EXHIBIT 10.31
Loan Agreement between
Five Pack Retirement 2002, LLC, Lender, and
CNL Retirement Clayton OH, LP, CNL Retirement Laguna Creek CA, LP,
CNL Retirement Camarillo CA, LP, CNL Retirement Dartmouth MA, LP,
CNL Retirement Towson MD, LP, Borrowers, and
U.S. Bank, National Association, Collateral Agent,
relating to the Xxxxxxxx Xxxxxxx xx Xxxxxxxxx - Xxxxxxxxx, Xxxxxxxxxx;
Xxxxxxxx Xxxxxxx xx Xxxxxx - Xxxxxx, Xxxxxxxx;
Marriott MapleRidge of Clayton - Clayton, Ohio;
Marriott MapleRidge of Dartmouth - Dartmouth, Massachusetts; and
Marriott MapleRidge of Laguna Creek - Elk Grove, California
LOAN AGREEMENT
between
Five Pack Retirement 2002, LLC, a Delaware limited liability company
("LENDER")
and
CNL Retirement Clayton OH, LP, a Delaware limited partnership
CNL Retirement Laguna Creek CA, LP, a Delaware limited partnership
CNL Retirement Camarillo CA, LP, a Delaware limited partnership
CNL Retirement Dartmouth MA, LP, a Delaware limited partnership
CNL Retirement Towson MD, LP, a Delaware limited partnership
("BORROWERS")
and
U.S. BANK, NATIONAL ASSOCIATION, a national banking association
("COLLATERAL AGENT")
TABLE OF CONTENTS
1. PAYMENT OF PRINCIPAL AND INTEREST............................................................................2
2. CONDITIONS PRECEDENT.........................................................................................2
3. FUNDS FOR TAXES, INSURANCE AND OTHER CHARGES.................................................................4
4. REPAYMENT OF LOANS; INTEREST, FEES...........................................................................5
5. OPTIONAL PREPAYMENTS.........................................................................................6
6. YIELD PROTECTION.............................................................................................6
7. APPLICATION OF PAYMENTS......................................................................................7
8. CHARGES; LIENS...............................................................................................8
9. INSURANCE....................................................................................................9
10. PRESERVATION AND MAINTENANCE OF PROPERTY....................................................................10
11. PROTECTION OF LENDER'S SECURITY.............................................................................10
12. BOOKS AND RECORDS...........................................................................................11
13. CONDEMNATION................................................................................................11
14. FORBEARANCE BY LENDER NOT A WAIVER..........................................................................12
15. ESTOPPEL CERTIFICATE........................................................................................13
16. LEASES OF THE PROPERTIES....................................................................................13
17. REMEDIES CUMULATIVE.........................................................................................14
18. ACCELERATION IN CASE OF A BORROWER'S INSOLVENCY.............................................................14
19. TRANSFERS OF BENEFICIAL INTERESTS IN BORROWERS..............................................................14
20. NOTICE......................................................................................................15
21. SUCCESSORS AND ASSIGNS BOUND; AGENTS; CAPTIONS..............................................................15
22. GOVERNING LAW; SEVERABILITY.................................................................................15
23. ACCELERATION; REMEDIES......................................................................................16
24. SUBROGATION.................................................................................................18
25. PARTIAL INVALIDITY..........................................................................................18
26. REPRESENTATIONS OF BORROWERs................................................................................18
27. BORROWERS' ADDITIONAL COVENANTS.............................................................................21
28. GENERAL RECORDS AND SPECIAL REPORTING REQUIREMENTS..........................................................24
29. PERIODIC DUE DILIGENCE REVIEW...............................................................................25
30. ASSIGNMENT BY LENDER........................................................................................25
31. FINANCIAL INFORMATION.......................................................................................25
32. REFERENCES TO THE LEASE.....................................................................................26
33. APPOINTMENT AS ATTORNEY-IN-FACT.............................................................................26
34. RELEASE OR SUBSTITUTION OF COLLATERAL.......................................................................28
35. DEFINITIONS.................................................................................................29
36. NO PROCEEDINGS..............................................................................................36
37. WAIVER OF JURY TRIAL........................................................................................36
38. MISCELLANEOUS...............................................................................................37
39. LIMITATION ON LIABILITY.....................................................................................39
SCHEDULE "A" Schedule of Loan Amounts by Site
SCHEDULE "B" Schedule of Site Descriptions
SCHEDULE "C" Schedule of Transaction Documents
EXHIBIT "A" Schedule of Property Leases
EXHIBIT B COLLATERAL REPRESENTATIONS
LOAN AGREEMENT
THIS LOAN AGREEMENT (the "Agreement") is made as of May 31, 2002 and
effective as of the date of funding, between CNL Retirement Clayton OH, LP, a
Delaware limited partnership, CNL Retirement Laguna Creek CA, LP, a Delaware
limited partnership, CNL Retirement Camarillo CA, LP, a Delaware limited
partnership, CNL Retirement Dartmouth MA, LP, a Delaware limited partnership,
CNL Retirement Towson MD, LP, a Delaware limited partnership (herein each
individually called a "Borrower" and collectively called "Borrowers"), and Five
Pack Retirement 2002, LLC, a Delaware limited liability company (herein
"Lender"), and U.S. Bank, National Association, a national banking association,
in its capacity as Collateral Agent under the CP Loan Agreement, the Collateral
Agent Security Agreement or the Liquidity Agreement, as the case may be (herein
"Collateral Agent"), whose address is 000 Xxxx Xxxxx Xxxxxx, Xx. Xxxx, XX 00000.
WHEREAS, subject to and upon the terms and conditions herein set forth,
Lender is willing to make a loan ("Loan"), available for the Borrowers in the
aggregate principal amount of TWENTY-THREE MILLION FIVE HUNDRED TWENTY THOUSAND
AND No/100 Dollars ($23,520,000.00) allocated among the individual Borrowers and
by site set forth in attached Schedule "A" which indebtedness is evidenced by
Borrowers' promissory note dated of even date herewith (the "Note"), which Note
shall have a term of five (5) years;
WHEREAS, Borrowers are indirectly owned by subsidiaries and affiliates
of Marriott International, Inc., a Delaware corporation ("MI") and CNL
Retirement Properties, Inc., a Maryland corporation ("CRP");
WHEREAS, Lender will obtain funding for the Loan from Voyager Funding
Corporation ("Voyager"), a U.S. dollar denominated commercial paper conduit,
and/or the Liquidity Providers under the Liquidity Agreement;
WHEREAS, the Loan is to be used by the Borrowers exclusively for the
purpose of returning a portion of the equity contribution which was made by the
partners of Borrowers to Borrowers' capital for the purpose of acquiring five
retirement properties identified on the attached Schedule "B" (individually
called the "Property" and collectively called the "Properties"), and Borrowers
shall execute one promissory note (the "Note") and collateral documents
including mortgages or deeds of trust and assignments of leases establishing
first liens on the Properties and their equipment and intangible rights
(individually called the "Security Instrument" and collectively called the
"Security Instruments") set forth in the attached Schedule "C" (individually and
collectively the "Loan Documents");
WHEREAS, the indebtedness evidenced by the Note is secured by the
Security Instruments, made in favor of Lender and assigned to the Collateral
Agent for the benefit of Voyager and the Liquidity Providers. Pursuant to the
Security Instruments, each Borrower will grant a security interest in, among
other property, all of the Borrower's Property (as such term is defined
therein), including, without limitation, such Borrower's right, title and
interest (including the right to receive rent payments) as landlord, under its
respective Lease Agreement as described in Exhibit "A" attached hereto and
incorporated by this reference (hereinafter called the "Lease," or when used to
describe more than one Lease, the "Leases") with the tenant thereunder (the
"Tenant"), as set forth therein and identified in said Exhibit "A"; the real
estate, personal property, and intangible property are sometimes called
"Collateral"; and
NOW THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, Lender, Collateral Agent and each Borrower
covenant and agree as follows:
1. PAYMENT OF PRINCIPAL AND INTEREST
(A) Borrower shall promptly pay when due the principal of, interest on
and all other sums accruing in respect of the indebtedness evidenced by the
Note, in accordance with the terms and conditions thereof, hereof and as
otherwise provided in the Loan Documents.
(B) All Lease payments by Tenant shall be deposited directly into the
Collection Account for distribution in accordance with paragraph 7.
(C) All computations of interest and fees hereunder shall be on the
basis of the actual number of days elapsed in a 360-day year.
(D) Whenever any payment hereunder or under the Note shall be stated to
be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest, fees or other amounts, as
the case may be.
2. CONDITIONS PRECEDENT
The obligation of Lender to make the Loan is subject to the
satisfaction of the following conditions:
(A) Each Lease shall have been duly executed and delivered by the
respective Borrower and the Tenant, and shall be in good standing and in full
force and effect, and each Lease shall have been collaterally assigned to the
Collateral Agent in a form approved by Lender.
(B) No Default (as hereafter defined) has occurred and all
representations, warranties and covenants contained herein and in the other Loan
Documents shall be true and correct in all material respects.
(C) All corporate and legal proceedings, and all instruments and
agreements in connection with the transactions contemplated in this Agreement,
including, without limitation, a marked-up title commitment for each Property,
shall be reasonably satisfactory in form and substance to Lender, and Lender
shall have received all information and copies of all documents and papers,
including records of corporate proceedings, governmental approvals, if any,
which Lender may reasonably have requested in connection therewith.
(D) Each Loan Document shall be duly executed and delivered; each in a
form approved by the Lender and the Lender has received evidence to the effect
that all conditions precedent to the effectiveness thereof shall have been
satisfied;
(E) With respect to each Borrower, the following shall be
provided:
(i) the certificate of limited partnership of the Borrower
certified, as of a date no more than forty-five (45) days prior to the Funding
Date, by the Secretary of State of its state of organization;
(ii) a certificate of existence or good standing, dated no
more than forty-five (45) days prior to the Funding Date, from the respective
Secretary of State of its state of organization and the primary state in which
the Borrower conducts business and is required to qualify, or represents that it
is qualified, to do business;
(iii) a certificate of the Secretary of the general partner
of the Borrower certifying as of the Funding Date: (a) the names and true
signatures of the persons authorized on behalf of the Borrower to sign this
Agreement, (b) a copy of the Borrower's partnership agreement, and (c) a copy of
the resolutions of the general partner of the Borrower approving the Loan
Documents to which it is a party and the transactions contemplated hereby and
thereby;
(F) the Note shall have been duly executed and delivered by the
Borrowers to the Lender, and held by the Collateral Agent, and shall be in full
force and effect;
(G) Certified copies of requests for information or copies on form
UCC-11 (or a similar search report) certified by a party acceptable to the
Lender, dated a date no more than forty-five (45) days prior to the Funding Date
listing all effective financing statements and other similar instruments and
documents which name the Borrowers as debtor, together with copies of such
financing statements;
(H) Any necessary third party (including any governmental
authority) consents to the closing of the transactions contemplated by this
Agreement on behalf of the Borrowers in form and substance satisfactory to the
Lender shall have been obtained;
(I) Borrowers shall have executed financing statements (form UCC-1), in
respect of the Collateral naming the Borrowers as the debtor, Lender as secured
party and the Collateral Agent as assignee of the secured party, or other,
similar instruments or documents, as may be necessary or, in the opinion of the
Lender, desirable under the UCC of all appropriate jurisdictions or any other
applicable law to perfect the Collateral Agent's interests in all of the
Properties;
(J) Opinions of counsel to the Borrowers in form and substance
satisfactory to Lender shall have been delivered;
(K) Confirmation shall have been obtained from Standard & Poor's and
Fitch, Inc. that their respective ratings of Voyager's commercial paper notes
will not be downgraded or withdrawn as a direct result of the transactions
contemplated by the Loan Documents;
(L) Such other approvals, consents, opinions, documents and
instruments, as the Lender or the Liquidity Agent may reasonably request shall
be provided.
3. FUNDS FOR TAXES AND OTHER CHARGES
In the event Borrowers, Tenant or Operator (to the extent Tenant is
obligated under the Lease or Operator is obligated under the Operating
Agreement) is, or has been, delinquent in the timely payment of Taxes,
assessments, or water and sewer rates, then at Lender's or Collateral Agent's
request (acting at the direction of a Controlling Party), and in its sole
discretion, Borrowers shall pay or cause Tenant or Operator to pay the "Escrow
Funds" (as such term is defined in, and in the manner set forth in, the Lease)
to Lender, the Collateral Agent or its designee in the same manner as Escrow
Funds are paid pursuant to the Lease.
Lender (acting at the direction of a Controlling Party), or its
designee, shall apply the Escrow Funds to pay said rates, Taxes, and assessments
so long as Borrowers are not in Default (as hereinafter defined) under this
Agreement or under any of the Loan Documents. Lender, or its designee, shall
make no charge for so holding and applying the Escrow Funds, for analyzing said
account or for verifying and compiling said assessments and bills. Such Escrow
Funds shall be held in a non-interest-bearing account (unless otherwise required
by applicable law) and during the continuance of a payment default such Escrow
Funds shall be applied by Lender to pay such Taxes, assessments, and water and
sewer rates, as the case may be. Lender, or its designee, shall within 3 months
after the expiration of each calendar year give to Borrowers and the Collateral
Agent, at Borrowers' expense, an annual accounting of the Escrow Funds in
Lender's normal format showing credits and debits to the Escrow Funds and the
purpose for which each debit to the Escrow Funds was made. The Escrow Funds are
hereby pledged as additional security for the sums secured by the Security
Instruments, this Agreement, and the other Loan Documents.
If the amount of the Escrow Funds held by Lender, or its designee, at
the time of the annual accounting thereof shall exceed the amount reasonably
deemed necessary by Lender, or its designee, to provide for the payment of water
and sewer rates, Taxes, and assessments, as they fall due, such excess shall be
credited to Borrowers on the next monthly installment or installments of Escrow
Funds due. If at any time the amount of the Escrow Funds held by Lender shall be
less than the amount deemed necessary by Lender to pay such rates, Taxes,
assessments, and insurance premiums, as they fall due, Borrowers shall pay to
Lender any amount necessary to make up the deficiency within thirty (30) days
after notice from Lender to Borrowers requesting payment thereof.
Upon Borrowers' Default under this Agreement, or under any of the Loan
Documents, Lender, or its designee, may apply, in any amount and in any order as
Lender, or its designee shall determine in such party's sole discretion, any
Escrow Funds held by Lender, or its designee at the time of application (i) to
pay rates, Taxes, and assessments which are now or will hereafter become due, or
(ii) as a credit against sums due under or accrued pursuant to this Agreement,
the Security Instruments and the other Loan Documents. Upon the release of any
Property secured by a Security Instrument and payment in full of the amounts due
under the Loan Documents in respect of such release, Lender shall promptly
refund to the applicable Borrower any Escrow Funds held by Lender applicable to
the related Property.
4. REPAYMENT OF LOANS; INTEREST, FEES
(A) The Borrowers hereby promise to repay in full on the
Termination Date the then aggregate outstanding principal amount of and interest
on the Loan. Each Borrower hereby covenants and agrees that it is jointly and
severally liable for all amounts due hereunder to the Lender, the Affected
Parties and their respective assignees.
(B) The Borrowers hereby promise to pay to the Lender interest on
the unpaid principal amount of the Loan for the period from and including the
Funding Date of the Loan to but excluding the date the Loan shall be paid in
full, at a rate per annum equal to the Rate plus the applicable Margin
(collectively, the "Interest Rate"). The amount of interest payable on the
unpaid principal amount of the Loan for each Payment Date shall be provided by
Voyager (in the case of that portion of the Loan and the related interest period
for which the applicable Rate is the CP Rate) and the Liquidity Agent (in the
case of that portion of the Loan and the related interest period for which the
applicable Rate is not the CP Rate) to the Borrowers on or before the fifth
Business Day prior to the applicable Payment Date. It is anticipated that the
Loan will be funded on the Funding Date and at all times thereafter pursuant to
the CP Loan Agreement and bear interest at the CP Rate unless Voyager or its
agent decides in its reasonable discretion that funding at the CP Rate is no
longer reasonably available, in which case the Loan shall bear interest at the
Adjusted LIBO Rate or Base Rate, as applicable. Voyager or the Liquidity Agent,
as applicable, shall determine the maturity of the related commercial paper,
LIBOR or other source of funding. Notwithstanding the foregoing, the Borrowers
hereby promise to pay to the Lender interest at the applicable Post-Default Rate
on any principal of the Loan and on any other amount payable by the Borrowers
hereunder or under the Note that shall not be paid in full when due (whether at
stated maturity, by acceleration or by mandatory prepayment or otherwise) for
the period from and including the due date thereof to but excluding the date the
same is paid in full. Accrued interest on the Loan shall be payable monthly on
each Payment Date and on the Termination Date. Notwithstanding the foregoing,
interest accruing at the Post-Default Rate shall be payable to the Lender on
demand.
(C) Notwithstanding anything to the contrary, (a) after taking
into account all amounts deemed interest, the interest contracted for, charged
or received by Lender shall never exceed the maximum lawful rate or amount (the
"Maximum Lawful Rate"), (b) in calculating whether any interest exceeds the
Maximum Lawful Rate, all such interest shall be amortized, prorated, allocated
and spread over the full amount and term of all principal indebtedness of
Borrower to Lender, and (c) if through any contingency or event, Lender receives
or is deemed to receive interest in excess of the Maximum Lawful Rate, any such
excess shall be deemed to have been applied toward payment of the principal of
any and all then outstanding indebtedness of Borrower to Lender, or if there is
no such indebtedness, shall immediately be returned to Borrower.
(D) All payments hereunder shall be made on or prior to 11:00
a.m., New York City time, on the date when due. Any payments received after such
time on any date shall be considered received on the following Business Day.
5. OPTIONAL PREPAYMENTS
The Borrowers may prepay, in whole or in part, the outstanding
principal of the Loan at any time without premium or penalty, except as
contained in Section 6. Any amounts prepaid shall be applied to repay the
outstanding principal amount (together with interest thereon) until paid in
full. If the Borrowers intend to prepay the Loan in whole or in part from any
source, the Borrowers shall give at least thirty (30) days' prior written notice
thereof to the Lender, specifying the date and amount of prepayment. If such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein, together with accrued interest through and including
the Payment Date (if the date of repayment is a Payment Date), else through the
immediately following Payment Date (if the date of repayment is not a Payment
Date) on the amount prepaid. Partial prepayments shall be in an aggregate
principal amount of at least $500,000.
6. YIELD PROTECTION
If, due to either (i) the introduction of or any Regulatory Change
(including, without limitation, any change by way of imposition or increase of
reserve requirements included in the LIBO Reserve Percentage) in or in the
interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental agency or
authority (whether or not having the force of law), there shall be any increase
in the cost to Lender or any Liquidity Provider of agreeing to make or making,
funding or maintaining the Loan (either directly hereunder or under the
Liquidity Agreement), then the Borrowers shall from time to time, upon demand by
Lender or such Liquidity Provider (with a copy of such demand to the Liquidity
Agent), pay to the Lender or Liquidity Agent for the account of Lender or such
Liquidity Provider additional amounts sufficient to compensate Lender or such
Liquidity Provider for such increased cost. A certificate setting forth in
reasonable detail the amount of such increased cost submitted to the Borrower
and the Liquidity Agent by Lender or such Liquidity Provider shall be conclusive
and binding for all purposes, absent manifest error.
If either (i) the introduction following the date of this Agreement of,
or any change following the date of this Agreement in or in the interpretation
of, any law or regulation or (ii) the compliance by Lender or any Liquidity
Provider with any law or regulation or any guideline or request or any written
interpretation from any central bank or other governmental authority issued
after the date of this Agreement (whether or not having the force of law),
affects or would affect the amount of capital required or expected to be
maintained by Lender or such Liquidity Provider or any corporation controlling
Lender or such Liquidity Provider and that the amount of such capital is
increased by or based upon the Loan, advances made under the Liquidity Agreement
or the existence of Lender's or such Liquidity Provider's commitment to lend
under the Transaction Documents and other commitments of this type, then, upon
demand by Lender or such Liquidity Provider (with a copy of such demand to be
sent to the Liquidity Agent), the Borrower shall pay to the Lender or Liquidity
Agent for the account of Lender or such Liquidity Provider, from time to time as
specified by Lender or such Liquidity Provider, additional amounts sufficient to
compensate Lender or such Liquidity Provider or such corporation in the light of
such circumstances, to the extent that Lender or such Liquidity Provider
reasonably determines such increase in capital to be allocable to the Loan,
advances made under the Liquidity Agreement or the existence of such Liquidity
Provider's commitment to lend under the Transaction Documents. A certificate
setting forth in reasonable detail such amounts submitted to the Borrower and
the Liquidity Agent by Lender or such Liquidity Provider shall be conclusive and
binding for all purposes, absent manifest error.
In the event that any Affected Party shall incur any loss or expense
(including any loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Affected Party to make
or maintain any funding under the Liquidity Agreement or the CP Loan Agreement)
as a result of any payment being made with respect to the Loan on any day other
than on a Payment Date for the Loan, then, upon written notice from the Lender,
Voyager or the Liquidity Agent to Borrowers, Borrowers shall pay to the
applicable Affected Party the amount of such loss or expense. Such written
notice (which shall include calculations in reasonable detail) shall, in the
absence of manifest error, be conclusive and binding upon Borrower.
Any and all payments by the Borrowers hereunder shall be made free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, net income taxes that are imposed on, or measured by
reference to, net income or net profits of, franchise taxes imposed on, and
taxes imposed on the net receipts or gross receipts (including withholding
taxes) that are imposed under any U.S. federal or state government or by any
political subdivision or taxing authority thereof, (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If Borrowers shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder to the Lender
or any Affected Party, (i) the Borrowers shall make an additional payment to the
payee in an amount sufficient so that, after making all required deductions
(including deductions applicable to additional sums payable under this section),
the payee receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrowers shall make such deductions and (iii)
the Borrowers shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
If, in connection with an agreement or other document providing
liquidity support, credit enhancement or other similar support to the Lender in
connection with this Agreement or the funding or maintenance of the Loan
hereunder, the Lender is required to compensate a bank or other financial
institution providing such liquidity support, credit enhancement or other
similar support in respect of taxes under circumstances similar to those
described in this Section (including, without limitation, Section 2.14 of the
Liquidity Agreement and Section 2.05 of the CP Loan Agreement) then upon written
demand by the Lender, the Borrowers shall pay to the Lender such additional
amount or amounts as may be necessary to reimburse such Lender for any amounts
paid by it.
7. APPLICATION OF PAYMENTS
Unless applicable law provides otherwise, so long as Borrowers are not
in Default under the Loan Documents, all payments received from Borrowers under
the Note or the other Loan Documents shall be applied by Collateral Agent as set
forth in this Section.
(A) The Collateral Agent shall establish and maintain a securities
account (the "Collection Account") with Collateral Agent in the name of Lender.
The Borrowers shall instruct the Tenant under each Lease to remit Rental
Payments in respect of or relating to each Property to the Collection Account.
If any Rental Payments are received by Borrowers, Borrowers shall deposit all
such Rental Payments to the Collection Account within one Business Day of
receipt. The Borrowers shall use all reasonable efforts to prevent the deposit
of any funds other than proceeds from the Properties into the Collection
Account. If the Borrowers receive any collections from the Properties, the
Borrowers shall deposit such proceeds into the Collection Account no later than
two (2) Business Day following such receipt. Pending such deposit, such funds
shall be held in trust for the benefit of the Lender and the Collateral Agent.
(B) Funds deposited in the Collection Account during any month
shall be held therein, in trust for the Lender, Voyager, and the Liquidity
Providers, as their interests may appear, provided that on any Business Day the
Collateral Agent may reverse any incorrectly deposited amounts.
On each Payment Date, the Lender (or the Collateral Agent in its sole
discretion) shall withdraw funds from the Collection Account and apply such
funds as follows:
(i) First, to the Lender for the payment of interest on the
Loan for the related Interest Period;
(ii) Second, to the Lender in payment of any Required
Principal Payment; and
(iii) Third, to the payment of Program Costs and other amounts
due under the Loan Documents.
Any funds remaining in the Collection Account following the application
set forth above shall be immediately remitted to the Borrowers or their
designee, provided that such funds shall not be remitted to the Borrowers if a
Default is continuing and shall instead be held in the Collection Account as
security for repayment of the Loan.
8. CHARGES; LIENS
Each Borrower shall pay all water and sewer rates, rents, Taxes, Rents,
assessments, and insurance premiums attributable to its Property, or cause any
Tenant to pay, by such Borrower or Tenant making payment, within the applicable
payment period, directly to the payee thereof; provided that after a Borrower's
Default under this Agreement or the Security Instruments, at Lender's or
Collateral Agent's option, Borrowers shall make such payments in the manner
provided under paragraph 3 hereof. Borrowers shall promptly discharge any lien
which has, or may have, priority over or equality with, the lien of the Security
Instruments (other than Permitted Encumbrances), and Borrowers shall pay, when
due, the claims of all persons supplying labor or materials to or in connection
with the Properties. Without Lender's and Collateral Agent's prior written
permission, Borrowers shall not allow any lien to exist against the Properties
except for Permitted Encumbrances.
9. INSURANCE
Each Borrower shall keep, or shall cause each Tenant or Operator to
keep, the improvements now existing or hereafter erected on its Property insured
in an amount not less than the full replacement value of the improvements (less
excavation and foundation costs) by carriers of recognized responsibility
against loss by fire, hazards included within an all-risk "extended coverage"
endorsement and such other hazards, casualties, liabilities and contingencies,
including rent loss and/or business interruption coverage (at least equal to 12
months operations of the Property), as applicable, and in such amounts and for
such periods provided in its Lease with the understanding that to the extent the
landlord under the Lease may require such insurance be obtained by the Tenant or
Operator, Lender or the Controlling Party may require such insurance be obtained
by the Borrower or Operator whether or not such Lease is in effect. In addition,
Borrowers shall maintain or cause the Tenant or Operator to maintain
comprehensive general liability insurance in amounts prudent for the type of
facilities and Properties. All premiums on insurance policies shall be paid by
Operator making payment, when due, directly to the carrier or in such other
manner as Lender or Collateral Agent may reasonably require.
All insurance policies and renewals thereof, as set forth in the
applicable insurance certificate shall be in a form reasonably acceptable to
Lender and Collateral Agent as provided in this paragraph 9 and all property
policies shall include a standard mortgagee clause in favor of and in a form
reasonably acceptable to Lender and Collateral Agent. Lender and Collateral
Agent, or its designee, shall have the right to hold the insurance certificates,
and Borrower shall, or shall cause Operator to, promptly furnish to Lender and
Collateral Agent all renewal certificates. Prior to the expiration date of a
policy, Borrower shall, or shall cause Operator to, deliver to Lender and
Collateral Agent, or its designee a renewal policy insurance certificate(s) in
customary form.
In the event of a casualty to any Property, Borrowers shall give prompt
written notice to the insurance carrier and to Lender and Collateral Agent.
Borrowers hereby irrevocably appoint, authorize and empower each of Lender and
Collateral Agent (which appointment is coupled with an interest), and/or its
assigns with respect to the Loan, as attorney-in-fact for Borrowers to make
proof of loss, to adjust and compromise any claim under insurance policies, to
appear in and prosecute any action arising from such insurance policies, to
collect and receive insurance proceeds, and to deduct therefrom Lender's and
Collateral Agent's reasonable expenses incurred in the collection of such
proceeds; provided however, that each of the Lender and Collateral Agent agree
not to exercise such power of attorney unless a Default has occurred hereunder;
and provided further that nothing contained in this paragraph 9 shall require
Lender or Collateral Agent to incur any expense nor take any action hereunder.
Borrowers agree and covenant that if casualty proceeds are paid during
the continuance of a Default, such proceeds shall be paid to the Collection
Account and applied to the payment of sums evidenced and/or secured by the Loan
Documents, whether or not due, in the order of application set forth in
paragraph 7 hereof. If casualty proceeds are paid and a Default is not then
continuing, such proceeds shall be paid to Lender for disbursement by Lender to
Borrowers or Operator, or as Borrowers shall direct, to pay for the cost of
reconstruction or repair of the affected Property; provided that the balance of
such proceeds remaining after restoration or repair shall be applied to the
payment of sums evidenced and/or secured by the Loan Documents, whether or not
then due, in the order of application set forth in paragraph 7 hereof.
Borrowers covenant that in no event shall Borrowers use any insurance
proceeds from loss or damage to any Property or condemnation to rebuild any
buildings or improvements on any real property other than the said Property.
10. PRESERVATION AND MAINTENANCE OF PROPERTY
Each Borrower shall maintain, or cause the Tenant or Operator to
maintain, its respective Property in accordance with the provisions of the
Security Instrument relating to the Property.
11. PROTECTION OF LENDER'S SECURITY
If any action or proceeding is commenced which materially adversely
affects any Property or title thereto and the interest of Lender or Collateral
Agent therein, including, but not limited to, eminent domain, insolvency, code
enforcement, or arrangements or proceedings involving a bankrupt or decedent's
estate, and Borrowers are in Default or Borrowers are not diligently pursuing
available legal rights or remedies with respect to such actions or proceedings,
such non-action could result in a material adverse effect on the value of the
Property, and such non-action continues for a period of thirty (30) days after
Lender or Collateral Agent gives Borrowers a notice thereof, then Lender or
Collateral Agent at Lender's or Collateral Agent's option as the case may be,
(and subject to Tenant's rights related thereto under the Lease) may make such
appearances, disburse such sums and take such action as Lender or Collateral
Agent deems necessary, in its sole discretion, to protect Lender's or Collateral
Agent's interest, including, but not limited to, (i) disbursement of reasonable
attorneys' fees, (ii) entry upon the Property to make repairs, (iii) procurement
of satisfactory insurance as provided in paragraph 9 hereof, (iv) if the
applicable Security Instrument encumbers a Lease interest, exercise of any
option to renew or extend the Lease on behalf of the applicable Borrower and the
curing of any default of the Borrower in the terms and conditions of the Lease,
(v) the payment of any taxes and/or assessments levied against the Property and
then due and payable, and (vi) discharge (by payment, bonding or otherwise) of
any lien on the Property which is not a Permitted Encumbrance. In addition, with
respect to an environmental condition which may materially adversely affect the
Property during the term of the Loan or the interest of Lender or Collateral
Agent therein, including, but not limited to, any actual or suspected on-site
environmental pollution conditions which are, or are reasonably believed to be,
in violation of applicable environmental laws and which have, or are reasonably
believed to have, a material adverse effect on the value of the Property or the
Borrower, or upon a Default, then Lender or Collateral Agent (or its agent,
contractor or designee), at Lender's or Collateral Agent's option, shall have
the right to enter the Property to conduct tests and investigate any such
pollution conditions. If the environmental assessment reveals environmental
pollution at or above actionable levels under applicable law, and Lender or
Collateral Agent reasonably determines that Borrower is not diligently pursuing
remediation with respect thereto, or Borrower is not requiring Tenant to
diligently pursue such remediation, and such non-action continues for a period
of thirty (30) days after Lender or Collateral Agent gives Borrower notice
thereof, then Lender or Collateral Agent may, at Lender's or Collateral Agent's
sole option, engage third party providers to undertake such remediation at the
expense of such Borrower.
12. BOOKS AND RECORDS
Each Borrower shall keep and maintain at all times at such Borrower's
address stated below, or such other place as Lender and Collateral Agent may
approve in writing, complete and accurate books of accounts and records adequate
to reflect correctly such Borrower's financial condition and the results of the
operation of its Property and copies of all written contracts, leases and other
security instruments which affect its Property. Such books, records, contracts,
leases and other security instruments shall be in accordance with reasonable
bookkeeping and record keeping standards consistently applied, and shall be
subject to examination and inspection by Lender and the Collateral Agent at all
times during normal business hours after reasonable notice of not less than two
(2) Business Days and Lender and the Collateral Agent shall have the right to
make such copies or abstracts thereof as Lender and the Collateral Agent may
desire; provided that Lender's examination right shall be limited to once a year
unless the Borrower is in Default. Each Borrower shall furnish to Lender and the
Collateral Agent, within one hundred twenty (120) days after the end of each
fiscal year of such Borrower, its current financial statements certified by an
officer (including an annual balance sheet, profit/loss statement, statement of
cash flow and footnotes) of such Borrower and also an income and expense
statement of the operation of its Property (including the total rents and other
income received from any tenant, total gross receipts from operations and total
expenses), each in reasonable detail and certified by such Borrower. Each
Borrower shall furnish to Lender and the Collateral Agent current signed rent
rolls or lease digests certified to be correct by such Borrower. Each Borrower
shall furnish to Lender and the Collateral Agent, within forty-five (45) days
after the end of each fiscal quarter of such Borrower, an unaudited financial
statement of such Borrower and a statement of income and expenses of its
Property (and a year-end statement of income and expenses of its Property within
forty-five (45) days after the end of each fiscal year), in reasonable detail
and certified by such Borrower to be true, correct and accurate to the best of
such Borrower's actual knowledge. Each Borrower will provide to Lender, Century
Capital Markets, LLC, Liquidity Agent, and Collateral Agent an annual statement
disclosing all contingent liabilities of which said Borrower has actual
knowledge. In addition, (a) within thirty (30) days after payment, each Borrower
shall furnish to Lender, Century Capital Markets, LLC, Liquidity Agent, and the
Collateral Agent copies of paid tax and assessments to its Property and (b) each
Borrower shall provide prompt notice in writing of actions or proceedings
affecting its Property. Each Borrower's fiscal year-end date is December 31, and
each Borrower shall notify Lender, Century Capital Markets, LLC, and Liquidity
Agent, in writing, of any change in such year-end date.
13. CONDEMNATION
Each Borrower shall promptly notify Lender and the Collateral Agent of
any action or proceeding known to such Borrower relating to any condemnation or
other taking, whether direct or indirect, of its Property, or part thereof, and
each Borrower shall appear, or cause Tenant to appear, in and prosecute any such
action or proceeding unless otherwise directed by Lender or Collateral Agent in
writing. During the continuance of a Default or, if Lender or Collateral Agent
has made the determination, in its reasonable discretion, that a Borrower is not
or is not causing Tenant to be diligently and effectively prosecuting such
action or proceeding and, such lack of prosecution could result in a materially
adverse effect on the value of its Property, and such non-action continues for a
period of thirty (30) days after Lender or Collateral Agent gives said Borrower
notice thereof, then immediately upon written notice to such Borrower of
Lender's or Collateral Agent's determination, such Borrower authorizes Lender or
Collateral Agent, at Lender's or Collateral Agent's option, as attorney-in-fact
for such Borrower, to commence, appear in and prosecute, in Lender's or such
Borrower's name, any action or proceeding relating to any condemnation or other
taking of its Property, whether direct or indirect, and to settle or compromise
any claim in connection with such condemnation or other taking. Each Borrower
hereby irrevocably appoints each of Lender and Collateral Agent as its
attorney-in-fact (coupled with an interest) for the purposes described in, and
as limited by, the immediately preceding sentence. The proceeds of any award,
payment or claim for damages, direct or consequential, in connection with the
Properties, or part thereof, or for conveyances in lieu of condemnation are
hereby assigned to and shall be deposited into the Collection Account and
applied in the manner set forth in paragraph 4 hereof; subject, however, to the
rights of Tenant under the Lease so long as the Tenant is not in default under
the Lease, and net of any necessary costs of restoration.
The foregoing provisions providing for the application of condemnation
proceeds to the sums secured by the Security Instruments are agreed to be
necessary to prevent an impairment of Lender's or Collateral Agent's security
resulting from such taking. In the event, however, that any provision hereof
providing for the application of any condemnation proceeds to the indebtedness
secured by the Security Instruments is held to be unenforceable, in whole or in
part, then all condemnation proceeds not payable to Lender for immediate
application to the sums secured by the Security Instruments as the result of
such invalidity, shall be applied by Borrowers or Tenant as required by the
Leases to the restoration of the affected Property for use of the Property as
contemplated by this Agreement with the balance thereof, if any, first being
deposited into the Collection Account for application to additional amounts due
under paragraph 6 hereof, if any, which balance shall be held and applied as
provided for therein and second, being retained by (or remitted to) the
applicable Borrower.
Each Borrower agrees to execute such further evidence of assignment of
any awards, proceeds, damages or claims arising in connection with such
condemnation or taking as Lender or Collateral Agent may reasonably require.
14. FORBEARANCE BY LENDER NOT A WAIVER
Any forbearance by Lender or Collateral Agent in exercising any right
or remedy hereunder or under the Security Instruments, the Note, this Agreement
or any other Loan Documents, or otherwise afforded by applicable law, shall not
be a waiver of or preclude the exercise of any right or remedy available to
Lender or Collateral Agent. The acceptance by Lender or Collateral Agent of
payment of any sum secured by the Security Instruments after the due date of
such payment shall not be a waiver of Lender's or Collateral Agent's right to
either require prompt payment when due of all other sums so secured or to
declare a default for failure to make prompt payment. The procurement of
insurance or the payment of taxes or other liens or charges by Lender or
Collateral Agent shall not be a waiver of Lender's or Collateral Agent's right
to accelerate the maturity of the indebtedness secured by the Security
Instruments or by any other security instruments after notice of such breach and
failure of Borrowers to cure as hereinafter provided, nor shall Lender's or
Collateral Agent's receipt of any awards, proceeds or damages under paragraphs 9
and 13 hereof operate to cure or waive Borrowers' default in payment of sums
secured by the Security Instruments or by any other security instruments.
15. ESTOPPEL CERTIFICATE
Each Borrower shall within ten (10) days of a written request from
Lender or Collateral Agent furnish Lender or Collateral Agent with a written
statement, duly acknowledged, (a) setting forth to such Borrower's actual
knowledge (i) the then outstanding principal balance of the Note and all other
sums, if any, then due and payable by such Borrower to Lender under the
provisions of the Note or this Agreement or Loan Documents relating to its
Property and any right of set-off, counterclaim or other defense which exists
against such sums and the obligations under the Loan Documents; (ii) that no
Default or event which, with the passage of time or the giving of notice, would
constitute a Default exists; and (iii) other factual matters relating to the
Loan or the Borrower reasonably requested by Lender or Collateral Agent; and (b)
attaching true, correct and complete copies of the Note, and its Security
Instrument and any other Loan Documents and all modifications, amendments and
substitutions thereof; provided that Lender or Collateral Agent shall not make
such request more than once a year unless a Default hereunder has occurred.
16. LEASES OF THE PROPERTIES
Each Borrower shall comply with and observe such Borrower's obligations
as landlord under its Lease. Each Borrower will not lease any portion of its
Property except with the prior written approval of Lender and Collateral Agent,
except that each Borrower or Tenant may lease up to 750 square feet of space in
the aggregate without obtaining consent of the Lender or Collateral Agent and
provided such lease shall be subject to and subordinate to the Loan. Each
Borrower, at Lender's and Collateral Agent request, shall furnish Lender and
Collateral Agent with executed copies of all leases hereafter made of all or any
part of the respective Property, and all leases hereafter entered into with
respect to the Property will be in form and substance subject to the approval of
Lender and the Controlling Party. Lender hereby approves each of the Leases in
the forms attached hereto. If a Borrower becomes aware that Tenant proposes to
do, or is doing, any act or thing which may give rise to any right of set-off
against rent, such Borrower shall (i) take such steps as shall be reasonably
calculated to prevent the accrual of any right to a set-off against rent, (ii)
notify Lender and Collateral Agent thereof and of the amount of said set-offs,
and (iii) within ten (10) days after such accrual (which accrual has been
determined by a judicial proceeding or a binding administrative determination)
reimburse the Tenant who shall have acquired such right to set-off or take such
other steps as shall effectively discharge such set-off and as shall assure that
rents thereafter due shall continue to be payable without set-off or deduction.
Notwithstanding any provision in this Section 16, Lender and Collateral Agent
acknowledge that the Leases are necessary for the operational needs of the
Borrowers, and Borrowers retain the rights to terminate the Lease or Leases upon
the condition that the lien of the mortgages on the Properties will not
adversely be affected nor the rights to foreclose such liens will be adversely
affected.
Notwithstanding any provision to the contrary, a default under or
termination of the Lease shall not constitute a default under the Loan so long
as Borrowers continue to perform all of the obligations of the Borrowers under
the Loan Documents and a Borrower succeeds to the interest of, and assumes the
obligation of, the Tenant upon any such default or termination.
17. REMEDIES CUMULATIVE
Each remedy provided in this Agreement, and the other Loan Documents is
distinct and cumulative to all other rights or remedies under this Agreement and
the Loan Documents or afforded by law or equity, and may be exercised
concurrently, independently, or successively, in any order whatsoever.
18. ACCELERATION IN CASE OF A BORROWER'S INSOLVENCY
If any Borrower shall voluntarily file a petition under the Federal
Bankruptcy Code (the "Code"), as such Code may from time to time be amended, or
under any similar or successor Federal statute relating to bankruptcy,
receivership, insolvency, arrangements or reorganizations, or under any state
bankruptcy or insolvency act, or file an answer in an involuntary proceeding
admitting insolvency or inability to pay debts, or if any Borrower shall fail to
obtain a vacation or stay of involuntary proceedings brought for the
reorganization, dissolution or liquidation of such Borrower within sixty (60)
days of the filing of such involuntary proceeding, or if any Borrower shall be
adjudged a bankrupt, or if a trustee or receiver shall be appointed for any
Borrower or for any of any Borrower's property, or if any of the Properties
shall become subject to the jurisdiction of a Federal bankruptcy court or
similar state court, or if any Borrower shall make an assignment for the benefit
of such Borrower's creditors, or if there is an attachment, execution or other
judicial seizure of any portion of any Borrower's assets and such seizure is not
discharged within ten (10) days, then such Borrower shall be in "Default" and
the Termination Date shall automatically occur and all of the sums secured by
the Security Instruments or otherwise due hereunder shall be immediately due and
payable without prior notice to Borrowers, and Lender or Collateral Agent may
invoke any remedies permitted by paragraph 23 of this Agreement. Any reasonable
attorneys' fees and other expenses incurred by Lender or Collateral Agent in
connection with a Borrower's bankruptcy or any of the other aforesaid events
shall be additional indebtedness of Borrowers secured by the Security
Instruments.
19. TRANSFERS OF BENEFICIAL INTERESTS IN BORROWERS
If at any time CNL Retirement Properties, Inc., any successor by
merger, or any of its Affiliates fail to own at least fifty-one percent (51%) in
the aggregate of the partnership interests in any Borrower without Lender and
Collateral Agent's written consent, Borrowers shall be in "Default" under this
Agreement and Lender or Collateral Agent may, at Lender's or Collateral Agent's
option, declare the Termination Date to have occurred and all of the sums
secured by the Security Instruments and due under the provisions of this
Agreement to be immediately due and payable, and Lender or Collateral Agent may
invoke any remedies permitted by paragraph 23 of this Agreement and applicable
law. Nevertheless, the limited partners of each Borrower may transfer interests
in such Borrower to its Affiliates or Affiliates of Marriott International, Inc.
or CNL Retirement Properties, Inc. (or any respective successor by merger), and
the limited partners may have all or part of their equity ownership transferred
to Marriott International, Inc., CNL Retirement Properties, Inc. and/or their
respective Affiliates.
20. NOTICE
Except for any notice required under applicable law to be given in
another manner, any notice to Borrower provided for in this Agreement or in the
Note shall be given (i) by certified mail, return receipt requested, postage
prepaid or (ii) by national receipted overnight delivery service to Borrower's
address as set forth above, and shall be effective only upon delivery or
attempted delivery.
Notices to Lender shall be by either (i) national receipted over-night
delivery service or (ii) certified mail, return receipt requested, postage
prepaid to the Lender at Five Pack Retirement 2002, LLC, c/o Global
Securitization Services, LLC, 000 Xxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, Xxx
Xxxx 00000, with a copy to the Collateral Agent, and shall be effective only
upon delivery or attempted delivery. Notices to Borrowers shall be by either (i)
national receipted over-night delivery service or (ii) certified mail, return
receipt requested, postage prepaid to the Borrowers at c/o CNL Retirement Corp.,
CNL Center at City Commons, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, XX 00000-0000,
Attn: Xx. Xxxxxxx X. Xxxxxxxx or Chief Operating Officer, with a copy to Xxxxxxx
Xxxxx, Esquire, Lowndes, Drosdick, Doster, Xxxxxx & Xxxx, P.A., 000 Xxxxx Xxxx
Xxxxx, Xxxxxxx, Xxxxxxx 00000, to Xxxxxx X. Xxxxx, Esq., Arent Fox Xxxxxxx
Xxxxxxx & Xxxx, PLLC, 0000 Xxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000-000,
and to Marriott International, Inc., 00000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000, Attn: Chief Financial Officer, and shall be effective only upon delivery
or attempted delivery. Any party may change its address for notice by providing
written notice of such change to the other party in the manner set forth in this
paragraph 20. Notice to the Collateral Agent should be forwarded as in this
paragraph to the Collateral Agent at 000 Xxxx Xxxxx Xxxxxx, Xx. Xxxx, XX 00000,
Attn: Structured Finance/Five Pack Retirement. Copies of all notices sent to
Lender or Collateral Agent shall be sent to Century Capital Markets, LLC, 000
Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, Attn: Xxxxxxx Xxxxxxxxx,
and also to Bank Hapoalin B.M, New York Branch, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, XX 00000, Attention: Xxxxx Xxxxx.
21. SUCCESSORS AND ASSIGNS BOUND; AGENTS; CAPTIONS
The covenants and agreements herein contained shall bind, and the
rights hereunder shall inure to, the respective successors and assigns of Lender
(including, without limitation, the Collateral Agent), the Collateral Agent and
Borrowers. In exercising any rights hereunder or taking any actions provided for
herein, Lender or the Collateral Agent may act through its employees, agents or
independent contractors as authorized by Lender or the Collateral Agent. The
captions and headings of the paragraphs of the Loan Documents are for
convenience only and are not to be used to interpret or define the provisions
hereof.
22. GOVERNING LAW; SEVERABILITY
This Agreement shall be governed by the law of the State of New York.
Borrowers and Lender agree that any dispute arising out of this Agreement shall
be subject to the jurisdiction of both the state and federal courts in New York.
For that purpose, Borrowers hereby submit to the jurisdiction of the state and
federal courts of New York. Borrowers further agree to accept service of process
out of any of the aforesaid courts in any such dispute by registered or
certified mail, postage prepaid, addressed to the undersigned. Nothing herein
contained, however, shall prevent Lender or Collateral Agent from bringing any
action or exercising any rights against (i) Borrowers, (ii) any security, or
(iii) the assets of Borrowers, within any other state or jurisdiction with
jurisdiction over Borrowers or Borrowers' assets. In the event that any
provision of this Agreement, the Note, the Security Instruments or the other
Loan Documents conflicts with applicable law, such conflict shall not affect
other provisions of this Agreement, the Note, the Security Instruments or the
other Loan Documents which can be given effect without the conflicting
provisions, and to this end the provisions of any of this Agreement, the Note
and the other Security Instruments and Loan Documents are declared to be
severable. In the event that any applicable law limiting the amount of interest
or other charges permitted to be collected from Borrowers is interpreted so that
any charge provided for in this Agreement, in the Note, the other Security
Instruments or Loan Documents, whether considered separately or together with
other charges levied in connection with this Agreement and the Note, violates
such law, and Borrowers are entitled to the benefit of such law, such charge is
hereby reduced to the extent necessary to eliminate such violation. The amounts,
if any, previously paid to Lender in excess of the amounts payable to Lender
pursuant to such charges as reduced shall be applied by Lender to reduce the
principal of the indebtedness evidenced by the Note. For the purpose of
determining whether any applicable law limiting the amount of interest or other
charges permitted to be collected from Borrowers has been violated, all
indebtedness which is secured by the Security Instruments and any other security
instruments, or evidenced by the Note and which constitutes interest, as well as
all other charges levied in connection with such indebtedness which constitute
interest, shall be deemed to be allocated and spread over the stated term of the
Note. Unless otherwise required by applicable law, such allocation and spreading
shall be effected in such a manner that the rate of interest computed thereby is
uniform throughout the stated term of the Note.
23. ACCELERATION; REMEDIES
Any one or more of the following shall constitute a "Default" under the
Note, the Security Instruments and this Agreement:
(A) failure of any Borrower to make any payment due under the Note on
the due date therefor;
(B) failure of any Borrower (except as set forth under clause (A)
above) to pay any amount, costs, expenses or fees (including reasonable
attorneys' fees) of Lender, Collateral Agent or any Affected Party as expressly
required by any provision of the Note, this Agreement, the other Loan Documents
or any Security Instrument within ten (10) Business Days of the due date
therefor;
(C) failure of any Borrower (except as set forth under clauses (A),
(B), (D), (E), (F), and (G) of this paragraph 23) to comply with or perform, or
any breach or violation by any Borrower of, any warranty, representation,
covenant, agreement, prohibition, restriction or condition contained herein, in
the Note, the Security Instruments and the other Loan Documents, which failure
or breach or violation continues uncured to Lender's and Collateral Agent's
reasonable satisfaction for fifteen (15) calendar days after the delivery by
Lender or Collateral Agent's of written notice to Borrowers describing such
failure or breach or violation; provided, however, that if such failure or
breach or violation shall be not be curable within said fifteen (15) calendar
day period and Borrowers are diligently attempting to cure such failure or
breach or violation within such period to Lender's and Collateral Agent's
reasonable satisfaction, then such failure or breach or violation shall not
constitute a Default unless it shall continue uncured for such longer period of
time as may be necessary in Lender's and Collateral Agent's reasonable judgment
to effect such cure;
(D) except as provided in and permitted under the Note, this Agreement,
the Security Instruments or any other Loan Document, any sale, assignment,
transfer, conveyance, mortgaging, encumbering or other change in, or collateral
assignment of, the legal title to or beneficial interest in any Property or any
Borrower, or any part thereof, or any interest therein, including without
limitation, the granting of any subordinate lien, whether voluntarily or
involuntarily by operation of law (unless promptly cured, released or bonded off
to the reasonable satisfaction of Lender and Collateral Agent) and whether or
not of record or for consideration;
(E) the occurrence of any event deemed to be a Default under either
paragraph 18 or 19 hereof;
(F) a material misrepresentation or material error or withholding of
material information by any Borrower incident to the Loan or the Loan Documents.
(G) termination of the Operating Agreement and failure of Borrower to
replace the Operating Agreement and Operator within 120 days of such
termination.
Upon a Borrower's Default, in addition to Lender's or Collateral
Agent's right to appoint a receiver or enter upon and take and maintain control
of the Properties as set forth in this Agreement and the Security Instruments,
Lender or Collateral Agent at Lender's or Collateral Agent's option may declare
the Termination Date to have occurred and all of the sums secured by the
Security Instruments or otherwise payable hereunder to be immediately due and
payable without further demand or notice herein or in any of the Loan Documents
and may foreclose the Security Instruments by judicial proceeding or
non-judicial means and may invoke any other remedies permitted by applicable law
or provided herein or in any of the Loan Documents. Each Borrower acknowledges
that the power of sale herein granted may be exercised by Lender or Collateral
Agent without prior judicial hearing to the extent permitted by applicable law.
Lender or Collateral Agent shall be entitled to collect all reasonable costs and
expenses incurred in pursuing such remedies, including, but not limited to,
reasonable attorneys' fees as allowed by law and costs of documentary evidence,
abstracts and title reports. Nothing contained herein shall be deemed to require
Lender or Collateral Agent to provide Borrowers with notice in the event a
bankruptcy proceeding (whether voluntary or involuntary) has been instituted by
or against any Borrower under any of the other Security Instruments or Loan
Documents.
If a Property is sold pursuant to this paragraph 23, the applicable
Borrower or any person holding possession of its Property through such Borrower
shall immediately surrender possession of the Property to the purchaser at such
sale upon the purchaser's written demand. If possession is not surrendered upon
the purchaser's written demand, the applicable Borrower or such person shall be
a tenant at sufferance and may be removed by an action for summary possession,
writ of possession or by an action for forcible entry and detainer.
If a nonjudicial sale is permitted by applicable law and if Lender or
Collateral Agent invokes the power of sale, then Lender or Collateral Agent
shall mail a copy of a notice of sale to each Borrower in the manner provided
herein. Lender or Collateral Agent shall publish the notice of sale once a week
for three (3) consecutive weeks, or as otherwise required by the law of the
jurisdiction in which the applicable Property is located, in a newspaper
published in the county where the real estate portion of the applicable Property
is located and thereupon shall sell the Property to the highest bidder at public
auction at the front door of the County Courthouse of said County. Lender or
Collateral Agent may sell the Properties in one or more parcels and in such
order as Lender or Collateral Agent may determine. Lender or Collateral Agent
may postpone the sale of all or any parcel of the Properties by public
announcement at the time and place of any previously scheduled sale. Lender or
Collateral Agent or Lender's or Collateral Agent's designee may purchase the
Properties at any sale.
Additionally, if a nonjudicial sale is permitted by applicable law,
then Lender or Collateral Agent shall deliver to the purchaser Lender's or
Collateral Agent's deed conveying the Property so sold without any covenant or
warranty, expressed or implied. The recitals in Lender's or Collateral Agent's
deed shall be prima facie evidence of the truth of the statements made therein.
Borrowers covenant and agree that the proceeds of any sale shall be applied in
accordance with the priority set forth in paragraph 7.
24. SUBROGATION
Any of the proceeds of the Note utilized to satisfy outstanding liens
against all or any part of the Properties have been loaned by Lender at
Borrowers' request and upon Borrowers' representation that such amounts are due
and are secured by valid liens against the Properties. Lender shall be
subrogated to any and all rights, superior titles, liens and equities owned or
claimed by any owner or holder of any outstanding liens and debts, however
remote, regardless of whether said liens or debts are acquired by Lender, by
assignment or are released by the holder thereof upon payment.
25. PARTIAL INVALIDITY
In the event any portion of the sums intended to be secured by any
Security Instrument cannot be lawfully secured thereby, payments in reduction of
such sums shall be applied first to those portions not secured thereby.
26. REPRESENTATIONS OF BORROWERS
The Borrowers hereby represent and warrant to Lender and Collateral
Agent the following:
(A) Each Borrower (i) is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of Delaware
and in all jurisdictions in which qualification or licensing is required; and
(ii) has the power and authority to own, and lease its Property and conduct its
business as it is now conducted. There are no proceedings or actions pending,
threatened or contemplated for the liquidation, reorganization, termination or
dissolution of any Borrower.
(B) There have been no material adverse changes, financial or
otherwise, in the condition of any Borrower from that previously disclosed to
Lender and Collateral Agent by each Borrower, or in any supporting data
submitted in connection with the Loan, and all of the information contained
therein was true and correct in all material respects when submitted and is now
substantially materially true and correct on the date hereof.
(C) No proceedings in bankruptcy or insolvency have ever been
instituted by or against any Borrower or any affiliate thereof, and no such
proceeding is now pending or contemplated.
(D) Each Borrower, and the partners of each Borrower are solvent
pursuant to the laws of the United States and the state in which the Borrower is
organized, as reflected by the entries in such Borrower's books and records and
as reflected by the actual facts.
(E) The Note, the Security Instruments and the other Loan
Documents, and all other notes and loan documents evidencing all other
obligations of Borrowers to Lender, if any, have been duly authorized, executed
and delivered by Borrowers and constitute valid and binding obligations of
Borrowers, enforceable against Borrowers in accordance with their respective
terms, except as the enforcement of them may be limited by bankruptcy,
insolvency, moratorium and other applicable debtor relief laws, and by equitable
principles. No approval, consent, order or authorization of any governmental
authority and no designation, registration, declaration or filing with any
governmental authority is required in connection with the execution and delivery
of the Note, the Security Instruments or any of the Loan Documents, except as
may have already been obtained.
(F) The execution, delivery, and performance of the Loan Documents
will not violate or contravene in any way the organizational documents of any
Borrower or any indenture, agreement or instrument to which any Borrower is a
party or by which it or its property may be bound, or be in conflict with,
result in a breach of or constitute a default under any such indenture,
agreement or other instrument, or result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever upon any of the property or
assets of any Borrower, except as contemplated by the provisions of such
instrument, and no action or approval with respect thereto by any third person
is required.
(G) The proceeds of the Loan will be used by Borrowers to make a
distribution to partners of the Borrowers, and not for any other purpose.
(H) There is no litigation, legal or administrative proceeding,
investigation or other action of any nature commenced, pending, or, to
Borrowers' actual knowledge, threatened against or affecting any Borrower, its
Property or any interest or right therein which has not been disclosed in
writing to Lender and Collateral Agent and which may involve the possibility of
any judgment or liability not fully covered by insurance, or materially or
adversely affecting any of the assets of any Borrower or any Borrower's right to
carry on business as now conducted, or affecting the continued employment of any
officer or director of any Borrower.
(I) Each Borrower has good title to its Property and has the right
to mortgage, grant, bargain, sell, pledge, assign, warrant, transfer and convey
the same and each Borrower possesses a fee simple absolute estate in the Land
(as defined in the Security Instruments) and the Improvements (as defined in the
Security Instruments), and each Borrower owns its Property free and clear of all
liens, encumbrances and charges whatsoever except for those exceptions which are
shown in the title insurance policy insuring the lien of the Security
Instruments, or which are Permitted Encumbrances. Each respective Borrower shall
forever warrant, defend and preserve the title and the validity and priority of
the lien of its Security Instrument and shall forever warrant and defend the
same to Lender against the claims of all persons whomsoever.
(J) No portion of the improvements on the Properties is located in
an area identified by the Secretary of Housing and Urban Development or any
successor thereto as an area having special flood hazards pursuant to the Flood
Insurance Acts, or if any portion of the improvements is located within such
area; the applicable Borrower has obtained, or has caused the Tenant to obtain,
and will maintain the insurance prescribed in the applicable Lease.
(K) To each Borrower's actual knowledge, its Property is in good
repair and free of any material damage, waste or defective condition that would
materially and adversely affect the value of such Property in use under the
applicable Lease, and there is no proceeding pending for the total or partial
condemnation of its Property.
(L) Each Borrower has paid in full for, and is the owner of, all
furnishings, fixtures and equipment (other than Tenant's property) used in
connection with the operation of its Property, free and clear of any and all
security interests, liens or encumbrances, except for the lien and security
interest which are created by its Security Instrument, or are Permitted
Encumbrances.
(M) Each Borrower is not a "foreign person" within the meaning of
Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended and the
related Treasury Department regulations, including temporary regulations.
(N) (i) Each Borrower is the sole owner of the entire lessor's
interest in its Lease; (ii) its Lease is valid and enforceable and in full force
and effect; (iii) to each Borrower's actual knowledge, no party under its Lease
is in default; (iv) all Rents (as defined in the applicable Security Instrument)
due have been paid in full; (v) there are no modifications or amendments to any
Lease; (vi) none of the Rents reserved in any Lease have been assigned or
otherwise pledged or hypothecated except in connection with the applicable
Security Instrument; (vii) none of the Rents have been collected for more than
one (1) month in advance (except a security deposit shall not be deemed rent
collected in advance); (viii) there exist no offsets or defenses to the payment
of any portion of the Rents; (ix) each Borrower has received no notice from
Tenant challenging the validity or enforceability of its Lease; (x) there are no
agreements with the Tenant other than expressly set forth in the Leases or the
Loan Documents; (xi) each Lease is valid and enforceable against the respective
Borrower and the Tenant, except as the enforcement may be limited by bankruptcy,
insolvency, moratorium, and other applicable debtor relief laws and by equitable
principles; (xii) the options to purchase, rights of first refusal to purchase,
and similar provisions under each Lease shall not be modified without the
consent of Lender; (xiii) no person or entity has any possessory interest in, or
right to occupy, any Property except under and pursuant to the applicable Lease
and except to the extent that residents in the facilities may have certain
limited rights to occupancy by applicable state law; (xiv) each Lease may be
made to be subordinate to the related Security Instrument upon written request
of Lender, either pursuant to its terms or by a recordable subordination
agreement; (xv) all security deposits, if any, relating to each Lease have been
collected by the applicable Borrower; and (xvi) to each Borrower's actual
knowledge, no brokerage commissions or finders fees are due and payable
regarding its Lease.
(O) As of the date hereof and throughout the term of the Loan, (i)
each Borrower is not and will not be an "employee benefit plan" as defined in
Section 3(3) of ERISA, which is subject to Title I of ERISA, and (ii) the assets
of each Borrower do not and will not constitute "plan assets" of one or more
such plans for purposes of Title I of ERISA; and as of the date hereof and
throughout the term of the Loan (i) each Borrower is not and will not be a
"governmental plan" within the meaning of Section 3(3) of ERISA, and (ii)
transactions by or with each Borrower are not and will not be subject to
applicable state statutes regulating investments of and fiduciary obligations
with respect to such governmental plans.
(P) No part of the proceeds of the Loan will be used for the
purpose of paying for a portion of the costs of purchasing or acquiring any
"margin stock" within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System or for any other purpose which would be inconsistent
with such Regulation U or any other Regulations of such Board of Governors, or
for any purposes prohibited by legal requirements or by the terms and conditions
of the Security Instruments, the Note, this Agreement, any other security
instruments, or other Loan Documents.
(Q) Each Borrower is not (a) an "investment company" or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended; (b) a "holding company" or a "subsidiary
company" of a "holding company" or an "affiliate" of either a "holding company"
or a "subsidiary company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended; or (c) subject to any other federal or state
law or regulation which purports to restrict or regulate its ability to borrow
money.
(R) Each Borrower represents and warrants that the Collateral
Representations set forth in Exhibit B are true, accurate and complete.
(S) Each Borrower will cause Tenant to collaterally assign as
additional collateral its rights under the Operating Agreements and the
Threshold Guaranty, and each Borrower will obtain consent from the Operator for
such assignments.
27. BORROWERS' ADDITIONAL COVENANTS
Each Borrower hereby covenants, agrees and undertakes to:
(A) from time to time, at the reasonable request of Lender or
Collateral Agent, (i) promptly correct any patent defect or error which may be
discovered in the contents of this Agreement, the Security Instruments or any of
the other Loan Documents or in the execution or acknowledgment thereof; (ii)
execute, acknowledge, deliver and record and/or file such further documents or
Security Instruments (including without limitation, further mortgages, security
agreements, financing statements, continuation statements, and assignments of
rents or leases) and perform such further acts and provide such further
assurances as may be necessary, desirable or proper, in Lender's or Collateral
Agent's reasonable opinion, to carry out more effectively the purposes of this
Agreement and such other Security Instruments and to subject to the liens and
security interests hereof and thereof any property intended by the terms hereof
or thereof to be covered hereby or thereby, including specifically, but without
limitation, any renewals, additions, substitutions, replacements, or
appurtenances to the Properties; and (iii) execute, acknowledge, deliver,
procure, and file and/or record any document or Security Instruments (including
specifically, but without limitation, any financing statement) reasonably deemed
necessary by Lender or Collateral Agent to protect the liens and the security
interests herein granted against the rights or interests of third persons;
provided that such documents or Security Instruments do not increase such
Borrower's liability or obligations under the Loan Documents or cause a default
under any Lease. Borrowers will pay all reasonable costs connected with any of
the foregoing in this subparagraph (A), which are incurred for actual filing,
recording, or similar fees and costs;
(B) continuously maintain such Borrower's existence, if
applicable, as a bankruptcy remote special purpose entity (meeting the
requirements of paragraph 27(I)), and having as its general partner a
corporation or a limited liability company which meets the requirements of
paragraph 27(I), and which has at least one independent director whose vote is
required to authorize the filing on behalf of itself or the Borrower of a
bankruptcy, consent to an involuntary bankruptcy, or the commencement of any
other kind of insolvency proceeding, and such Borrower shall maintain its right
to do business, as applicable, in the states where it operates;
(C) at any time any law shall be enacted imposing or authorizing
the imposition of any tax upon any Security Instrument or any of the other Loan
Documents, or upon any rights, title, liens or security interests created
hereby, or upon the obligations secured hereby or any part thereof, pay all such
taxes within the applicable payment period; provided that, if such law as
enacted makes it unlawful for any Borrower to pay such tax, such Borrower shall
not pay nor be obligated to pay such tax, and in the alternative, such Borrower
may, in the event of the enactment of such a law, and must, if it is unlawful
for such Borrower to pay such taxes, prepay the obligations secured hereby in
full within one hundred twenty (120) days after demand therefor by Lender or
Collateral Agent, without penalty or premium;
(D) promptly pay all reasonable and bona fide out-of-pocket costs,
fees and expenses and other expenditures, including, but not limited to,
reasonable attorneys' fees and expenses, paid or incurred by Lender or
Collateral Agent to third parties incident to this Agreement, the Security
Instruments or any of the other Loan Documents (including, but not limited to,
reasonable attorneys' fees and expenses in connection with the negotiation,
preparation and execution hereof and of any other Loan Document and any
amendment hereto or thereto, any release hereof, any consent, approval or waiver
hereunder or under any other Loan Document, the making of any Loan under the
Note, and any suit to which Lender or Collateral Agent is a party involving this
Agreement or the Properties including any such fees incurred on appeal of such
suit and all Program Indemnities, as defined in the CP Loan Agreement, and all
Indemnified Liabilities, as defined in the Liquidity Agreement) or incident to
the enforcement of the obligations secured hereby or the exercise of any right
or remedy of the Lender or Collateral Agent under any Loan Document;
(E) after a Default, at its sole cost and expense, furnish Lender
or Collateral Agent with such title endorsements or updates to Lender's or
Collateral Agent's title insurance policy as Lender or Collateral Agent may
reasonably require, from time to time, to insure Lender or Collateral Agent that
no other matters of record affect the condition of title or the priority of
Lender's or Collateral Agent's lien;
(F) without limiting any other obligation of the Borrowers
hereunder, indemnify, hold harmless and insure the Lender, Affected Parties, and
Collateral Agent of and from any and all claim, liability, loss or damage
whatsoever, including without limitation reasonable attorneys' and paralegals'
fees and costs, arising from or in any way relating to the Properties, this
Agreement, the Security Instruments or any of the other the Loan Documents, save
only and except for any claim or loss arising from the gross negligence or
intentional breach or misconduct by Lender, Affected Parties, or Collateral
Agent;
(G) within five (5) business days after an officer of a Borrower
obtains actual knowledge of any failure or breach or violation or a Default
under this Agreement, provide Lender and Collateral Agent with written notice
thereof;
(H) keep the covenants set forth in the Security Instrument;
(I) not and shall not: (a) engage in any business or activity
other than the ownership, operation, maintenance, and disposition of its
Property as defined under and subject to this Agreement, (b) acquire or own any
material assets other than (i) its Property, and (ii) such incidental personal
property as is reasonably related to its ownership and leasing of its Property;
(c) merge into or consolidate with any person or entity or dissolve, terminate
or liquidate in whole or in part, transfer or otherwise dispose of all or
substantially all of its assets (except as permitted herein) or change its legal
structure, without in each case Lender's consent; (d) fail to preserve its
existence as an entity duly organized, validly existing and in good standing (if
applicable) under the laws of the jurisdiction of its organization or formation,
or without (1) the prior written consent of Lender and the Collateral Agent,
which consent shall not be unreasonably withheld, and (2) the prior written
consent of the credit rating agency or agencies approved by Voyager (the "Rating
Agency"), amend, modify, terminate or fail to comply with the provisions of such
Borrower's organizational documents; (e) own any subsidiary, or make any
investment in, any person or entity without the consent of Lender and Collateral
Agent; (f) commingle its assets with the assets of any of its partners, or
except as specifically permitted in the Operating Agreements and the Pooling
Agreement, any of its other Affiliates, principals or of any other person or
entity; (g) incur any debt, secured or unsecured, direct or contingent
(including guaranteeing any obligation), other than the Loan or evidenced by the
Note, if any, except as allowed hereunder; (h) fail to maintain its records,
books of account and bank accounts separate and apart from those of the
partners, members, shareholders, principals and affiliates of Borrower, and any
other person or entity; (i) enter into any contract or agreement with any
partners, members, principals and Affiliates of such Borrower, or any general
partner, managing member, principal or affiliate thereof, except upon terms and
conditions that are intrinsically fair and substantially similar to those that
would be available on an arms-length basis with third parties other than any
principal or Affiliate of such Borrower or any guarantor, or any general
partner, managing member, shareholder, principal or Affiliate thereof; (j) seek
the dissolution or winding up in whole, or in part, of such Borrower; (k)
maintain its assets in such a manner that it will be costly or difficult to
segregate, ascertain or identify its individual assets from those of any
partners, members, shareholders, principals and Affiliates of such Borrower, or
any general partner, managing member, principal or Affiliate thereof or any
other person; (l) hold itself out to be responsible for the debts of another
person, or guarantee any debt of its partners; (m) make any loans to any third
party; (n) fail either to hold itself out to the public as a legal entity
separate and distinct from any other entity or person or to conduct its business
solely in its own name in order not (i) to mislead others as to the identity
with which such other party is transacting business, or (ii) to suggest that
such Borrower is responsible for the debts of any third party (including any
partners, members, principals and Affiliates of such Borrower, or any general
partner, managing member, shareholder, principal of Affiliate thereof); (o) fail
to maintain adequate capital for the normal obligations reasonably foreseeable
in a business of its size and character and in light of its contemplated
business operations; (p) file or consent to the filing of any petition, either
voluntary or involuntary, to take advantage of any applicable insolvency,
bankruptcy, liquidation or reorganization statute, or make an assignment for the
benefit of creditors; or (q) become insolvent or fail to pay its debts and
liabilities from its assets as the same shall become due; (r) fail to pay its
own liabilities and expenses only out of its own funds; (s) fail to observe all
corporate, partnership, limited liability company or other organizational
formalities applicable to its form of organization; (t) fail to pay the salaries
of its own employees (if any) from its own funds and to maintain either a
sufficient number of employees or arm's length agreement(s) for necessary and
appropriate business activities and administration in light of its contemplated
business operations; (u) fail to allocate fairly and reasonably any overhead
expenses that are shared with an Affiliate, including paying for office space
and services performed by an employee of an Affiliate; (v) pledge its assets for
the benefit of any other person or entity; (w) identify itself as a division of
any other person or entity except as required for federal and state income tax
reporting; and (x) except as permitted in the Loan Documents, incur any
indebtedness other than trade debt; and
(J) hold appropriate meetings (or act by unanimous consent) to
authorize all appropriate actions, and in authorizing such actions, shall
observe all limited liability company, or partnership formalities, as
applicable.
28. GENERAL RECORDS AND SPECIAL REPORTING REQUIREMENTS
(A) Each Borrower agrees that the Lender is the collateral
assignee of all operating records, including but not limited to any and all
servicing agreements, files, documents, records, data bases, computer tapes,
copies of computer tapes, proof of insurance coverage, insurance policies,
appraisals, other closing documentation, payment history records, and any other
records relating to or evidencing the administration of the Property (the
"Records"), and (ii) the Borrower grants to the Lender a security interest in
all of the Borrower's rights relating to the Property and all Records to secure
the obligations under the Loan Agreements, and any other obligations of the
Borrower to the Lender. Each Borrower covenants to safeguard such Records and to
deliver them promptly to the Lender or its designee (including the Collateral
Agent) at the Lender's reasonable request.
(B) Each Borrower or the Operator shall provide to Lender and the
Collateral Agent a monthly Property Report on or before the fourth Tuesday of
each month and a copy of the report submitted to Tenant pursuant to the
Operating Agreement.
29. PERIODIC DUE DILIGENCE REVIEW
(A) Each Borrower acknowledges that the Lender, Century Capital
Markets, LLC, the Liquidity Agent, and Collateral Agent (as agents for the
Liquidity Providers and Voyager) have the right to perform continuing due
diligence reviews with respect to the Loan for purposes of verifying compliance
with the representations, warranties and specifications made hereunder, or
otherwise, and the Borrower agrees that upon reasonable (but no less than ten
(10) Business Days') prior notice (which prior notice shall not be required
after the occurrence and during the continuation of a Default), the Lender, the
Collateral Agent or its authorized representatives will be permitted during
normal business hours to examine, inspect, and make copies and extracts of, the
Loan files and any and all documents, records, agreements, instruments or
information relating to such Loan in the possession or under the control of the
Borrower. Each Borrower also shall make available to the Lender, Century Capital
Markets, LLC, the Liquidity Agent, the Collateral Agent a knowledgeable credit,
financial or accounting officer for the purpose of answering questions
respecting the Loan. Each Borrower further agrees that the Borrower shall
reimburse the Lender, Century Capital Markets, LLC, the Liquidity Agent, the
Collateral Agent for all reasonable out-of-pocket costs and expenses incurred by
the Lender, Century Capital Markets, LLC, the Liquidity Agent, the Collateral
Agent in connection with the Lender's, Century Capital Markets, LLC's, the
Liquidity Agent's, and Collateral Agent's activities pursuant to this Section,
provided, that the obligation of the Borrower to pay such costs and expenses
shall be limited to no more than one such due diligence review during each year
unless a Default has occurred.
30. ASSIGNMENT BY LENDER
This Agreement (and unless a contrary intention is expressly provided
therein, each other Loan Document) is freely assignable, in whole or in part, by
the Lender (with the consent of the Collateral Agent). The Lender's assignee
shall, to the extent of the assignment, be vested with all the powers and rights
of the Lender hereunder and under the other Loan Documents, and to the extent of
which assignment the assignee may fully enforce such rights and powers as the
holder hereof and all references to the Lender shall mean and refer to such
assignee. The Lender shall retain all rights and powers hereby given which are
not so assigned, transferred and/or delivered. Without limiting the foregoing,
the Borrowers understand and agree that the Lender intends to and may, from time
to time, sell, pledge, grant a security interest in and collaterally assign,
transfer and deliver or otherwise encumber or dispose of the Note, and the Loan
Documents and its rights and powers hereunder and thereunder, in whole or in
part, to the Collateral Agent. The Borrowers may not, in whole or in part,
directly or indirectly, assign this Agreement, the Security Instrument or any
other Loan Document or their rights hereunder or thereunder or delegate their
duties hereunder.
31. FINANCIAL INFORMATION
Each Borrower shall (a) gather any financial information reasonably
required by the Lender and Controlling Party in connection with such pledge and
assignment to the Collateral Agent at the request of Lender and Controlling
Party, (b) meet with representatives of the Lender and Controlling Party to
discuss the business and operations of the Borrower's Property, and (c)
cooperate with the reasonable requests of the Collateral Agent and Lender in
connection with all of the foregoing and the preparation of any offering
documents with respect thereof.
Each Borrower shall, upon Lender's or Collateral Agent's written
request therefor in connection with the pledge and assignment to Collateral
Agent, but not more frequently than annually, promptly deliver such financial
statements and related documentation prepared by an independent certified public
accountant as may be reasonably necessary and shall fully cooperate with the
Lender in connection with any assurances or other documents, which are deemed to
be reasonably necessary or convenient by Lender, requested from such Borrower
and consistent with the Borrower's obligations hereunder, in connection
therewith. Such Borrower shall not be required to bear the costs of preparation
of financial statements and related documentation prepared by an independent
certified public accountant in connection with such pledge and assignment
(unless such Borrower is otherwise having such financial statements and related
documents prepared) which exceed the requirements set forth in Paragraph 12 of
this Loan Agreement unless a Default shall have occurred and is continuing.
32. REFERENCES TO THE LEASE
It is understood and agreed that the terms and conditions of this
Agreement which make reference to the terms and conditions of the Lease herein
are intended to incorporate herein such lease terms and conditions by such
reference and such terms and conditions of the Lease, as incorporated, shall
survive and remain in full force and effect notwithstanding termination,
cancellation or surrender of the Lease.
33. APPOINTMENT AS ATTORNEY-IN-FACT
Each Borrower hereby irrevocably constitutes and appoints each of the
Collateral Agent and the Lender and any officer or agent thereof, with full
power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of such Borrower and in
the name of such Borrower or in its own name, from time to time in the
Collateral Agent's or the Lender's discretion, for the purpose of carrying out
the terms of this Loan Agreement, the Security Instruments and the Loan
Documents to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes of this Loan Agreement, the Security Instruments and the Loan
Documents, and, without limiting the generality of the foregoing, each Borrower
hereby gives each of the Collateral Agent and the Lender the power and right, on
behalf of such Borrower, without assent by, but with notice to, the Borrowers,
if a Default shall have occurred and be continuing, to do the following:
(i) in the name of any Borrower or its own name, or otherwise,
to take possession of and endorse and collect any checks, drafts, notes,
acceptances or other instruments for the payment of moneys due under any
insurance or with respect to any other Collateral and to file any claim or to
take any other action or proceeding in any court of law or equity or otherwise
deemed appropriate by the Collateral Agent or the Lender for the purpose of
collecting any and all such moneys due under any such insurance or with respect
to any other Collateral whenever payable;
(ii) to pay or discharge Taxes and Liens levied or placed on
or threatened against the Collateral; and
(iii) (A) to direct any party liable for any payment under
any Collateral to make payment of any and all moneys due or to become due
thereunder directly to the Collateral Agent or the Lender or as the Collateral
Agent or the Lender shall direct; (B) to ask or demand for, collect, receive
payment of and receipt for, any and all moneys, claims and other amounts due or
to become due at any time in respect of or arising out of any Collateral; (C) to
sign and endorse any invoices, assignments, verifications, notices and other
documents in connection with any of the Collateral; (D) to commence and
prosecute any suits, actions or proceedings at law or in equity in any court of
competent jurisdiction to collect the Collateral or any thereof and to enforce
any other right in respect of any Collateral; (E) to defend any suit, action or
proceeding brought against any Borrower with respect to any Collateral; (F) to
settle, compromise or adjust any suit, action or proceeding described in clause
(E) above and, in connection therewith, to give such discharges or releases as
the Collateral Agent or the Lender may deem appropriate; and (G) generally, to
sell, transfer, pledge and make any agreement with respect to or otherwise deal
with any of the Collateral as fully and completely as though the Collateral
Agent or the Lender were the absolute owner thereof for all purposes, and to do,
at the Collateral Agent or the Lender's option and the Borrowers' expense, at
any time, and from time to time, all acts and things which the Collateral Agent
or the Lender deems necessary to protect, preserve or realize upon the
Collateral and the Collateral Agent or the Lender's Liens thereon and to effect
the intent of the Loan Documents, all as fully and effectively as the Borrowers
might do.
Each Borrower hereby ratifies all that said attorney shall lawfully do
or cause to be done by virtue hereof. This power of attorney is a power coupled
with an interest and shall be irrevocable.
Each Borrower also authorizes the Lender, at any time and from time to
time, to execute, in connection with any sale provided for herein, any
endorsements, assignments or other instruments of conveyance or transfer with
respect to the Collateral.
The powers of attorney described in this Section 33 are coupled with an
interest and irrevocable, shall survive Borrowers' death or dissolution, and
shall not be affected by Borrowers' disability in any manner. As additional
security to Collateral Agent and Lender, Borrowers hereby authorize Collateral
Agent or Lender to sign and file financing statements at any time with respect
to any and all items of personalty included as a portion of the Properties,
which may be subject to a security interest pursuant to the UCC, without the
signature of Borrowers. Borrowers will, however, at any time on reasonable
request of Collateral Agent or Lender, sign financing statements, trust
receipts, security agreements or other agreements with respect to Collateral
Agent or Lender's security interests in such Properties. Upon the Borrowers'
failure to do so, Collateral Agent or Lender is authorized as the agent of
Borrowers to sign any such agreement which reasonably relate to Collateral Agent
or Lender's security interest in the Properties and do not otherwise increase
Borrowers' obligations under the Loan Documents. Borrowers agree to pay all
filing fees and to reimburse Collateral Agent and Lender all reasonable costs
and expenses of any kind incurred in any way in connection with establishing the
Collateral Agent's or Lender's security interest in such Properties.
The powers conferred on the Collateral Agent and the Lender are solely
to protect the Collateral Agent and the Lender's interests in the Collateral and
shall not impose any duty upon the Collateral Agent or the Lender to exercise
any such powers. The Collateral Agent and the Lender shall be accountable only
for amounts that it actually receives as a result of the exercise of such
powers, and none of the Collateral Agent, the Lender nor any of its officers,
directors, or employees shall be responsible to the Borrowers for any act or
failure to act hereunder, except for its own gross negligence or willful
misconduct.
Upon termination of this Loan Agreement and repayment to the Lender of
all amounts due and the performance of all obligations under the Loan Documents
the Lender and the Collateral Agent shall release their respective security
interests in any remaining Collateral; provided that if any payment, or any part
thereof, of any of the obligations is rescinded or must otherwise be restored or
returned by the Lender upon the insolvency, bankruptcy, dissolution, liquidation
or reorganization of any Borrower, or upon or as a result of the appointment of
a receiver, intervenor or conservator of, or a trustee or similar officer for,
any Borrower or any substantial part of its Property, or otherwise, this Loan
Agreement, all rights hereunder and the Liens created hereby shall continue to
be effective, or be reinstated, as though such payments had not been made.
34. RELEASE OR SUBSTITUTION OF COLLATERAL
(a) Generally. Any Borrower may obtain releases of the security
interest of the Lender and the Collateral Agent in all or any part of its
respective Collateral until the Collateral has been released by all Borrowers to
the extent, in the aggregate, of two sites (as listed on Schedule "A") by such
Borrower paying to Lender a sum of money equal to 120% of the amount of
principal of the Note allocable to the said Property which shall be determined
by taking the valuation for the specific Collateral being released as shown on
Schedule "A" divided by the aggregate of the valuation listed on Schedule "A" of
all Collateral (not previously released) and multiplying such fraction by the
current principal balance of the Note, together with all accrued interest, fees,
and other costs attributable thereto. When two sites have been released, no
further release shall be permitted, but substitutions pursuant to paragraph
34(e) may be permitted. Each request for a partial release of Collateral (a
"Release Request") shall be addressed to the Collateral Agent, certifying as to
compliance with the immediately preceding sentence and, if applicable,
acknowledging that the receipt of proceeds required by Lender and Collateral
Agent from such sale shall be deposited into the Collection Account in
accordance with this section. Such proceeds shall thereafter be disbursed when
the next disbursement is made from the Collection Account pursuant to the
requirements of Lender and the Collateral Agent.
(b) Releases. With respect to any release of Collateral permitted
by Sub-Section (a), the Lender and the Collateral Agent shall, upon the request
and at the expense of the respective Borrower (i) execute such releases as may
be reasonably requested by the Borrower to give effect to such release and (ii)
deliver, or instruct the Collateral Agent to deliver, any Documents relating
solely to the Collateral so released. A Borrower whose Property is released
pursuant to this Sub-Section shall be released of liability pursuant to the Note
and other Loan Documents.
(c) Continuation of Lien. With respect to any Collateral which is
to be released in connection with the sale or transfer of such Collateral to a
third party, the security interest in favor of the Collateral Agent in such
Collateral shall continue in effect until such time as the proceeds from such
sale or transfer have been deposited into the Collection Account in accordance
with this Agreement. Such funds shall thereafter be disbursed when the next
disbursement is made from the Collection Account.
(d) Representation in Connection with Releases. Each Release
Request delivered by a Borrower hereunder with respect to a release described in
this Section 34 shall be deemed to constitute a representation and warranty to
the Collateral Agent and Lender to the effect that immediately before and after
giving effect to such release, no event or circumstance has occurred which
constitutes a Default.
(e) Substitution. In the event a Borrower determines that it
wishes to substitute under this Loan Agreement an equivalent property for the
Property which it owns, then the Borrower shall, within 90 days of such
determination, substitute one or more substantially equivalent properties
provided that the property or properties being substituted shall have an
aggregate current market value as appraised (by an MAI appraiser in the area of
its Property) equal to or greater than the Property to be removed from the
Collateral in connection with such substitution. Such condition shall be called
the "Required Value". Any such substitution shall be made on notice from the
Borrower to the Collateral Agent specifying (i) the effective date of such
substitution, which shall be a Business Day, (ii) the Property which is to be
removed from the Collateral in connection with such substitution and the
appraisal thereof and (iii) the properties which are to be added to the
Collateral in connection with such substitution and the aggregate appraisal
thereof. Original appraisals and other pertinent information shall be supplied
with this Notice. Any such addition of an equivalent Property or Properties
shall be made in accordance with this Section. Equivalent property shall be of
the same type and condition. Upon the Collateral Agent's receipt of such
customary opinions and other closing documentation with respect to such
substituted property satisfactory to the Collateral Agent in its reasonable
discretion and confirmation that the Property or Properties having the Required
Value have been so added to the Collateral and that it is a satisfactorily
equivalent Property, the Property which is the subject of such substitution
shall be deemed to have been released from the Collateral. With respect to any
Property so released from the Collateral, the Collateral Agent shall, upon the
request of, and at the expense of the Borrower, (i) execute such releases as may
be reasonably requested by the Borrower to give effect to such release and (ii)
deliver any documents relating solely to the Property so released.
35. DEFINITIONS
Unless the context otherwise specifies or requires, the following terms
shall have the meanings herein specified, such definitions to be applicable
equally to the singular and the plural forms of such terms.
"Actual knowledge" means, with respect to each Borrower, the actual
knowledge of an officer of the general partner of such Borrower.
"Adjusted LIBO Rate" means, for a LIBO Rate Loan and the relevant
Interest Period, the rate of interest equal to the quotient of (i) the rate
determined by the Liquidity Agent at which Dollar deposits for such Interest
Period in amount equal, or approximately equal, to the amount of the Loan to be
funded are offered by the Liquidity Agent based on information presented on
Telerate Page 3750 as of 11:00 a.m. London time on the second Business Day prior
to the first day of such Interest Period, divided by (ii) a number equal to 1.00
minus the LIBO Reserve Percentage, if applicable.
"Affected Party" means each of the Lender, Voyager, each Liquidity
Provider, Collateral Agent, any permitted assignee or participant of the Lender
or any Liquidity Provider, the Liquidity Agent, the Voyager Administrator and
any permitted assignee or participant thereof.
"Affiliate" means, with respect to any designated Person, any Person
that, directly or indirectly, controls or is controlled by or is under common
control with such designated Person and any Person of which or whom the
designated Person is a director or officer, partner, trustee, or blood or legal
relative, guardian or representative, or with respect to which or whom, the
designated Person acts or serves in a similar capacity, and any Person, who,
directly or indirectly, is the legal or beneficial owner of or controls 10% or
more of any class of equity securities of the designated Person. For the
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlled by" and "under common control with"), as used with respect
to any Person, shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise.
"Base Rate" means, on any date, a fluctuating interest rate per annum
equal to the per annum rate of interest announced from time to time by the
Liquidity Agent as its "base rate" or "prime commercial lending rate". The Base
Rate is not necessarily intended to be the lowest rate of interest determined by
the Liquidity Agent in connection with extensions of credit.
"Borrower" has the meaning ascribed to such term in the first paragraph
of the preamble of this Agreement.
"Business Day" means a day of the year other than a Saturday or Sunday
on which (a) banks are required to be open in New York City, St. Xxxx,
Minnesota, or Wilmington, Delaware and on which The Depository Trust Company
conducts business and (b) if the term "Business Day" is used in connection with
the Adjusted LIBO Rate, dealings are carried on generally in the London
interbank Eurodollar market.
"Chattel Paper" has the meaning ascribed to such term under the Uniform
Commercial Code.
"Code" has the meaning ascribed to such term in paragraph 18 of this
Agreement.
"Collateral Agent" means initially U.S. Bank, National Association, in
its capacity as Collateral Agent under the CP Loan Agreement, the Collateral
Agent Security Agreement of the Liquidity Agreement, as the case may be, and any
successors in such capacities.
"Collateral Agent Security Agreement" means the Security Agreement
dated as of the Closing Date between the Lender, as grantor, and the Collateral
Agent, as secured party, and acknowledged by Voyager and the Liquidity Agent, as
the same may be amended, restated, supplemented or otherwise modified from time
to time.
"Collateral Agent Security Instruments" means all documents granting a
security interest or assigning rights or otherwise pledging the assets of Lender
to Collateral Agent to secure the indebtedness of Lender to Voyager, the
Liquidity Providers and the other parties to the CP Loan Agreement and Liquidity
Agreement.
"Commercial Paper Holders" means the holders from time to time of the
Commercial Paper Notes.
"Commercial Paper Note" means any short term promissory notes issued by
Voyager having an original maturity of 270 days or less (including the date of
issuance thereof), whether designated as a source of funding for the making of
the advances by Voyager under the CP Loan Agreement or under any other financing
agreement to which Voyager is a party or by the terms of which Voyager is bound.
"Contracts" means all contracts and agreements to which the Borrowers
now are, or hereafter will be, bound, or a party, beneficiary or assignee (other
than rights evidenced by Chattel Paper, Documents, the Security Instrument or
other Security Instruments) including without limitation, any franchise
agreement and any license and all other agreements and documents executed and
delivered with respect to such contracts, and all revenues, rentals and other
sums of money due and to become due thereunder from any of the foregoing.
"Controlling Party" shall have the meaning ascribed to such term in the
Collateral Agent Security Agreement.
"CP Lender" means Voyager.
"CP Loan Agreement" means the CP Loan Agreement dated as of the Closing
Date, between the Lender and Voyager, as the same may be amended, restated,
supplemented or otherwise modified from time to time hereafter in accordance
with the terms hereof.
"CP Loan Obligations" means all obligations of the Lender to the CP
Lender under the CP Loan Agreement, including, without limitation, all
obligations of the Lender to pay (a) principal and interest in respect of each
CP Loan, (b) the Program Costs and Program Indemnities (as defined in the CP
Loan Agreement), and (c) any other amounts payable by the Lender thereunder.
"CP Rate" means, with respect to any portion of the Loan funded by
Lender under the CP Loan Agreement and each Interest Period, a rate per annum
equal to the rate or, if more than one rate, the weighted average of the rates,
determined by converting to an interest-bearing equivalent rate per annum the
discount rate (or rates) at which Commercial Paper Notes were issued to fund the
Loan (which, for absence of doubt, includes the commissions and charges charged
by any placement agent with respect to such Commercial Paper Notes) plus any
reasonable margin charged by Voyager to allow it to repay the face amount of any
such Commercial Paper Notes required to be issued by it due to the Voyager's
minimum issuance requirements in respect of Commercial Paper Notes.
For the purposes of this definition, "interest-bearing equivalent rate
per annum" of a discount rate (a "discount rate") for the Commercial Paper Notes
of a given day's maturity shall be equal to the quotient (rounded upwards to the
next higher 1/100th (0.01) of 1%) of:
(A) the discount rate (expressed as a decimal) divided by;
(B) the difference between;
(X) 1.00; and
(Y) a fraction, the numerator of which shall be the
product of the discount rate (expressed as a decimal)
times the number of days in which such Commercial
Paper Notes mature and the denominator of which shall
be 360.
"Debt" shall mean the obligations of Borrowers under the Note and this
Loan Agreement.
"Default" has the meaning ascribed to such term in paragraphs 18, 19
and 23 of this Agreement.
"Document" has the meaning ascribed to such term under the UCC and
which relate to the Properties.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Face Amount" means in relation to any Commercial Paper Note (a) if
issued on a discount basis, the amount due at maturity thereof and (b) if issued
on an interest-bearing basis, the principal amount stated therein plus the
amount of all interest scheduled to accrue thereon through its stated maturity
date.
"Federal Funds Rate" means, for any day, a fluctuating interest rate
per annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day, the
average of the quotations for such day for such transactions received by the
Liquidity Agent from three Federal funds brokers of recognized standing selected
by it.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System, or any successor thereto or to the functions thereof.
"Funding Date" means the date of the advance of the Loan by Lender.
"Interest Period" means with respect to the Loan and any Payment Date,
the period from the prior Payment Date (or the Closing Date in the case of the
first Payment Date) to but excluding such Payment Date.
"LIBO Reserve Percentage" means, for any day, the maximum rate
(expressed as a decimal) at which any lender subject thereto would be required
to maintain reserves under Regulation D of the Board of Governors of the Federal
Reserve System (or any successor or similar regulations relating to such reserve
requirements) against Eurocurrency Liabilities, if such liabilities were
outstanding. The LIBO Reserve Percentage shall be adjusted automatically on and
as of the effective date of any change therein.
"Lien" means any mortgage, pledge, security interest, hypothecation,
collateral assignment, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including without limitation, any conditional sale or other
title retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of any financing
statement under the UCC).
"Liquidity Agent" means Bayerische Hypo-Und Vereinsbank AG, New York
Branch, as agent for the Liquidity Providers under the Liquidity Agreement, or
any successor in such capacity.
"Liquidity Agreement" means the Liquidity Agreement dated May 31, 2002,
among the Lender, the Liquidity Agent and the Liquidity Providers, as amended,
supplemented or otherwise modified from time to time.
"Liquidity Providers" means the liquidity institutions from time to
time that are parties to the Liquidity Agreement, including any participant
thereof.
"Loan" has the meaning ascribed to such term in the first WHEREAS
clause of this Agreement.
"Loan Documents" has the meaning ascribed to such term in the fourth
WHEREAS clause of this Agreement.
"MAI Appraisal" shall mean an MAI Appraisal performed by an appraiser
satisfactory to the Lender and Collateral Agent, which appraisal shall be in
form and substance satisfactory to Lender and Collateral Agent.
"Margin" means (i) with respect to any portion of the Loan funded at
the CP Rate, 1.625%, (ii) with respect to any portion of the Loan funded at the
Adjusted LIBO Rate, 2.5%, and (iii) with respect to any portion of the Loan
funded at the Base Rate, one-half percent (0.5%).
"Maturity Date" has the meaning ascribed to such term in the Note.
"Note" has the meaning ascribed to such term in the fourth WHEREAS
clause of this Agreement.
"Operating Agreement" shall mean an Operating Agreement dated May 16 or
17, 2002, between Operator and Tenant with respect to a Property.
"Operator" shall be Marriott Senior Living Services, Inc., a Delaware
corporation.
"Payment Date" means the fourth Thursday of each calendar month or, in
the event that such day of a month is not a Business Day, the next Business Day.
"Permitted Encumbrances" means (i) liens created by the Loan Documents;
(ii) liens for taxes not yet due and payable; (iii) liens imposed by law
incurred in the ordinary course of business, such as warehousemen's, mechanics
and materialman's liens (provided such liens are promptly cured, released,
bonded off or adequate reserves (in accordance with Generally Accepted
Accounting Principles) have been set aside therefor); (iv) liens for workers'
compensation, unemployment insurance and similar payments arising in the
ordinary course of business and relating to payments which are not yet
delinquent or are being contested; (v) liens expressly permitted by the
Controlling Party at closing; (vi) other easements, rights-of-way, restrictions,
minor defects in title and similar matters (including those which do not
diminish, in any material respect, the value of the Property in question or
impair, in any material respect, the priority of the liens created by the Loan
Documents) related to the Property in question and are otherwise included in the
title policy related to such Property; and (vii) the Leases and any other leases
or subleases permitted under this Agreement.
"Person" means any individual, corporation, partnership, unincorporated
association, firm, trust, joint stock company, joint venture or other entity of
whatever nature.
"Pooling Agreement" shall mean that certain Pooling Agreement, dated
May 16, 2002, among Borrowers, affiliates of Borrowers, Tenant, and Operator.
The term "Pooling Agreement," as used in this Agreement, shall include any
amendments, modifications, supplements, replacements or extensions of the
original Pooling Agreement.
"Post-Default Rate" for any period, shall equal the Base Rate for such
period plus two percent (2%) per annum.
"Program Costs" means the general operating costs of the Lender and the
Affected Parties related to this Agreement and set forth on Exhibit "C".
"Property" means a Borrower's fee interest or, if the Borrower's
interest is pursuant to a lease interest, such leasehold interest in the real
estate described in the Lease, including without limitation, the Borrower's
interest as landlord under the Lease, and "Properties" means more than one
Property.
"Property Report" shall be a written report in the general form set
forth in the attached Exhibit "D".
"Rate" means, for any period, (i) if the Loan (or any portion thereof)
is being funded by the Lender under the CP Loan Agreement, the CP Rate and (ii)
if the Loan (or any portion thereof) is being funded by the Lender under the
Liquidity Agreement, the Adjusted LIBO Rate (or if the Adjusted LIBO Rate is not
available or applicable in accordance with the terms of the Liquidity Agreement,
the Base Rate); provided, however, that following the occurrence of a Default,
the "Rate" shall equal the Post-Default Rate.
"Rating Agency" means any nationally recognized statistical rating
agency that rates the commercial paper being issued by Voyager, or its successor
in interest.
"Regulation D" means Regulation D of the Federal Reserve Board, or any
other regulation of the Federal Reserve Board that prescribes reserve
requirements applicable to nonpersonal time deposits or "Eurocurrency
Liabilities" as presently defined in Regulation D, as in effect from time to
time.
"Regulatory Change" means, relative to any Affected Party
(a) any change in (or the adoption, implementation, change in
phase-in or commencement of effectiveness of) any
(i) United States federal or state law or foreign law
applicable to such Affected Party;
(ii) regulation, interpretation, directive,
requirement or request (whether or not having the force of
law) applicable to such Affected Party of (a) any court,
government authority charged with the interpretation or
administration of any law referred to in clause (a)(i) or of
(b) any fiscal, monetary or other authority having
jurisdiction over such Affected Party; or
(iii) generally accepted accounting principles or
regulatory accounting principles applicable to such Affected
Party and affecting the application to such Affected Party of
any law, regulation, interpretation, directive, requirement or
request referred to in clause (a)(i) or (a)(ii) above;
(iv) any requirement of any Rating Agency applicable
to such Affected Party; or
(b) any change in the application to such Affected Party
of any existing law, regulation, interpretation, directive, requirement, request
or accounting principles referred to in clause (a)(i), (a)(ii) or (a)(iii)
above.
"Rental Payments" means, for any period, with respect to, all of
Tenant's rent payment under the Lease.
"Rents" means, with respect to a Property which is subject to a Lease,
all of the payment obligations thereunder, including the payment of all rents by
the tenant under the Lease.
"Required Principal Payment" means with respect to any Payment Date,
(i) following the occurrence of a Default and acceleration of the Notes or on
any Payment Date on or after the Termination Date, the entire outstanding
principal amount of the Loan, and (ii) following the deposit into the Collection
Account of any amounts representing insurance proceeds under paragraph 9, sales
proceeds under paragraph 34(a), or condemnation proceeds under paragraph 13
since the prior Payment Date, an amount equal to that portion of the Note
allocable to the related Property for which the insurance proceeds have been
paid.
"Security Instrument" has the meaning set forth in the fourth WHEREAS
clause of this Agreement.
"Tax Code" means the Internal Revenue Code of 1986, as amended.
"Taxes" means any taxes payable to any governmental body.
"Termination Date" means the earliest of:
(a) the date that the Termination Date is declared pursuant to
paragraph 19 or 23 of this Agreement;
(b) the date which becomes the Termination Date under
paragraph 18 of this Agreement; and
(c) the Maturity Date of the Note.
"Transaction Documents" means the documents listed on Schedule C.
"UCC" shall mean the Uniform Commercial Code as adopted in the State
where the Properties are located.
"Voyager Administrator" means U.S. Bank National Association, in its
capacity as "Administrator" under the Administration Agreement of Voyager, and
any successor thereto in such capacity.
36. NO PROCEEDINGS
Each Borrower hereby agrees (which agreement shall, pursuant to the
terms of this Agreement, be binding upon its successors and assigns) that it
shall not institute against, or join any other Person in instituting against,
the Lender or Voyager any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding, or other proceeding under any federal or state
bankruptcy or similar law, for one year and a day after, in the case of the
Lender, the latest maturing CP Loan (as defined in the CP Loan Agreement) made
by Voyager under the CP Loan Agreement is paid and the Cp Loan Agreement has
terminated and, in the case of Voyager, the latest maturing Commercial Paper
Note (whether or not issued to fund the making of any CP Loans under the CP Loan
Agreement) issued by Voyager is paid. The provisions of this Section 36 shall
survive the termination of this Agreement.
37. WAIVER OF JURY TRIAL
TO THE EXTENT PERMITTED BY APPLICABLE LAW, BORROWERS AND LENDER BY
THEIR ACCEPTANCE HEREOF, FOR THEMSELVES AND FOR EACH HOLDER HEREOF, HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY AGREE, THAT:
(A) NEITHER BORROWERS NOR LENDER, NOR ANY ASSIGNEE, SUCCESSOR,
HEIR OR LEGAL REPRESENTATIVE OF ANY OF THE SAME, SHALL SEEK A JURY TRIAL IN ANY
LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER LITIGATION PROCEDURE ARISING
FROM OR BASED UPON THE NOTE, THIS AGREEMENT, THE SECURITY INSTRUMENTS OR ANY
OTHER LOAN DOCUMENT EVIDENCING, SECURING OR RELATING TO THE OBLIGATIONS OR TO
THE DEALINGS OR RELATIONSHIP BETWEEN OR AMONG THE PARTIES THERETO;
(B) NEITHER BORROWERS NOR LENDER SHALL SEEK TO CONSOLIDATE ANY
SUCH ACTION, IN WHICH A JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION IN
WHICH A JURY TRIAL HAS NOT BEEN OR CANNOT BE WAIVED;
(C) THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE
BORROWERS AND LENDER, AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS;
(D) NEITHER BORROWERS NOR LENDER HAVE IN ANY WAY AGREED WITH OR
REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE
FULLY ENFORCED IN ALL INSTANCES;
(E) IN NO EVENT SHALL LENDER BE RESPONSIBLE OR LIABLE FOR CONSEQUENTIAL
OR PUNITIVE DAMAGES TO THE EXTENT PERMITTED BY LAW; AND
(F) THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER TO ENTER
INTO THIS TRANSACTION AND IS SEPARATELY GIVEN, KNOWINGLY AND VOLUNTARILY WITH
THE BENEFIT OF COMPETENT LEGAL COUNSEL.
38. MISCELLANEOUS
(A) Time shall be of the essence with respect to all of Borrowers'
obligations under the Note, this Agreement, the Security Instruments, and the
other Loan Documents.
(B) In the event that the Lender should become the owner of a
Property, there shall be no merger of the estate created by the Security
Instrument relating to such Property with the estate of any other interest in
the Property.
(C) The Note, this Agreement, the Security Instruments, and the
Loan Documents may not be changed, amended or modified, except in a writing
expressly intended for such purpose and executed by the parties hereto which are
to be bound by such modification.
(D) The Note, this Agreement, the Security Instruments, and the
other Loan Documents are intended to and shall be deemed to create only the
relationship of a borrower and a lender between Borrowers and Lender, and are
not intended to nor shall they be construed to create a joint venture or any
relationship other than the relationship of borrower and lender.
(E) The liability of each of the parties named as the Borrowers
hereunder, if more than one, and every other party who or which is or may become
liable hereunder is and shall be joint and several in all respects.
(F) Whenever possible this Agreement and each provision hereof
shall be interpreted in such manner as to be effective, valid and enforceable
under applicable law. Any provisions of this Agreement which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. In addition, any determination that the application of any
provision hereof to any person or under any circumstance is illegal and
unenforceable shall not affect the legality, validity and enforceability of such
provision as it may be applied to any other person or in any other circumstance.
(G) The Powers of Attorney granted to Collateral Agent and Lender
pursuant to this Agreement, or other related Loan Document shall be
automatically terminated upon the irrevocable payment of the Note and release of
the Security Instruments.
(H) From time to time, at the reasonable request of Lender or
Collateral Agent, Borrowers agree to promptly correct any patent defect or error
which may be discovered in the contents of this Agreement, the Security
Instruments or in the other Loan Documents or in the execution or acknowledgment
thereof.
(I) Each and all of the obligations shall survive the execution
and delivery of the Loan Documents and the consummation of the loan called for
therein and shall continue in full force and effect until the indebtedness shall
have been paid in full.
(J) This Agreement may be executed in any number of duplicate
originals and each duplicate original shall be deemed to be an original. This
Agreement may be executed in several counterparts, or with counterpart signature
pages to be attached to the original, and each of which counterparts shall be
deemed an original instrument and all of which together shall constitute a
single Agreement. The failure of any party hereto to execute this Agreement, or
any counterpart hereof, shall not relieve the other signatories from their
obligations hereunder.
(K) Notwithstanding any provisions of this Agreement which impose
on the Lender an obligation at any time to make any payment to any other party,
the rights of recourse of each other party shall be limited to the funds
received by the Lender, subject to any payments which may be required to be made
pursuant to the CP Loan Agreement, the Liquidity Agreement or the Security
Agreement. If and to the extent that the amounts in the preceding sentence are
insufficient to pay all amounts owing with respect to the obligations hereunder,
the other parties hereto shall not have any claim (as defined in Section 101(5)
of the United States Bankruptcy Code) with respect to such insufficiency against
the Lender or any of its assets or properties until such time (if any) as the
Lender shall have such funds to pay such amounts, and the other parties hereto
hereby waive any such claim. The provisions of this subsection shall survive
termination of this Agreement.
39. LIMITATION ON LIABILITY.
Borrowers shall have no personal liability under the Loan Documents and
Lender's sole and exclusive remedy shall be to realize upon the Properties and
other collateral for the Note and other Loan Documents.
40. THE COLLATERAL AGENT.
Each of the parties hereto acknowledges and agrees as follows:
1. Pursuant to the CP Loan Agreement, the Collateral Agent has
been appointed to act on behalf of and as the agent for Voyager,
pursuant to the Collateral Agent Security Agreement, the Collateral
Agent has been appointed to act on behalf of and as agent for each of
the Liquidity Providers, Liquidity Agent and Voyager, and pursuant to
the Liquidity Agreement, the Collateral Agent has been appointed to act
on behalf of and as agent for the Liquidity Providers, in each case
with respect to this Agreement and the other Transaction Documents:
2. The Collateral Agent shall only act under this Agreement and
any other Transaction Document as directed in accordance with the CP
Loan Agreement, the Collateral Agent Security Agreement or the
Liquidity Agreement; and.
3. In taking any actions or performing any duties under this
Agreement or any other Transaction document, the Collateral Agent shall
be governed by , and be entitled to the protections provided in,
Sections 7.01 and 7.02 of the CP Loan Agreement, Sections 7.1 and 7.2
of the Collateral Agent Security Agreement, and Sections 7.01 and 7.02
of the Liquidity Agreement.
Notwithstanding such appointment, the Collateral Agent or its
Affiliates may also serve in other capacities (including, without limitation, as
Liquidity Agent of Liquidity Provider) and enter into transactions with the
Borrowers, the Lender, the Liquidity Agent, the CP Lender, the Liquidity
Providers or any of their Affiliates.
SIGNATURES APPEAR ON FOLLOWING PAGE
IN WITNESS WHEREOF, the parties have executed this Agreement and have
caused the same to be executed by their respective representatives thereunto
duly authorized.
"BORROWER"
Signed, Sealed and Delivered
in the presence of: CNL Retirement Clayton OH, LP,
a Delaware limited partnership
By: CNL Retirement MA1 GP, LLC, a Delaware limited
/s/ Xxxxxxxxx X. Xxxxxxx liability company, its sole general partner
-------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
By: /s/ Xxxxxxx X. Xxxx
/s/ Xxxxxx X. Xxxxxxx ------------------------
------------------------------- Name: Xxxxxxx Xxxx
Name: Xxxxxx X. Xxxxxxx As its: Vice President
STATE OF North Carolina
COUNTY OF Mecklenburg
The foregoing instrument was acknowledged before me this 31st of May
2002, by Xxxxxxx X. Xxxx, as Vice President of CNL Retirement MA1 GP, LLC, a
Delaware limited liability company, as sole general partner of CNL RETIREMENT
CLAYTON OH, LP, a Delaware limited partnership, on behalf of the partnership.
He/She is personally known to me or produced N/A as identification.
(NOTARY SEAL) Notary Public, State of North Carolina
Printed Name: Xxxxxx X. Xxxxxx
Notary Commission No.:
My Commission Expires: 06/11/2003
"BORROWER"
Signed, Sealed and Delivered
in the presence of: CNL Retirement Laguna Creek
CA, LP, a Delaware limited partnership
By: CNL Retirement MA1 GP, LLC, a Delaware limited
/s/ Xxxxxxxxx X. Xxxxxxx liability company, its sole general partner
--------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
By: /s/ Xxxxxxx X. Xxxx
/s/ Xxxxxx X. Xxxxxxx -----------------------------
-------------------------------- Name: Xxxxxxx Xxxx
Name: Xxxxxx X. Xxxxxxx As its: Vice President
STATE OF North Carolina
COUNTY OF Mecklenburg
The foregoing instrument was acknowledged before me this 31st of May
2002, by Xxxxxxx X. Xxxx, as Vice President of CNL Retirement MA1 GP, LLC, a
Delaware limited liability company, as sole general partner of CNL RETIREMENT
LAGUNA CREEK CA, LP, a Delaware limited partnership, on behalf of the
partnership. He/She is personally known to me or produced ___N/A____ as
identification.
(NOTARY SEAL) Notary Public, State of North Carolina
Printed Name: Xxxxxx X. Xxxxxx
Notary Commission No.:
My Commission Expires: 06/11/2003
"BORROWER"
Signed, Sealed and Delivered
in the presence of: CNL Retirement Camarillo CA, LP, a Delaware limited
partnership
By: CNL Retirement MA1 GP, LLC, a Delaware limited
/s/ Xxxxxxxxx X. Xxxxxxx liability company, its sole general partner
-------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
By: /s/ Xxxxxxx X. Xxxx
/s/ Xxxxxx X. Xxxxxxx ---------------------------
------------------------------- Name: Xxxxxxx Xxxx
Name: Xxxxxx X. Xxxxxxx As its: Vice President
STATE OF North Carolina
COUNTY OF Mecklenburg
The foregoing instrument was acknowledged before me this 31st of May
2002, by Xxxxxxx X. Xxxx, as Vice President of CNL Retirement MA1 GP, LLC, a
Delaware limited liability company, as sole general partner of CNL RETIREMENT
CAMARILLO CA, LP, a Delaware limited partnership, on behalf of the partnership.
He/She is personally known to me or produced ____N/A_____ as identification.
(NOTARY SEAL) Notary Public, State of North Carolina
Printed Name: Xxxxxx X. Xxxxxx
Notary Commission No.:
My Commission Expires: 06/11/2003
"BORROWER"
Signed, Sealed and Delivered
in the presence of: CNL Retirement Dartmouth MA,
LP, a Delaware limited partnership
By: CNL Retirement MA1 GP, LLC, a Delaware limited
/s/ Xxxxxxxxx X. Xxxxxxx liability company, its sole general partner
-------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
By: /s/ Xxxxxxx X. Xxxx
/s/ Xxxxxx X. Xxxxxxx -------------------------------
-------------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxxx Xxxx
As its: Vice President
STATE OF North Carolina
COUNTY OF Mecklenburg
The foregoing instrument was acknowledged before me this 31st of May
2002, by Xxxxxxx X. Xxxx, as Vice President of CNL Retirement MA1 GP, LLC, a
Delaware limited liability company, as sole general partner of CNL RETIREMENT
DARTMOUTH MA, LP, a Delaware limited partnership, on behalf of the partnership.
He/She is personally known to me or produced ____N/A____ as identification.
(NOTARY SEAL) Notary Public, State of North Carolina
Printed Name: Xxxxxx X. Xxxxxx
Notary Commission No.:
My Commission Expires: 06/11/2003
"BORROWER"
Signed, Sealed and Delivered
in the presence of: CNL Retirement Towson MD, LP,
a Delaware limited partnership
By: CNL Retirement MA1 GP, LLC, a Delaware limited
/s/ Xxxxxxxxx X. Xxxxxxx liability company, its sole general partner
-------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
By: /s/ Xxxxxxx X. Xxxx
/s/ Xxxxxx X. Xxxxxxx -------------------------------
-------------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxxx Xxxx
As its: Vice President
STATE OF North Carolina
COUNTY OF Mecklenburg
The foregoing instrument was acknowledged before me this 31st of May
2002, by Xxxxxxx X. Xxxx, as Vice President of CNL Retirement MA1 GP, LLC, a
Delaware limited liability company, as sole general partner of CNL RETIREMENT
TOWSON MD, LP, a Delaware limited partnership, on behalf of the partnership.
He/She is personally known to me or produced ___N/A___ as identification.
(NOTARY SEAL) Notary Public, State of North Carolina
Printed Name: Xxxxxx X. Xxxxxx
Notary Commission No.:
My Commission Expires: 06/11/2003
"LENDER"
Signed, Sealed and Delivered
in the presence of: Five Pack Retirement 2002, LLC, a Delaware limited
liability company
/s/ Xxxxxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------- -------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxx
/s/ Xxxxxxxxxxx X. Xxxx As its: President
-------------------------------
Name: Xxxxxxxxxxx X. Xxxx
STATE OF New York.
COUNTY OF Westchester
The foregoing instrument was acknowledged before me this May 30, 2002,
by Xxxxxx X. Xxxxx, as President of FIVE PACK RETIREMENT 2002, LLC, a Delaware
Limited Liability Company. He/She is personally known to me.
(NOTARY SEAL) Notary Public, State of New York
Printed Name: Xxxxxxxx Xxxxxx
Notary Commission No.: 01MO6058075
My Commission Expires: 04/30/2003
"COLLATERAL AGENT"
Signed, Sealed and Delivered
in the presence of: U.S. BANK, NATIONAL ASSOCIATION,
a national banking association, not in its
individual capacity but solely as Collateral
Agent
/s/ Xxxx Xxxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxxx By: /s/ Xxx X. Xxxxxx
-------------------------------
/s/ Xxxxxx Xxxxxxx-Xxxx Name: Xxx X. Xxxxxx
------------------------------- As its: Vice President
Name: Xxxxxx Xxxxxxx-Xxxx
STATE OF Minnesota
COUNTY OF Xxxxxx
The foregoing instrument was acknowledged before me this
_______________, by Xxx X. Xxxxxx, as Vice President of U.S. BANK, NATIONAL
ASSOCIATION. He/She is personally known to me or produced
___________________________ as identification.
(NOTARY SEAL) Notary Public, State of Minnesota
Printed Name: Xxxxx Xxxxxxx
Notary Commission No.:
My Commission Expires: 01/31/2006
