------
THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on December ____, 1997, by
Xxxxx X. Xxxxxxxx, Vice President of CAPITAL SENIOR LIVING PROPERTIES, INC., a
Texas corporation, on behalf of said corporation.
-----------------------------------
Notary Public, State of Texas
-----------------------------------
(printed name)
My Commission Expires:
---------------------
AMENDED AND RESTATED LOAN AGREEMENT Page 30
31
RELEASE BY ORIGINAL BORROWER
In consideration of the agreements of Lender in Section 8.16, Original
Borrower hereby releases, remises, acquits and forever discharges Lender,
together with its employees, agents, representatives, consultants, attorneys,
fiduciaries, servants, officers, directors, partners, predecessors (including,
without limitation, Xxxxxx), successors and assigns, subsidiary corporations,
parent corporations, and related corporate divisions (all of the foregoing
hereinafter called the "Released Parties"), from any and all actions and causes
of action, judgments, executions, suits, debts, claims, demands, liabilities,
obligations, damages and expenses of any and every character, known or unknown,
direct and/or indirect, at law or in equity, of whatsoever kind or nature,
whether heretofore or hereafter accruing, for or because of any matter or things
done, omitted or suffered to be done by any of the Released Parties prior to and
including the date hereof, and in any way directly or indirectly arising out of
or in any way connected to the Loan Documents, or any of the transactions
associated therewith, or the Property, including specifically but not limited to
claims of usury.
CAPITAL SENIOR LIVING COMMUNITIES, L.P., a
Delaware limited partnership
By: Retirement Living Communities, L.P., an Indiana
limited partnership, General Partner
By: Capital Retirement Group, Inc., a Texas
corporation, General Partner
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
AMENDED AND RESTATED LOAN AGREEMENT Page 31
00
XXX XXXXX XX XXXXX )
)
COUNTY OF DALLAS )
This instrument was acknowledged before me on December ____, 1997, by
___________________, ____________________ of Capital Retirement Group Inc., a
Texas corporation, on behalf of said corporation, in its capacity as General
Partner of Retirement Living Communities, L.P., an Indiana limited partnership,
on behalf of said limited partnership, in its capacity as General Partner of
Capital Senior Living Communities, L.P., a Delaware limited partnership, on
behalf of said limited partnership.
-----------------------------------
Notary Public, State of Texas
-----------------------------------
(printed name)
My Commission Expires:
---------------------
AMENDED AND RESTATED LOAN AGREEMENT Page 32
33
EXHIBIT "B"
Application for Advance
LENDER: Bank One, Texas, N.A. REQUEST FOR ADVANCE NO.
-----------------------
BORROWER: Capital Senior Living
Properties, Inc. AMOUNT: $
----------------
DATE: , 19
--------------------- ----
(a) This application and the items accompanying this application (which
are incorporated herein for all purposes) are delivered pursuant to the Amended
and Restated Loan Agreement (the "Loan Agreement") dated as of December 10,
1997, between Lender and Borrower, each of the defined terms of which has the
same meaning when used herein or in the attachments unless indicated otherwise.
Borrower hereby certifies to Lender that this application is true and correct in
all respects and that this application and every item incor porated herein are
genuine and in all respects what they purport and appear to be, and Borrower
agrees that Lender may rely upon same in making the requested Advance.
(b) Borrower hereby requests to borrow the principal amount of
$____________ (the "Requested Advance") from Lender, during normal banking
business hours on ____________________, 19_____ (which date is not less than two
Business Days hence and not less than 30 days since the date of the most recent
Advance under the Loan Agreement), which when borrowed will cause the principal
amount then outstanding on the Note to be
$______________.
(c) On the date hereof, and at the time the Requested Advance is to be
made, (a) the representations and warranties made in all of the Loan Documents
and certificates delivered pursuant thereto are and will be true and correct in
all material respects, (b) no Default or Event of Default has or will have
occurred and is or will be continuing, (c) Borrower has performed all acts
required by the Loan Documents to have been previously performed by Borrower,
and (d) no material adverse change in the financial condition of Borrower has
occurred and is continuing on the date hereof.
(d) The purpose of this Requested Advance is: _________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
All proceeds of all previous Advances have been, and the process of the
requested Advance
Exhibit "B" - Page 1
34
will be, spent only for the purposes permitted by the Loan Agreement and only
for the purposes specified in all Applications for Advances, and accompanying
items, heretofore or herewith delivered to Lender.
(e) All obligations for labor, materials, and other costs theretofore
incurred by or on behalf of Borrower in connection with the development and
construction of the improve ments and included (a) in any previous Advance have
been paid, and (b) in the Requested Advance will be promptly paid upon
disbursement of the Requested Advance. Absolute ownership of all materials,
equipment, fixtures and other property heretofore incorporated in the
construction of the Improvement or otherwise installed therein or on the Land is
vested in Borrower, free and clear of all rights therein of others except
Lender. Neither Borrower, nor any agent of Borrower, has been served with any
notice, written or oral, that a Lien will be claimed for any amount unpaid for
materials delivered, labor performed, or services provided in connection with
the construction of all or any portion of the Improvements, other than those
bonded against pursuant to the Loan Agreement, a complete description of which,
if any, is set forth on a schedule annexed hereto and, to the best of the
undersigned's knowledge, no basis exists for the filing of any other mechanic's
or materialman's Liens with respect to all or any part of the Property.
AS A FURTHER CONDITION TO ANY REQUEST FOR ADVANCE, AND IN ORDER FOR SUCH REQUEST
TO BE EFFECTIVE, THE ORIGINAL NOTARIZED SIGNATURES OF BOTH XXXXXXX X. XXXX AND
XXXXX X. XXXXXX (OFFICERS OF CSLC) MUST APPEAR BELOW.
The address of Borrower Borrower:
for notice is:
CAPITAL SENIOR LIVING PROPERTIES, INC.,
00000 Xxxxxx Xxxxxxx a Texas corporation
Xxxxx 000
Xxxxxx, Xxxxx 00000
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Exhibit "B" - Page 2
35
[ADD NOTARY ACKNOWLEDGMENTS]
Exhibit "B" - Page 3
36
EXHIBIT "C"
Lake County, Indiana
Mortgage Security Agreement Assignment of Rents and Fixture Filing
dated July 29, 1994, recorded as Instrument No. 94054609 in the office
of Recorder of Lake County, Indiana, as modified by Modification and
Extension of Lien dated June 30, 1995, recorded as Instrument No.
95041757 in the office of Recorder of Lake County, Indiana, further
modified by Second Modification and Extension of Lien dated June 30,
1997, recorded as Instrument No. 97044593 in the office of Recorder of
Lake County, Indiana, and further modified by Extension, Assumption and
Modification Agreement between Bank One, Texas, N.A. and Capital Senior
Living Properties, Inc., dated December 10, 1997.
Xxxxxx County, Indiana
Mortgage Security Agreement Assignment of Rents and Fixture Filing
dated July 29, 1994, recorded as Instrument No. 1994-0119830 in the
office of Recorder of Xxxxxx County, Indiana, as modified by
Modification and Extension of Lien dated June 30, 1995, recorded as
Instrument No. 1995-0095291 in the office of Recorder of Xxxxxx County,
Indiana, further modified by Second Modification and Extension of Lien
dated June 30, 1997, recorded as Instrument No. 97-92756 in the office
of Recorder of Xxxxxx County, Indiana, and further modified by
Extension, Assumption and Modification Agreement between Bank One,
Texas, N.A. and Capital Senior Living Properties, Inc., dated December
10, 1997.
Xxxxx County, Ohio
Open End Mortgage dated July 29, 1994, recorded in Volume 1688, Page
222 in the office of Recorder of Xxxxx County, Ohio, as modified by
Modification and Extension of Lien dated June 30, 1995, recorded as
Instrument No. 95033519 in the office of Recorder of Xxxxx County,
Ohio, further modified by Second Modification and Extension of Lien
dated June 30, 1997, recorded as Instrument No. 97036695 in the office
of Recorder of Xxxxx County, Ohio, and further modified by Extension,
Assumption and Modification Agreement between Bank One, Texas, N.A. and
Capital Senior Living Properties, Inc., dated December 10, 1997.
Exhibit "C" - Page 1
37
EXHIBIT "D"
COMPLIANCE CERTIFICATE
Bank One, Texas, N.A.
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: Health Care Lending
RE: Amended and Restated Loan Agreement dated December 10, 1997 (together with
amendments, if any, the "Loan Agreement"), by and between Bank One, Texas,
N.A., as Lender, and Capital Senior Living Properties, Inc., as Borrower
The undersigned officer of __________, does hereby certify that for the
quarterly financial period ending _____________:
1. No Event of Default has occurred or exists except
____________________________.
2. The Current Ratio of Borrower (Section 4.15(a)) is _______ to 1.0.
3. The Tangible Net Worth of Borrower (Section 4.15(b)) is
$___________.
4. The Loan to Value Ratio (Section 4.15(c)) is _______ to 1.0.
5. The Leverage Ratio (Section 4.15(d)) is _______ to 1.0.
6. The Market Capitalization of CSLC (Section 4.15(d) is
_______________.
7. The Cash Flow Coverage of the Property (Section 4.15(e)) is _______
to 1.0.
8. All representations and warranties contained in the Loan Agreement
and other Loan Documents are true and correct in all material
respects as though given on the date hereof, except
______________________________.
9. All information provided herein is true and correct.
Exhibit "D" - Page 1
38
10. Capitalized terms not defined herein shall have the meanings given
to such terms in the Loan Agreement.
CAPITAL SENIOR LIVING PROPERTIES,
INC., a Texas corporation
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
Dated this day of , .
----- -------------------- ----
Exhibit "D" - Page 2
39
EXHIBIT "E"
FINANCIAL REPORTS
Exhibit "E" - Page 1
40
EXHIBIT "F"
REQUEST FOR EXTENSION
Bank One, Texas, N.A.
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: Health Care Lending
RE: Amended and Restated Loan Agreement dated December 10, 1997 (together with
amendments, if any, the "Loan Agreement"), by and between Bank One, Texas,
N.A., as Lender, and Capital Senior Living Properties, Inc., as Borrower
Borrower hereby requests that the maturity date of the Loan be extended
from December 10, 2000 to ____________________. Borrower acknowledges that
Lender has no obligation to approve this request and Lender, in its sole
discretion, may reject this request. Borrower agrees to submit to Lender such
information, if any, as may be requested by Lender in considering this request.
Capitalized terms not defined herein shall have the meanings given to
such terms in the Loan Agreement.
CAPITAL SENIOR LIVING PROPERTIES,
INC., a Texas corporation
By:
------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Dated this day of , .
----- -------------------- ----
Exhibit "F" - Page 1