EXHIBIT 10.47
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TERM LOAN AGREEMENT
THE CHESTNUT PARTNERSHIP,
AS THE BORROWER,
AND
THE CHESTNUT REAL ESTATE PARTNERSHIP,
LCS HOLDINGS, INC.,
LIFE CARE SERVICES CORPORATION, AND
HOME HEALTH CARE SERVICES CORPORATION,
AS GUARANTORS,
AND
NORWEST BANK IOWA, NATIONAL ASSOCIATION
AS BANK
DATED AS OF
JULY 3, 1997
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TERM LOAN AGREEMENT
TERM LOAN AGREEMENT ("Agreement") dated as of July 3, 1997, among THE CHESTNUT
PARTNERSHIP, a Maryland general partnership (the "Borrower"), NORWEST BANK,
NATIONAL ASSOCIATION, a national banking association (the "Bank") and THE
CHESTNUT REAL ESTATE PARTNERSHIP, a Maryland General partnership ("CREP"), LCS
HOLDINGS, INC., an Iowa corporation ("LCS"), LIFE CARE SERVICES CORPORATION, an
Iowa corporation ("LCSC") and HOME HEALTH CARE SERVICES CORPORATION, an Iowa
corporation ("HHC"). (CREP, LCS, LCSC and HHC are each herein also referred to
as a "Guarantor", and together as the "Guarantors".)
R E C I T A L S
WHEREAS, the Borrower has certain rights with respect to the
development and operation of the real property more particularly described in
Exhibit A attached hereto and CREP is the owner of such property (the
"Property"); and
WHEREAS, the Borrower has constructed on such real property certain
existing improvements known as the Blakehurst Retirement Community (the
"Project") Phase I of which, consisting of 177 residential units, 36
comprehensive care beds and 14 domiciliary units ("Phase I") was constructed and
financed in part with the proceeds of two 1992 public bond issues which total
$14,000,000 (the "1992 Series Bonds"); and
WHEREAS, the issuance and repayment and other conditions of the 1992
Series Bonds are governed by the provisions of a May 1, 1992 Trust Indenture
between the Borrower and Boatmen's National Bank Des Moines (the "Bond
Trustee"), as supplemented by that certain August 1, 1992 First Supplemental
Trust Indenture between the Borrower and the Bond Trustee (collectively, the
"Trust Indenture"); and
WHEREAS, the repayment of the 1992 Series Bonds is secured both by the
lien evidenced and granted by a May 28, 1992 Indemnity Deed of Trust covering
the Property granted from CREP to trustees for the Bond Trustee (the "Bond
Mortgage") and by the security interests covering other aspects of the Project
granted by the Borrower or CREP to the Bond Trustee by a number of instruments
collectively defined under the Trust Indenture as the "Additional Security
Documents" (the "Additional Security Documents"); and
WHEREAS, Section 3.10(d) of the Trust Indenture permits the Borrower to
incur additional debt for the purchase, construction or other acquisition of
additions or improvements to the Project, with such additional debt to be PARI
PASSU and equally and ratably secured with the 1992 Series Bonds by the lien of
the Bond Mortgage and the security interests of the Additional Security
Documents, provided that certain conditions specified by the Trust Indenture are
satisfied (any such debt, the "Additional Parity Debt");
WHEREAS, consistent with the Trust Indenture, the Borrower now intends
to construct 35 new independent living units and additional community support
improvements to the Project (the "Phase III Improvements") and
WHEREAS, the Borrower has requested the Bank to make a term loan (the
"Loan") to the Borrower in an aggregate amount not to exceed $1,900,000, the
proceeds of which shall be Additional Parity Debt and which are to be used to
defray a portion of the costs it will incur in developing and constructing the
Phase III Improvements; and
WHEREAS, the Guarantors desire the Loan to be made and are willing to
unconditionally guarantee the Loan; and
WHEREAS, consistent with the Trust Indenture, Borrower and Guarantors
are willing to both incur the debt represented by the Loan as Additional Parity
Debt on a PARI PASSU basis with the 1992 Series Bonds and to secure the Loan
equally and ratably with the Bond Mortgage and the Additional Security
Documents; and
WHEREAS, the Bank is willing to make the Loan to the Borrower on the
terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants hereinafter set forth and intending to be legally bound hereby, agree
as follows:
SECTION 1. DEFINITIONS
1.1 DEFINED TERMS. In addition to the terms defined in other sections of this
Agreement, the following terms used in this Agreement shall have the following
meanings unless the context otherwise requires:
"ACCELERATION" means the declaration of all Liabilities of the Borrower
hereunder to be immediately due and payable following an Event of Default in
accordance with the provisions of Sections 9 and 10 hereof.
"ADMISSION FEE ESCROW AGREEMENT (PHASE I)" shall mean the Amended and Restated
Admission Fee Escrow Agreement - Phase I dated as of July 18, 1996, between the
Borrower and the Escrow Agent, as the same may be amended, modified, or
supplemented from time to time in compliance with the provisions of the Loan
Documents.
"ADMISSION FEE ESCROW AGREEMENT (PHASE III)" shall mean the Admission Fee Escrow
Agreement dated as of April 24, 1996, between the Borrower and the Escrow Agent,
as the same may be amended, modified or supplemented from time to time in
compliance with the provisions of the Loan Documents. The said agreement relates
the Phase III Improvements but is titled as "Phase II" for regulatory reasons.
"AGREEMENT" means this Term Loan Agreement, as it may be amended, modified or
supplemented from time to time.
"APPRAISAL" shall mean a market value appraisal (including updates or
reappraisals that the Bank might require in its sole discretion) to be ordered
by the Bank showing the fair market value of the Mortgaged Property and the
Facility, such appraisals to be made by an appraiser acceptable to the Bank and
in accordance with the Uniform Standards of Professional Appraisal Practices,
and which shall be satisfactory to, and subject to approval by, the Bank.
"ASSIGNMENT OF RESIDENCY AGREEMENTS" shall mean the Assignment of Residency
Agreements and Revenues dated the date hereof and given by the Borrower and CREP
to the Bank as the same may be amended, modified or supplemented from time to
time in accordance with the terms thereof.
"ATTORNEY COSTS" means and includes all reasonable fees and disbursements of any
law firm or any external counsel.
"BANK" means Norwest Bank Iowa, National Association.
"BASE RATE" means, for any day, the rate of interest in effect for such day as
publicly announced from time to time by Bank, as its "base rate." (The "base
rate" is a rate set by Bank based upon various factors including Bank's costs
and desired return, general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be priced at, above,
or below such announced rate.) Any change in the base rate announced by Bank
shall take effect at the opening of business on the day specified in the public
announcement of such change.
"BOND DOCUMENTS" shall mean the Trust Indenture and all other documents and
agreements executed and delivered to secure and support the Bond Financing.
"BOND FINANCING" shall mean the permanent financing entered into with respect to
the Facility pursuant to the Trust Indenture and the other Bond Documents.
"BOND MORTGAGE" shall mean the Indemnity Deed of Trust granted by CREP in favor
of the Bond Trustee as a part of the Bond Financing.
"BOND TRUSTEE" shall mean Boatmen's National Bank Des Moines, a national banking
association.
"BORROWER" shall mean The Chestnut Partnership, a Maryland General Partnership.
"BORROWING DATE" shall mean any date on which the Bank makes a Loan Advance
under this Agreement.
"BUSINESS DAY" shall mean any day on which the Bank's commercial lending
department is open for business.
"CAPITAL REPLACEMENT RESERVE ESCROW AGREEMENT" shall mean the Capital
Replacement Reserve Escrow Agreement, dated as of August 2, 1993 between the
Borrower and First National Bank of Maryland, as Escrow Agent, as the same may
be amended, modified or supplemented from time to time in compliance with the
provisions of the Loan Documents.
"CERTIFICATE OF COMPLETION" shall mean a certificate signed by the architect for
Project stating that the Project has been completed in substantial conformity
with the Plans.
"CLOSING DATE" shall mean such date on or before December 31, 1997 as the
Borrower shall specify on not less than 10 days' prior written notice to the
Bank, at which all conditions to the Initial Loan Advance shall be met, and the
Initial Loan Advance shall be made upon satisfaction of such conditions.
"COLLATERAL" shall mean the Mortgaged Property, and any other property of the
Borrower or any Guarantor with respect to which the Borrower or Guarantor has at
any time granted a security
interest or lien pursuant to any Loan Document, or otherwise, to secure the
payment of the Loan, the Note, the Guaranty and all amounts due the Bank under
this Agreement, and the performance of the Borrower's and Guarantors'
obligations under this Agreement.
"COLLATERAL DOCUMENTS" shall mean the Mortgage, the Security Agreement, the
Assignment of Residency Agreements, the Facility Agreements Assignment, the
Escrow Assignment, the UCC Financing Statements, and any other agreement,
document, instrument, modification, or amendment to any Collateral Document,
pursuant to which the Borrower or any Guarantor has at any time granted the Bank
a Lien on Property to secure payment of the Loan, the Note, the Guarantee or any
amounts due the Bank under this Agreement, or to secure the performance of the
Borrower's or Guarantors' obligations under this Agreement, or to perfect any
such Lien.
"COMPLETION APPROVALS" shall mean all licenses, certificates of occupancy,
inspection approvals or other approvals required by any Government Authority
which are necessary to the full use, occupancy and operation of the Facility
after completion of the Phase III Improvements.
"COMBINED" shall mean accounts, assets, liabilities and items of income and
expense, as the case may be, of any Person combined together with such items of
another Person for presentation in accordance with GAAP.
"COMBINED CASH FLOW OF BORROWER AND CREP" shall mean, in respect of the twelve
month period immediately preceding the date of such determination, Combined Net
Income of Borrower and CREP plus (i) to the extent deducted in determining
Combined Net Income of Borrower and CREP for such a period (a) depreciation on
property taken during such period as determined on a Combined basis in
accordance with GAAP, (b) amortization in respect of property taken during such
period as determined on a Combined basis in accordance with GAAP and (c)
interest expense accrued during such period plus (minus) (ii) to the extent
taken into account in determining Combined Net Income of Borrower and CREP
during such period, provisions for income tax expense (benefit) during such
period as determined on a Combined basis in accordance with GAAP plus (minus)
(iii) net increases (decreases) during such period in nonrecourse, non-
amortizing loans from residents or life insurance companies to Borrower or CREP.
"COMBINED COVERAGE AMOUNT OF BORROWER AND CREP" shall mean, in respect of the
twelve month period immediately preceding the date of such determination, the
sum of all (a) interest expense on Indebtedness of Borrower and CREP accrued
during such period plus (b) the aggregate principal amount due and owing during
such period on all Indebtedness of Borrower and CREP.
"COMBINED NET INCOME OF BORROWER AND CREP" shall mean, in respect of the twelve
month period immediately preceding the date of such determination, the net after
tax income of Borrower and CREP (excluding extraordinary gains and losses from
sales, exchanges, and other dispositions of property not in the ordinary course
of business) as determined on a Combined basis in accordance with GAAP.
"CONSENT AND SUBORDINATION AGREEMENT" shall mean the Consent and Subordination
Agreement dated the date hereof and given by Borrower to Bank, subordinating its
rights and interests in the Project to the Mortgage.
"CONTINENTAL" shall mean Continental Care, Inc., a Maryland Corporation.
"CREP" shall mean The Chestnut Real Estate Partnership, a Maryland general
partnership.
"DEVELOPMENT AGREEMENT" shall mean the Development Agreement, dated June 3,
1988, between the Borrower and LCSC, as amended by Amendments to Development
Agreement, dated as of December 30, 1994, October 30, 1996 and February 17, 1997
among the Borrower, LCSC, Rosedale, and Continental and with LCSD being a party
to the 1996 and 1997 amendments, and as the same may be amended, modified or
supplemented from time to time in compliance with the provisions of the Loan
Documents.
"EFFECTIVE RESIDENCY AGREEMENT" shall mean a Residency Agreement which is in
full force and effect, for which any statutory right of rescission has expired
and for which an entrance fee deposit in an amount not less than ten percent (10
%) of the total entrance fee shall have been made by the resident thereunder and
deposited in escrow pursuant to the Entrance Payments Escrow Agreement.
"ENVIRONMENTAL INDEMNITY AGREEMENT" shall mean the Environmental Indemnity
Agreement dated the date hereof given by the Borrower, CREP, LCS, LCSC and HHC
to Bank as the same may be amended, modified or supplemented from time to time
in accordance with the terms thereof.
"ENTRANCE PAYMENTS"shall mean payments by residents or prospective residents for
rights to occupy units located within the Property.
"ENTRANCE PAYMENTS ESCROW AGREEMENTS" shall mean, collectively, the Admission
Fee Escrow Agreement (Phase I), the Admission Fee Escrow Agreement (Phase III),
the Health Center Resident Loans Escrow Agreement and the Wait List Escrow
Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended,
and any successor statute of similar import, together with the regulations
thereunder, in each case as in effect form time to time. References to sections
of ERISA shall be construed to also refer to any successor sections.
"ERISA AFFILIATE" means any corporation, trade or business that is, along with
the Borrower, a member of a controlled group of corporations or a controlled
group of trades or businesses, as described in Sections 414(b) and 414(c),
respectively, of the Code or Section 4001 of ERISA.
"ERISA PLAN" shall mean any benefit plan of Borrower or any ERISA Affiliate
which is subject to ERISA.
"ESCROW AGENT" shall mean The First National Bank of Maryland, a national
banking association.
"ESCROW AGREEMENTS" shall mean, collectively, the Entrance Payments Escrow
Agreements and the Capital Replacement Reserve Escrow Agreement
"ESCROW ASSIGNMENT" shall mean the Assignment of Escrow Agreements given by the
Borrower to the Bank, as the same may be amended, modified or supplemented from
time to time in accordance with the terms thereof, together with the consent of
the Escrow Agent.
"EVENT OF DEFAULT" shall mean any of the events of default set forth in Section
9 of this Agreement.
"FACILITY" shall mean the Improvements on the land and the development and
operation of such Improvements.
"FACILITY AGREEMENTS ASSIGNMENT" shall mean the Collateral Assignment of
Development Agreement, Management Agreement and Operating and Use Agreement
given by the Borrower to the Bank as the same may be amended, modified or
supplemented from time to time in accordance with the terms thereof, together
with the consents of CREP, LCSC, LCSD, Rosedale and Continental.
"FINANCIAL STATEMENTS" shall mean the financial statements listed in Schedule
4.6.
"GAAP" shall mean generally accepted accounting principles in the United States,
applied on a basis consistent with the principles used in preparing the most
recent annual financial statements of the Borrower and the Guarantors furnished
to Bank and referred to in Section 4.6 hereof; provided, that (a) in making
determinations on a consolidated basis with respect to a Person and its
Subsidiaries, such consolidation shall be a proportionate consolidation and
shall include all Subsidiaries, and (b) in making determinations of the
aggregate Indebtedness of a Person and its Subsidiaries, any Indebtedness of
such Person or any such Subsidiary described in clause (i) of the definition of
Indebtedness herein shall be treated as if such Person or such Subsidiary were
an Obligor with respect to such Indebtedness.
"GOVERNMENTAL AUTHORITY" shall mean any government or political subdivision or
any agency, authority, bureau, central bank, commission, department or
instrumentality of either, or any court, tribunal, grand jury or arbitrator, in
each case whether foreign or domestic.
"GOVERNMENTAL BODY" shall mean any foreign, federal, state, municipal, or other
government, or any department, commission, board, bureau, agency, public
authority, or instrumentality thereof, or any court or arbitrator.
"GUARANTORS" shall mean CREP, LCS, LCSC and HHC, and "Guarantor" shall mean any
one of them.
"GUARANTY" shall mean the Guaranty Agreement dated the date hereof given by the
Guarantors to the Bank, as the same may be amended, modified or supplemented
from time to time in accordance with the terms thereof.
"HAZARDOUS SUBSTANCES" shall have the meaning assigned to that term in Section
1.02 of the Mortgage.
"HHC" shall mean Home Health Care Services Corporation, an Iowa corporation.
"HEALTH CARE RESIDENT LOANS ESCROW AGREEMENT" shall mean the Health Care
Resident Loans Escrow Agreement dated as of July 18, 1996, between the Borrower
and the Escrow Agent, as the same may be amended, modified or supplemented from
time to time in compliance with the provisions of the Loan Documents.
"IMPROVEMENTS" shall mean, collectively, the Phase I and II Improvements and the
Phase III Improvements.
"INDEBTEDNESS" shall mean, as to any Person, all items of indebtedness,
obligation, or liability of that Person, whether matured or unmatured,
liquidated or unliquidated, direct or contingent, joint or several, including,
without limitation: (a) all indebtedness guaranteed, directly, or indirectly, in
any manner, or endorsed (other than for collection or deposit in the ordinary
course of business) or discounted with recourse; (b) all indebtedness in effect
guaranteed, directly or indirectly, through agreements, contingent or otherwise:
(1) to purchase the indebtedness; or (2) to purchase, sell, or lease (as lessee
or lessor) property, products, materials, or supplies, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make payment of
the indebtedness or to assure the owner of the indebtedness against loss; or (3)
to supply funds to or in any other manner invest in the debtor; (c) all
indebtedness secured by (or for which the holder of the indebtedness has a
right, contingent or otherwise, to be secured by) any mortgage, deed of trust,
pledge, Lien, security interest, or other charge or encumbrance upon property
owned or acquired subject thereto, whether or not the liabilities secured
thereby have been assumed; (d) all indebtedness incurred as the lessee of
services, personal property, or real property under a lease reflected in the
lessee's balance sheet under GAAP; and (e) all indebtedness incurred as the
lessee of services, personal property, or real property under a lease that
should not be reflected in the lessee's balance sheet under GAAP.
"INTERCREDITOR AGREEMENT" shall mean the Intercreditor Agreement of even date
herewith among the Bank and the Bond Trustee, as the same may be amended,
modified or supplemented from time to time in accordance with the terms thereof,
together with the Acknowledgments of the Borrower and CREP.
"LAND" shall mean that certain tract or parcel of land described in Exhibit A
hereto.
"LCS" shall mean LCS Holdings, Inc., an Iowa corporation.
"LCSC" shall mean Life Care Services Corporation, an Iowa corporation.
"LCSD" shall mean LCS Development Corp., an Iowa corporation.
"LEASE" shall have the meaning assigned to that term in the Assignment of
Residency Agreements.
"LIABILITIES" means all obligations of the Borrower hereunder and under each
other Loan Document to the Lenders, in each case howsoever created, arising or
evidenced, whether direct or indirect, absolute or contingent, now or hereafter
existing or due or to become due.
"LIBOR RATE" means for any LIBOR Interest Period the per annum rate (rounded
upwards, if necessary, to the nearest 1/16th of I percent) which is the British
Bankers Association interest settlement rate published on the Dow Xxxxx Telerate
Screen at approximately 11: 00 a.m. London time on the day which is two London
Banking Days prior to the first day of the LIBOR Interest Period as the rate in
the London interbank market for U.S. dollar deposits having a term comparable to
the LIBOR Interest Period and in an amount comparable to the principal amount of
the Loan with respect to which the LIBOR Rate is being determined for that LIBOR
Interest Period.
"LIEN" shall mean any mortgage, pledge, assignment, lien, charge, encumbrance,
or security interest of any kind, or the interest of a vendor or lessor under
any conditional sale agreement, capital lease, or other title retention
agreement.
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the Note, the
Guaranty, the Mortgage, the Security Agreement, the Assignment of Residency
Agreements, the Facility Agreements Assignment, the Environmental Indemnity
Agreement, the Escrow Assignment, the Consent and Subordination Agreement, the
Subordination Agreement, the Intercreditor Agreement and any and all other
instruments, agreements and documents delivered by or on behalf of the Borrower
or any Guarantor in connection with the Loans, as the same may be amended,
modified or supplemented form time to time in accordance with their respective
terms.
"LOAN MATURITY DATE" shall have the meaning set forth in Section 2.5 of this
Agreement.
"LOAN TERMINATION DATE" means the earliest to occur of (a) the Loan Maturity
Date, (b) the termination of the Loan Commitment hereunder or (c) an
Acceleration.
"LOAN TRUSTEES" shall mean Xxxx X. Xxxxx and Xxxxxxx X. Xxxx, as trustees under
the Mortgage for the benefit of the Bank.
" LOANS" shall mean the Loan Advances and the Loan.
"LONDON BANKING DAY" means any day other than a Saturday, Sunday or other day on
which commercial banks in London, England are authorized or required by law to
close.
"MORTGAGE" shall mean the Indemnity Deed of Trust and Security Agreement dated
the date hereof and given by CREP to the Bank to secure the Guaranty, as the
same may be amended, modified or supplemented from time to time in accordance
with the terms thereof.
"MORTGAGED PROPERTY" shall mean the Land and the Facility.
"OPERATING AND USE AGREEMENT" shall mean the Operating and Use Agreement
(Blakehurst), dated as of April 1, 1992, between the Borrower and CREP, as the
same may be amended, modified or supplemented in compliance with the provisions
of the Loan Documents.
"PARTNERSHIP AGREEMENT" shall mean the complete Partnership Agreements of
Borrower and CREP.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity succeeding
to any or all of its functions under ERISA.
"PERMITTED SUBSTANCES" shall have the meaning assigned to that term in Section
1.02 of the Mortgage.
"PERSON" shall mean an individual, corporation, partnership, trust,
unincorporated association, joint venture, joint-stock company, government
(including political subdivisions), governmental authority or agency, or any
other entity.
"PHASE I AND II IMPROVEMENTS" shall mean the first two phases of a licensed,
continuing care retirement community commonly known as the Blakehurst Retirement
Community consisting of one hundred seventy-seven (177) independent living
units, a health center building containing fifty (50) beds, a clubhouse, an arts
and crafts studio, a woodworking shop, an auditorium and incidental improvements
and amenities which have been constructed upon the Land, together with all
equipment, fixtures and other personal property attached thereto or used in
connection therewith.
"PHASE III IMPROVEMENTS" shall mean the third phase of the Blakehurst Retirement
Community consisting of thirty-five (35) independent living units, a swimming
pool with whirlpool and locker
rooms, an exercise room, additional surface parking, twelve (12) detached garage
units and nineteen (19) under-building garages, together with all equipment,
fixtures and other personal property attached thereto or used in connection
therewith.
"PLANS" shall mean the final plans and specifications for the construction of
the Phase III Improvements on the Land.
"PROJECT" shall mean the design and construction of the Phase III Improvements
on the Land, the development and operation of the Phase III Improvements and the
financing of such acquisition, design, construction, development and operation.
"PROPERTY" shall mean, collectively, the Land, the Improvements and the other
tangible property covered by the Mortgage and the Security Agreement.
"RESIDENCY AGREEMENTS" shall mean all contracts between the Borrower and
prospective residents of the Project relating to the acquisition by such
residents of a revocable license to occupy independent living units in the
Projects and "Residency Agreement" shall mean any one of them.
"RESIDENTS' LOANS" shall mean the loans made to the Borrower pursuant to the
Residency Agreements.
"RESIDENTS' LOAN DOCUMENTS" shall mean all documents and agreements executed and
delivered to secure and support the Residents' Loans.
"RESPONSIBLE OFFICER" of a Person shall mean the president, treasurer or chief
financial officer of the Person.
"ROSEDALE" shall mean Rosedale Care, Inc., a Maryland Corporation.
"SECURITY AGREEMENT" shall mean the Security Agreement dated the date hereof and
given by the Borrower to the Bank to secure the Note, as the same may be
amended, modified or supplemented in accordance with the terms thereof.
"SUBORDINATION AGREEMENT" shall mean the Amended and Restated Subordination
Agreement of even date herewith among the Borrower, CREP, the First National
Bank of Maryland, as trustee, the Bond Trustee, Xxxx X. Xxxxx and Xxxxxxx X.
Xxxx, as trustees, Xxxx Xxxxx, as trustee) and
Bank as the same may be amended, modified or supplemented from time to time in
accordance with the terms thereof.
"SUBSIDIARY" means any Person or in which a Person owns directly or indirectly
50 percent or more of (i) the combined voting power of all classes of stock
having general voting power under ordinary circumstances to elect a majority of
the board of directors of such Person, if it is a corporation, (ii) the capital
interest or profits interest of such Person, if it is a partnership, joint
venture or similar entity, or (iii) the beneficial interest of such Person, if
it is a trust, association or other incorporated organization.
"TITLE COMPANY" shall mean Chicago Title Insurance Company.
"TITLE POLICY" shall mean the policy of title insurance issued by the Title
Company to the Bank, insuring the Mortgage as required by Section 5.7 of this
Agreement.
"TRUST INDENTURE" shall mean the Trust Indenture, dated as of May 1, 1992,
between Borrower and the Bond Trustee, as the same may be amended, modified or
supplemented from time to time in compliance with the provisions of the Loan
Documents.
"UCC FINANCING STATEMENTS" shall mean the UCC Financing Statements, in form and
substance satisfactory to the Bank, describing the Collateral and naming the
Borrower and CREP as debtors and the Bank as secured party in form satisfactory
for filings as to each debtor with the Secretary of State of Maryland and in the
office of records of Baltimore County, Maryland.
"UNFUNDED LIABILITIES" means with regard to any Plan, the excess of the current
value of the Plan's benefits guaranteed under ERISA over the current value of
the Plan's assets allocable to such benefits.
"UNMATURED EVENT OF DEFAULT" means any event or condition which, with the lapse
of time or giving of notice to the Borrower or both, would constitute an Event
of Default.
"WAIT LIST ESCROW AGREEMENT" shall mean the Amended and Restated Wait List
Escrow Agreement dated as of July 18, 1996, between the Borrower and Escrow
Agent, as the same may be amended, modified or supplemented from time to time in
compliance with the provisions of the Loan Documents.
1.2 CONSTRUCTION OF TERMS. Unless the context of this Agreement otherwise
clearly requires, references to the plural include the singular, the singular
the plural. A Section, an Exhibit or a Schedule is, unless otherwise stated, a
reference to a section hereof, an exhibit hereto or a schedule hereto, as the
case may be. Section captions used in this Agreement are for convenience only,
and shall not affect the construction of this Agreement. The words "hereof",
"herein" "hereunder", and similar terms in this Agreement refer to this
Agreement as a whole and not to any particular provision of this Agreement.
SECTION 2. AMOUNT AND TERMS OF LOAN.
2.1 AMOUNT. Subject to the terms and conditions of this Agreement, the Bank
agrees to make the loan in three or fewer equal advances at Borrower's option
(each one a "Loan Advance" and the first advance the "Initial Loan Advance" and
the last loan advance the "Final Loan Advance"), in an aggregate principal
amount of not more than One Million Nine Hundred Thousand and 00/100ths Dollars
($1,900,000.00) (the "Maximum Loan Amount").
2.2 NOTE. The loan shall be evidenced by a single properly executed promissory
note of the Borrower in the amount of One Million Nine Hundred Thousand and
00/100ths Dollars ($1,900,000.00) substantially in the form of Exhibit B
attached to this Agreement (completed with appropriate insertions) delivered to
the Bank at the Bank's main office in Des Moines, Iowa (the "Note").
2.3 INTEREST.
(a) RATE PRIOR TO DELINQUENCY. Except as provided below with respect to
principal and interest not paid when due, the entire unpaid amount of the Loan
made under this Agreement shall bear interest at a variable rate which is either
the "Adjusted LIBOR Rate" or the "Adjusted Base Rate," selected as provided in
Section 2.3(b) of this Agreement.
"Adjusted Base Rate" means the per annum rate equal to the sum of one quarter of
one percent (0.25 %) plus the Base Rate in effect from time to time. "Adjusted
LIBOR Rate" means, for each LIBOR Interest Period, the per annum rate equal to
the sum of three percent (3 %) per annum plus the LIBOR Rate as determined two
London Banking Days prior to the commencement date of such LIBOR Interest Period
and fixed at such rate for such LIBOR Interest Period.
(b) SELECTION OF RATE. The rate of interest on the Loan shall be the
Adjusted Base Rate and shall change as, and when the Base Rate changes
effective, as of the opening of business on the date when a change in the Base
Rate becomes effective unless Borrower shall give notice to the Bank at least
two (2) Business Days prior to the start of any thirty (30), sixty (60), or
ninety (90) day period of its election to select the adjusted LIBOR Rate to
apply for any such period. A period subject to such a notice shall be a "LIBOR
Interest Period". The Adjusted LIBOR Rate determined as provided in Section
2.3(a) shall apply during any LIBOR Interest Period.
(c) DELINQUENT PAYMENT RATE. Any principal or interest with respect to
the Loan not paid when due (whether at maturity, by Acceleration or otherwise)
shall bear interest at a rate per annum equal to the Adjusted Base Rate plus
four percent (4 %) from the date the Bank gives notice to the Borrower that
interest is to accrue at such rate. The interest rate shall change as and when
the Base Rate changes, effective as of the opening of business on the date on
which a change in the Base Rate becomes effective, until paid.
(d) BASIS OF COMPUTATION. All interest shall be determined on the basis
of the unpaid balance due, from time to time, computed for the actual number of
days elapsed on the basis of a year of 360 days.
2.4 PAYMENT
(a) AMORTIZATION. Amortizing payments of principal and interest shall
be made with the Loan on each March 31, June 30, September 30 and December 31
beginning with the first such date which occurs at least ninety (90) days after
the last of the Loan Advances and until the Loan Termination Date. The first
payment shall include accrued interest in full, plus a regular amortizing
payment. The amount of each amortizing payment shall be calculated as of the
date of the first payment and shall be the amount required to fully amortize all
principal plus interest thereon in eighty equal quarterly payments assuming a
fixed future rate of interest at the rate then applicable and payments
calculated at the beginning of the interest period. The payment amount shall be
recomputed on each December 31 thereafter using the rate in effect as of such
date for payments in the following calendar year. The amortization calculation
shall affect the payment amount only and shall not reduce or increase the
accruals of interest as herein provided.
(b) DELINQUENT INTEREST. Any interest due pursuant to Section 2.3(c)
respecting delinquent payments is due as it accrues without notice or demand.
(c) PAYMENT AT MATURITY. All principal and interest not previously paid
shall be due and payable in full without notice or demand on the Loan
Termination Date.
(d) PLACE OF PAYMENT. All payments hereunder, including payments with
respect to the Note, shall be made without set-off or counterclaim and shall be
made to the Bank in immediately available funds prior to 12:30 p.m., Des Moines
time, on the date due at the office of the Bank at 000 Xxxxxx Xxxxxx, Xxx
Xxxxxx, XX 00000, or at such other place as may be designated by the Bank to the
Borrower in writing. Any payments received after such time shall be deemed
received on the next Business Day. Whenever any payment to be made hereunder or
under the Note shall be stated to be due on a date other than a Business Day,
such payment may be made on the next succeeding Business Day, and such extension
of time shall be included in the computation of interest or any fees.
2.5 MATURITY. The Loan shall mature and the entire unpaid balance of principal
and interest shall be payable in full on a date, referred to herein as the "Loan
Maturity Date" which shall be the earliest of the following dates:
(a) The fifth anniversary date following the date of the
last of the Loan Advances; or
(b) The second, third or fourth anniversary date
following the date of the last of the Loan Advances,
if Bank shall give Borrower written notice of
maturity at least six months prior to any such date.
Bank may give such notice in its sole discretion for
any reason it deems sufficient.
2.6 PREPAYMENT. The Loan and the Note may be prepaid in whole or in part,
together with accrued interest to the date of prepayment on the amount prepaid,
at any time without premium or penalty. Any partial prepayment shall be applied
to principal installments of the Loan and the Note in the inverse order of their
maturities. Each payment applied to the Loan before an Event of Default shall be
applied first to unpaid accrued interest and then to principal. No amount of
principal paid to the Bank may be reborrowed, and the Maximum Loan Amount shall
be reduced, without notice to the Borrower, by the amount of any principal paid
to the Bank.
2.7 COMMITMENT FEE. The Borrower shall pay the Bank a commitment fee of Fourteen
Thousand Two Hundred Fifty and no/100ths Dollars ($14,250.00) (the "Loan
Commitment Fee"). The Loan Commitment Fee shall be fully earned upon execution
of this Agreement, and is
nonrefundable. Any portion of the Loan Commitment Fee not paid before the
execution of this Agreement shall be paid in full at such time.
2.8 EXPIRATION OF COMMITMENT. The Bank's commitment to lend hereunder shall
expire on December 31, 1997. No further Loan Advance shall be required to be
made by Bank after such date whether or not Loan Advances which total the
Maximum Loan Amount have been made or requested on or before such date.
SECTION 3. COLLATERAL AND GUARANTY. To induce the Bank to enter into this
Agreement and make the Loan to the Borrower, the Borrower and Guaranty agree as
follows:
3.1 GUARANTY. Payment of the Loan and the Note shall be jointly and severally
guaranteed by the Guarantors pursuant to the Guaranty.
3.2 COLLATERAL. The Borrower agrees that full payment of the Loan, the Note, and
all future Indebtedness of the Borrower to the Bank and the performance of the
Borrower's obligations under this Agreement shall be secured by the Liens in the
Collateral granted under this Agreement and under the Collateral Documents,
including but not limited to a Lien in the Mortgaged Property granted by the
CREP pursuant to the Mortgage. The Borrower agrees to execute and deliver to the
Bank all agreements, documents, financing statements, and instruments, and to
take such further action, as the Bank reasonably deems necessary to vest and
fully perfect and maintain the Liens in the Collateral granted under this
Agreement and under the Collateral Documents.
3.3 PRIORITY. Bank shall have a first priority right of payment from Entrance
Payments arising from units in the Phase III Improvements, if and to the extent
there has been no default under the Trust Indenture. Bank shall otherwise have a
priority equal to, and ratable with, the Bond Trustee for the benefit of holders
of bonds and the Trust Indenture to share all recoveries in the Collateral PARI
PASSU, as provided in the Intercreditor Agreement and the Subordination
Agreement. Bank shall consent to an indemnity deed of trust junior to Bank's
Liens to secure repayment of Resident Loans, with Bank's priority to be
established by the Subordination Agreement.
3.4 FURTHER COLLATERAL. The Borrower and CREP hereby assign, transfer, and set
over to the Bank to secure the payment of the Loan and the performance of the
Borrower's obligations under this Agreement all of the Borrower's right, title,
and interest in and to, and grants the Bank a Lien on and a security interest
in, all amounts that might be owing from time to time by the Bank to
the Borrower or CREP, including, without limitation, any balance or share
belonging to it and any deposit or other account with the Bank, which Lien and
security interest shall be independent of any right of setoff that the Bank may
have.
SECTION 4. REPRESENTATIONS OF BORROWER AND GUARANTORS. To induce the Bank to
enter into this Agreement and to make Loan Advances, the Borrower and each of
the Guarantors warrant and represent that:
4.1 ORGANIZATION AND QUALIFICATION. Each of the Borrower and CREP is a general
partnership duly organized, validly existing and in good standing under the laws
of the State of Maryland. Each of LCS, LCSC and HHC is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Iowa. Each of LCS, LCSC and HHC is duly qualified to do business as a foreign
corporation and is in good standing in the State of Maryland. Each of the
Partnership Agreements as furnished to the Bank is genuine, valid and complete.
4.2 AUTHORITY AND AUTHORIZATION. The Borrower has the power and authority to
execute and deliver this Agreement, to obtain the borrowings provided for
herein, to execute and deliver the Note in evidence of such borrowings, to
execute and deliver the other Loan Documents to which the Borrower is a party
and to perform its obligations hereunder and under the Note and the other Loan
Documents, and all such action has been duly and validly authorized by all
necessary partnership proceedings on its part. Each of the Guarantors has the
power and authority to execute and deliver this Agreement and the Loan Documents
to which it is a party and to perform its obligations thereunder, and all such
actions have been duly and validly authorized by all necessary corporate or
partnership proceedings.
4.3 EXECUTION AND BINDING EFFECT. This Agreement, the Note and the other Loan
Documents to which the Borrower is a party have been duly and validly executed
and delivered by the Borrower and constitute legal, valid and binding
obligations of the Borrower, enforceable in accordance with the terms hereof and
thereof, except as the enforceability thereof may be limited by bankruptcy,
insolvency or other similar laws of general application affecting the
enforcement of creditors' rights. The Mortgage, the Guaranty and the
Environmental Indemnity Agreement and the other Loan Documents to which any of
the Guarantors is a party have been duly and validly executed and delivered by
the Guarantors and constitute legal, valid and binding obligations of the
Guarantors, enforceable in accordance with the terms thereof, except as the
enforceability thereof may be limited by bankruptcy, insolvency or other similar
laws of general application affecting the enforcement of creditors' rights.
4.4 AUTHORIZATION AND FILINGS. No authorization, consent, approval, license,
exemption or other action by, and no registration, qualification, designation,
declaration or filing with, any Governmental Authority is or will be necessary
or advisable in connection with the execution and delivery of this Agreement,
the Note or the other Loan Documents, consummation of the transactions herein or
therein contemplated or performance of or compliance with the terms and
conditions hereof or thereof, except those that have been obtained and except
the Completion Approvals. The Borrower has no reason to believe that the
Completion Approvals will not be obtained upon completion of construction of the
Project.
4.5 ABSENCE OF CONFLICTS. Neither the execution and delivery of this Agreement,
the Note or the other Loan Documents nor consummation of the transactions herein
or therein contemplated nor performance of or compliance with the terms and
conditions hereof or thereof will (a) violate any Law, (b) conflict with or
result in a breach of or a default under the partnership agreement of the
Borrower or the partnership agreement or articles of incorporation or bylaws, as
the case may be, of the Guarantors, or any agreement or instrument to which the
Borrower or any of the Guarantors is a party or by which any of them or any of
their respective properties (now owned or hereafter acquired) may be subject or
bound, including without limitation any easement, declaration, covenant or
restriction applicable to the Property, or (c) result in the creation or
imposition of any lien, charge, security interest or encumbrance upon any
property (now owned or hereafter acquired) of the Borrower or any of the
Guarantors, except those contemplated by the Loan Documents.
4.6 FINANCIAL CONDITION. The financial statements of the Borrower and CREP on a
combined basis and of each other Guarantor heretofore furnished to the Bank and
identified on Schedule 4.6 attached hereto were prepared in accordance with GAAP
and present fairly the financial condition at the respective dates indicated
therein and the results of operations and cash flows for the respective periods
indicated therein of such Person. Since the dates of the most recent of such
financial statements of each such Person, respectively, there has been no
material adverse change in the business, operations, condition (financial or
otherwise) or prospects of any of them from that reflected in such financial
statements.
4.7 DEFAULTS. No Event of Default and no Unmatured Event of Default has occurred
and is continuing or exists.
4.8 LITIGATION. There is no pending or, to the Borrower's or Guarantors'
knowledge after due inquiry, threatened proceeding by or before any Governmental
Authority against or affecting the
Borrower or any of the Guarantors, or any of their respective Subsidiaries,
which if adversely decided would have a material adverse effect on the business,
operations, condition (financial or otherwise) or prospects of the Borrower or
any of the Guarantors, or on the ability of the Borrower or any of the
Guarantors to perform their respective obligations under the Loan Documents or
on the construction or operation of the Phase III Improvements or on the
ownership and operation of the Facility or on the validity of the Mortgage or
the priority of the lien thereof.
4.9 TITLE TO COLLATERAL. CREP has good and marketable title in fee simple to the
Land, and the Borrower has the uncontested right to the use and occupancy of the
Improvements. CREP or the Borrower has good and marketable title to all other
Property, in each case free and clear of all liens claims, encumbrances and
security interests except Permitted Encumbrances (as defined in Section 1.01 of
the Mortgage), and the Borrower and CREP will defend such title against the
claims and demands of all Persons.
4.10 COMPLIANCE WITH LAWS. The construction of the Phase III Improvements as
contemplated by the Plans, the intended use of the Phase III Improvements, and
the ownership, use and operation of the remainder of the Facility comply with
all applicable laws and all applicable private covenants. All authorizations,
certificates, permits, licenses and approvals required by any Governmental
Authority for the ownership, construction, occupancy and use of the Facility
will have been obtained at or before the date of each Loan Advance.
4.11 SUBDIVISION. The Land is a single parcel under applicable Laws regulating
subdivision and land development and may be leased, transferred or developed by
constructing the Facility (including without limitation on the Phase III
Improvements) thereon without the approval of any Governmental Authority having
jurisdiction to regulate or control subdivision or land development. The Land is
assessed separately from all other lands for purposes of ad valorem taxation.
4.12 STREETS. All streets necessary for the full utilization of the Property for
its current and intended purpose have been completed.
4.13 UTILITY SERVICES. All utility services necessary for the construction of
the Phase III Improvements and the operation thereof for their intended purpose
are available at the boundaries of the Land, including water supply and sanitary
and storm sewer facilities, electric, telephone and cable television facilities.
All utility services necessary for the operation of the Phase I and Phase
II Improvements for their current purpose are installed on the Land, including
water supply and sanitary and storm sewer facilities, electric, telephone and
cable television facilities.
4.14 FLOOD AREA; FILLED LAND, HAZARDOUS SUBSTANCES. The land is not in an "area
of special flood hazard", as that term is defined in the National Flood
Insurance Act of 1968 (as amended and supplemented by the Flood Disaster
Protection Act of 1973). No portion of the Land consists of and no portion of
the Improvement is or will be located on filled in land. The Property does not
contain any Hazardous Substances (other than Permitted Substances).
4.15 SURVEY AND OTHER DOCUMENTS. All surveys furnished to the Bank accurately
depict the state of facts it or they purport to depict and each other document
furnished to Bank is a true, correct and complete copy thereof, has not been
modified or amended and is in full force and effect on the date hereof.
4.16 POWER TO CARRY ON BUSINESS. The Borrower and each Guarantor have all
requisite power and authority to own and operate its respective properties and
to carry on its respective business as now conducted and as presently planned to
be conducted.
4.17 EFFECTIVE RESIDENCY AGREEMENTS. As of the date hereof, there are thirty-one
(31) Effective Residency Agreements for the Phase III Improvements.
4.18 CONDEMNATION, ETC. The Borrower has no knowledge of any condemnation,
zoning or other land use regulation proceedings, either instituted or planned to
be institute which would adversely affect the construction of the Phase III
Improvements, or the current or proposed use and operation of the Facility.
4.19 BOND DOCUMENTS. Attached hereto as Schedule 4.20 is a list of all the Bond
Documents, true, correct and complete copies of which have been furnished to the
Bank.
4.20 RESIDENTS' LOAN DOCUMENTS. Attached hereto as Schedule 4.21 is a list of
all the Residents' Loan Documents, true, correct and complete copies of which
have been furnished to the Bank.
4.21 FACILITY AGREEMENTS. Attached hereto as Schedule 4.22 is a list of all
contracts and agreements entered into by either the Borrower or CREP with
respect to the operation and use of the Facility (other than (i) the Residency
Agreements and (ii) any contract or agreement which,
by its terms, is terminable on sixty (60) days (or less) notice (the "Excluded
Contracts"), true, correct and complete copies of which have been furnished to
the Bank. The contracts and agreements reflected on Schedule 4.22, together with
the Excluded Contracts, are all of the contracts and agreements necessary or
desirable for the operation and use of the Facility.
4.22 USE OF LOAN PROCEEDS. The proceeds of the Loan will be used exclusively to
finance Borrower's costs related to the Phase III improvements.
4.23 NO MISREPRESENTATION. No representation or warranty contained in this
Agreement or any Loan Documents and no certificate or report furnished or to be
furnished by the Borrower in connection with the transactions contemplated by
this Agreement or in connection with any Loan Advance contains or will contain
any misstatement of material fact, or omits or will omit to state a material
fact required to be stated to make the statements in this Agreement or in the
certificate or report not misleading in the light of the circumstances in which
they are made.
4.24 ERISA. Borrower, CREP and their ERISA Affiliates are in full compliance
with ERISA as to any ERISA Plan. Neither Borrower nor any ERISA Affiliate has
any unfunded liabilities in any ERISA Plan.
4.25 TAXES. The Borrower and CREP have filed or caused to be filed all tax
returns required to be filed, and has paid or has made adequate provision for
the payment of all taxes shown to be due and payable on those returns and in any
assessments made against them. No tax Liens have been filed with respect to
those taxes, and no claims are being asserted with respect to those taxes that
are required by GAAP to be reflected in the Financial Statements, except as
reflected in the Financial Statements. The charges, accruals, and reserves on
the books of Borrower and CREP with respect to all federal, state, local, and
other taxes are considered by the Borrower and CREP to be adequate. The Borrower
and CREP know of no unpaid assessment that is or might be due and payable
against them or any of their Property, except those that are being contested in
good faith and by appropriate proceedings diligently conducted, and for which
adequate reserves have been set aside in accordance with GAAP.
4.26 FEDERAL RESERVE REGULATIONS; USE OF LOAN PROCEEDS. The Borrower is not
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any margin stock
within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System, as amended. No part of the proceeds of the Loan will be used,
directly or indirectly, for a purpose that violates any law, rule, or regulation
of any
Governmental Body, including, without limitation, the provisions of Regulations
G, U, or X of the Board of Governors of the Federal Reserve System, as amended.
No part of the proceeds of the Loan will be used, directly or indirectly, to
purchase or carry any margin stock or to extend credit to others for the purpose
of purchasing or carrying any margin stock.
4.27 HAZARDOUS WASTE AND TOXIC SUBSTANCE STORAGE. To the best of the Borrower's
knowledge, no hazardous waste or substance or toxic substance has been stored,
used, or disposed of on the Land or in the Facility, nor has the Land been used
as a landfill or a dump.
4.28 ACCURACY OF INFORMATION. All information, reports and other papers and data
with respect to the Borrower, the Guarantors, the Project and the Facility
furnished to the Bank are complete and correct in all material respects, to the
extent necessary to give the Bank a true and accurate knowledge of the subject
matter. No fact is known to the Borrower or any Guarantor which materially and
adversely affects or in the future may (so far as it can foresee) materially and
adversely affect the business, assets or liabilities, financial condition,
results of operations, or business prospects of the Borrower or any of the
Guarantors which has not been set forth in the financial statements referred to
in Section 4.6 or in such information, reports, papers and data or otherwise
disclosed in writing to the Bank and the Lenders. No document furnished or
statement made by the Borrower or any Guarantor in connection with the
negotiation, preparation or execution of this Agreement contains any untrue
statement of a fact material to its creditworthiness or omits to state a
material fact necessary in order to make the statements contained therein not
misleading.
4.29 RELIANCE BY THE BANK. All representations and warranties made herein to the
Bank are made with the understanding that the Bank is relying upon the accuracy
of such representations and warranties. Notwithstanding that the Bank may
conduct its own investigation as to some or all of the matters covered by the
representations and warranties in this Agreement and the other Loan Documents,
the Bank is entitled to rely on all representations and warranties as a material
inducement to the Bank to make the extensions of credit evidenced by this
Agreement.
SECTION 5. CONDITIONS OF LENDING--INITIAL LOAN ADVANCE. In addition to the
requirements set forth in Section 6 and Section 7, the obligation of the Bank to
make the Initial Loan Advance under this Agreement is subject to the fulfillment
of the following conditions precedent at least 10 days before the Closing Date:
5.1 APPROVALS. The Bank shall have received evidence satisfactory to it that all
approvals and consents of all Persons required to be obtained in connection with
the making of the Initial Loan Advance have been obtained and that all required
notices have been given.
5.2 COMMITMENT FEE. The Bank shall have received payment of the entire unpaid
balance of the Loan Commitment Fee.
5.3 AGREEMENT. The Bank shall have received and be in possession of this
Agreement, duly executed by all of the parties to this Agreement.
5.4 NOTE. The Bank shall have received and be in possession of the Note, duly
executed by or on behalf of the Borrower.
5.5 EFFECTIVE RESIDENCY AGREEMENTS. Borrower shall have certified to Bank in
writing that it has in effect no less than twenty-five (25) Effective Residency
Agreements for units within the Phase III Improvements. Such certificate shall
list the Effective Residency Agreements and identify the amounts of deposits
paid therewith, and shall state that deposits in an amount of at least ten
percent (10%) of the Total Entrance Payment have been made for each such
Residency Agreement.
5.6 OTHER LOAN DOCUMENTS. There shall have been delivered to Bank fully executed
counterparts of this Agreement, the Note, the Mortgage, the Security Agreement,
the Assignment of Residency Agreements, the Facility Agreements Assignment, the
Escrow Assignment, the Guaranty, the Environmental Indemnity Agreement, the
Subordination Agreement, the Consent and Subordination Agreement, the
Intercreditor Agreement, all other Loan Documents, and financing statements
sufficient to perfect all Liens created by the Mortgage, the Security Agreement
and the other Loan Documents.
5.7 TITLE POLICY. Not less than ten (10) days prior to the Closing, there shall
have been delivered to the Bank a preliminary report of title or title binder
issued by the Title Company acceptable to the Bank pursuant to which the Title
Company will issue the Title Policy, insuring the Mortgage in the Maximum Loan
Amount as a first lien upon CREP's fee interest in the Mortgaged Property shared
with the first lien granted pursuant to the Bond Documents, without exception
for filed or unfiled mechanics' liens or claims or for matters which an accurate
survey would disclose, subject only to such exceptions as may be approved in
writing by the Bank and containing any endorsements required by the Bank,
together with pro-forma copies of reinsurance
agreements and direct access agreements with such other title insurance
companies in such form as the Bank may require, and UCC financing statement
searches against the Borrower and each Guarantor; and on the Closing Date, the
Title Policy and original executed counterparts of such reinsurance agreements
and such direct access agreements.
5.8 SURVEY. There shall have been delivered to the Bank an as-built survey or
surveys of the Land certified to the Title Company and the Bank as of a date no
earlier than thirty (30) days prior to the Closing Date, such certification to
meet the Bank's survey certification requirements, with the signature and seal
of a registered engineer or surveyor affixed thereto, showing all easements
affecting the Land and other matters apparent thereon, the relation of the Land
to public thoroughfares for access purposes, the location of the Phase I and
Phase II Improvements and any other existing improvements on the land and the
proposed location of the Phase III Improvements on the Land, and certifying that
the Land is or is not, as the case may be, in a flood hazard area for purposes
of the National Flood Insurance Program, together with a legal description of
the Land compatible with said survey and sufficient for purposes of the
Mortgage, and otherwise meeting the Lenders' standard survey requirements.
5.9 ZONING, APPROVALS AND UTILITIES. Evidence shall have been delivered to the
Bank of (i) satisfactory zoning and subdivision of the Land for the
construction, operation and use of the Phase I and Phase II Improvements and for
the construction and proposed operation and use of the Phase III Improvements
contemplated by the Plans, (ii) the issuance of all necessary permits, licenses
and approvals to own, operate and occupy the Facility and to construct, operate
and occupy the Phase III Improvements, other than the Completion Approvals,
including without limitation permits, licenses and approvals required under
federal, state and/or local laws or regulations with respect to zoning, safety,
building, fire protection, environmental, health, civil rights for the disabled
and similar matters, and (iii) proof of the availability to the Land of all
utility and municipal services required for construction, operation, use and
occupancy of the Phase III Improvements, and proof of the installation on the
Land of all utility and municipal services required for the operation, use and
occupancy of the Phase I and Phase II Improvements. Without limitation of the
foregoing, the Bank shall have received copies of (i) the application filed by
the Borrower for the Certificate of Registration, (ii) the Borrower's
"Disclosure Statement" prepared for an distributed to prospective residents,
(iii) the Certificate of Registration granted by the Office on Aging of the
State of Maryland (the "Department"), and (iv) all other correspondence between
the Department and the Borrower to the date hereof.
5.10 APPRAISAL. The Bank shall have received an Appraisal of the Property
addressed to Bank, showing an opinion of fair market value in an amount
acceptable to Bank.
5.11 LIENS ON COLLATERAL. The Bank shall be satisfied that all steps necessary
to vest and perfect any Lien in the Collateral have been taken and that the
Liens in the Collateral are duly perfected Liens with priority over all other
liens, obligations and encumbrances except as provided in the Intercreditor
Agreement.
5.12 INSURANCE. The Bank shall have received evidence satisfactory to the Bank
that all types of casualty and hazard insurance (including flood insurance, if
required, and underground explosion and collapse hazard insurance) available
with respect to the Mortgaged Property and the other Collateral (including,
without limitation, materials and equipment stored on the land or elsewhere),
and public liability insurance and all other insurance coverage required under
the Loan Documents are in force and, insofar as casualty and hazard insurance is
concerned, insure the respective interests of the Bank and the Borrower in the
Mortgaged Property and the other Collateral, as such interests may appear, and
that workmen's compensation insurance (with amounts and coverage as required by
law) with respect to persons performing work on the construction of the Facility
is in force; and all such insurance will continue in force as long as the Loan
is outstanding. Such casualty and hazard insurance shall be in an amount at
least as great as the replacement value of the property insured and all such
insurance shall be evidenced by a certificate or certificates of insurance in
form and amount acceptable to the Bank, including a notation requiring 30 days'
written notice to the Bank before any policy cancellation.
5.13 CORPORATE DOCUMENTS. There shall have been delivered to the Bank such
evidence of the organization, good standing, foreign qualification and corporate
or partnership authorization as the Bank shall require with respect to the
Borrower and each of the Guarantors.
5.14 LEGAL OPINIONS. There shall have been delivered to the Bank an opinion of
one or more counsel for the Borrower and each of the Guarantors, which counsel
shall be subject to the approval of the Bank, dated the Closing Date, as to (i)
organization, foreign qualification and good standing, (ii) due authorization,
validity and enforceability of documents, absence of conflicts with Law and
documents and agreements, and absence of litigation, (iii) the sufficiency of
the Loan Documents to establish the Liens provided herein, and (iv) such other
matters as the Bank may reasonably request.
5.15 SOILS REPORT. There shall have been delivered to the Bank a soils report,
prepared by an engineering firm acceptable to the Bank, which shall state that
the soil will support the Phase III Improvements when constructed in accordance
with the Plans.
5.16 ENVIRONMENTAL REPORTS. There shall have been delivered to the Bank (i) a
report prepared by an independent engineering firm or environmental consultant
(appropriately licensed and insured) acceptable to the Bank stating that after
due investigation of the Land, there is no evidence that there is any Hazardous
Substance (other than Permitted Substances), hazardous waste, toxic substance,
pollutant or other contaminant contained in or under the Land and (ii) test
results satisfactory to the Bank showing levels of radon gas in basement areas
of the Phase I and Phase II Improvements which are to be occupied on a regular
basis acceptable to the Bank.
5.17 FORM OF RESIDENCY AGREEMENT. There shall have been delivered to the Bank
the standard form of Residency Agreement to be used by the Borrower.
5.18 OTHER AGREEMENTS. There shall have been delivered to the Bank certified
copies of the Partnership Agreements, the Escrow Agreements, the Management
Agreement, the Development Agreement, the Operating and Use Agreement, the Bond
Documents, the Residents' Loan Documents, and each of the other contracts and
agreements reflected on Schedule 4.22.
5.19 APPROVAL OF DOCUMENTS. The Management Agreement, the Development Agreement,
the Operating and Use Agreement, the Escrow Agreements, the form of Residency
Agreement, the Residents' Loan Documents, the Trust Indenture, the other Bond
Documents, and each of the other contracts and agreements reflected on Schedule
4.22 shall be satisfactory in all respects to the Bank.
5.21 OTHER REQUIRED APPROVALS. Bank shall have received evidence satisfactory to
Bank that the Loans and the security given therefor and the Loan Documents
entered into a connection therewith have been approved by all parties from whom
such approval is required under the Bond Documents and the Residents' Loan
Documents.
5.22 APPROVAL OF ADMISSION FEE ESCROW AGREEMENT (PHASE III). There shall have
been delivered to the Bank evidence of the approval of the Admission Fee Escrow
Agreement (Phase III) by the Office of Aging of the State of Maryland.
5.23 DEPOSIT ACCOUNT. The Borrower shall have opened a deposit account at the
Bank.
5.24 OTHER DOCUMENTS. The Bank shall have received all other documents,
instruments, and opinions that the Bank reasonably requires to evidence and
secure the Loan and the Note, to comply with the provisions of this Agreement,
and to comply with the requirements of regulatory authorities to which the Bank
is subject.
SECTION 6. CONDITIONS OF LENDING-ALL LOAN ADVANCES. The obligation of
the Bank to make any Loan Advance under this Agreement is subject to the
fulfillment of the following conditions precedent:
6.1 COMPLIANCE. On each Borrowing Date, (a) the Borrower shall be in compliance
with all the terms, covenants, and conditions of the Loan Documents, (b) there
shall exist no Event of Default or unmatured Event of Default, (c) the
representations and warranties contained in the Loan Documents shall be true and
correct with the same effect as though those representations and warranties had
been made on that Borrowing Date, and (d) Borrower shall have made all
certifications required under Sections 5, 6, and 7.
6.2 LOAN CLOSINGS. All documents required by this Agreement to be executed or
delivered by the Borrower to the Bank on or before the applicable Borrowing Date
shall have been executed and delivered to the Bank at its main office in Des
Moines, Iowa, and all actions required of any Person to be taken on or before
the applicable Borrowing Date shall have been taken.
6.3 OTHER DOCUMENTS. The Bank shall have received such other instruments,
documents, and opinions as the Bank shall reasonably require to evidence and
secure the Loan and to comply with the provisions of this Agreement and the
requirements of regulatory authorities to which the Bank is subject.
6.4 APPROVAL OF COUNSEL. All legal matters in connection with the making of each
Loan shall be reasonably satisfactory to the Bank's legal counsel.
SECTION 7. LOAN ADVANCES. Subject to the satisfaction of all conditions
precedent set forth in Sections 5 and 6 of this Agreement, Loan Advances shall
be made pursuant to this Agreement as follows:
7.1 LOAN ADVANCE. The Loan shall be made in one, two or three Loan Advances at
Borrower's option, with the number of Loan Advances to be selected by Borrower
at the time of its request for an Initial Loan Advance. If one Loan Advance is
selected, all Completion
Approvals for all units of the Phase III Improvements shall be submitted with
the request for an Initial Loan Advance. If two Loan Advances are selected
partial occupancy permit or permits for not fewer than 18 units of the Phase III
Improvements, shall be submitted with the request for an Initial Loan Advance
and all Completion Approvals for all units of the Phase III Improvements shall
be submitted with the request for the Final Loan Advance. If three Loan Advances
are selected a partial occupancy permit for not fewer than 12 units of the Phase
III improvements shall be submitted with the Initial Loan Request, a partial
occupancy permit or permits for not fewer than 24 units of the Phase III
Improvements shall be submitted with the second request, and all Completion
Approvals for all units of the Phase III Improvements shall be submitted with
the request for a Final Advance.
7.2 REQUEST FOR LOAN ADVANCE. Each Loan Advance shall be made subject to the
provisions of this Section 6.1 as follows:
(a) Each request for Loan funds shall be signed and certified by the
Borrower and shall be accompanied by the following:
(i) Borrower's certificate that it is in compliance with all
terms, covenants and conditions of the Loan Documents;
(ii) Certified copies of the Occupancy Permits and Completion
Approvals as required for each Loan Advance; and
(iii) Borrower's certificate with supporting documents that all
contracts due for labor or material have been fully paid as of
the date of the certificate and that Borrower has segregated
funds sufficient to complete construction of the Project.
(b) Each request for loan funds, including all supporting
documentation, must be submitted at least four days before the Borrowing Date
designated in the request for loan funds.
7.2 DISBURSEMENTS. Before any default by the Borrower under this Agreement, each
Loan Advance shall be made by crediting the amount thereof to the deposit
account of the Borrower maintained with the Bank. Regardless of any other
provision of this Agreement or any other Loan Document, the Bank may withhold a
Loan Advance or discontinue the making of Loan Advances whenever the Borrower
has failed to comply with any provision of any Loan Document or is in default,
or if an event has occurred that with the passage of time or giving of notice
would
constitute a default under any Loan Document. The Mortgage, Security Agreement,
Assignment of Leases and Rents, and Guaranty shall be and remain valid and
binding as security for the aggregate Loan amount advanced at any time with
interest thereon, whether or not the full amount of the Loan is advanced.
7.3 SATISFACTION OF CONDITIONS PRECEDENT. The Bank shall not be obligated to
make a Loan Advance unless the Bank is satisfied, in its sole discretion, that
the conditions precedent to the making of each such advance have been satisfied
by the Borrower.
7.4 OTHER BORROWING LIMITATIONS. The Bank shall have no obligation to lend if,
at the time of any requested advance, the Borrower is in default under this
Agreement or under the terms of any other Loan Document. All conditions and
requirements of this Agreement relating to the obligations of the Bank to make
any Loan Advance (including, without limitation, the conditions set forth in
Sections 5, 6 and 7 of this Agreement) are for the sole benefit of the Bank. The
Bank shall have the absolute right, in its sole discretion, to waive any such
condition or requirement as a condition precedent to making any Loan Advance.
Any such waiver shall be in writing and may be subject to such terms and
conditions as the Bank may require.
SECTION 8. COVENANTS OF BORROWER AND GUARANTORS. From the date of this
Agreement until payment in full of the principal and interest on the Loan and
the Note, and the payment in full of all other liabilities of the Borrower under
this Agreement, the Borrower and Guarantors covenant and agree:
8.1 LEGAL EXISTENCE. Borrower and each Guarantor will do or cause to be done all
things necessary to preserve and keep in full force and effect the legal
existence of Borrower and each Guarantor.
8.2 CONTROL. No change in majority control of Borrower or CREP shall occur
without the Bank's prior written consent.
8.3 PHASE III IMPROVEMENTS. Borrower shall construct the Phase III improvements
with diligence to completion, and shall cause the same to be completed in a good
and workmanlike manner in accordance with the Plans and in compliance with all
applicable laws, all applicable permits, licenses and approvals and all
applicable private covenants on or before December 31, 1997, free and clear of
all liens or claims of liens for materials supplied or work performed in
connection therewith.
8.4 TAXES AND ASSESSMENTS. Borrower or CREP will duly pay and discharge (a) all
taxes, assessments, and charges imposed upon it or upon the Mortgaged Property
(except, if such taxes, assessments, or charges may be paid in installments and
the Borrower is not in default under this Agreement, then the Borrower may pay
such taxes, assessments, or charges in such installments, before they become
delinquent), and (b) all claims for labor, materials, and supplies, which taxes,
assessments, charges, and claims, if unpaid, might become a Lien or charge upon
the Mortgaged Property, provided, however, that the Borrower is not required to
pay such taxes, assessments, charges, or claims that it is appropriately
contesting in good faith.
8.5 ADVERSE EVENTS. Borrower will promptly notify the Bank of the occurrence of
an Event of Default and any event that in the exercise of reasonable business
judgment might have a material adverse effect on the Borrower's or CREP's
financial condition or that might have a material adverse effect on the
Borrower's or CREP's ability to perform its obligations under this Agreement or
under the Note or Guaranty.
8.6 FOUNDATION SURVEY. Borrower shall furnish to the Bank within forty-five (45)
days after the foundations of the Phase III Improvements have been located on
the land a survey certified by a registered engineer or surveyor satisfactory to
the Bank, in form and scope acceptable to the Bank, showing that the foundations
are located within the perimeter of the Land and any setback lines at the
location shown on the Plans.
8.7 AS-BUILT PLANS AND SPECIFICATIONS, SURVEY AND CERTIFICATE OF COMPLETION.
Borrower shall furnish to the Bank within forty-five (45) days after completion
of construction of the Phase III Improvements (a) as-built plans and
specifications for the Phase III Improvements, (b) an as-built survey of the
Property showing the completed Improvements and certified by a registered
engineer or surveyor satisfactory to the Bank, which survey and certification
shall be in form and scope satisfactory to the Bank, and (c) the Certificate of
Completion.
8.8 BORROWER FINANCIAL REPORTS. Borrower shall maintain a system of accounting
based on GAAP consistently applied, and combined for Borrower and CREP, and
furnish, or cause to be furnished, to the Bank:
(a) within one hundred five (105) days after the close of each
fiscal year of the Borrower and CREP, an unqualified audit report
certified by a nationally recognized accounting firm or any other
independent certified public accountants reasonably acceptable to Bank,
prepared in accordance with generally accepted
accounting principles for the Borrower and CREP, including balance
sheets as of the end of such period, related profit and loss and
reconciliation of surplus statements, and a statement of cash flows,
accompanied by (i) a certificate of said accountants stating that, in
the course of their examination necessary for their certification of
such audit report, they have obtained no knowledge of any Event of
Default or Unmatured Event of Default, or if, in the opinion of such
accountants, any Event of Default or Unmatured Event of Default shall
exist, describing the nature and status thereof and (ii) said
accountants' letter to management,
(b) within thirty (30) days after the close of each fiscal
quarter of each fiscal year, of the Borrower, unaudited balance sheets
as at the close of each such quarter and profit and loss and
reconciliation of surplus statements and a statement of cash flows from
the previous quarter, from the previous year and from the beginning of
such fiscal year to the end of such quarter, and a comparison of such
figures to the budget, all certified by the Borrower's chief financial
officer or treasurer,
(c) together with the financial statements required by clauses
(a) and (b) of this Section 7.8, certificate signed by the Borrower's
chief financial officer or treasurer stating that no Event of Default
or Unmatured Event of Default exists, or if any Event of Default or
Unmatured Event of Default exists, describing the nature and status
thereof, and containing a computation of and showing compliance with
each of the financial ratios and restrictions contained in this Section
7.
8.9 LCS FINANCIAL REPORTS. LCS shall maintain a system of accounting based on
GAAP, consistently applied Consolidated with all of its Subsidiaries and shall
furnish or cause to be furnished to Bank:
(a) within one hundred five (105) days after the close of each fiscal
year of LCS, an unqualified audit report certified by a nationally
recognized accounting firm or any other independent certified public
accountants reasonably acceptable to Bank, prepared in accordance with
generally accepted accounting principles for LCS, including balance
sheets as of the end of such period, related profit and loss and
reconciliation of surplus statements, and a statement of cash flows.
(b) within thirty (30) days after the close of each fiscal
quarter of each fiscal year, of LCS, unaudited balance sheets as at the
close of each such quarter and profit and loss and reconciliation of
surplus statement sand a statement of cash flows from the previous
quarter, from the previous year and from the beginning of such fiscal
year to the end of such quarter, and a comparison of such figures to
the budget, all certified by the chief financial officer or treasurer
of LCS.
8.10 FURTHER INFORMATION. The Borrower will promptly furnish to the Bank such
other information with respect to the financial condition, business or
operations of the Borrower and the Facility as the Bank may reasonably request
from time to time.
8.11 RESIDENCY AGREEMENTS. The Borrower shall maintain at all times Effective
Residency Agreements with respect to not less than twenty-five (25) of the
independent living units in the Project.
8.12 COMPLIANCES WITH LAWS. The Borrower shall comply with all laws and all
covenants, easements, declarations and restrictions which at any time are
applicable to the Facility.
8.13 COMPLIANCE WITH OTHER AGREEMENTS. The Borrower shall comply with the terms
and conditions of (i) all instruments, agreements and other documents delivered
by or on behalf of the Borrower in connection with (A) the Bond Financing,
including without limitation the Trust Indenture and the other Bond Documents,
and (B) the Residents' Loans, including without limitation the Residency
Agreements and the other Residents' Loan Documents, (ii) the Management
Agreement, (iii) the Development Agreement, (iv) the Operating and Use
Agreement, (v) the Escrow Agreements, and (vi) all of the other contracts and
agreements reflected on Schedule 4.22.
8.14 CAPITAL REPLACEMENT RESERVE REQUIREMENT. The Borrower shall maintain at all
times the reserves required pursuant to the provisions of the Capital
Replacement Reserve Escrow Agreement (regardless of whether or not such
agreement remain in full force and effect).
8.15 FLOOD INSURANCE. Will obtain special flood insurance to meet Federal
Emergency Management Agency ("FEMA") coverage requirements in amount equal to
the lesser of the amount of the Loan or the maximum insurance available under
the National Flood Insurance Program, if FEMA determines that the Mortgaged
Property is located in a flood hazard area.
8.16 COMPLIANCE WITH ENVIRONMENTAL LAWS. Will at all times comply with all
applicable environmental, hazardous waste or substance, toxic substance, and
underground storage laws and regulations, and will obtain any permits, licenses,
or similar authorizations to construct, occupy, operate, or use any buildings,
improvements, fixtures, or equipment forming a part of the Facility by reason of
any applicable environmental, hazardous waste or substance, toxic substance, or
underground storage laws or regulations; and it will not permit the Facility or
any of its Property to be used to store or dispose of any hazardous waste or
substance, toxic substances, or any solid wastes, except as used in the ordinary
course of business and disposed of in accordance with all applicable law, and
will take all steps necessary to ensure that no hazardous waste or substances,
toxic substances, or solid wastes are disposed of or otherwise released on or to
the Mortgaged Property.
8.17 ERISA. Borrower, CREP and their ERISA affiliates shall maintain any ERISA
Plans in compliance with ERISA and shall not allow any condition to exist in
connection with any ERISA Plan which might constitute grounds for the PBGC to
institute proceedings to have such ERISA Plan terminated or a trustee appointed
to administer such ERISA Plan, and not engage in, or permit to exist or occur,
any other condition, event or transaction with respect to any ERISA Plan which
could result in the incurrence by the Borrower or CREP of any material
liability, fine or penalty.
8.18 DISPOSITION OF PROPERTY. Neither Borrower nor CREP shall sell, convey,
assign, lease, transfer, abandon or otherwise dispose of, voluntarily or
involuntarily, by operation of law or otherwise its legal or beneficial interest
in the Property, or any part thereof, except the Residency Agreements and leases
of space incidental to the operation of the Facility.
8.19 LIENS ON THE PROPERTY. Neither Borrower nor CREP shall at any time create,
incur, assume, or suffer to exist any indebtedness secured by a mortgage, deed
of trust, pledge, lien, security interest, charge or other encumbrance upon all
or any part of the Property, except the Bond Financing and the Residents' Loans.
8.20 MODIFICATION OF AGREEMENTS. Without the prior written consent of the Bank,
the Borrower shall not terminate or amend, modify or supplement in any respect
any of the following documents: The Management Agreement, the Development
Agreement, the Services Agreement, the Operating and Use Agreement, either of
the Escrow Agreements, the Contracts, the form of Residency Agreement, the
Residents' Loan Documents and all other documents related to the Residents'
Loans, including without limitation the Residency Agreements, the Bond Documents
and all other documents given to evidence, secure and support the Bond
Financing, and any other contact or agreement identified on Schedule 3.22.
8.21 FEES AND EXPENSES. Will pay on demand, whether or not the Closing occurs or
any Loan Advance is made, all charges for title examination, surveys, recording
fees and taxes, the reasonable fees and disbursements of the Bank's legal
counsel for services in connection with this Agreement and in connection with
the Loan, and all other reasonable and necessary out-of-pocket expenses of the
Bank relating to the matters contemplated in this Agreement. All items required
to be furnished under this Agreement or under the Loan Documents shall be
furnished without cost to the Bank. If further or additional appraisals or
environmental studies are required by the Bank, the Borrower shall reimburse the
Bank, upon demand, for the cost of the appraisals or environmental studies. The
parties agree that such further appraisals will be needed only in the event of a
perceived reduction in the value of the Mortgaged Property and that additional
environmental studies will be needed only in the event of an environmental
accident or the discovery of new evidence of pre-existing environmental problems
with the Mortgaged Property.
8.22 INDEBTEDNESS. The Borrower and CREP shall not at any time create, incur,
assume or suffer to exist any indebtedness except: (a) indebtedness to the Bank
pursuant to this Agreement and the other Loan Documents, (b) indebtedness under
the Bond Financing pursuant to the Bond Documents, (c) indebtedness to the
Residents pursuant to the Residents' Loan Documents, and (d) trade debt incurred
in the ordinary course of business, without the prior written consent of Bank,
which Bank shall not unreasonably withhold.
8.23 COMBINED CASH FLOW COVERAGE. From and after December 31, 1998, the Combined
Cash Flow Coverage of the Borrower and CREP shall not at any time be less than
1.2 to 1.0. As used herein, "Combined Cash Flow Coverage of Borrower and CREP"
shall mean the ratio of Combined Cash Flow of Borrower and CREP to the Combined
Coverage Amount of Borrower and CREP.
SECTION 9. EVENTS OF DEFAULT. The occurrence of any or all of the following
events shall constitute an "Event of Default" under this Agreement:
(a) The Borrower shall be in default in the payment of any interest or
principal under the Note or any other payment required to be made under this
Agreement, as and when due and payable, and such default shall continue for a
period of more than five days after Bank shall have given Borrower notice of
such non-payment.
(b) The Borrower shall default in the observance or performance of any
of the covenants, agreements, conditions, or undertakings to be performed or
observed by it pursuant to the terms of this Agreement or of any other Loan
Document and such default shall continue for a period of more than thirty days
after Bank shall have given Borrower notice of such non-payment.
(c) Any representation or warranty of the Borrower or any Guarantor
shall prove to be false or misleading in any material adverse respect.
(d) Any of the Guarantors shall default in the performance or
observance of any covenant, agreement, or duty under any Loan Document beyond
any applicable period of grace provided for therein;
(e) Any statement of fact or certificate furnished by the Borrower
under or pursuant to this Agreement or any other Loan Document proves to be
false or misleading in any material adverse respect as of the date of which the
facts set forth therein were stated or certified.
(f) The Borrower or CREP shall admit in writing its inability to pay
its debts generally, shall make a general assignment for the benefit of
creditors, or shall be adjudicated insolvent, or shall institute any proceedings
seeking to adjudicate it insolvent, seeking a liquidation, or seeking an
arrangement with creditors to take advantage of any bankruptcy, reorganization,
insolvency, readjustment of debt, dissolution, or liquidation law or statute, or
any action shall be taken by the Borrower for the purpose of effecting any of
the foregoing; or the Borrower shall file a petition commencing a case naming
itself as debtor under the United States Bankruptcy Code; or a petition shall be
filed commencing a case against the Borrower under the United States Bankruptcy
Code; or any proceeding shall be instituted against the Borrower seeking
liquidation of it and such proceedings shall remain undismissed or unstayed for
a period of 60 days.
(g) This Agreement or any other Loan Document or any other instrument
or document to be issued under this Agreement fails to be a valid act or
obligation of the Borrower or any Guarantor in accordance with its terms or
ceases to be in full force and effect, or any party to a Loan Document denies it
has any further liability or obligation, prospective or otherwise, under any
such Loan Document.
(h) Any change in the financial condition of the Borrower or CREP or
the occurrence of any event that would have a materially adverse effect on the
ability of the Borrower or CREP
to repay the Note or the ability of the Borrower to fully discharge its
obligations under any Loan Document.
(i) There shall be any change in majority control of the Borrower or
CREP without the prior written approval of the Bank.
(j) Any partnership interest in the Borrower or CREP, including any
interest in the profits or losses of the Borrower or CREP shall have been
transferred, pledged, levied upon or encumbered.
(k) Final judgment for the payment of money in excess of One Hundred
Thousand Dollars ($100,000.00) shall be rendered against the Borrower or CREP
and the same shall remain undischarged for a period of 60 days, during which
execution shall not be effectively stayed.
(l) An "Event of Default" as defined in Article IV of the Mortgage
shall occur and be continuing; or
(m) The Borrower or CREP shall fail to keep in full force and effect
any permit or approval issued by any Governmental Authority with respect to the
construction, occupancy, operation or use of the Facility or with respect to the
matters contemplated hereby; or
(n) The Borrower shall abandon construction of the Phase III
Improvements and such abandonment shall continue for a period of ninety (90)
consecutive days; or
(o) The Phase III Improvements shall not have been completed in
accordance with the Plans, on or before December 31, 1997 or the Completion
Approvals shall not be obtained on or before December 31, 1997.
(p) The Property or any part thereof shall be condemned or damaged by
fire or other casualty, or any other event shall occur, in such manner as to
preclude, in the Bank's sole judgment, the completion of the Phase III
Improvements by December 31, 1997; or
(q) A survey at any time shall show that the Improvements encroach upon
any street, easement, right of way or adjoining property or violate any setback
requirement or that any adjoining structure encroaches on the Property to an
extent deemed material by the Bank; or
(r) A default shall occur under the Bond Documents, the Residents' Loan
Documents, the Management Agreement, the Development Agreement, the Operating
and Use Agreement, either of the Escrow Agreements, any of the other contracts
or agreements identified on Schedule 3.22; or
(s) The Management Agreement, the Development Agreement, the Operating
and Use Agreement, any of the Contracts or any of the other contracts or
agreements identified on Schedule 3.22 shall be terminated.
(t) Any action, suit, or proceeding seeking to establish or enforce
liability under any federal, state, municipal, or local environmental, hazardous
waste or substance, toxic substance, or underground storage law or regulation
with respect to the Mortgaged Property shall be commenced against the Borrower
or CREP, or any Collateral before or by any Governmental Body and the Borrower
fails to diligently prosecute a defense, or a settlement is entered into or a
final judgment is rendered against the Borrower or CREP or any Collateral, which
settlement or judgment remains unsatisfied within a reasonable time thereafter.
SECTION 10, RIGHTS AND REMEDIES. The Bank shall have the following rights and
remedies upon the occurrence of any Event of Default described in Section 9 of
this Agreement:
10.1 TERMINATION OF COMMITMENTS. All obligations of the Bank to make a Loan
Advance shall terminate without further notice of any kind to the Borrower.
10.2 ACCELERATION OF INDEBTEDNESS. The Bank may declare the Note and any and all
other Indebtedness of the Borrower to the Bank to be forthwith due and payable,
both as to principal and interest, without presentment, demand, protests or
other notice of any kind, all of which are expressly waived, regardless of any
contrary provision of this Agreement or the Note or any other Loan Document,
agreement, document, or instrument to be issued or contemplated by this
Agreement.
10.3 PROTECTION AND ENFORCEMENT OF RIGHTS. The Bank may proceed to protect and
enforce its rights either by action in law or equity or by other appropriate
proceedings, whether for the specific performance (to the extent permitted by
applicable law and equitable principles) of any covenant or agreement contained
in this Agreement, any Loan Document, any other document, agreement, or
instrument to be issued or contemplated under this Agreement, any Note, or any
instrument evidencing any Indebtedness of the Borrower to the Bank, or in aid of
the exercise of
any power granted in this Agreement, any Loan Document, any other agreement,
document, or instrument to be issued or contemplated under this Agreement, any
note, or any such instrument evidencing any Indebtedness of the Borrower to the
Bank, and may proceed to enforce the payment of the Note and all other
Indebtedness of the Borrower to the Bank and may enforce any other legal or
equitable right that the Bank may have under this Agreement or under any Note,
any Loan Document, or any other agreement, document, or instrument to be issued
or contemplated under this Agreement or otherwise available.
SECTION 11. RIGHT OF SETOFF. Upon the occurrence of an Event of Default, the
Borrower and CREP agree that the Bank shall have the right of setoff against the
liabilities of the Borrower to the Bank with respect to any account or funds of
the Borrower or CREP with the Bank and with respect to any other obligation of
any nature from the Bank to the Borrower or CREP.
SECTION 12. MISCELLANEOUS.
12.1 WAIVERS. No delay or failure on the part of the Bank in exercising any
right, power or privilege under this Agreement or under the terms and provisions
of the Notes held by it shall operate as a waiver thereof; nor shall any single
or partial exercise thereof preclude any further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies of the
Bank are cumulative and are not exclusive of any rights or remedies which the
Bank would otherwise have.
12.2 NOTICES. All notices, requests and consents under this Agreement shall be
in writing and shall be effective when received. Any notice or other
communication herein required or permitted to be given to any party may be given
in writing by depositing the same in the United States mail, certified mail,
postage prepaid, addressed to the party at the address set forth below:
(a) If to the Bank:
Norwest Bank Iowa,
National Association
Attention: Xxxxxxx Xxxxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
(b) If to the Borrower:
The Chestnut Partnership
c/x Xxxxxx Enterprises, Inc.
The Foxleigh Building
0000 X. Xxxxx Xxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxx 00000
(c) If to CREP:
The Chestnut Real Estate Partnership
c/x Xxxxxx Enterprises, Inc.
The Foxleigh Building
0000 X. Xxxxx Xxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxx 00000
(d) If to LCS:
LCS Holdings, Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Attention: President
(e) If to LCSC:
Life Care Services Corporation
000 Xxxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Attention: President
(f) If to HHC:
Home Health Care Services Corporation
000 Xxxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Attention: President
or at such other address as the party may designate in a notice in writing given
to the other party.
12.3 SUCCESSORS AND ASSIGNS; SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
covenants, agreements, representations, and warranties made herein and in the
certificates delivered pursuant to this Agreement shall survive the making by
the Bank of the loans herein contemplated and shall continue in full force and
effect so long as any Indebtedness to the Bank is outstanding and unpaid.
Whenever in this Agreement any of the parties to this Agreement is referred to,
such reference shall be deemed to include the successors and assigns of such
party. All covenants, promises, and agreements by and on behalf of the Borrower
or of the Bank that are contained in this Agreement may be assigned by the Bank
and all such covenants, promises and agreements shall bind and inure to the
benefit of the successors and assigns of the Bank. This Agreement may not be
assigned by the Borrower.
12.4 COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which together shall
constitute a single instrument.
12.5 BUSINESS DAYS. If any date specified herein shall not be a Business Day,
the date shall be deemed to be the next following Business Day.
12.6 FORUM SELECTION AND CONSENT TO JURISDICTION. Any litigation based on, or
arising out of, under or in connection with, this Agreement or any other Loan
Document, or any course of conduct, course of dealing, statements (whether oral
or written) or actions of the Bank, Borrower or the Guarantors shall be brought
and maintained exclusively in the courts of the state of Iowa or in the United
States District Court for the Southern District of Iowa; provided however, that
any suit seeking enforcement against any Collateral or other property might be
brought, at the Bank's option, in the courts of any jurisdiction where that
Collateral or other property might be found. The Borrower and each Guarantor
hereby expressly and irrevocably submit to the jurisdiction of the courts of the
state of Iowa and of the United States District Court for the Southern District
of Iowa for the purpose of any such litigation as set forth above and
irrevocably agree to be bound by any judgment rendered by those courts in
connection with the litigation. The Borrower and each Guarantor further
irrevocably consent to the service of process by registered mail, postage
prepaid, or by personal service within or without the state of Iowa. The
Borrower and each Guarantor hereby expressly and irrevocably waive, to the
fullest extent permitted by law, any objection that it might have or hereafter
might have to the laying of venue of any such litigation brought in any such
court referred to above and any claim that any such litigation has been brought
in an inconvenient forum. To the extent that the Borrower or any Guarantor has
or hereafter might acquire any immunity from jurisdiction of any court or from
any legal process
(whether through service or notice, attachment prior to judgment, attachment in
aid of execution, or otherwise) with respect to itself or its property, the
Borrower and each Guarantor hereby irrevocably waives the immunity in respect of
its obligations under this Agreement.
12.7 WAIVER OF JURY TRIAL. The Bank, the Borrower and the Guarantors hereby
knowingly, voluntarily, and intentionally waive any rights any of them might
have to a trial by jury with respect to any litigation based on, or arising out
of, under, or in connection with this Agreement or any other Loan Document, or
any course of conduct, course of dealing, statements (whether oral or written),
or actions of the Bank, the Borrower or the Guarantors. Each of the parties
hereto acknowledges and agrees that it or he has received full and sufficient
consideration for this provision (and each other provision of each other Loan
Document to which it or he is a party) and that this provision is a material
inducement for each party entering into this Agreement and each other Loan
Document.
12.8 APPLICABLE LAW. The laws of the State of Iowa shall govern the validity,
interpretation, and enforcement of this Agreement except that the law of the
State of Maryland shall govern the validity, enforcement, and scope of the Liens
on Collateral located in Maryland.
12.9 BROKERAGE FEES. Borrower represents and warrants that no broker was
involved in procuring the Loan or in connection with this Agreement. The Bank
shall not be liable in any way for the payment of any brokerage fees or
commissions to any broker or other Person entitled to or claiming to be entitled
to fees or commissions in connection with this Agreement or the transactions
contemplated by this Agreement. The Borrower agrees to hold the Bank harmless
from all claims for brokerage fees or commissions that may be made in connection
with the transactions contemplated by this Agreement.
12.10 COSTS AND EXPENSES. The Borrower shall:
(a) Whether or not the transactions contemplated hereby are
consummated, pay or reimburse the Bank within five Business Days after
demand for all costs and expenses (including Attorney Costs) incurred
by the Bank in connection with the development, preparation, delivery,
administration and execution of, and any amendment, supplement, waiver
or modification to (in each case, whether or not consummated), this
Agreement, any Loan Document, and any other documents prepared in
connection herewith or therewith, and the consummation of the
transactions contemplated hereby and thereby; and
(b) pay or reimburse the Bank within five Business Days after
demand for all costs and expenses (including Attorney Costs) incurred
by them in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or any
other Loan Document during the existence of an Event of Default or
after acceleration of the Loans (including in connection with any
"workout" or restructuring regarding the Loans, and including in any
insolvency proceeding or appellate proceeding).
12.11 ENTIRE AGREEMENT. This Agreement represents the entire agreement of the
parties to this Agreement with respect to the matter stated herein. In instances
where the terms of this Agreement and the terms of any other Loan Document
conflict, the terms of this Agreement shall control. This Agreement and the
other Loan Documents supersede all prior understandings and agreements, whether
written or oral, among the parties hereto relating to the transactions provided
for herein and therein, including but not limited to the Letter of Commitment
dated January 24, 1997.
12.12 NO THIRD PARTY RIGHTS. Nothing in this Agreement, whether express or
implied, shall be construed to give to any Person other than the parties hereto
any legal or equitable right, remedy or claim under or in respect of this
Agreement, which is intended for the sole and exclusive benefit of the parties
hereto.
12.13 SEVERABILITY. The provisions of this Agreement are intended to be
severable. If any provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction, such provision shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions hereof in any
jurisdiction.
12.14 AMENDMENTS AND RELEASES. Modifications, amendments, or supplements of this
Agreement and any other Loan Document shall be made upon, but only upon, the
written agreement of the Bank and the Borrower.
12.15 ACKNOWLEDGMENT. The Borrower and each Guarantor hereby acknowledge receipt
of a copy of each Loan Document and each other document, instrument, and
agreement executed by any debtor in connection with the Indebtedness to the Bank
under this Agreement.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ
CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR
ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED.
YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
IN WITNESS WHEREOF, the Borrower and CREP, LCS, LCSC, HHC and the Bank have
caused this Agreement to be duly executed all as of the day and year first above
written.
NORWEST BANK IOWA, NATIONAL ASSOCIATION
("BANK")
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Xxxxxxx X. Xxxxxxx, Vice President
THE CHESTNUT PARTNERSHIP ("BORROWER")
and THE CHESTNUT REAL ESTATE PARTNERSHIP
("CREP")
By: BLAKEHURST JOINT VENTURE, as a general partner of The Chestnut
Partnership; and by THE CHESTNUT REAL ESTATE PARTNERSHIP as a general
partner of The Chestnut Partnership, by Blakehurst Joint Venture as a
general partner of The Chestnut Real Estate Partnership
By: Chestnut Village, Inc., a general partner
By: /s/ Xxxxxx X. Xxxx
---------------------------
Title: Treasurer
------------------------
THE CHESTNUT PARTNERSHIP ("BORROWER")
and THE CHESTNUT REAL ESTATE PARTNERSHIP
("CREP")
By: WEST JOPPA ROAD LIMITED PARTNERSHIP as a general partner of The
Chestnut Partnership; and by THE CHESTNUT REAL ESTATE PARTNERSHIP as a
general partner of The Chestnut Partnership, by West Joppa Road Limited
Partnership as a general partner of The Chestnut Real Estate
Partnership
By: Rosedale Care, Inc., a general partner
By: /s/ X.X. Xxxxxx
---------------------------
Title: Xxxxxx X. Xxxxxx, III
------------------------
President
THE CHESTNUT PARTNERSHIP ("BORROWER")
and THE CHESTNUT REAL ESTATE PARTNERSHIP
("CREP")
By: WEST JOPPA ROAD LIMITED PARTNERSHIP as a general partner of The
Chestnut Partnership; and by THE CHESTNUT REAL ESTATE PARTNERSHIP as a
general partner of The Chestnut Partnership, by West Joppa Road Limited
Partnership as a general partner The Chestnut Real Estate Partnership
By: Continental Care, Inc., a general partner
By: /s/ X. X. Xxxxxxxxxxx, Xx.
---------------------------
Title: President
------------------------
LCS HOLDINGS, INC. ("LCS ")
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Title: Treasurer
---------------------------------
LIFE CARE SERVICES CORPORATION ("LCSC")
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Title: Treasurer
---------------------------------
HOME HEALTH CARE SERVICES CORPORATION ("HHC")
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Title: Treasurer
---------------------------------
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
BEING KNOWN AND DESIGNATED as Lot No. 2 as shown on a plat entitled
"Amended Subdivision Plat of BLAKEHURST LIFE CARE COMMUNITY " dated March 18,
1992 and recorded among the Land Records of Baltimore County in Plat Book SM No.
64, folio 34, together with those two parcels of land binding on Lot No. 2 and
identified on the Plat as "Highway Widening Area No. 1 " containing 1.943 acres,
more or less, and "Highway Widening Area No. 3 ", containing 0.020 acres, more
or less.
BEING the same property which by Deed dated March 23, 1992 and recorded
among the Land Records of Baltimore County, Maryland in Liber SM No. 9109, folio
54, was granted and conveyed by Institute of Mission Helpers of Baltimore City
to The Chestnut Real Estate Partnership.
TOGETHER WITH the benefit of, and subject to the provisions of, that
certain Agreement of Restrictions and Purchase Option dated March 23, 1992 by
and between The Institute of Mission Helpers of Baltimore City and The Chestnut
Real Estate Partnership as recorded among the Land Records of Baltimore County
in Liber SM No. 9109, folio 141.
EXHIBIT B
TERM LOAN NOTE
$1,900,000.00 June ___, 0000
Xxx Xxxxxx, Xxxx
FOR VALUE RECEIVED, on the Term Loan Termination Date, and subject in any event
to the principal payments required to be made prior thereto, the undersigned,
THE CHESTNUT PARTNERSHIP, a Maryland general partnership (the "BORROWER"),
promises to pay to the order of NORWEST BANK IOWA, NATIONAL ASSOCIATION, a
national banking association (the "BANK"), the principal sum of One Million Nine
Hundred Thousand Dollars ($1,900,000.00) or, if less, the aggregate unpaid
principal amount of the Loan (as defined in the Term Loan Agreement referred to
below) made by the Bank to the Borrower pursuant to the Term Loan Agreement,
dated as of June ___, 1997, by and among the Borrower; Bank and Guarantors named
therein, (the "TERM LOAN AGREEMENT"), together with interest from the date
hereof on the unpaid principal balance of such Loan payable from time to time on
the dates and at the rates as are specified in the Term Loan Agreement.
Capitalized terms used and not otherwise defined herein shall have the same
meaning herein as in the Term Loan Agreement.
Both principal and interest are payable without set off, counterclaim or
deduction of any kind in lawful money of the United States of America at the
main banking office of Bank in Des Moines, Iowa, on the dates and in the manner
set forth in the Term Loan Agreement as it now exists or may be hereafter
amended, as appropriate. The principal amount of the Loan made by the Bank to
the Borrower, the amount of interest accrued thereon and the amount and date of
each payment of principal and interest thereon shall be recorded in the Bank's
records for the Borrower but the failure of the Bank to so record such
information shall not relieve the Borrower of its obligation to make payment of
such item when due. The Bank's records as to the aggregate unpaid principal
amount of its Loan and of any and unpaid accrued interest on such Loan shall be
conclusive evidence of the amount of the Borrower's obligation to the Bank in
respect of such Loan, in the absence of manifest error.
This promissory note is the Note referred to in the Term Loan Agreement, and is
entitled to the benefits and is subject to the terms of the Term Loan Agreement,
including, without limitation, the limitation on the maximum amount of Loan
available to be borrowed from the Bank. This Note is secured by the Liens
granted under the Term Loan Agreement and the other Loan Documents. This Note is
prepayable in the amounts and under the circumstance set forth in the Term Loan
Agreement, and its maturity is subject to Acceleration upon the terms and
conditions set forth therein.
If this Note is not paid when due (whether at maturity or upon Acceleration or
demand), the Borrower agrees to pay all costs of collection including reasonable
attorney fees and legal expenses incurred by the holder hereof.
Presentment for payment, demand, notice of dishonor, protest, and notice of
protest are hereby expressly waived.
This Note is being delivered in the State of Iowa and shall be construed and
enforced in accordance with the laws of the State of Iowa.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ
CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR
ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED.
YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
THE CHESTNUT PARTNERSHIP
By: BLAKEHURST JOINT VENTURE, as a general
partner of The Chestnut Partnership; and by
THE CHESTNUT REAL ESTATE PARTNERSHIP as a
general partner of The Chestnut Partnership,
by Blakehurst Joint Venture as a general
partner of The Chestnut Real Estate
Partnership
By: Chestnut Village, Inc., a general partner
By:
----------------------------------------
Title:
---------------------------------
By: WEST JOPPA ROAD LIMITED PARTNERSHIP, as a
general partner of The Chestnut Partnership;
and by THE CHESTNUT REAL ESTATE PARTNERSHIP
as a general partner of The Chestnut
Partnership, by West Joppa Road Limited
Partnership as a general partner of The
Chestnut Real Estate Partnership
By: Rosedale Care, Inc., a general partner
By:
----------------------------------------
Title:
---------------------------------
By: Continental Care, Inc., a general partner
By:
----------------------------------------
Title:
---------------------------------
SCHEDULE 4.6
LIST OF FINANCIAL STATEMENTS
Report on Audits of Separate and Combined Financial Statements of The Chestnut
Real Estate Partnership and The Chestnut Partnership for the years ended
December 31, 1996, 1995 and 1994.
LCS Holdings, Inc. and Subsidiaries Consolidated Financial Statements as of
March 31, 1996 and 1995 (With Independent Auditor's Report Thereon)
LCS Holdings, Inc. and Subsidiaries Consolidated Financial Statement as of
December 31, 1996 (unaudited)
SCHEDULE 4.20
BOND DOCUMENTS
Trust Indenture, dated as of May 1, 1992, between Borrower and Bond Trustee
Indemnity Deed of Trust and Security Agreement, dated as of May 28, 1992, among
CREP, as Grantor, and Xxxxx X. Xxxxxx, as Trustee (for the benefit of Bond
Trustee and The Sumitomo Trust and Banking Company, Ltd. ("Sumitomo"))
Indemnity Collateral Assignment of Leases, Residency Agreements, Rents and Fees,
dated as of May 28, 1992 from CREP to Bond Trustee and Sumitomo.
Collateral Assignment of Leases, Residency Agreements, Rents and Fees, dated as
of May 28, 1992, from Borrower to Bond Trustee and Sumitomo
Security Agreement, dated as of May 1, 1992, among Borrower, Sumitomo and Bond
Trustee
Consent and Subordination Agreement, dated as of May 28, 1992, among Borrower,
Sumitomo and Bond Trustee
Guaranty Agreement, dated as of May 1, 1992, delivered by CREP to Bond Trustee
Subordination Agreement, dated as of August 2, 1993, among CREP, Borrower,
Trustee, Sumitomo, Bond Trustee, Xxxx Xxxxx, as Trustee, and Xxxxx X. Xxxxxx, as
Trustee
SCHEDULE 4.21
RESIDENTS' LOAN DOCUMENTS
Disclosure Statement, together with the form of Residency Agreement, dated as of
August 1, 1994
Residency Guaranty Agreement, dated as of August 2, 1993, between CREP and the
Holders
Indemnity Deed of Trust and Security Agreement, dated as of August 2, 1993
between CREP and the Trustee
SCHEDULE 4.22
FACILITY AGREEMENTS
All capitalized terms used herein shall have the same meanings assigned to such
terms in the TERM LOAN AGREEMENT to which this Schedule is attached.
Admission Fee Escrow Agreement - Phase I dated as of July 18, 1996 between
Borrower and the Escrow Agent.
Admission Fee Escrow Agreement - Phase III dated as of April 24, 1996, between
Borrower and the Escrow Agent.
Architect's Agreement dated January 1, 1996, between Borrower and architect.
Capital Replacement Reserve Escrow Agreement, dated as of August 2, 1993 between
the Borrower and Maryland National Bank, as Escrow Agent.
Construction Contract dated as of September 4, 1996, between the Borrower and
the general contractor, as supplemented on October 30, 1996.
Development Agreement, dated June 3, 1988, between the Borrower and LCSC, as
amended by Amendment to Development Agreement, dated as of December 30, 1994,
October 30, 1996 and February 17, 1997 among the Borrower, LCSC, Rosedale, and
Continental and with LCSD being a party to the 1996 and 1997 amendments, and as
the same may be amended, modified or supplemented from time to time in
compliance with the provisions of the Loan Documents.
Health Care Resident Loans Escrow Agreement dated as of July 18, 1996, between
the Borrower and the Escrow Agent.
Management Agreement, dated September 28, 1990, between the Borrower and LCSC.
Operating and Use Agreement, dated as of April 1, 1992, between the Borrower and
CREP.
Amended and Restated Wait List Escrow Agreement dated as of July 18, 1996,
between the Borrower and Escrow Agent.
